Com. v. Reeves

• Decision Date: 06 October 1988
• Citation: 548 A.2d 260,378 Pa.Super. 29
• Parties: COMMONWEALTH of Pennsylvania v. Richard Robert REEVES, Appellant.
• Court: Pennsylvania Superior Court

Page 260

548 A.2d 260

378 Pa.Super. 29

COMMONWEALTH of Pennsylvania v. Richard Robert REEVES, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 11, 1988.

Filed Aug. 15, 1988.

Reargument Denied Oct. 6, 1988.

Mark L. Newman, Asst. Public Defender, Stroudsburg, for appellant.

Jane Roach, Asst. Dist. Atty., Allentown, for Com., appellee.

Before KELLY, HOFFMAN and HESTER, JJ.

HESTER, Judge:

On July 10, 1986, a jury convicted appellant, Richard Reeves, and three co-defendants of possession of a controlled substance and conspiracy to possess a controlled substance with intent to deliver. The verdict culminated a two-year investigation by Pennsylvania State Police into drug trafficking in northeastern Pennsylvania. During their investigation, police utilized court-ordered pen registers ¹ and wiretaps of the telephone lines of two of appellant's co-defendants and several other suspected drug dealers.

Following the denial of post-trial motions, the court sentenced appellant on August 11, 1987, to two concurrent two-to-four year terms of imprisonment and the payment of fines and costs. This appeal followed. We affirm.

Appellant first argues that the Commonwealth failed to try him within one hundred eighty days as required by Pa.R.Crim.P. 1100, and that this violation of Rule 1100 requires the charges against appellant to be dismissed. Police filed a complaint against appellant on March 24, 1985; trial commenced on July 7, 1986, four hundred seventy days later. In the interim, the Commonwealth had filed a petition for extension on October 28, 1985. Appellant argues that during the time between the filing of the complaint and the Commonwealth's petition to extend the rundate, only sixteen days, resulting from defense counsel's petition for an extension to file an omnibus pretrial motion, may be charged against appellant. Thus, appellant argues, the Commonwealth's petition to extend the rundate was untimely.

We agree with the trial court that the numerous pretrial motions filed by appellant and his co-defendants, which in turn triggered extensions within which to file various pretrial motions, and continuances granted to address pending discovery, delayed appellant's trial. The trial court stated:

In the present case, the Commonwealth filed its extension petition 218 days after the complaint was filed. Sixteen days are chargeable to Defendant for his granted petition for extension to file Omnibus Pretrial Motions. An additional 85 days expired from the time Defendant filed his Omnibus Pretrial Motions on August 8, 1985, until October 28, 1985, when the Commonwealth filed an extension petition. See Commonwealth v. Ludwig, No. 791 Criminal 1984, slip op., p. 11 (Monroe County, 1985) (omnibus motions may be viewed as an implicit request for a continuance which is excludable under Rule 1100). Thus, there is a net total of 101 days of the 218 chargeable to the Defendant, leaving the Commonwealth with 63 days in which to file for an extension.

Opinion in support of denial of post-trial motions, 6/18/87, at 5, 6. See also Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986) (delay in commencement of defendants' trial resulted from filing of their pretrial motion to quash indictments; such delay was not judicial, but due to defendants' unavailability); accord Commonwealth v. Bond, 350 Pa.Super 341, 504 A.2d 869 (1986) (Spaeth, P.J., concurring) (implicit in defendant's pretrial motion was request that she not be tried until court ruled on motion, which thus amounted to a continuance); id. (Wieand, J., concurring) (defendant's pretrial motion rendered her unavailable for trial).

Any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period. Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). "The key inquiry is not the period of a defendant's unavailability, but the period of delay caused by that unavailability." Commonwealth v. Armstead, 359 Pa.Super. 88, 91, 518 A.2d 579, 581 (1986).

The chronology of the pretrial activity herein is complicated. Appellant filed an omnibus pretrial motion on August 5, 1985, after first receiving an extension of time until June 26, 1985, an additional omnibus pretrial motion on February 19, 1986, more than nine months after arraignment, and an amended omnibus pretrial motion on June 10, 1986, nearly two years after arraignment. There were issues concerning suppression of evidence, motions for discovery and consolidation, extensions of the period of discovery, briefing opportunities requested, multiple defendants involved and complex issues in controversy. On July 7, 1986, merely five days after the court issued its order and opinion disposing of the pretrial motions, the Commonwealth called the case for trial.

This case is similar to Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987), wherein we held that trial could not have begun within one hundred eighty days due to the duplicity and complexity of pretrial motions filed by the defendant, and their attendant lengthy conferences and proceedings.

Accordingly, we find the trial court properly exercised its discretion, id., and reject appellant's argument. ²

Appellant next argues that the Commonwealth lacked probable cause to obtain the court-ordered wiretaps. In the alternative, he asserts that probable cause was the product of prior illegally obtained evidence. Again, we disagree with appellant and affirm the trial court's rejection of this issue.

In Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985), this court considered the applicable standards in determining the existence of probable cause supporting an application for an order authorizing a wiretap.

An application for an order authorizing interceptions of telephone communications must contain, inter alia, the identity of the person, if known, committing the offense under investigation and whose communications are to be intercepted. It must also contain details about particular offenses, the type of communications to be intercepted, and must show that there is probable cause to believe that pertinent communications will be transmitted on the facility under surveillance. 18 Pa.C.S. § 5709(3). The standard for determining whether probable cause existed [for a wiretap or a pen register] is the same as that used to determine cause for search warrants. See: United States v. Talbert, 706 F.2d 464, 467 (4th Cir.1983); United States v. Falcone, 505 F.2d 478, 481 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The facts contained in the affidavit for a search warrant must be such that an independent, issuing authority, exercising reasonable caution, can conclude that the items sought are connected with criminal activity and that they will be found in the place to be searched. Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Similarly, in an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications relating to that offense will be transmitted, and (3) that such communications will be interrupted on the facility under surveillance.

Id. at 397-98, 498 A.2d at 881-82.

Pennsylvania State Trooper Thomas Bachman, the affiant on the applications for wiretaps and pen registers, Notes of Testimony (N.T.), 5/20/86, at 12, had been a state policeman for seventeen years, and possessed expertise in investigating narcotics and vice related crimes as well as the use of electronic investigatory equipment. He set forth facts, corroborated by information obtained by FBI agents from confidential informants, N.T., 4/18/86, at 212, which the issuing authority found sufficient to constitute probable cause for granting the pen registers and wiretaps. It is unnecessary to recite those facts in this opinion. Commonwealth v. Leta, 346 Pa.Super. 552, 500 A.2d 85 (1985), petition for allowance of appeal of appellant Baldassari denied, 514 Pa. 645, 524 A.2d 492 (1987), petition for allowance of appeal of appellant Leta granted, 514 Pa. 646, 524 A.2d 493 (1987). The facts have been recited in the opinion denying post-verdict motions and the thorough opinion of the suppression court, filed July 2, 1986. Those facts, based upon our review of the notes of testimony, the record and the trial court's opinions, demonstrate that probable cause existed for granting utilization of wiretaps and pen registers.

Appellant also complains that Trooper Bachman obtained information from other state policemen, Troopers Saleski and Troupe. As we stated in Commonwealth v. Leta, supra, "It is proper for an affiant to rely upon information provided by other law enforcement officers." Id., 346 Pa.Super. at 558 n. 5, 500 A.2d at 88 n. 5.

Appellant argues that the "Commonwealth has failed to explain what minimization techniques were used...." Appellant's brief at 5. Every order authorizing a wiretap must contain a requirement that the interception be conducted so as to minimize the interception of communications not subject to seizure. 18 Pa.C.S. § 5712(b). In Commonwealth v. Doty, supra, this court stated, "The purpose of minimization is to reduce the scope of an intrusion while at the same time allowing legitimate law enforcement aims to be pursued." Id., 345 Pa.Super. at 399, 498 A.2d at 882. We also stated that minimization must be a question of what is practical and reasonable under the circumstances of each case, including an evaluation of the following circumstances: the nature of the investigation, the length of the calls, the percentage of pertinent calls, whether calls between the same parties are repeated, whether the contents of calls are ambiguous, whether coded language is used and whether patterns develop during the surveillance. Id.

The order issued ...