Com. v. Webster

Decision Date13 February 1984
Docket NumberNos. 2638,s. 2638
Citation323 Pa.Super. 164,470 A.2d 532
PartiesCOMMONWEALTH of Pennsylvania v. Regina K. WEBSTER, Appellant. 1981, 2695 1981 and 2017 1982.
CourtPennsylvania Superior Court

Peter T. Campana, Williamsport, for appellant.

Ellen L. Cohen, Asst. Dist. Atty., Williamsport, for Commonwealth, appellee.

Before WIEAND, McEWEN and MONTGOMERY, JJ.

WIEAND, Judge:

Regina Webster was tried by jury and found guilty of delivering 6.65 grams of cocaine to an undercover state policeman on November 5, 1981. On direct appeal from the judgment of sentence, she contends that she is entitled to an arrest of judgment because she was granted immunity by the courts of New York when she appeared in that state to give testimony concerning other drug transactions before a Steuben County Grand Jury. In separate appeals, she contends that the trial court erred when it refused to dismiss two additional informations charging her with (1) conspiracy and attempt to deliver six hundred pounds of marijuana on December 21, 1980 and (2) possession with intent to deliver a quantity of marijuana found in her home pursuant to a search conducted by police on December 22, 1980. She contends that a separate trial on these informations will violate Section 110 of the Crimes Code, 18 Pa.C.S. § 110, and principles of double jeopardy. Both appeals were consolidated for purposes of argument.

On November 5, 1980, the Pennsylvania State Police were informed by the New York State Police that information had been acquired as a result of an authorized wiretap on a New York telephone to the effect that a quantity of cocaine was to be delivered by a New York resident to Curtis Missien, 929 High Street, Williamsport, Pennsylvania. Trooper Donald K. Jury of the Pennsylvania State Police made an undercover visit to Missien's home the same day. There he found Regina Webster, who was living with Missien, and discussed with her the possibility of making future drug purchases. On that occasion, according to the evidence produced at trial, Jury purchased 6.65 grams of cocaine from Regina Webster. Although Jury had additional discussions with Ms. Webster thereafter, and also with Missien, no additional purchases of cocaine were made. This may have been due in part to the arrest in New York of Robert Bavisotta, who was suspected of being the New York supplier of Missien and Webster.

On December 17, 1980, Trooper Jury was again in Regina Webster's home, where he discussed with her the purchase of a large quantity of marijuana. On this occasion, he observed an estimated twenty-four pounds of marijuana and was present when Webster sold marijuana to an unidentified third person. Webster arranged for Jury to meet with one Alfred Rowe, whom Webster represented to be her source for marijuana, on December 21, 1980. After Jury had visited the site where a large quantity of marijuana was stored and had made arrangements to purchase the marijuana, an arrest was made of Webster, Rowe and Rowe's wife. A search of the home shared by Webster and Missien, conducted pursuant to warrant on the morning of December 22, 1980, resulted in the finding and seizure of the twenty-four pounds of marijuana seen earlier by Trooper Jury.

Regina Webster was initially named as defendant in two criminal complaints. The first charged her with possession and delivery of cocaine on November 5, 1980. The second complaint alleged a conspiracy to deliver and an attempt to deliver six hundred pounds of marijuana to Trooper Jury on December 21, 1980. Later, on January 14, 1981, appellant was also charged with possession and possession with intent to deliver the marijuana found in her home on December 22.

On March 27, 1981, Regina Webster appeared in New York before a Steuben County Grand Jury and, pursuant to a grant of transactional immunity by the New York court, answered questions pertaining to the purchase of drugs from Robert Bavisotta on November 4 and November 9, 1980. She was not asked and did not give testimony concerning her sale of cocaine to Trooper Jury on November 5.

In Pennsylvania, the several charges against Regina Webster were returned to court and were included in three separate informations. Omnibus pre-trial motions were filed and included (1) a motion to dismiss because of immunity granted in New York and (2) a motion to consolidate all charges for trial. On July 31, 1981, the trial court denied the motion to dismiss. It also denied the application to consolidate in one trial all charges against Webster. Instead, the court granted a prosecution request to consolidate in separate trials the charges against all defendants involved in each transaction.

On September 23, 1981, Webster was tried for the sale of cocaine to Jury on November 5, 1980 on a case stated basis. She was found guilty. Post trial motions were denied, and a sentence of imprisonment was imposed for not less than one nor more than three years.

Appellant contends that the transactional immunity granted by the court in New York is a bar to prosecution for the possession and sale of cocaine in Pennsylvania. Alternatively, she argues that even if prosecution is not barred by the grant of immunity by the State of New York, the conviction must fall because the Commonwealth failed to meet its burden of proving that it made neither direct nor indirect use of the testimony which she was compelled to give before the Grand Jury in New York.

Witness immunity is characterized as either transactional immunity or use immunity. Transactional immunity provides a witness full immunity from prosecution for crimes arising from any transaction concerning which the witness was compelled to testify. See: Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), reh. denied, 408 U.S. 931, 92 S.Ct. 2478, 33 L.Ed.2d 345 (1972); United States v. Quatermain, 613 F.2d 38, 40 (3rd Cir.1980), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); Riccobene Appeal, 439 Pa. 404, 411-412, 268 A.2d 104, 109 (1970). Use immunity, on the other hand, prohibits the use or derivative use of any testimony compelled over a claim of privilege. See: Zicarelli v. The New Jersey State Commission of Investigation, 406 U.S. 472, 475-476, 92 S.Ct. 1670, 1673, 32 L.Ed.2d 234 (1972); United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109. Use immunity does not prohibit prosecution for all crimes arising out of the transaction testified to so long as the prosecution's evidence is obtained from a source wholly independent of the compelled testimony. 1 United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109.

Transactional immunity is not required in order to compel testimony over a Fifth Amendment claim of privilege against self-incrimination. "[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader." Kastigar v. United States, supra 406 U.S. at 453, 92 S.Ct. 1653, at 1661, 32 L.Ed.2d 212 (1972). See also: Zicarelli v. The New Jersey State Commission of Investigation, supra 406 U.S. at 475-476, 92 S.Ct. 1670, at 1673, 32 L.Ed.2d 234 (1972); United States v. Quatermain, supra at 40; Riccobene Appeal, supra 439 Pa. at 419, 268 A.2d at 109.

In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Supreme Court of the United States held that the Fifth Amendment to the United States Constitution requires a second sovereign to afford a person only use immunity for testimony originally compelled under a grant of transactional immunity by another sovereign. The basis for the recognition of use immunity where another sovereign has compelled testimony by immunizing the witness is the Fifth Amendment privilege against self-incrimination, which is "fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653." Murphy v. Waterfront Commission, supra 378 U.S. at 53, 84 S.Ct. 1594, at 1595, 12 L.Ed.2d 678. A grant of use immunity affords protection which is co-extensive with the scope of the Fifth Amendment privilege, and is, therefore, all that is required to protect the privilege. See: Riccobene Appeal, supra 439 Pa. at 412, 268 A.2d at 109. Recognition of use immunity by the prosecuting sovereign "leaves the witness and the [prosecuting sovereign] in substantially the same position as if the witness had claimed his privilege in the absence of a [prior] state grant of immunity." Murphy v. Waterfront Commission, supra 378 U.S. at 79, 84 S.Ct. 1594, at 1609, 12 L.Ed.2d 678. See also: Kastigar v. United States, supra 406 U.S. at 458-459, 92 S.Ct. 1653, at 1663-1664, 32 L.Ed.2d 212; United States v. DeDiego, 511 F.2d 818, 822 (D.C.Cir.1975). "A grant of immunity broader than the Fifth Amendment privilege against self-incrimination might [well] infringe upon the right of another sovereignty, whether the Federal Government or another State, to enforce its laws." United States v. DeDiego, supra at 822.

As noted by the court in United States v. Meyers, 339 F.Supp. 1154 (E.D.Pa.1972), "serious considerations of federalism arise when and to the extent that immunity granted a witness by one state impinges upon the independent power of another state to prosecute him.... '[N]o state other than the grantor of immunity has had an opportunity to elect whether it will forego prosecuting the witness as a price worth paying for his testimony. And states may well differ in judgment as to the importance and desirability of prosecuting a particular participant in wrongdoing. Thus, to deprive a state of the right to prosecute...

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