Com. v. Ulen

• Decision Date: 30 April 1992
• Citation: 607 A.2d 779,414 Pa.Super. 502
• Parties: COMMONWEALTH of Pennsylvania v. Clive Antony ULEN, Appellant.
• Court: Pennsylvania Superior Court

Page 779

607 A.2d 779

414 Pa.Super. 502

COMMONWEALTH of Pennsylvania v. Clive Antony ULEN, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 22, 1991.

Filed April 30, 1992.

Allen C. Welch, Lemoyne, for appellant.

William T. Tully, Asst. Dist. Atty., Harrisburg, for Com.

Before WIEAND, MONTEMURO and KELLY, JJ.

WIEAND, Judge:

Clive Antony Ulen, a lawyer in the City of Harrisburg, was tried by jury and was found guilty of possession of a controlled substance and criminal attempt to deliver a controlled substance. ¹ Following the denial of post-trial motions, Ulen was sentenced to serve concurrent terms of imprisonment for not less than one (1) year nor more than four (4) years on his conviction for attempting to deliver cocaine and for not less than six (6) months nor more than one (1) year on his conviction for possessing cocaine. On direct appeal from the judgment of sentence, Ulen asserts that insufficient evidence was presented at trial to sustain his convictions. He contends also that he is entitled to a new trial because: (1) the prosecuting attorney used the Commonwealth's peremptory challenges in a racially discriminatory manner by striking all African-Americans from the venire; (2) the trial court erred by permitting the Commonwealth to introduce tapes of electronically intercepted conversations as rebuttal evidence when the tapes had not been provided to the defense in pre-trial discovery as required by Pa.R.Crim.P. 305 B(1)(g); and (3) the trial court erred because it refused to declare mistrials when (a) Commonwealth witnesses violated the court's sequestration order, and (b) the prosecuting attorney, during his closing argument, made reference to appellant's failure to testify in his own defense. After careful review, we find no basis on which to grant a new trial; and, therefore, we affirm the judgment of sentence.

The factual scenario leading to appellant's arrest and the evidence introduced at his trial have been extensively reviewed in the post-trial opinion of the trial court as follows:

Officer Suzanne Sheehan was seated in her patrol car at the intersection of Calder and Third Street in Harrisburg shortly after 1:00 a.m. on Monday, August 28, 1989, when she observed two individuals emerge from behind the garage of the Yellow Cab Company and approach a door which she knew led to a restroom. The officer knew that the building was no longer occupied by Yellow Cab and that only vehicles were stored within. Sheehan left her vehicle and walked across the street to the offices of Yellow Cab and asked a dispatcher whether the bathroom was open for public use. The dispatcher responded in the negative.

She then radioed her position and awaited the arrival of two other officers, Garman and Snyder. Garman arrived in less than a minute and boosted Officer Sheehan up so that she could see through a window above the door. From this position, she was able to observe the defendant Ulen "kind of half sitting in the sink." While Sheehan was in this position, Officer Garman's flashlight bumped against the door, and the defendant Ulen said either "Someone's in here" or "Who's out there?" Sheehan jumped down, announced "Harrisburg Police" and asked that the door be opened. There was no immediate response. Instead, Sheehan heard some paper rustling and some water being turned on and off. She again announced "Harrisburg Police" and tried unsuccessfully to open the door. After the passage of one or two minutes, the door was opened, and the defendant Ulen stepped out. When asked where the female was that was with him, Ulen responded, "What female?" Officer Garman located the female in the stall area of the bathroom and removed her.

A search of the bathroom disclosed a hypodermic syringe partially filled with a clear liquid in a hole in the wall adjacent to the stall. Ulen was observed sliding his left foot as if he were trying to hide something. In the area where he had been standing, Police found a rubber material packed with a white powder substance.

Aleta Bell, the female involved, testified that she had known the defendant Ulen for about five years. She admitted that she had a criminal record for prostitution and indeed had been working as a prostitute in the area in which she was arrested during August of 1989. During the early morning hours of August 28th, she had gone to Big Jay's Bar on Verbeke Street near Third Street where she met Ulen. She said that they walked up the street looking for a place "to get high." They went into the Yellow Cab bathroom where Ulen removed a white balloon from his pocket and prepared a cocaine shot.

Lieutenant Goshert, head of the city's vice control unit, testified as to the substance of an oral interview with the defendant following his arrest. Goshert said that Ulen told him that he and Ms. Bell, whom he had known for some time, met at Big Jay's and decided to walk to the Friendly Bar and that on route she said she had to go to the bathroom. Ulen admitted entering the bathroom with her and said he knew her to be a drug user, but denied that the cocaine or the syringe were his.

The first and only witness in chief called for the defense was James Henry, Sr., a longtime friend of the defendant. Ulen had come to Henry's home on the afternoon prior to his arrest, and the two decided to go out drinking to celebrate Henry's birthday. They began to drink at about 7:30 p.m. and traveled to various bars before ending up at Big Jay's. Earlier Henry said that he had seen Aleta Bell outside of the Friendly Bar, and at that time she had shown him a syringe and a balloon. Henry allowed as how he knew Bell to be a cocaine user and that she always carried a syringe.

During cross-examination of Henry, the following exchange occurred:

Q Have you discussed this case, what happened that night, with anyone else other than Mr. Berry (Ulen's attorney)?

A My mother.

Q You haven't discussed it with Mr. Ulen?

A No, sir.

Q Think for a moment. Have you discussed it with anybody else?

A (Witness shakes head from side to side.)

Q You didn't discuss it with anybody?

A I discussed it with my mother.

Q The people you discussed it with were Mr. Berry, your mother, and Aleta Bell?

A Yes.

(N.T. 204-206)

The defense then rested.

In rebuttal the Commonwealth called one Charlenee Bullock. She had been in Dauphin County Prison at the same time as Aleta Bell, but had been released on November 3, 1989. About a week later, at 1:30 in the morning, Bullock had occasion to meet James Henry outside of Charlie and Ernie's Bar. Henry said that somebody wanted to see her and then placed a telephone call from within the bar. Shortly thereafter, the defendant Ulen pulled up in his car and the three of them (Ulen, Henry and Bullock) went for a ride. Ulen wanted to know if Bullock had been in jail with Aleta Bell and whether or not she (Bullock) would be willing to testify in court. Ulen said, "I'll take care of you." Ulen said that he would "take the charge for the paraphernalia if Lele (Bell) takes the charge for the cocaine." Bullock was to testify that while in jail, Aleta told her that the cocaine belonged to her and that the "works" (the syringe) belonged to Ulen. Bullock said that the truth of the matter was that Bell admitted possession of the syringe and that the cocaine had been provided by Ulen. While in the car, Bullock said that Ulen had provided her with money so that she could "cop" cocaine and that she immediately did so. She then returned to the car, and the three of them went to her house to use the drug. After she had been reincarcerated in Dauphin County Prison, she stated that she called Henry and was told that he was meeting Ulen and that he would bring some money out to the Dauphin County Prison. The money was to be in exchange for her testimony.

Following the testimony of Bullock, the Commonwealth offered to play a tape recording of a telephone conversation between Bullock and Henry. Defendant objected since the recording had not been made available during pre-trial discovery. The court then took a brief recess during which counsel for the defendant and counsel for the Commonwealth met in chambers to review the tape and the transcript. Defendant renewed his objection to its introduction; however, he did not request a continuance to further review the new evidence. The court overruled the objection, and the tape recording was played for the jury.

In surrebuttal, the defendant finally took the stand. Ulen admitted to having met with Charlenee Bullock and Henry and taking a drive in his car. He recalled asking Bullock if she and Bell were cell mates and whether Bell had made any statements about his case. Bullock responded by saying that Bell had said the syringe and the balloons were hers. Ulen then qualified that answer by quoting Bullock as saying Bell said that she brought half the cocaine and that Ulen brought the other half. Ulen said that Bullock agreed to testify on his behalf without compensation.

He was then asked whether his conversation with Bullock was limited to that single day in November and responded that he recalled no other incidents in which he spoke with Charlenee Bullock. The Commonwealth then produced another tape recording and offered to cross-examine the witness with respect to it. Defense counsel objected on the basis of a violation of the discovery rules. The Court overruled the objection, and the tape was played to the jury. Having heard the tape recording, Ulen admitted that he "vaguely" remembered the conversation. At first he denied ever intending to give Bullock any money. On redirect examination, Ulen allowed that he had agreed to place some money "for cigarettes and things of that nature" in Bullock's commissary account, but never in exchange for perjured testimony. James Henry was also called in surrebuttal: He denied asking Charlenee Bullock to lie at Ulen's trial. Henry did admit discussing the case with her and did admit agreeing to ...