Com. v. Vitale

• Decision Date: 23 August 1995
• Citation: 664 A.2d 999,445 Pa.Super. 43
• Parties: COMMONWEALTH of Pennsylvania v. Patrick A. VITALE, Appellant.
• Court: Pennsylvania Superior Court

Page 999

664 A.2d 999

445 Pa.Super. 43

COMMONWEALTH of Pennsylvania v. Patrick A. VITALE, Appellant.

Superior Court of Pennsylvania.

Argued May 9, 1995.

Filed Aug. 23, 1995.

George Goldstein, Philadelphia, for appellant.

Theodore R. Racines, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Before OLSZEWSKI, HUDOCK and FORD ELLIOTT, JJ.

OLSZEWSKI, Judge:

Patrick Vitale appeals his judgment of sentence following a jury trial for conspiracy to possess cocaine and conspiracy to possess cocaine with intent to deliver. He was sentenced to three-to-ten years incarceration. Post-trial motions were denied by the Honorable Carol K. McGinley. He now raises the following five claims on appeal:

(1) An expert witness's interpretation of coded words impermissibly usurped the province of the jury.

(2) It was error for the trial court to allow appellant to be impeached with his conviction for federal income tax evasion.

(3) The jury should have been charged on mutually inconsistent inferences.

(4) The affidavit used to procure the wiretap was statutorily deficient.

(5) A recorded conversation between appellant's wife and one of the co-conspirators should not have been admitted into evidence.

Appellant was one of nine co-defendants arrested following an extensive investigation by the Pennsylvania State Police into illegal drug activity. The State Police initiated five wiretaps in the course of their investigation. Messages were intercepted from calls from phones listed in the names of either Robert Kratzer or Tony DeJesus, two of appellant's co-conspirators. A total of 1,557 phone calls were intercepted. Of these, the jury heard 106 conversations. Thirteen involved talks between Kratzer and appellant or Kratzer leaving messages on appellant's answering machine. One involved a phone call between Kratzer and appellant's wife.

Appellant was convicted primarily as a result of his phone conversations with Kratzer. At trial, State Trooper Joseph Vasquez ¹ was qualified as an expert witness in interpreting jargon employed by the conspirators, as it was presumed that the lay juror might not have a reference for many of the phrases used by appellant and his co-conspirators.

Appellant first claims that as the language used by the defendants in the tapes was ordinary and quotidian, the admission of much of Trooper Vasquez's testimony was error. Arguing that the jurors' own experiences would have enabled them to decode the questioned excerpts by themselves, appellant maintains that Trooper Vasquez's testimony improperly usurped the fact-finding province of the jury. We disagree.

Appellant does not contest Vasquez's expertise. Moreover, appellant admits that "[c]oded conversation utilizing language which is intended to prevent the uninitiated from understanding it is subject to interpretation by an expert." Appellant's brief at 9. Rather, appellant argues that much of what was interpreted was common knowledge.

"Expert testimony is readily admissible to interpret and explain the use of code words and the meaning of certain language used in drug trafficking." Commonwealth v. Riffert, 379 Pa.Super. 1, 21, 549 A.2d 566, 576 (1988) (quoting United States v. Dawson, 556 F.Supp. 418, 423 (E.D.Pa.1982), affirmed, 727 F.2d 1101 (3d Cir.1984)) (citations omitted), allocatur denied, 522 Pa. 602, 562 A.2d 825 (1989). We have held that such testimony does not invade the province of the trier-of-fact. Id. Moreover, the determination of whether to admit or exclude evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Commonwealth v. Scarfo, 416 Pa.Super. 329, 383, 611 A.2d 242, 269, allocatur denied, 535 Pa. 633, 631 A.2d 1006 (1992).

Appellant cites to Commonwealth v. Carter to support the proposition that Trooper Vasquez's testimony was prejudicial. 403 Pa.Super. 615, 589 A.2d 1133, allocatur denied, 528 Pa. 621, 597 A.2d 1151 (1991). Carter is inapposite, however, as the testimony in question in that case did not involve linguistic decoding. Rather, the officers in Carter stated that the defendant was "dealing narcotics." Id. at 617, 589 A.2d at 1134. The police in Carter were interpreting their visual observations for the jury. Here, Vasquez was interpreting linguistic codes. He was a properly qualified expert; such testimony was admissible.

Appellant recites sixty-one passages of testimony he believes were prejudicial. A review of that testimony reveals that in twenty-four passages Vasquez was decoding jargon that referred to the amount of drugs. E.g., N.T. 9/23/91 at 42-43 (stating that "I'll give you another one" referred to one ounce of cocaine). In eighteen the jargon or slang interpreted referred to price. E.g., id. at 53 (stating that "I'm at eight" meant eight hundred dollars). Fourteen pieces of testimony explained words referring to cocaine and/or the quality of cocaine. E.g., id. at 68-69 (interpreting "guarantee" to mean cocaine). Three times Vasquez interpreted words describing the drug business. E.g., id. at 78 (decoding "[T]hese people are just adding up," to mean that the cocaine Kratzer purchased was almost completely depleted and his clients were asking for more). Three interpretations were of slang for drug paraphernalia. E.g., id. at 43 (stating that "little pieces of plastic" referred to either a foreign substance inside the cocaine or a person who poorly cut the cocaine). ² We find that in all of these, Vasquez was decoding slang, the jargon of the drug underworld, so that the jury would know to what the tapes referred. It was still the jury's obligation to decide if recorded conversations in which appellant was repeatedly heard to refer to drug transactions indeed constituted an intent to actually sell drugs. ³ We therefore find that the admission of Vasquez's testimony was not an abuse of discretion.

Appellant claims in his second issue that a conviction for federal income tax evasion is not a crimen falsi, and therefore it should not have been available to the prosecutor for impeachment purposes. ⁴ We disagree. Crimes involving dishonesty or a false statement which occurred within ten years of the trial date are per se admissible. Commonwealth v. Randall, 515 Pa. 410, 415-17, 528 A.2d 1326, 1329 (1987); see also Allen v. Kaplan, 439 Pa.Super. 263, 268-70, 653 A.2d 1249, 1252 (1995); Commonwealth v. Young, 432 Pa.Super. 318, 320-22, 638 A.2d 244, 246 (1994); Russell v. Hubicz, 425 Pa.Super. 120, 133-35, 624 A.2d 175, 182, allocatur denied, 535 Pa. 670, 634 A.2d 1117 (1993).

Crimes such as rape, resisting arrest, prostitution, and assault with intent to kill are not crimes involving dishonesty or false statement. Kaplan at 270-72, 653 A.2d at 1253. Crimes such as theft, perjury, bribery, criminal trespass, and unauthorized use of a motor vehicle, however, have been held by Pennsylvania courts to be crimen falsi. Id. In addition, we have indicated that even if a crime would not in and of itself be crimen falsi, we would consider it as such if it was committed in part through the use of false written or oral statements. Id. (citing United States v. Hayes, 553 F.2d 824 (2nd Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977)).

Appellant cites to Cree v. Hatcher for the proposition that appellant's income tax conviction could not have been used to impeach his testimony. 969 F.2d 34 (3rd Cir.), cert. granted in part sub nom. Hatcher v. Valcarcel, 506 U.S. 984, 113 S.Ct. 490, 121 L.Ed.2d 429, and cert. denied in part, 506 U.S. 1017, 113 S.Ct. 1147, 121 L.Ed.2d 577 (1992). In Cree the United States Court of Appeals for the Third Circuit was addressing the Federal Rules of Evidence. That decision is therefore not binding on this Court. Kaplan, 439 Pa.Super. at 271 n. 5, 653 A.2d at 1253 n. 5; see also Commonwealth v. Richardson, 347 Pa.Super. 564, 568-70, 500 A.2d 1200, 1203 (1985), allocatur denied, 525 Pa. 644, 581 A.2d 571 (1990). ⁵

Moreover, in Cree the issue was whether or not an expert witness could be impeached by his conviction of the misdemeanor of willful failure to file a federal income tax return, in violation of 26 U.S.C. § 7203. Cree at 36. In that case the expert doctor failed to pay an estimated tax. The Federal Court of Appeals held that there was no element of deceit, untruthfulness, or falsification in that crime, as there was no requirement that a defendant accused of violating § 7203 acted with an evil purpose to conceal tax liability. Id. at 37.

In the case sub judice, appellant was not convicted for willful failure to report information or pay taxes, but for an attempt to evade or defeat tax. 26 U.S.C. § 7201. The former is a lesser included offense of the latter. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Section 7201 states that "any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony." 26 U.S.C. § 7201. The United States Supreme Court has stated that "the elements of § 7201 are willfulness; the existence of a tax deficiency; and an affirmative act constituting an evasion or attempted evasion of the tax. In comparison, § 7203 makes it a misdemeanor willfully to fail to perform a number of specified acts at the time required by law...." Sansone, 380 U.S. at 351, 85 S.Ct. at 1010, 13 L.Ed.2d at 888 (citations omitted).

Evasion is the "act of eluding, dodging, or avoiding, or avoidance by artifice." Black's Law Dictionary 497 (5th ed. 1979). To evade paying taxes is to cheat the government. A violation of § 7201 means that a defendant knowingly and willfully attempted "to defraud the Government of its tax money." McCarthy, 394 U.S. at 470, 89 S.Ct. at 1173, 22 L.Ed.2d at 427 (footnote omitted). Being convicted of willfully...