No. 1005 October Term 1978, Appeal from Order of Court of Common Pleas of Delaware County, Criminal Division at No. 2627 May Sess., 1977.
D. Michael Emuryan, Deputy District Attorney, Media, for appellant.
James P. McHugh, Chester, for appellee.
Cercone, Spaeth and Lipez, JJ.
[ 267 Pa. Super. Page 444]
This is an appeal by the Commonwealth. Appellee was charged with solicitation and attempt to tamper with public records,*fn1 obstructing the administration of law,*fn2 and conspiracy.*fn3 A jury acquitted him of solicitation and attempt to tamper, but was unable to agree as to obstructing the administration of law and conspiracy. The lower court then entered an order dismissing the charges of obstructing the administration of law and conspiracy, on the ground that a retrial on those charges would violate Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the Crimes Code, supra, 18 Pa.C.S.A. § 110(2). This appeal followed.
On March 5, 1977, the day the events leading to trial began, appellee was a captain on the police force in Chester, Pennsylvania, and the superior of Officer William Parker, the Commonwealth's chief witness against him. Parker, who had been granted immunity, testified as follows.
On March 5, Parker received information from an informant that implicated Kathleen Nacrelli, the daughter of the Mayor of Chester, and a Raymond ("Moose") Keene of involvement with drugs. Parker reported this to appellee and was told to get more information. Later that day, Parker stopped Nacrelli and Keene, who were driving in an old Chevrolet with no license tags. Keene had a valid driver's license but no valid owner's card. Parker called Officer Wendell Butler of the narcotics unit for assistance. Butler found drugs on both Nacrelli and Keene, but no drugs in the car. Parker, however, then searched the car
[ 267 Pa. Super. Page 445]
and found drugs.*fn4 Nacrelli and Keene were taken to police headquarters and the car was towed.
At headquarters, Parker told appellee what had happened and asked if appellee wanted to telephone Mayor Nacrelli about it. Appellee agree that this should be done. Parker left appellee's office. When he returned, appellee told him the mayor had been called. After questioning Nacrelli and Keene, appellee released them. Then he directed Parker to write two reports: one report about stopping the car for lacking tags, and a second report about finding the narcotics, not, however, on Nacrelli and Keene and in the car but somewhere else, since the true circumstances of finding the narcotics had to be covered up.
Parker then wrote a report about stopping the car and a second report stating that the drugs had been found behind a diner after a boy had run up to the police to say someone had hidden them there; no connection to Keene and Nacrelli was stated. Appellee later told Parker that he had read both reports and they were all right.
The news about the arrests became known to the press. The following week Parker was questioned by the FBI, but stuck to his falsified story. He and appellee had a number of conversations about the reports, agreeing that as long as they stuck to the story, nothing would come of it. However, the FBI agents ultimately persuaded Parker to change the story, and he told them what he testified to at the trial. After that, appellee summoned Parker to his house. When Parker explained ...