Commonwealth v. Dargon

72 Pa. D. & C.4th 395, 2005 Pa. Dist. & Cnty. Dec. LEXIS 152
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedMarch 11, 2005
Docketno. 03-CR-1495
StatusPublished

This text of 72 Pa. D. & C.4th 395 (Commonwealth v. Dargon) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dargon, 72 Pa. D. & C.4th 395, 2005 Pa. Dist. & Cnty. Dec. LEXIS 152 (Pa. Super. Ct. 2005).

Opinion

NEALON, J.,

— After the defendant was convicted of various drug offenses and sentenced to be incarcerated for eight to 16 years, he filed the instant motion seeking a judgment of acquittal or a new trial. Defendant contends that the recent ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), barred the Commonwealth’s use of a non-testifying confidential informant’s statements under the “course of conduct” exception to the hearsay rule. Defendant also requests a new trial on the basis of after-discovered evidence and challenges the validity of his consent to search form and the sufficiency of the evidence supporting his convictions for possession of controlled substances with the intent to deliver. Since none of the arguments raised by the defendant entitle him to relief, the defendant’s post-sentence motion will be denied.

I. PROCEDURAL HISTORY

On June 20, 2003, the defendant was arrested and charged with possession of heroin and cocaine with the [397]*397intent to deliver, criminal conspiracy to possess heroin and cocaine with the intent to deliver, and possession of heroin and cocaine. Following a preliminary hearing on July 15, 2003, District Justice Joseph Toczydlowski bound all charges over for trial (see transcript of proceedings (T.P.) on 7/15/03, pp. 80-81), and a jury trial was later conducted from January 21, 2004 to January 23,2004. At the conclusion of the Commonwealth’s case, the defendant’s demurrer to the conspiracy charges was granted, and the criminal counts alleging possession of controlled substances and possession with the intent to deliver (PWID) were submitted to the jury. (T.P. 1/23/ 04, pp. 45-47.) On January 23, 2004, the jury found the defendant guilty of three counts of possession and three counts of PWID. (Id., pp. 152-53.)

On April 21, 2004, the defendant was sentenced to three to six years imprisonment and a $10,000 fine for PWID of heroin and five to 10 years incarceration for PWID of cocaine. (T.P. 4/21/04, pp. 31-44.) Defendant’s convictions for possession of controlled substances merged with his PWID convictions for purposes of sentencing. Defendant’s sentences for PWID of heroin and cocaine were ordered to run consecutively such that the aggregate sentence imposed was eight to 16 years incarceration and a $10,000 fine. (Id, pp. 45-48.)

On May 3,2004, the defendant’s counsel filed a post-sentence motion seeking a judgment of acquittal or a new trial. However, on May 14, 2004, the defendant filed a pro se appeal to the Superior Court of Pennsylvania. After defense counsel filed a petition to discontinue the defendant’s pro se appeal without prejudice, the Superior Court of Pennsylvania issued a per curiam order on [398]*398October 14,2004, dismissing the defendant’s appeal. By order dated November 19, 2004, a hearing on the defendant’s post-sentence motion was scheduled for December 27,2004, and the parties were directed to submit their supporting and opposing briefs on December 6,2004 and December 20,2004. Following the completion of the hearing and oral argument on December 27, 2004, this matter was submitted for a decision.

II. FACTUAL BACKGROUND

On June 20, 2003, Detective Robert Mazzoni of the narcotics investigation unit of the Lackawanna County district attorney’s office was advised by a confidential informant that he could purchase heroin from a 5'5", 130-pound African American male named “Oc” or his girlfriend “Kay” who both resided on Main Street in Old Forge near the intersection of Main Street and Dunn Avenue. The confidential informant further informed Detective Mazzoni that “Oc” operated a brown Corsica which had a temporary registration notice in its window and bore a license plate that read FTD 3761. (T.R 1/22/ 04, pp. 48-49,95,108.) Detective Mazzoni provided this information to Detective Gunther Pisa and Detective Joseph Jordan who conducted surveillance of the 300 block of North Main Avenue near the intersection of North Main Avenue with Dunn Avenue in Old Forge. The detectives located the brown Corsica in question situated near the property where the defendant and Karlene Bassarath resided at 336 North Main Street, Old Forge.1 (T.P. 1/23/04, pp. 11, 24-25.)

[399]*399Once the brown Corsica had been identified, arrangements were made for the confidential informant to make a “controlled buy” of heroin from the defendant. In the presence of Detective Mazzoni, the confidential informant contacted the defendant by cell phone and arranged to meet him at the Price Chopper parking lot in Taylor. The confidential informant was then frisked by Detective Mazzoni to ensure that he had no drugs on his person, and was provided with $200 in serialized currency with which to purchase the heroin. Immediately following the confidential informant’s telephone conversation with the defendant, Detectives Pisa and Jordan observed the defendant and Ms. Bassarath exit their residence at 336 North Main Street and enter the brown Corsica. Detectives Pisa and Jordan followed the brown Corsica as it drove from 336 North Main Street, Old Forge, to the parking lot of the Price Chopper in Taylor where Detective Mazzoni was conducting surveillance from an unmarked vehicle. (T.P. 1/22/04, pp. 49-52; T.P. 1/23/ 04, pp. 11-12, 17-18, 25-26.)

Detective Mazzoni had instructed the confidential informant that if a purchase of heroin was consummated, the confidential informant should exit the Corsica wearing his hat backwards. Once the defendant arrived at the Price Chopper parking lot, Detective Mazzoni observed the confidential informant enter the Corsica and converse with the defendant. As the confidential informant exited the Corsica, he turned his hat backwards thereby signaling to Detective Mazzoni that heroin had been purchased. [400]*400(T.P. 1/22/04, pp. 52, 105, 111.) Defendant promptly departed from the Price Chopper parking lot in the Corsica and Detective Pisa and Detective Jordan followed that vehicle as it traveled toward Scranton. Contemporaneously with the defendant’s departure from the parking lot, the confidential informant entered Detective Mazzoni’s vehicle and provided him with 10 bags of heroin which the confidential informant had purchased from the defendant. (Id., pp. 52-53, 57-59.)

Detective Mazzoni contacted Detectives Pisa and Jordan via their radios and advised them that the confidential informant had in fact purchased heroin from the defendant. Detective Mazzoni, Detective Pisa and Detective Jordan eventually stopped the Corsica in Scranton and the defendant and Ms. Bassarath were taken into custody. Although the detectives conducted a pat-down for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the defendant and Ms. Bassarath were not formally searched before they were transported to the district attorney’s office in separate vehicles. (Id., pp. 53-54, 59-60; T.P. 1/23/04, pp. 12-13, 26-27.) Defendant was transported in the rear seat of Detective Jordan’s vehicle, and Detective Jordan later discovered the $200 in serialized currency stuffed between the rear seats of his vehicle where the defendant had been seated. (T.P. 1/22/04, pp. 56-57, 75; T.P. 1/23/04, pp. 28-30.)

After the defendant and Ms. Bassarath were issued their Miranda

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Related

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392 U.S. 1 (Supreme Court, 1968)
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Bluebook (online)
72 Pa. D. & C.4th 395, 2005 Pa. Dist. & Cnty. Dec. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dargon-pactcompllackaw-2005.