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COMMONWEALTH PENNSYLVANIA v. DONNA POTTS (04/29/83)

filed: April 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DONNA POTTS, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. FRANK COCCHIARA, APPELLANT



No. 1228 Pittsburgh 1980, No. 1229 Pittsburgh 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 7903596 and 7903595.

COUNSEL

Rochelle S. Friedman, Pittsburgh, for Potts, appellant at No. 1228.

Carl Max Janavitz, Pittsburgh, for Cocchiara, appellant at No. 1229.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Popovich, Montgomery and Van der Voort, JJ.

Author: Popovich

[ 314 Pa. Super. Page 262]

After a trial by jury, appellant, Donna Potts, was found guilty of Prostitution (18 Pa.C.S.A. § 5902(a)(1)) and Criminal Conspiracy (18 Pa.C.S.A. § 903(a)(1)).*fn1 Following the denial of post-trial motions, appellant's sentence on the Prostitution conviction was suspended, but she was placed on probation for one (1) year for her Criminal Conspiracy conviction. This appeal followed. We affirm.

The facts, viewed in a light most favorable to the Commonwealth, consist of the following: Because of information received from a confidential informant, Detective James Toler, of the vice control division of the Pittsburgh

[ 314 Pa. Super. Page 263]

    police, was directed to an advertisement appearing in the May 5, 1979 edition of The Pittsburgh Press. The ad read: "Companions for all occasions. We come directly to your door. Senior citizens, veterans, and invalids welcome. Call 261-0931." (N.T. 22). As a result of this publication, on May 9, 1979 Detective Toler phoned the number listed in the paper from Room 290 of the Viking Motel, situated at 1150 Banksville Road, Pittsburgh. The detective told the male on the other end of the line that his name was "Carl Rosenberger," that he was staying at Room 290 of the Viking Motel and that he was looking for a young girl, about twenty-five years of age. (N.T. 239-240) After 2 or 3 minutes, Detective Toler was called back by the Escort Service and the male he had just spoken to said he was checking to make sure that he ("Carl Rosenberger") was in the room. Within 45 minutes of the initial call, a female knocked on Detective Toler's door. The detective identified himself as "Carl Rosenberger" and said to the girl, "You must be Marsha." To which she responded, "Yes" and walked into the room. The detective talked to the girl about price. That is, he told her he wanted to have sexual intercourse, and the first price mentioned was seventy dollars for the Escort Service. The second price was forty-to-fifty dollars for the girl's tips. (N.T. 243) However, when the detective was unable to produce his wallet for the female's inspection, she left.

The next time Detective Toler had occasion to phone the number listed in The Pittsburgh Press was on May 16, 1979. Detective Toler again called the number from the Viking Motel; however, this time it was from Room 126. Toler told the male on the other end of the phone that he "was Walter Stevens, [he] was staying at the Viking Motel, Room 126. And [he] asked the unknown male on the other end of the phone what was -- what was the going rates." (N.T. 30) Toler also told the listener that he "wanted a tall woman with black hair, around thirty years old." (N.T. 31) To this inquiry, Toler received a satisfactory response. The call was made at about 9:30 p.m.

[ 314 Pa. Super. Page 264]

On the evening in question, at approximately 10:00 p.m., appellant knocked on Detective Toler's door and asked him if he was "Walter Stevens." Toler answered, "Yes." The appellant then asked for and received Toler's wallet. She said she wanted to check his "ID." After appellant was satisfied that the person she was dealing with was the individual whose name appeared on the cards in the wallet, "she gave [the detective] a piece of paper to fill out [his] name and address and [his] signature." (N.T. 34) Also, on this "form," he was to list his age, height, weight, social security number and driver's or operator's plate number. After supplying the information sought, Detective Toler asked appellant what he would get for his money and she replied, "It will cost seventy dollars for the escort service." (N.T. 36) Following the detective's response of, "Well, okay," Miss Potts stated that she would have to check in. Miss Potts dialed the phone, read the name of "Walter Stevens" off and that he had stated to her that he was from Altoona. The detective testified that he did not see the number dialed by the appellant, nor could he say with whom appellant was conversing.

When Miss Potts was done with the phone and the detective inquired, "What else do I get for my money?" she responded that for another seventy dollars he would get whatever he wanted. The detective informed the girl that he desired to engage in oral sodomy, to which Miss Potts said, "Okay." At this stage of the discussion, Detective Toler handed Miss Potts one hundred and fifty dollars. Miss Potts placed the money in her purse and gave the detective ten dollars in change. Thereafter, Miss Potts motioned to the detective to remove his clothing. After the two were naked, the appellant had sat up on the bed with her back against the head board, the detective revealed his true identity and placed appellant under arrest. Subsequently, Toler searched appellant's purse to remove the money he had paid her. In doing so, the detective retrieved two slips of paper. One slip was a carbon copy of the other which he had filled out earlier under the alias of "Walter

[ 314 Pa. Super. Page 265]

Stevens." Also, in the purse, the detective discovered a pocket paging device, but, not knowing what it was at the time, returned it to the appellant. Appellant was, thereafter, advised of her Miranda rights and transported to the Public Safety Building in Pittsburgh. Once there, Miss Potts wanted to make a phone call. Detective Toler stated, "Well . . . we will go over to the Union Trust Building to search for Frank Cocchiara." Hearing this, appellant appeared surprised and asked the detective, "How do you know him?" (N.T. 98) The detective did not answer.

It so happened that on the day appellant was arrested (May 16, 1979), the police had secured a warrant to search Room 980-A of the Union Trust Building in Pittsburgh. The warrant was executed after the appellant's arrest, at approximately 11:00 p.m. The police knocked on the office door and identified themselves. After waiting for about a minute and a-half without any response from within, the police entered the premises by means of a pass key obtained from the security guard and found Frank Cocchiara, appellant's co-defendant, in the office. The police supplied Cocchiara with a copy of the warrant prior to commencing a search of the premises. As a result of the search of Room 980-A of the Union Trust Building, the police confiscated the following evidence:

1) A piece of paper (Commonwealth's Exhibit No. 5) that was taped to the side of the air-conditioner. The paper had "about thirty male names on [it], and on the top right hand [side] it ha[d] 'Carl Rosenberger.'" (N.T. 247) "And on the top of that it ha[d] 'V-i-k' and an arrow pointing to the name 'Carl Rosenberger.'" (N.T. 248)

2) A phone directory (Commonwealth's Exhibit No. 8) that had four slips of paper in it. One of the slips had written on it "Walter Stevens, 126" and the letters "V-i-k". (N.T. 236)

3) Four slips of paper (Commonwealth's Exhibit No. 9) that were exactly "the same kind as the ones [Detective Toler] got off Miss Potts." (N.T. 234) That is,

[ 314 Pa. Super. Page 266]

    they had the same fine printing on them and each requested the same type of information from the applicant as was sought from Detective Toler.

4) A photostatic copy of a freehand sketch of an Escorts Plus form. "It ha[d] a phone number '261-0930' and '261-0931, Escorts Plus, male, female, full service.'" And farther down the sheet was another sketch that read: "'Full service, Escorts Plus, male, female.' And it ha[d] a phone number, '261-0930, 261-0931.'" (N.T. 232)

Additionally, Detective Edward Conley, one of the officers who accompanied Detective Toler in the execution of the warrant, testified that, during the search, he called headquarters and had someone there dial "261-0391" -- this number was the one that appeared in the newspaper ad -- to see if the phone in Cocchiara's office would ring. Shortly after making the request, the phone rang and the caller was from police headquarters. Furthermore, Detective Conley recalled answering the phone a total of three times while in Cocchiara's office. On two occasions a female voice asked for "Frank" and the last call was from a male caller "want[ing] to know if there were any female escorts available." (N.T. 150)

It is interesting to observe that Detective Conley, in recounting the circumstances surrounding Donna Potts' arrest, recalled "notic[ing] a little black thing . . . . It looked like a transistor or something[]" fall out of appellant's purse when it was emptied onto the bed at the Viking Motel. Detective Conley was on duty with Detective Toler at the Viking Motel. Moreover, Detective Toler also testified to finding a white envelope for beepers -- electronic paging devices -- that "had the name 'Donna'" on it in Cocchiara's office in the Union Trust Building. (N.T. 76)

Norman Rockwell, the manager of the Union Trust Building, was called by the Commonwealth to establish the fact that Cocchiara entered into a lease for Room 980-A on April 4, 1979 under the name of "Second Part, Inc., doing business as Escorts Plus." (N.T. 108)

[ 314 Pa. Super. Page 267]

As is relevant to the case at bar, we note that at trial the Commonwealth produced the testimony of a Charles Henshaw, sales manager for Airsignal International of Pittsburgh, Inc., a company involved in the leasing of pocket paging devices ("beepers").

While on the stand, Mr. Henshaw stated that on April 12, 1979 he leased three beepers to Frank Cocchiara. The numbers were "227-9172, -82 and -92". (N.T. 200) He went on to state that each beeper has its own private telephone number, and that these numbers are purchased through the Bell System in blocks of one hundred so as to avoid any confusion with a public subscriber to a telephone. The witness also recalled that the model leased by Cocchiara had the capacity ("range") to make them useful anywhere in the Allegheny County area.

After the completion of the Commonwealth's case, the jury was instructed as to the law to apply in reaching its verdict. Following the jury's verdict finding the appellant and co-defendant Frank Cocchiara guilty as charged, post-trial motions were denied and sentence was imposed. This appeal followed. As stated previously, this appeal is concerned solely with the claims proffered by the appellant, Donna Potts, and not Frank Cocchiara. See note 1, supra.

On appeal, appellant avers*fn2 that: 1) the Prostitution statute is unconstitutional; 2) the ...


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