Commonwealth v. Cooper

• Decision Date: 22 April 1976
• Parties: COMMONWEALTH of Pennsylvania v. Arthur M. COOPER, Harold J. Davis, Appellants (two cases).
• Court: Pennsylvania Superior Court

362 A.2d 1041

240 Pa.Super. 477

COMMONWEALTH of Pennsylvania v. Arthur M. COOPER, Harold J. Davis, Appellants (two cases).

Superior Court of Pennsylvania.

April 22, 1976.

Appeal Granted. Order Vacated Aug. 3, 1976. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Philip D. Lauer, Daniel E. Cohen, Easton, for appellants.

Charles H. Spaziani, Dist. Atty., John E. Gallagher, Asst. Dist. Atty., Easton, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge.

Appellants were convicted of trafficking in narcotics, possession of narcotics, ^[1] and conspiracy. ^[2] Initially appellants contend that the evidence presented at trial was insufficient to convict. Further, appellants challenge the introduction of evidence obtained pursuant to: (1) a New York wiretap; (2) eavesdropping at the door of appellant Harold Davis' motel room; (3) a warrantless search of a trailer rented by appellant Arthur Cooper; and (4) search warrants secured subsequent to the warrantless search. Finally, appellants contend that the court en banc erred in holding that the trial court's refusal of their request for pre-trial statements and reports of Commonwealth witnesses was 'harmless error.'

We hold that the evidence presented was sufficient to convict appellants of the crimes charged and, therefore, we affirm the lower court's denial of appellants' motion in arrest of judgment. However, we disagree with the lower court's conclusion that the failure to provide appellants with the pre-trial statements and reports was 'harmless error.' Thus, we reverse and remand for a new trial. Because appellants may be retried, we must consider the claim that evidence obtained in violation of the Fourth Amendment was introduced at trial. However, we affirm the lower court's holding that the evidence in question was properly admitted.

The following facts led to appellants' arrest and conviction. From January 8, through March 8, 1972, the New York State Police placed a wiretap on appellant Davis' telephone pursuant to a warrant procured on January 7, 1972 by the Rensselaer County, New York District Attorney. On February 22, 1972, the New York State Police notified Trooper John Schafer of the Bethlehem Barracks of the Pennsylvania State Police that Davis would be flying to the Allentown-Bethlehem-Easton (ABE) airport and requested surveillance because Davis was believed to be involved in narcotics traffic. The Pennsylvania State Police followed appellant from the ABE airport by helicopter and by automobile during his entire stay in Pennsylvania. Davis was observed talking to a man later identified as Anthony Romano. No arrests resulted from this surveillance.

On February 29, 1972, Trooper Joseph Kocevar, one of the officers involved in the surveillance of the previous week, observed Davis driving east on Route 22. Trooper Kocevar followed Davis to a motel in Hanover Township, Northampton county, where Davis registered to room 120 under an assumed name. Trooper Kocevar radioed for assistance, and the police began a 'stake-out.' Several officers assumed positions on the roof of the motel, while others waited in the motel office and in the motel parking lot. Troopers Thomas Marchetti, Robert Gerken, and John Schafer received permission from the motel manager to occupy room 118, which was adjacent to room 120. Trooper Marchetti opened the double door on his side connecting room 118 with room 120 and sat in a chair with his head, at times, against the door of room 120. He used no mechanical devices to amplify the sound. Surveillance continued in this manner from 2:30 p.m. on February 29 until 7:00 the next morning.

During the course of Trooper Marchetti's vigil, he wrote down all of Davis' conversations and movements. ^[3] At 5:10 p.m., Davis called the desk and inquired whether there were any messages. At 5:30 p.m., Davis left his room and returned at 6:10 p.m. At 7:15 p.m., and 10:15 p.m., Davis again called the desk for messages. At 1:18 a.m., Marchetti heard Davis talking on the telephone. 'Yeah. How you feeling? That's too bad. Having trouble with the trailer. You will be here by day-break. Good. Well, I'll be leaving here and I'll be back before you get here. Room 120, right? Okay. See you then.'

Shortly afterwards, Davis placed a call and told the other party that his friend was having difficulty getting to the motel, and that he would let him know if he, Davis, was going to be late. He asked, 'How did the show go?' 'Yeah. . . . No kidding. . . . Any buys? . . . How big an order? . . . Oh, boy. . . .' After more conversation, Davis hung up. Then, at 6:55 a.m., a call came to the room: 'Yeah. . . . Where you at? . . . Gulf Station. .. . Just come in the parking lot and park trailer in front of motel and come to Room 120, all right?'

At 7:02 a.m., the officers heard a knock at the door of room 120, and Marchetti heard the following exchange:

'Davis: 'How you feeling?'

'Cooper: 'I had to park on side. Lot full.'

'Davis: 'You do what you want. Go home. Get some sleep. Show doing terrible. Not going back. We'll talk later. Let's get the grass (marijuana) to Tony.'

'Cooper: 'Why don't you come with me?'

'Davis: 'Let's keep this in separate cars.''

The appellants left the room; the officers in room 118 followed. When the appellants were approximately 10 to 15 feet from their rental trailer, the police converged and arrested them. Approximately eleven officers were involved in the arrest. The officers warned appellants of their rights and searched them. One of the officers removed two keys from appellant Cooper's pocket. As the officers approached the trailer, the distinct aroma of marijuana emanated from the trailer. While appellants were held at gunpoint, two troopers opened the trailer and looked inside. The officers saw forty-five duffel bags, one of which was open enough for the officers to see that it contained marijuana. In all, the marijuana weighed approximately 1,200 pounds.

After the officers viewed the contents of the trailer, they locked the doors and set up a stake-out. Trooper Gerken then went to a district magistrate and applied for search warrants for the car, the trailer, and the motel room. The warrant affidavit recited the following facts: that appellants were arrested by the affiant for possession of marijuana, that affiant smelled a strong odor of marijuana emanating from the trailer, that one of the appellants was the driver of the trailer, that two keys taken from one of the appellants fit the trailer, and that the affiant opened the trailer and saw marijuana. The magistrate issued the warrant, and the officers conducted a thorough search of the motel room, the car, and the trailer. In addition to the marijuana, the police seized a rental contract listing appellant Cooper as the lessee.

On January 29, 1973, the court denied appellants' motions to suppress all physical evidence and oral statements. ^[4] After a trial on November 14--16, 1973, a jury found appellants guilty on all counts. Motions for a new trial and in arrest of judgment were denied by the court en banc, one judge dissenting, ^[5] on January 7, 1975. On April 23, 1975, appellant Harold Davis was sentenced to serve a term of 18 to 36 months' imprisonment and appellant Arthur Cooper was sentenced to serve a term of 9 to 24 months' imprisonment. This appeal followed.

I. Sufficiency of the Evidence

Appellants contend that the evidence was insufficient to prove trafficking, possession and conspiracy.

When the offense of trafficking in a controlled substance is charged, the Commonwealth must establish that the defendant was engaged in the commerce trade or sale of a controlled substance. Commonwealth v. Hill,236 Pa.Super. 572, 346 A.2d 314 (1975); See also 87 C.J.S. Traffic. The Commonwealth may sustain its burden by proving circumstances which enable the factfinder to reasonably infer that the defendant was engaged in trafficking.

"en the illegal possession of contraband is charged, the evidence must establish that the appellant had a conscious dominion over the contraband. Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971).' Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327, 328 (1974). Absent literal possession by an individual, the Commonwealth may sustain its burden by proving joint constructive possession, which requires a showing that the defendant had the power to control and the intent to exercise that control. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974). Thus, if the Commonwealth proves these two elements, the factfinder may reasonably infer possession.

Lastly, appellants were convicted of conspiracy to do an unlawful act. 'The elements of conspiracy to do an unlawful act are a combination of two or more persons, with criminal intent or corrupt motive, to do a criminal or unlawful act, or an act not in itself unlawful, by criminal or unlawful means: Com. v. Gaines, 167 Pa.Super. 485, 75 A.2d 617.' Commonwealth v. Neff, 407 Pa. 1, 6, 179 A.2d 630, 631 (1962), quoting Commonwealth v. Horvath, 187 Pa.Super. 206, 144 A.2d 489 (1958). A conspiracy may be inferentially established by showing the relations, conduct, or circumstances of the confederates, which demonstrate a unity of purpose to accomplish an unlawful act. Commonwealth v. Neff, supra.

"In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all Reasonable inferences arising from the evidence,...