Commonwealth v. Williams

565 A.2d 160, 388 Pa. Super. 153, 1989 Pa. Super. LEXIS 3014
Supreme Court of Pennsylvania·Decided September 25, 1989·No. 1499·Published·Cited by 9 cases

Opinions

OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County after conviction for delivery of a controlled substance and two counts each of perjury and false swearing. On appeal four issues are raised: first, whether the Commonwealth engaged in misconduct consisting of setting a perjury trap for an uncounseled target of a grand jury; second, whether the evidence was sufficient to sustain one of the counts of perjury; third, whether one of the Commonwealth’s witnesses voluntarily consented to allow his conversations with appellant to be tape recorded; and fourth, whether there was sufficient evidence to sustain the verdict as to possession of heroin with intent to deliver. For the following reasons, we affirm.

The facts of the crimes underlying the convictions in this case center around the demise of one Isaac “Toddy” Dunning. Mr. Dunning had been shot to death, presumably at the behest of one Alvin “Pons” Frazier, on June 14, 1985, in the Hill District section of Pittsburgh. A subsequent investigation by Detective Terrance O’Leary of the Pittsburgh Police Department led to a primary suspect, Melvin Kessler, a friend of appellant’s. Both Kessler and appellant alleg[157]*157edly sold heroin for Alvin Frazier. Upon questioning by Detective O’Leary, appellant claimed that he had not seen Dunning, nor Kessler, on the day of the killing, but that he had been at his mother’s home around the time Dunning was shot.

Dunning had been close friends with one Coty Young-blood. While Youngblood was serving a sentence in Allegheny County Jail, he had heard about Dunning’s death. On the premise of assisting the police in catching those responsible, Youngblood contacted the District Attorney’s Office to offer his help.1 In this regard, Youngblood, who was an acquaintance of appellant, agreed to set up a meeting with appellant at a hotel in the Oakland section of Pittsburgh and to have the conversation tape recorded.

On July 31, 1985, during one of these meetings between Youngblood and appellant, the conversation turned to drugs.2 Appellant stated that he was waiting to get some heroin. Later that same evening, appellant brought three balloons of the drug to Youngblood’s room and split these with the witness. After appellant had left the room, Youngblood gave the heroin to Detective O’Leary who then bagged, marked, and ultimately sent the drug to the Allegheny Crime Lab.

On August 29, 1985, appellant appeared under subpoena before the Allegheny County Investigation Grand Jury, which had been convened to investigate the death of Isaac Dunning. During that proceeding, appellant denied being in the presence of Dunning or Kessler on the day of the [158]*158killing. He also denied being present at, or being involved in, the beating of one William “Deuce” Kerley.3

At the close of the grand jury investigation, appellant was charged in an eight-count information filed November 8, 1985. Among the crimes were: one count of criminal conspiracy to commit homicide, 18 Pa.C.S.A. § 903(a)(1); one count of delivery of a controlled substance, 35 Pa.C.S.A. § 780-113(a)(30); three counts of perjury, 18 Pa.C.S.A. § 4902(a); and three counts of false swearing, 18 Pa.C.S.A. § 4903(a)(1).

Various motions to dismiss and/or suppress on grounds of prosecutorial misconduct, government overreaching, and entrapment were filed on all counts, as were petitions for writ of habeas corpus. After hearing and argument on the motions, the trial court, on November 18, 1986, dismissed the charge of criminal conspiracy.4 On December 4, 1986, the trial court dismissed one count each of perjury and false swearing.5 All other motions were denied.

On December 2, 1986, appellant was tried non-jury on the remaining two counts each of perjury and false swearing. He was convicted on December 9, 1986, on all counts. Appellant was then tried non-jury for the charge of delivery of a controlled substance, which had been severed at his request, on December 17, 1986. He was convicted of that charge on December 18, 1986. Timely post-trial motions were filed and denied with appellant receiving a sentence of three-to-seven years for the perjury conviction to run con[159]*159secutive to a three-to-six year term on the heroin conviction. No penalty was imposed on the remaining counts. After a hearing on appellant’s motion for reconsideration, the sentence on the heroin charge was reduced to a term of two-to-six years. Appellant then filed the instant appeal.6

Appellant first argues that the convictions for perjury and false swearing should be reversed because the Commonwealth engaged in misconduct by bringing the appellant before the grand jury with the primary purpose of extracting perjured testimony from him. In support of this argument, appellant contends that he had already been asked by Detective O’Leary the precise question of whether he had been with Dunning and Kessler on the day of the shooting and that he had responded in the negative. He alleges that as the Commonwealth knew what his answer would be in advance, and because the Commonwealth was prepared with witnesses which would testify that appellant had been with Kessler and the victim, the Commonwealth had therefore set a “perjury trap” for him. This being the case, appellant further contends that it was improper for the Commonwealth to allow him to testify uncounseled and non-immunized in a proceeding where he was a “target” and not merely a witness.

The Commonwealth responds by claiming that no government misconduct occurred. It argues that appellant has failed to show that he was a “target” or was misled as to his status before the grand jury. The Commonwealth points to the colloquy between appellant and the supervising judge of the grand jury prior to appellant’s testimony. It is stressed that at this proceeding appellant was fully informed as to his rights, and countenanced an understanding of these rights, as well as the penalty for perjured testimony before the grand jury. Accordingly, appellee contends that it did not subpoena appellant for the sole [160]*160purpose of extracting perjured testimony as it had reason to expect the witness to testify truthfully regarding any information relevant to the investigation of the homicide of Isaac Dunning. As for its decision not to grant appellant immunity, the Commonwealth posits that immunity is not offered until a witness asserts his Fifth Amendment Rights. In this case, no request was made.

Initially, we note that appellant’s claim of a “perjury trap” is unique to this Court, having been addressed only during proceedings involving federal grand juries. Neither appellant nor the Commonwealth base their respective arguments as to this claim on state law, nor could they, for our research indicates a complete lack of case law regarding this issue as it relates to our Investigating Grand Jury Act.7 In light of this situation, we feel that this specific issue would be more appropriately addressed by examining federal law. Accordingly, we defer to the federal approach.

When addressing a claim of prosecutorial misconduct before a grand jury, our federal courts look first to see whether the alleged misconduct took place, and next, to whether any sanction, such as dismissal of the indictment or suppression of the evidence, is warranted. United States v. Martino,

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Commonwealth v. Williams, 565 A.2d 160, 388 Pa. Super. 153, 1989 Pa. Super. LEXIS 3014 (Pa. 1989).

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