Commonwealth v. Downey

18 Pa. D. & C.5th 468
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedNovember 22, 2010
Docketno. 0370-06
StatusPublished

This text of 18 Pa. D. & C.5th 468 (Commonwealth v. Downey) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Downey, 18 Pa. D. & C.5th 468 (Pa. Super. Ct. 2010).

Opinion

HODGSON, P.J.,

Appellant, David Downey, appeals nunc pro tunc to the Superior Court from the order of denial of PCRA relief imposed upon him by this court on April 5, 2010.

FACTS AND PROCEDURAL HISTORY

The instant case arises out of events that took place between July 30, 2005 and August 1, 2005. On July 30, 2005 between approximately 9:00 p.m. and 10:00 p.m., Kimberly Victorine and her boyfriend, Derrick Schrandt, were driving around Northeast Philadelphia when they received a phone call from the appellant. During the conversation, the appellant indicated that he needed cocaine and an escort.1 (N.T., Wednesday, June 7,2006, at p. 232, Thursday, June 8, 2006, at p. 61-64) The cocaine and escort were to be delivered to the appellant’s residence in Limerick, Montgomery County, Pennsylvania. In [470]*470response to the appellant’s phone call, Victorine and Schrandt placed a phone call to David Tanczak in order to obtain Tanczak’s sister’s phone number so that they could inquire if she was willing to be an escort for the appellant. (N.T., Wednesday, June 7, 2006, at p. 233) She, however, was unavailable. At some point in the evening, Tanczak informed Victorine and Schrandt that Ashley Berg, the victim in the instant action, who was also at Tanczak’s residence, would be willing to be an escort for the appellant. (N.T., Wednesday, June 7, 2006, at p. 233, Thursday, June 8, 2006, atp. 68, Friday, June 9,2006, atp. 92-96) Prior to knowing of Berg’s availability, Victorine attempted to contact other girls, including Christine Shute, who had previously served as escorts to inquire into their availability. (N.T., Wednesday, June 7, 2006, at p. 232)2

After securing Berg as an escort, Victorine and Schrandt drove to Victorine’s residence in Northeast Philadelphia in order to pick up the requested cocaine for the appellant. They then proceeded to Tanczak’s residence in the Fishtown section of Philadelphia to pick up Berg. The pair arrived at Tanczak’s residence between 11:00 and 11:30 p.m. on July 30,2005. Once Victorine and Schrandt arrived, Berg entered their vehicle and the three of them proceeded to the appellant’s residence. During the drive to the appellant’s residence, Victorine did not see Berg use cocaine nor did she give Berg cocaine. (N.T., Thursday, June 8,2006, at p. 68-69) Further, Tanczak testified that he did not provide Berg with any cocaine prior to her leaving for the appellant’s residence. (N.T., Friday, June 9, 2006, at p. 96) Nevertheless, Victorine testified that Berg seemed to be “high.” (N.T. Wednesday, June 7, 2006, at p. 237)

[471]*471While driving to appellant’s residence, Berg was asked if “she had ever done anything like that [escorting] before.” (N.T., Thursday, June 8,2006, at p. 70) According to Schrandt, Berg stated that she had. (N.T., Thursday, June 8, 2006, at p. 70) She was informed by Schrandt that appellant may ask her to do cocaine, but she did not have to do the cocaine if she did not want to. (N.T., Thursday, June 8, 2006, at p. 70)

Shortly before arriving at the appellant’s residence, Schrandt and Victorine called the appellant to inform him that they were close. (N.T., Thursday, June 8, 2006, at p. 71) In the early morning hours of July 31,2005, Victorine, Schrandt, and Berg arrived at the appellant’s residence. (N.T, Wednesday, June 7, 2006, at p. 239) Upon arriving, Schrandt entered the residence; Victorine and Berg remained in the vehicle. Once inside, Schrandt gave the cocaine that he and Victorine had previously picked up from Victorine’s residence to the appellant.' (N.T., Wednesday, June 7, 2006, at p. 239) The appellant then gave Schrandt his credit card so that he could withdraw $600. (N.T., Thursday, June 8, 2006, at p. 74) When Schrandt returned to the vehicle, Berg stepped out of the vehicle and entered the appellant’s residence. (N.T., Wednesday, June 7,2006, at p. 240, Thursday, June 8, 2006, at p. 72) Thereafter, Schrandt and Victorine left the appellant’s residence.

Prior to driving back to Philadelphia, Victorine and Schrandt stopped at a Wawa located near the appellant’s residence in order to use the appellant’s credit card to withdraw the designated money. (N.T, Wednesday, June 7, 2006, at p. 241) While en route back to Philadelphia, Victorine received a phone call from the appellant. During the call, the appellant informed her that Berg was acting “weird” and that “she didn’t want to party.” Later in [472]*472the conversation, Victorine spoke with Berg who asked her for Tanczak’s phone number. She told Victorine that she needs to speak with Tanczak and that she was “alright.” (N.T., Wednesday, June 7, 2006, at p. 242-43) In the early morning hours of July 31, 2005, Tanczak received a call from Berg. (N.T., Friday, June 9, 2006, at p. 98) In that call, Berg informed him that she was not feeling well, that she had the shakes, and that she was tired. (N.T., Friday, June 9, 2006, atp. 100)

The next morning, at approximately 10:30 a.m. on July 31, 2005, Victorine spoke with the appellant by phone. (N.T., Thursday, June 8, 2006, at p. 74) During this conversation, the appellant asked “can you come get this girl out of my house.” In addition, the appellant asked her to bring him more cocaine. (N.T., Wednesday, June 7, 2006, at p. 244-45) In response to the call, Schrandt and Victorine proceeded back to the appellant’s house with the requested cocaine and arrived at the appellant’s residence around 12:00 p.m. (N.T., Wednesday, June 7, 2006, at p. 246) While Victorine remained in the vehicle, Schrandt entered the residence. Once inside, appellant informed Schrandt that Berg was ready to leave. (N.T., Thursday, June 8, 2006, at p. 76) Immediately thereafter, Schrandt noticed Berg, pale with blue lips, lying on the couch covered in a blanket. (N.T., Thursday, June 8, 2006, at p. 77) He tapped her on the foot and asked her if she was ready to leave. However, he received no reply. (N.T., Thursday, June 8, 2006, at p. 77) Upon noticing this, Schrandt told the appellant to get Berg help. (N.T., Thursday, June 8, 2006, at p. 79-80) The appellant replied that Berg was fine, that she was sleeping, and to leave his residence. (N.T., Thursday, June 8, 2006, at p. 79-80)

Thereafter, Schrandt left the appellant’s residence, [473]*473returned to the vehicle and informed Victorine that Berg did not look well. (N.T, Wednesday, June 7, 2006, at p. 246, Thursday, June 8, 2006, at p. 80) The pair then proceeded to drive back to Philadelphia and to Tanczak’s residence. Once at the residence, Victorine and Schrandt informed Tanczak and those present of the events that occurred on their immediate trip to the appellant’s residence. (N.T., Wednesday, June 7,2006, at p. 248, N.T., Thursday, June 8, 2006, at p. 81) In addition to Victorine, Schrandt and Tanczak, Tanczak’s sister, DeDe Conn, and Tanczak’s girlfriend were present at Tanczak’s residence. (N.T., Wednesday, June 7, 2006, at p. 248) While at the residence, Schrandt threatened all present with a gun to not call the police3. (N.T., Wednesday, June 8, 2006, at p. 84, Thursday, June 8, 2006, at p. 30) Further, the group was continuously calling the appellant in order to ascertain the well being of Berg. (N.T., Wednesday, June 7,2006, at p. 251) During one of these calls, the appellant stated that Berg had ingested some lines of cocaine and then went to lie on the couch. The appellant also stated that Berg was “fine.” (N.T., Thursday, June 8, 2006, at p. 86)

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Bluebook (online)
18 Pa. D. & C.5th 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-downey-pactcomplmontgo-2010.