Com. v. Nelson

• Decision Date: 19 October 1995
• Citation: 446 Pa.Super. 240,666 A.2d 714
• Parties: COMMONWEALTH of Pennsylvania v. Darrel NELSON, Appellant.
• Court: Pennsylvania Superior Court

Page 714

666 A.2d 714

446 Pa.Super. 240

COMMONWEALTH of Pennsylvania v. Darrel NELSON, Appellant.

Superior Court of Pennsylvania.

Submitted June 19, 1995.

Filed Oct. 19, 1995.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before ROWLEY, President Judge, and WIEAND and KELLY, JJ.

WIEAND, Judge:

On April 28, 1994, Darrel Nelson entered pleas of nolo contendere to forty-one (41) drug charges, including ten (10) counts of delivery of controlled substances, ¹ twelve (12) counts of possession with intent to deliver controlled substances, ² fifteen (15) counts of possession of controlled substances, ³ and four (4) counts of possession of drug paraphernalia. ⁴ Following the preparation of a pre-sentence report, Nelson was sentenced, on June 24, 1994, to serve an aggregate term of imprisonment for not less than twelve and one-half (12 and 1/2) years nor more than thirty (30) years, and to pay a fine of $250,000. A motion for reconsideration of sentence was denied, and this appeal followed. On direct appeal from the judgment of sentence Nelson argues that: (1) his trial counsel was ineffective for failing to advise him, prior to his entry of pleas of nolo contendere, of a possible due process defense based upon outrageous police conduct; and (2) his sentence was manifestly excessive. After careful review, we affirm the judgment of sentence. ⁵

According to the factual summary presented by the Commonwealth prior to the acceptance of appellant's pleas of nolo contendere, appellant was the subject of an undercover police investigation conducted in Pittsburgh from June 8, 1993 through September 17, 1993. Officer Brian Fleming of the City of Pittsburgh Police Department, who was working in an undercover capacity, made ten purchases of heroin from appellant, the first four of which involved relatively small quantities. On June 8, appellant sold Fleming a gram of heroin for $550. On June 10, appellant provided another gram of heroin to Fleming. This was purportedly of higher quality and sold for $600. On June 16, after entering and exiting an apartment building in the 2500 block of Chauncey Drive, appellant produced a gram of heroin encased in a blue balloon which he had been carrying in his mouth. This he sold to Fleming for $550. And, on August 20, appellant provided Fleming with two grams of heroin in return for $1,000 and a promise to pay an additional $100.

On August 26, Fleming requested three grams of heroin. Appellant directed Fleming to meet him on the city's North Side. Outside a row house located at 903 Kirkbride Street, Fleming observed appellant and gave him $1,600. Appellant took the money and directed Fleming to meet him at the side door of the building, where he gave the heroin to the officer. During this transaction, appellant provided six grams of heroin instead of the three grams requested by Fleming. Appellant told Fleming that he could owe appellant $1,850 for the additional three grams being fronted.

On August 30, after paying appellant the $1,850 owed from the prior transaction, Fleming requested a quarter ounce of heroin. Appellant responded that a quarter ounce would cost three or four thousand dollars. When Fleming indicated that he would have to get the money, he and appellant agreed to meet later. When they did meet again, appellant gave Fleming a half ounce of heroin, along with a white plastic bottle containing quinine, which appellant said was to be used for cutting the heroin. Fleming handed appellant $3,000, and appellant told him that he would owe an additional $3,200. At this time, appellant mentioned that he would soon have a couple kilograms of cocaine available for sampling.

On September 2, Fleming knocked on the door of apartment number 3 at 2100 Elmore Square in an attempt to meet appellant and pay him the money owed. After a delay, appellant appeared, and indicated that he had been eating. Fleming told appellant that he wanted to purchase more heroin. Appellant directed Fleming to drive him to the corner of Morgan and Webster Streets in the Hill District. There, appellant got out of the car and walked away, only to return a few minutes later with a bottle of quinine and two bottles of Dormin, an over-the-counter sleep preparation which, appellant said, was better than quinine for cutting heroin. Appellant said that he had paid $50 for each bottle of Dormin, but that he was charging Fleming $75 because Dormin was very difficult to buy in the Pittsburgh area and he was obtaining it from Detroit or Chicago. Appellant instructed Fleming to drive him to 903 Kirkbride Street, where appellant exited the vehicle, and entered the residence. Upon returning to the vehicle, he handed a half ounce of heroin to Fleming.

On September 7, after Fleming had paid appellant all amounts owing, appellant fronted him seven grams of heroin and a bottle of quinine. Appellant indicated that the kilograms of cocaine which he had hoped to get were of poor quality and thus, he had not purchased any of them. Appellant also informed Fleming that he would be doing some jail time for federal tax evasion, but that his wife would take care of supplying the officer.

On September 8, appellant paged Fleming five times. After Fleming returned the call, appellant indicated that he needed $4,000 of the money which Fleming owed to cover the cost of a new shipment of heroin. They met subsequently and Fleming gave appellant the money requested.

On September 15, appellant provided Fleming with an ounce of heroin and indicated that he could provide all the heroin the officer wanted. On September 17, Fleming gave appellant $9,000 towards payment of his outstanding debt. Appellant told Fleming about a friend in Florida who was supplying him with cocaine, and suggested that $1,300 in profits could be made from the sale of an ounce of cocaine if the officer was interested. Appellant also handed Fleming a cellophane candy bag containing two one-half ounce packages of heroin and a quarter ounce package of heroin. At that point, Officer Fleming signaled to surveillance officers that the transaction had taken place, and appellant was placed under arrest.

After appellant's arrest, seven search warrants were executed and numerous items were seized from his several residences, including crack cocaine, $6,600 in cash, bottles of Dormin and quinine, baggies with residue, and various other items of drug paraphernalia related to the distribution of controlled substances. All of the controlled substances obtained from appellant were submitted to the Allegheny County Crime Lab and tested positive for the presence of heroin or cocaine.

Appellant argues that the police improperly delayed arresting him, in order to amass a number of charges against him and to subject him to progressively longer mandatory minimum sentences. The applicable sentencing provisions provide enhanced penalties and mandatory minimum sentences for each transaction involving heroin weighing over two grams. See: 18 Pa.C.S. § 7508. Instantly, the first four deliveries by appellant to officer Fleming involved quantities under two grams. Therefore, if appellant had been arrested before the fifth transaction, he would not have become subject to the imposition of mandatory minimum sentences. Appellant argues, therefore, that the delay in arresting him constituted outrageous government conduct; and, if he had been aware of it, he never would have pleaded nolo contendere. He contends that trial counsel was ineffective for failing to apprise him of this defense, which led to his entry of unknowing pleas.

The Commonwealth, on the other hand, asserts that the police were justified in continuing the investigation beyond its early stages in order to build a relationship with appellant and to ascertain the extent of appellant's drug trafficking enterprise. Indeed, on August 26, 1993, the date of the fifth delivery, appellant offered to "front" heroin to the officer and delivered to him six, instead of the three grams which Fleming had requested, thus indicating that appellant was able to provide heroin without requiring immediate cash payment. During the course of the three month investigation, appellant increasingly "fronted" larger quantities of heroin and introduced the possibility of cocaine for sale.

In terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea. Commonwealth v. Boatwright, 404 Pa.Super. 75, 83, 590 A.2d 15, 19 (1991). By entering a plea of nolo contendere, a defendant waives "all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea." Commonwealth v. Johnson, 319 Pa.Super. 463, 474, 466 A.2d 636, 642 (1983). See also: Commonwealth v. Coles, 365 Pa.Super. 562, 569, 530 A.2d 453, 457 (1987). Therefore, "[o]nce a defendant has entered a plea of [nolo contendere], it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him." Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).

"In order for appellant to prevail on a claim of ineffectiveness [of counsel], he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel's ineffectiveness prejudiced him." Commonwealth v. Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). See also: Commonwealth v. Pierce, 515 Pa. 153, 158-159, 527 A.2d 973, 975 (1987). "Where an allegation of ineffective assistance of counsel is made in connection with the entry of a plea of [nolo contendere], such allegation 'will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing...