Com. v. Moose

• Decision Date: 22 January 1992
• Citation: 602 A.2d 1265,529 Pa. 218
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Carlos Eugene MOOSE, Jr., Appellee.
• Court: Pennsylvania Supreme Court

Page 1265

602 A.2d 1265

529 Pa. 218

COMMONWEALTH of Pennsylvania, Appellant, v. Carlos Eugene MOOSE, Jr., Appellee.

Supreme Court of Pennsylvania.

Submitted May 6, 1991.

Decided Jan. 22, 1992.

[529 Pa. 221] H. Stanley Rebert, Dist. Atty., for appellant.

Allen H. Smith, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The principal question we are called upon to decide is whether statements surreptitiously obtained by a jailhouse informant from appellee awaiting trial violated appellee's Sixth Amendment rights when admitted against him in that trial, where the informant was acting pursuant to "an implied understanding" with the district attorney. For the reasons that follow, we hold that appellee's Sixth Amendment rights were violated, that such statements should not have been admitted, and that a new trial is required.

The gravamen of appellee Moose's complaint is that the district attorney's office entered into an "understanding" with one Sonny Oglesby, a prisoner, whereby Oglesby fed information to the district attorney's office--including an alleged confession made by Moose. In return for this information, the district attorney had not moved for sentencing on Oglesby's murder and robbery convictions, but had left him unsentenced in the county jail for over three years.

PROCEDURAL HISTORY

On February 10, 1988, a complaint was filed against Carlos Moose (a/k/a Zeke) and Quinterio Smart (a/k/a Poncho) for the rape and murder of Judy Ketterman. On April 1, 1988, Moose's counsel requested discovery material which included, among other things, copies of all statements of either of the defendants or witnesses and police reports, as well as any exculpatory information. The district attorney, H. Stanley Rebert, did not comply with that request. On April 5, 1988, the district attorney obtained a statement from Sonny Oglesby that contained incriminating statements allegedly made by appellee. On May 2, 1988, having received no discovery, defense counsel filed a formal application for discovery. On May 31, 1988, an evidentiary hearing was conducted and the requested materials--excluding the statement of Oglesby--were ordered to be made available.

On June 10, 1988, defense counsel again sent a letter to the district attorney, seeking On August 17, 1988, the first day of trial, the district attorney informed the trial court that he had procured a statement from Oglesby on April 5, 1988, and intended to call Oglesby as a witness. Defense counsel moved for a continuance and/or sanctions. However, when the court decided to grant the continuance, the district attorney agreed to accept sanctions in exchange for proceeding with the trial. To that end, he was informed that he could not use the statement of Oglesby. The colloquy was as follows:

further compliance with the prior order. A second hearing to enforce compliance was held on July 11, 1988, and additional information was produced by the district attorney, again excluding the Oglesby statement. According to the opinion of the trial court, the district attorney gave "repeated assurances" that all available evidence had been provided.

THE COURT: We're going to grant the request for the continuance to the October 1988 term of criminal court because of the--to allow the defense an opportunity to meet, to have an expert look at the diagram alleged to have been drawn by Mr. Moose, and also to deal with statements in the Oglesby statement.

MR. REBERT: May I then request that those offers of proof be withdrawn by the Commonwealth and represent to the Court that we will not use them?

THE COURT: You will not use anything in the Oglesby statement or the diagram?

MR. REBERT: Yes, sir.

THE COURT: So you would agree then to in effect a sanction about--about their non-use?

MR. REBERT: Yes, sir.

THE COURT: Mr. Smith, that's what you're requesting, a sanction. So the DA's saying he won't use it.

In the Commonwealth's case in chief, Detective Castellano testified about a statement that Moose had made when he had been arrested. In that statement, Moose denied ever raping the victim or beating her, but stated that he was present when Quinterio Smart raped her.

Moose testified on his own behalf and stated that although he was with Quinterio Smart when Smart raped Miss Ketterman repeatedly, Moose was very intoxicated and never touched the woman. Moose also testified that he ran away when he saw Smart starting to beat Ms. Ketterman.

The trial judge permitted Oglesby to testify on rebuttal, over defense counsel's objection. Oglesby testified that while he was alone with Moose, Moose told him that he had raped the victim and had hit her in the head with a rock.

On re-rebuttal, Moose testified that he had never spoken to Oglesby about the case. Moose was convicted of first degree murder, and conspiracy to commit murder, rape and conspiracy to commit rape and was sentenced to life imprisonment plus a 15 to 30 year consecutive sentence.

Following the trial, counsel for appellee filed post trial motions and moved for an evidentiary hearing in support of such motions. At that hearing, the district attorney testified his office had "an implied understanding" with Sonny Oglesby whereby Oglesby would inform the district attorney's office about statements allegedly made by people in the jail awaiting trial:

Q. Did the personnel at the York County Prison, the officers, the Warden, did they know that Mr. Oglesby was working for the District Attorney's Office in getting information for them concerning these other cases?

A. He was not working for the District Attorney's Office.

Q. Well what would you call it if he was down there on your purposes, for purposes of getting information, not being sentenced and kept there so he could get data for you. What would you call that?

A. That's your conclusion, Mr. Smith.

Q. How would you determine it?

A. He was never directed to work for the District Attorney's Office.

Q. But there was an implied understanding that he was, isn't this true? It may not be directed. There was an implied understanding between Oglesby and the District Attorney's Office he was to help you folks in any major criminal case that he could?

A. That may be your understanding.

Q. Is it true or isn't it true?

A. Well, I can't answer that. There was an implied understanding. There was no specific understanding. There was no direction that he do that. That's all I can say.

Q. He knew he wasn't being sentenced on crimes that occurred in '85. He wasn't pushing for sentencing and you weren't pushing for sentencing and he was being kept down there for your advantage?

A. Yes.

Q. What was that advantage?

A. Well, he was gathering information for us but not at my direction. He was there. And people were talking to him.

Q. And you liked that, did you not?

A. Yes, sir, I did.

Q. And that's why you kept him there?

A. I think that's fair to say, yes, sir.

(emphasis supplied).

During trial, Oglesby did not testify about any such understanding. In his post-trial motions, Moose contended that the district attorney's "understanding" with Oglesby had deprived Moose of his Sixth Amendment right to counsel. In its opinion on Moose's post-trial motions, the trial court, although stating that "we do not condone nor encourage the behavior exhibited by the district attorney," ruled that a new trial was not warranted.

The Superior Court reversed the conviction, 393 Pa.Super. 379, 574 A.2d 661, holding that: (1) the actions of the Commonwealth served to deprive appellee of his Sixth Amendment right to counsel; (2) the failure of the Commonwealth to reveal its implied understanding with Oglesby violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and required a new trial; and (3) the failure of the Commonwealth to comply with the rules of discovery also required reversal.

In its appeal, the Commonwealth raises three issues: namely, (1) whether the Commonwealth had an agreement with Sonny Oglesby for him to solicit and obtain incriminating evidence; (2) whether the Commonwealth deprived appellant of a fair trial by failing to disclose to counsel any implied understanding between the Commonwealth and Oglesby; and (3) whether the admission of Oglesby's statement was, in any event, harmless error beyond a reasonable doubt. This Court granted the Commonwealth's petition for allowance of appeal to resolve these questions. We now affirm.

DISCUSSION

I. Sixth Amendment Violation ¹

Over the last twenty five years, the United States Supreme Court has on more than one occasion addressed the admissibility of statements surreptitiously obtained by government agents after the right to counsel has attached. In 1964, the United States Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), reaffirmed the New York state rule that "[a]ny secret interrogation of the defendant, from and after the finding of the indictment, without the protection of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime." Id. at 205, 84 S.Ct. at 1202, quoting People v. Waterman, 9 N.Y.2d 561, 565, 175 N.E.2d 445, 448, 216 N.Y.S.2d 70, 75 (1961).

In Massiah, the defendant, while free on bail, had a conversation in the absence of counsel with one of his co-defendants, while sitting in the co-defendant's automobile. Unbeknownst to Massiah, the co-defendant was cooperating with the government and had installed a radio transmitter in the automobile, recording the conversation. The Supreme Court held that such actions denied Massiah his Sixth Amendment right to counsel and the recorded statements could not be used by the prosecution as evidence against Massiah at trial. "We hold that petitioner was denied the basic protections of that [Sixth Amendment] guarantee when there was used...