Com. v. Viera

• Citation: 659 A.2d 1024,442 Pa.Super. 348
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Luis VIERA, Appellant.
• Decision Date: 01 June 1995
• Court: Superior Court of Pennsylvania

Page 1024

659 A.2d 1024

442 Pa.Super. 348

COMMONWEALTH of Pennsylvania, Appellee, v. Luis VIERA, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 23, 1995.

Filed June 1, 1995.

Patrick J. Connors, Asst. Public Defender, Media, for appellant.

William H. Ryan, Jr., Dist. Atty., Media, for Com., appellee.

Before POPOVICH, HUDOCK and HESTER, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Delaware County following appellant's conviction on the charge of delivery of a controlled substance. ¹ Herein, appellant asserts that the lower court erred in allowing the Commonwealth's rebuttal witness to testify that he was appellant's parole agent and met with him in that capacity during the time appellant alleged that he was living in New York City. Further, appellant maintains that the court below erred in imposing a sentence based upon its finding that appellant had induced his alibi witnesses to perjure themselves. Upon review, we affirm.

At appellant's jury trial, Detective Michael Honicker of the Delaware County Criminal Investigation Division testified that a confidential informant had made arrangements for appellant to sell cocaine to the detective in the City of Chester on January 8, 1993. Trial N.T. 3/24/94 at 112. Detective Honicker testified that at approximately 5:00 p.m. on that date, appellant entered the detective's vehicle and sold 3.0 grams of cocaine to him for $150.00. Trial N.T. 3/24/94 at 114-15, 147. The Commonwealth asked the detective whether he had any doubt as to whether appellant sold cocaine to him on January 8, 1993. To that question, Detective Honicker replied that he was positive in his identification of appellant as the person who sold cocaine to him. Trial N.T. 3/24/94 at 120. On cross-examination by defense counsel, Detective Honicker testified that he and appellant were "face to face" in his vehicle for five to ten minutes and that he was able to observe appellant perfectly. Trial N.T. 3/24/94 at 127-29.

Detective Michael Boudwin of the Delaware County Criminal Investigation Division, who provided backup to Detective Honicker at the time of the transaction, testified that he observed appellant enter Honicker's vehicle and sell drugs to him. Trial N.T. 3/24/94 at 157-59. On redirect examination, the Commonwealth asked Detective Boudwin whether he had any doubt as to whether appellant entered Detective Honicker's vehicle. To that question, Detective Boudwin replied as follows: "No, there's no doubt in my mind whatsoever." Trial N.T. 3/24/94 at 164.

In support of his alibi, appellant called his fiance, Evelyn Beltran, and a former employer, Roberto Meldenaro, to testify that appellant was in New York City when the drug transaction occurred in Chester. Trial N.T. 3/24/95 at 167, 175. Ms. Beltran testified that appellant was in New York City every day of January, 1993, with the exception of the 12th. Trial N.T. 3/24/94 at 170-71. Mr. Meldenaro was the superintendent of the apartment complex in which Ms. Beltran resided. Mr. Meldenaro stated that appellant worked for him as a helper from the beginning of January, 1993, to the middle of February, 1993. Mr. Meldenaro testified that appellant worked with him on January 8, 1993, from 8:00 a.m. to 5:00 p.m., and that January 12, 1993, was the only date which appellant missed from work during the entire period of employment. Trial N.T. 3/24/94 at 176-78, 181-82. At trial, Mr. Meldenaro did not have any employment records or pay stubs with him to substantiate his testimony that appellant worked with him on January 8, 1993. Trial N.T. 3/24/94 at 178-79.

In rebuttal of the testimony offered by defense's alibi witnesses, the Commonwealth called Brian Bray to the witness stand. Before questioning Mr. Bray, the Commonwealth requested that the court hold a side-bar conference. Trial N.T. 3/24/94 at 183. At side-bar, the following discussion occurred:

[ADA]: I wanted to come to side-bar in an overabundance of caution. My rebuttal witness is Brian Bray the parole officer. He is going to testify that he was actually with Luis Viera on the 4th, the 6th, the 7th, the 11th, the 12th, 13, 19, 20, 25, 26, 27, in his office. He sat across the table from him. He also has treble forms which Luis Viera filled out on the days that he was to be in New York. The only days he was to be in New York was from the 12th to the 18th, that was it. This was filled out in front of Brian Bray in his presence.

The Court: Okay.

[ADA]: That's what I wanted to present.

The Court: That's proper rebuttal.

[End of side-bar conference]

Trial N.T. 3/24/94 at 183-84.

On direct examination, Mr. Bray stated that he was a parole agent of the Pennsylvania Board of Probation and Parole and that he knew appellant. Trial N.T. 3/24/94 at 185. The Commonwealth asked Mr. Bray whether he met with appellant in January of 1993. Mr. Bray responded in the affirmative. Defense counsel subsequently objected and requested that the court hold a side-bar conference. Trial N.T. 3/24/94 at 185-86. At side-bar, the following discussion transpired:

[Defense counsel]: Now, I agree that it's proper rebuttal is this was to say simply that he was--he saw Mr. Viera in a different location on a given day. It is not proper rebuttal for the jury to hear that he is a state parole officer and he knows Mr. Viera.

The Court: Oh, I don't ...

[Defense counsel]: I don't know if that's telling ...

The Court: That's overruled. You--I think any witness who--if this is to rebut Mr. Meldenaro who, if this guy is right, perjured himself and if he did, I want this guy prosecuted. I think the nature--that's the evidence you've put on and the guy has to be identified. He can't be just cloaked. The jury has a right to hear who he was and what the circumstances are and weigh that.

[Defense counsel]: What this other fellow did is on his shoulders and ...

The Court: That is put in your case and she (ADA) has a right to rebut it. Overruled.

[End side-bar conference]

Trial N.T. 3/24/94 at 186-87.

Thereafter, Mr. Bray testified as follows:

[ADA]: If I may, sir, calling your attention to January of 1993, did you have an occasion to meet with this Defendant, Luis Viera, during that month?

[Bray]: Yes, I did.

[ADA]: Would you please indicate on what dates in the month of January you met with Luis Viera?

[Bray]: The following dates ...

[ADA]: I'm sorry, before I proceed, sir, where would you have met him?

[Bray]: I had met with him at 1416 Upland Street, Chester, Pennsylvania, State Board of Parole Office, Chester District office.

[ADA]: Would that meeting have been face to face?

[Bray]: Yes, it would.

[ADA]: Okay, would you please resort to your record, sir, and indicate what dates in January of 1993 you met with Luis Viera?

[Bray]: Personally, I met with him on the following dates: 1-4 of '93, 1-11 of '93, 1-19 of '93, and 1-25 of '93.

[ADA]: Did you speak with him on other dates during the course of that month?

[Bray]: I believe I spoke with him on the sixth over the phone.

* * * * * *

[ADA]: I'm showing you, sir, what's been marked Commonwealth Exhibit "C7". Can you identify this document, sir, for the record?

[Bray]: Yes, this document is our District Office Travel Permission, written travel permission.

[ADA]: What is that? What is that?

[Bray]: Whenever a client under our supervision wishes to leave the district that we supervise which is Delaware and Chester County, they must get written permission from us in the form of our own Travel Permission Form.

[ADA]: Okay. And what does that document reflect? Whose name is on that document?

[Bray]: Luis Viera.

[ADA]: And where does it say he's going?

[Bray]: To 1500 Popham Avenue, New York, New York.

[ADA]: And what are the dates of that, sir?

[Bray]: 1-12-93 to 1-18 of '93.

Trial N.T. 3/24/94 at 187-89.

Upon evaluation of the testimony presented by the parties, the jury found appellant guilty of delivery of a controlled substance. Trial N.T. 3/24/94 at 227.

The sentencing hearing was held on March 28, 1994. At that hearing, the Commonwealth offered testimony revealing that appellant was engaged in a continuing series of violations of the Controlled Substance, Drug, Device and Cosmetic Act. Sentencing N.T. 3/28/94 at 4-6. The court sentenced appellant to a term of imprisonment of five (5) years to ten (10) years with restitution in the amount of $150.00. Sentencing N.T. 3/28/94 at 8. In arriving at its sentencing decision the court considered the circumstances of the case as follows:

The Court: Okay. Mr. Viera, let me suggest, also, it's not only the concern I have for all of the drug dealing. But I think it's patently clear to me that two of your witnesses came in and perjured themselves. And while you didn't perjure yourself, obviously, they did. You were certainly not in New York at the time of this occurrence. And that was patently clear. And I hope the other two people who showed up and testified for you, I can't believe that you didn't have something to do with that. So I just have no sympathy for--I guess I have to have sympathy for someone who sits silent and doesn't get on the stand. But for someone who has obviously prostituted the Court and allowed two witnesses to come up and lie on the stand, that bothers me to no end ...

Sentencing N.T. 3/28/94 at 7.

On April 26, 1994, appellant timely filed a notice of appeal. On August 9, 1994, the lower court issued an opinion in support of the judgment of sentence.

Herein, appellant raises two issues for our examination:

I. WHETHER THE SENTENCING COURT ERRED WHEN IT SENTENCED APPELLANT BASED UPON IT SPECULATIVE AND UNSUPPORTED BELIEF THAT APPELLANT HAD INDUCED HIS WITNESSES TO PERJURE THEMSELVES DURING THE COURSE OF THE TRIAL.

II. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE OBJECTION OF APPELLANT TO THE TESTIMONY OF THE COMMONWEALTH'S REBUTTAL WITNESS THAT HE WAS A PAROLE AGENT OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND THAT HE...