Com. v. Stocker

• Decision Date: 11 March 1993
• Citation: 424 Pa.Super. 189,622 A.2d 333
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roy STOCKER, Appellant.
• Court: Pennsylvania Superior Court

Page 333

622 A.2d 333

424 Pa.Super. 189

COMMONWEALTH of Pennsylvania, Appellee, v. Roy STOCKER, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 17, 1992.

Filed March 11, 1993.

James C. Dalton, Doylestown, for appellant.

Mary Benefield Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellee.

Before McEWEN, DEL SOLE and HUDOCK, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed on Appellant following his conviction of two counts of corrupt organizations, ¹ and conspiracy to commit corrupt organizations. ² Appellant was sentenced to a term of ten (10) to twenty (20) years in prison on one of the corrupt organization convictions, ³ and ten (10) to twenty (20) years in prison on the conspiracy conviction, to run consecutively. Post-trial motions were filed and denied and this appeal followed. We affirm.

The pertinent facts as summarized by the trial court are as follows:

In June, 1989, the Sixth Statewide Investigating Grand Jury issued presentment No. 17, in which it recommended the filing of charges of corrupt organizations and burglary against various defendants, including Roy Stocker. The presentment alleged that between 1981 and 1987 defendant Stocker and over a dozen other individuals conspired to conduct the affairs of an enterprise through a pattern of racketeering activity, engaging primarily in the manufacture and distribution of a controlled substance, methamphetamine.

Trial Court Opinion at p. 1-2.

Appellant raises seven (7) issues for our consideration in his appeal. They are:

1. Was the defendant denied a fair trial by the admission of references to the "death" and "murder" of Frank Russo, an alleged co-conspirator of defendant?

2. Did the court err in failing to grant the defendant's pre-trial motion to quash paragraphs 19 through 24 of counts I and II of the criminal information?

3. Did the court err in failing to grant the defendant's motion for severance from the cases of defendants Schwartz, Kallaur and Saltzburg?

4. Did the court commit reversible error when it refused to instruct the jury to make a finding of guilt or acquittal as to each predicate act alleged?

5. Was the defendant denied a fair trial by the court's admission of various statements made by certain co-conspirators which pertained to the defendant but were not made in his presence?

6. Is defendant entitled to dismissal and/or a new trial based upon after-discovered evidence regarding the testimony of Charles Hitchens, a Commonwealth witness?

7. Whether the court's imposition of a consecutive sentence of 10 to 20 years incarceration upon count III, conspiracy to commit corrupt organizations is illegal and improper, in that count III merged with count I for sentencing purposes, where the two counts alleged the same criminal acts and conduct?

Appellant's Brief at p. 3. We will address each issue in the order presented by Appellant.

First, Appellant claims he was denied a fair trial because certain statements were made in the presence of the jury which Appellant contends prejudiced him. The first statement Appellant complains of is as follows:

[Commonwealth's Attorney]: How long--for how long a period of time did you obtain methamphetamine from Mr. Russo?

[Witness Linda Orlando]: For about a year, up until he was murdered.

N.T. 6/18/90 at p. 44. Appellant claims that the jury could infer from this statement that Appellant was somehow responsible for the death of Frank Russo, even though Appellant was not charged with the predicate offense of murder. Appellant claims that this statement refers to other criminal activity which is inadmissible. While we agree that evidence of prior criminal activity is generally inadmissible to show defendant was likely to have committed the current offense, Commonwealth v. Bonace, 391 Pa.Super. 602, 571 A.2d 1079 (1990), alloc. den., 526 Pa. 647, 585 A.2d 466, mere passing references to prior criminal activity do not necessarily result in a mistrial. " Whether to declare a mistrial is a decision which rests within the sound discretion of the trial court, whose exercise thereof will not be reversed absent an abuse of such discretion." Id. 391 Pa.Super. at 608, 571 A.2d at 1082. "The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are additional factors to be considered in determining whether a mistrial is necessary." Id. We note that the trial court recognized an objection by stating: "Objection noted. Until his death. Go ahead." N.T. 6/18/90 at p. 44. We hold that the trial court did not abuse its discretion when it admitted the testimony as corrected because this was a mere passing reference and was not expanded upon by the Commonwealth.

Next, Appellant asserts that the following statement prejudiced him:

[Appellant's Counsel]: Have you been charged with anything by the Federal Government?

[Witness Stephen Fenton]: No.

Q: Have you been interviewed by any of their agents?

A: I was first interviewed right after Frank's murder.

N.T. 6/15/90 at p. 982. Appellant concedes, "[a]lthough various counsel objected and moved for a mistrial, the trial court denied the motions and cautioned the jury to disregard the reference to murder. N.T. 6/15/90, p. 983." Appellant's Brief at 13. We note that this line of questioning was pursued by Appellant's own counsel. We also note that the trial court sustained defense objections stating: "The objection is sustained because it's not really responsive to the question. Motions for mistrial are denied. And the answer is stricken." N.T. 6/15/90 at pp. 982-983. We find that this statement was not elicited by the Commonwealth and the court struck the answer from the jury's consideration. Therefore, the trial court did not abuse its discretion in admitting this testimony. Appellant's claim as to his first issue is without merit.

Next, Appellant claims the trial court erred in failing to quash paragraphs 19 through 24 of Count I of the criminal information. Appellant claims that those paragraphs pertain to the events involving the burglary and theft of approximately fourteen (14) gallons of P2P. Appellant claims that the original charges against him included the substantive offense of burglary. That charge was dismissed at the preliminary hearing, and Appellant sought to delete those paragraphs from the criminal information. Paragraphs 19 through 24 read as follows:

19. On or about September 29, 1986, as a co-conspirator with Frank RUSSO, possessed with intent to manufacturer [sic] methamphetamine, five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone in violation of § 13 of the Act of April 14, 1972, (P.L. 233, No. 64).

20. On or about September 29, 1986, as a co-conspirator with Frank RUSSO, unlawfully take or exercise control over five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 3921.

21. On or about September 29, 1986, conspire with Frank RUSSO that they or one or more of them will commit racketeering acts 19 and 20 and did an overt act in pursuance thereof, to wit: Frank RUSSO obtained possession of five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 903.

22. On or about September 29, 1986, as a co-conspirator with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others, possessed between ten (10) and fourteen (14) gallons of phenylacetone, also know as P2P or phenyl-2-propanone, with the intent to manufacture methamphetamine and/or to deliver phenylacetone, in violation of § 13 of the Act of April 14, 1972, (P.L. 233, No. 64).

23. On or about September 29, 1986, as a co-conspirator with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others, unlawfully take or exercise control over fourteen (14) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 3921.

24. On or about September 29, 1986, conspire with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others to commit racketeering acts 22 and 23 and did an overt act in pursuance thereof, to wit: Frank RUSSO obtained possession of between ten (10) and fourteen (14) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, in violation of 18 Pa.C.S. § 903.

Criminal Information at pp. 4-5. Appellant claims that because the substantive charge was dismissed, so too should the paragraphs which relate to those events. We disagree.

We agree with the trial court's analysis of this issue and therefore adopt that portion of its opinion as follows:

The bill of information filed against Roy Stocker, included, at paragraphs 19 through 24, the offense of burglary as a predicate offense for the charge of corrupt organizations. Defense counsel filed a motion to quash these subparagraphs of the information, based upon the lack of evidence linking defendant Stocker to these crimes and the resulting dismissal of the charges at the preliminary hearing. This Court denied defendant's motion to quash and permitted the introduction of testimony regarding the burglary against defendant Stocker as it related to the predicate act alleged in his information.

Defense counsel alleges that this ruling was an abuse of discretion and deprived the defendant of a fair trial. Further, defense counsel submits that where the Commonwealth charges a particular predicate act as a substantive offense, and where that charge is dismissed at a preliminary hearing, that the Trial Court must consider this dismissal as dispositive on the issue of whether the predicate act may be included under the corrupt organizations charge. Defense counsel provides, however, no case law in support of this conclusion.

[5-7] The Pennsylvania Corrupt Organizations Act, 18 Pa.C.S. § 911, does not require that a defendant be convicted of the...