Cullenen v. Com.
| Citation | 588 A.2d 988,138 Pa.Cmwlth. 508 |
| Decision Date | 21 March 1991 |
| Docket Number | No. 104,104 |
| Parties | Al CULLENEN, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee. C.D. 1990. |
| Court | Commonwealth Court of Pennsylvania |
Lee A. Ciccarelli, with him, Angela C. Lovecchio, Williamsport, for appellant.
Roseann B. Termimi, Deputy Atty. Gen., with her, Robert A. Graci, Chief Deputy Atty. Gen., Anthony Sarcione, Executive Deputy Atty. Gen., and Ernest D. Preate, Jr., Atty. Gen., Harrisburg, for appellee.
Before PALLADINO and BYER, JJ., and SILVESTRI, Senior Judge.
Al Cullenen (Cullenen) appeals from a judgment of sentence of the Court of Common Pleas of Lycoming County which denied his pre-trial motions that had been renewed as post-verdict motions and which denied his motion to modify sentence. We affirm.
Cullenen was convicted and sentenced for violating the Solid Waste Management Act 1 (Act). Cullenen is an independent over the road tractor-trailer (truck) operator from Toledo, Ohio who owned and leased his truck to Wills Trucking Company of Ohio (Wills). Wills, in turn, leased the truck with Cullenen as driver to Waste Conversion, Inc. 2 (Waste Conversion).
On September 14, 1987, Cullenen's truck was loaded with non-hazardous waste to be transported from Waste Conversion's facility to a disposal site in Michigan. While traveling on Route 44 in Pennsylvania en route to Michigan, Cullenen was unable to crest Elimsport mountain due to the weight of his load. 3 Cullenen backed down the hill an undetermined distance and dumped a substantial amount of the waste on the side of the road. Since the load on his truck was considerably lighter, Cullenen was able to negotiate the hill and continued to his destination.
The regional office of the Department of Environmental Resources (DER) was informed of an apparent dumping of waste material 4 on Route 44. The DER contacted the Bureau of Criminal Investigation of the Attorney General's office for the purpose of initiating an investigation. The Environmental Crime Section of the Attorney General's office conducted an investigation and determined that the material originated from Waste Conversion's facility. Records from Waste Conversion identified Cullenen as the possible driver of the truck which dumped the waste. A couple of volunteer firemen reported having observed a truck fitting the description of Cullenen's vehicle on Route 44 on the day in question.
After contacting Cullenen's dispatcher, the Attorney General's office discovered that Cullenen would be making a delivery to the Bethlehem Steel plant in Sparrows Point, Maryland on September 24, 1987. Two agents from the Attorney General's office traveled to the steel plant and interviewed Cullenen regarding the load of material that was dumped in Lycoming County. Cullenen admitted to being the driver of the truck that dumped the waste and agreed to give a statement to that effect.
On October 29, 1987, a criminal complaint was filed against Cullenen 5 for: a) "disposed of a residual waste contrary to the rules and regulations of the DER in violation of 35 P.S. § 6018.302(a), a misdemeanor"; and b) "dumping or depositing a solid waste onto the surface of the ground without a permit from DER, 35 P.S. § 6018.610(1), a misdemeanor"; they are misdemeanors of the third degree.
Cullenen turned himself in and was preliminarily arraigned on September 8, 1988. Cullenen waived his preliminary hearing on October 27, 1988. The Attorney General's office filed criminal information No. 88-11,222 on November 21, 1988 which charged Cullenen with two counts: 1) illegal disposal of a residual waste, 35 P.S. § 6018.302(a); and 2) illegal dumping or depositing of a solid waste, 35 P.S. § 6018.610(1).
Cullenen filed pre-trial motions to suppress the statements made during his interview with the two agents and to dismiss the charges for undue delay of prosecution pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 1100. 6 Both motions were denied and a non-jury trial on a stipulated set of facts was held on May 30, 1989.
By order dated May 30, 1989, the trial court found Cullenen guilty on both counts as charged in the information. Cullenen renewed his pre-trial motions as oral post-verdict motions which were both denied. The trial court ordered a pre-sentence investigation report to be prepared. By order dated October 31, 1989, Cullenen was sentenced, only on the count of illegal disposal of a residual waste, to pay the costs of prosecution, to pay a fine in the amount of $7,500, and to undergo incarceration in the Lycoming County Prison for an indeterminate period of one to twelve months.
There was no sentence imposed on the count of illegal dumping or depositing of a solid waste. The trial court, after finding guilt on both counts, elected to impose a sentence only with respect to one of the counts. Ordinarily, the trial court must make a sentence disposition with regard to all charges where multiple charges exist so as to avoid piecemeal appeals.
At the conclusion of the trial, the judge stated, "[t]he Court is going to find guilt on both, I tend to agree with Mrs. Lovecchio (Cullenen's counsel) that they're so close and the gravamen of the conduct is both [sic] my sentence would be concurrent...." The judge further stated at the sentencing hearing:
Your Counsel has submitted a memo that they should be considered as merging because they both involve essentially the same behavior, and I should say to Counsel that whether they technically merge or not, as far as I am concerned, it would in any sentence [sic] would be a concurrent type of thing because really the behavior is the same that we are looking at.
The doctrine of merger has been invoked to limit duplicitous sentencing where one crime necessarily involves another or where a defendant committed what in effect amounts to a single criminal act. See, Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986); see also, Commonwealth v. Williams, 386 Pa.Superior Ct. 322, 562 A.2d 1385 (1989) (en banc). We find under the circumstances that there was a merger of offenses. Thus, the trial court properly sentenced Cullenen on only one count which also disposed of the second count.
Cullenen filed a timely motion to modify sentence which was denied by the trial court by order dated November 14, 1989. Cullenen then filed this appeal from the judgment of sentence. 7
Cullenen raises the following issues: 1) whether the trial court erred in denying the motion to suppress evidence; 2) whether the trial court erred in denying the motion to dismiss; and 3) whether the trial court erred and/or abused its discretion in sentencing him to pay a fine and requiring him to undergo imprisonment.
Cullenen asserts that his statements made to the agents should have been suppressed since they were made in violation of his rights under the United States and Pennsylvania Constitutions. Cullenen maintains that he did not knowingly, intelligently or voluntarily waive his right to counsel or his right to remain silent prior to making such statements since he did not receive Miranda 8 warnings. Cullenen maintains that the statements should be suppressed because they were coerced and the product of a custodial interrogation.
Upon arriving in Sparrow's Point, the two agents from the Attorney General's office (agents) contacted the Bethlehem Steel Plant Police Department and alerted the guard at the front gate that they wished to talk with Cullenen who was scheduled to make a delivery. Cullenen arrived at the front gate at approximately midnight and was informed that the agents sought to speak with him. The two agents walked over to Cullenen's truck, identified themselves to him, and expressed their interest in talking to him about the load of material that was dumped in Lycoming County. The agents told Cullenen that they had no intention of arresting him that night and were merely conducting an investigation of the incident. Cullenen was not given Miranda warnings.
Cullenen accompanied the agents to their vehicle which was in an outdoor parking lot approximately thirty yards from the front gate. Cullenen was questioned while he and one of the agents sat in the front seat of the vehicle. The position of the second agent during the interview is disputed. 9 Cullenen was shown various documents and papers which identified the load and him as being the possible driver. The agents explained to Cullenen that Pennsylvania law provides that trucks involved in the intentional dumping of hazardous waste are subject to forfeiture. After approximately twenty minutes into the interview, Cullenen admitted to being the driver who dumped the waste and agreed to give a statement. The entire interview lasted approximately one hour.
Cullenen asserts that he was coerced into giving the statement. Cullenen alleges that the agents threatened to impound his truck at anytime if he failed to cooperate. However, at the suppression hearing, Cullenen conceded that the agents explained to him that, in Pennsylvania, the law provides that if hazardous waste is dumped intentionally, the truck is subject to forfeiture. The agents merely explained the applicable law to Cullenen and in view of all the circumstances surrounding the interview, such explanation cannot be deemed to be coercive.
Cullenen also asserts that his statement was the product of a custodial interrogation and should be suppressed. Custodial interrogations occur when law enforcement officers initiate questioning after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. It is important to note, that while a seizure of a person by police triggers Fourth Amendment protections, it does not automatically trigger Miranda rights under the Fifth Amendment. Commonwealth v. Ellis, 379 Pa.Superior Ct. 337,...
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