Harmon v. Com.

• Decision Date: 19 August 1988
• Citation: 546 A.2d 726,119 Pa.Cmwlth. 1
• Parties: James HARMON, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 726

546 A.2d 726

119 Pa.Cmwlth. 1

James HARMON, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Argued April 18, 1988.

Decided Aug. 19, 1988.

James J. DeMarco, DeMarco & Carrafiello, Philadelphia, for appellant.

Janice V. Quimby, Sp. Deputy Atty. Gen., Philadelphia, for appellee.

Before MacPHAIL and DOYLE, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

Following a jury trial in Bucks County, James Harmon (Appellant) was convicted of criminal conspiracy and three violations of Pennsylvania's Solid Waste Management Act (Act). ¹ He was sentenced to three terms ² of six to twelve months each, to run consecutively, and to $3,000 in fines plus costs of prosecution. Appellant appealed to Superior Court, which, upon the Commonwealth's motion, transferred the matter to this Court.

Appellant ran a waste disposal company, United Hospital Services. He had contracted with Montefiore Hospital in the Bronx, New York to remove the infectious waste from Montefiore and its affiliate, Albert Einstein Hospital. The contract provided for disposal of the waste by incineration at Rowlands Environmental Services, Inc. in New Jersey. The waste to be removed and incinerated was so-called "red bag" waste. Hospital personnel were trained to segregate certain types of infectious waste, such as used IV tubing, syringes, blood and serum vials, etc., by placing it in red plastic bags. These bags were kept separately from the remainder of the hospital waste, and were to be disposed of by incineration at high temperatures designed to kill any pathological organisms.

Appellant had held the contract with Montefiore since October, 1983. He began experiencing difficulties finding incineration sources due to cost and a competitor's efforts to drive him out of business. Rowlands had apparently proved to be too expensive early on and he used a variety of incinerators before the summer of 1985. During that same period, he was attempting to get a permit from the Pennsylvania Department of Environmental Resources (DER) for an incinerator he had purchased and completely overhauled. (The permit was ultimately denied because Appellant had lost his lease for the incinerator site). During the summer of 1985, Appellant was nearing bankruptcy and could no longer afford the charges at the few incinerators still open to him. He continued to collect the hospital waste, using Raymond Coakely, Sr. and his son, truckers who worked out of the same warehouse as United Hospital Services, to transport the waste from New York to the warehouse site in Norristown. (The Coakelys were named as unindicted co-conspirators by the Commonwealth and testified on its behalf).

Coakely, Sr. testified that he put Appellant in contact with Mark Decker, ³ who had a 180-acre piece of property in Nockamixon Township, Bucks County, site of an old landfill, where Appellant could dispose of the hospital waste.

Coakely's son testified that he delivered several trailer loads of the hospital waste to the Nockamixon site, both from the warehouse in Norristown and directly from the New York hospitals. He left some trailers full of red bag waste at the site, while others were unloaded onto the ground by Appellant and his workers and set afire using kerosene.

On September 25, 1985, there was a fire on Decker's property to which the local police and fire departments responded at approximately 8:00 p.m. No one was on the property at the time. David Bonham, a fireman, testified that the fire was about 20 feet square, and appeared to be burning rubbish in plastic bags. One of the unburned items the firemen discovered was a closed plastic pail which contained used syringes. While fighting the fire, Mr. Bonham's boot was pierced by a needle which entered his foot. He was taken to the hospital for a hepatitis shot. Several days later, upon inspecting the fire equipment, he and the other firemen found two to three dozen needles imbedded in the truck tires, hoses and the firemen's boots.

Several weeks later, on October 18 and 19, 1985, Decker's Nockamixon property was the subject of a search. Seven or eight trailers containing red bag waste were discovered. In addition, the old landfill site was excavated, and evidence of hospital waste, such as syringes, IV tubing, test tubes and pieces of red plastic bags, was discovered. Appellant was subsequently arrested and charged with conspiracy and several violations of the Act.

On appeal, Appellant raises eight issues for our resolution. For organizational purposes we shall address these issues chronologically.

Appellant argues that jurisdiction over this appeal lies in Superior Court, presumably because of the conspiracy conviction. Our jurisdiction over criminal violations of the Act arises from Section 762(a)(2)(ii) of the Judicial Code, 42 Pa.C.S. § 762(a)(2)(ii), which provides, in relevant part:

[T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:

....

(2) Governmental and Commonwealth regulatory criminal cases.--All criminal actions or proceedings for the violation of any:

....

(ii) Regulatory statute administered by any Commonwealth agency. ... The term 'regulatory statute' as used in this subparagraph does not include any provision of Title 18 (relating to crimes and offenses).

The Act, by its terms, is a regulatory statute. See Section 104(6), (11), 35 P.S. § 6018.104(6), (11). The DER is given the power under those sections and Section 1901-A of The Administrative Code of 1929, ⁴ to regulate the various activities involved in waste disposal and to institute prosecutions where violations are discovered. Despite the fact that Appellant was convicted of criminal conspiracy under Section 903 of the Crimes Code, 18 Pa.C.S. § 903, this Court has previously held, in the interest of judicial economy, that where we have jurisdiction over criminal violations of a regulatory statute, we may also have jurisdiction over a closely-related conspiracy charge. Commonwealth v. Tyson, 57 Pa. Commonwealth Ct. 569, 427 A.2d 283 (1981). We see no distinguishing factors here to cause us to deviate from this reasoning.

The second issue we shall consider is Appellant's allegation of prosecutorial misconduct for statements made by the prosecutor in her opening remarks to the jury. ⁵ The comments with which Appellant takes issue were as follows:

Now, you, the members of the jury, have been selected specifically because all the parties concerned feel that you fourteen people are capable of making a fair, impartial decision based exclusively on the evidence presented by the parties during the trial. And the Commonwealth does not want to convict innocent persons.

Appellant's counsel objected at the time and while the trial judge overruled the objection, he also reiterated to the jury that the prosecutor was merely outlining what she sought to prove. Appellant moved for a mistrial the following day, arguing that the remarks were highly prejudicial. The Commonwealth argues that by failing to move for a mistrial immediately or to ask for a curative amendment, Appellant has waived the right to now press the issue. Even assuming that the objection operated to preserve the issue, we fail to see how this remark could be so prejudicial to Appellant's case as to require a mistrial.

The determination of whether or not to order a mistrial is within the trial court's discretion and we will only reverse that determination upon a showing of abuse of that discretion. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). It is well settled that:

comments by the Commonwealth's attorney do not constitute reversible error unless the 'unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.'

Id. at 282, 461 A.2d at 211 (citation omitted). We are unable to conclude that the trial court abused its discretion in finding that the above-quoted comment did not unavoidably prejudice the jury.

Appellant raises two issues with respect to the conduct of the trial. First, he alleges error in the trial judge's failure to admit a document he received from the Commonwealth during discovery. The document in question was apparently a report by the Bucks County Board of Health which indicated that no danger to the public existed at the Nockamixon landfill following the fire. The author of the document was not called to testify and the Commonwealth refused to stipulate to its authenticity. Appellant claims that the judge should have either allowed the admission of the document or compelled the Commonwealth to authenticate it. Not surprisingly, no case citations accompany this novel argument. Suffice it to say that Appellant could have subpoenaed the author of the document to authenticate the exhibit, particularly if he considered it a crucial element of his defense. The trial court did not err in refusing to admit the report without authentication.

Second, Appellant contends that the trial judge erred in allowing the Commonwealth to use evidence of his prior conviction on bribery charges for impeachment purposes. This argument is based, inter alia, upon our Supreme Court's decision in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In that decision, the Court limited the use of evidence of prior convictions on rebuttal to those crimes involving dishonesty or false statement, and set forth certain factors to be considered by the trial court judge in determining whether to admit the evidence. These factors were further refined in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). However, in Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987), the Court significantly modified the rule to the following: "evidence of prior convictions can be...