No. 2638 Philadelphia, 1981, No. 2695 Philadelphia, 1981, No. 2017 Philadelphia, 1982, Appeal from Orders and Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, Nos. 81-10, 126, 81-10-119, 81-10-112.
Peter T. Campana, Williamsport, for appellant.
Ellen L. Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Wieand, McEwen and Montgomery, JJ. McEwen, J., filed a concurring opinion.
[ 323 Pa. Super. Page 167]
Regina Webster was tried by jury and found guilty of delivering 6.65 grams of cocaine to an undercover state policeman on November 5, 1981. On direct appeal from the judgment of sentence, she contends that she is entitled to an arrest of judgment because she was granted immunity by the courts of New York when she appeared in that state to give testimony concerning other drug transactions before a Steuben County Grand Jury. In separate appeals, she contends that the trial court erred when it refused to dismiss two additional informations charging her with (1) conspiracy and attempt to deliver six hundred pounds of marijuana on December 21, 1980 and (2) possession with intent to deliver a quantity of marijuana found in her home
[ 323 Pa. Super. Page 168]
pursuant to a search conducted by police on December 22, 1980. She contends that a separate trial on these informations will violate Section 110 of the Crimes Code, 18 Pa.C.S. § 110, and principles of double jeopardy. Both appeals were consolidated for purposes of argument.
On November 5, 1980, the Pennsylvania State Police were informed by the New York State Police that information had been acquired as a result of an authorized wiretap on a New York telephone to the effect that a quantity of cocaine was to be delivered by a New York resident to Curtis Missien, 929 High Street, Williamsport, Pennsylvania. Trooper Donald K. Jury of the Pennsylvania State Police made an undercover visit to Missien's home the same day. There he found Regina Webster, who was living with Missien, and discussed with her the possibility of making future drug purchases. On that occasion, according to the evidence produced at trial, Jury purchased 6.65 grams of cocaine from Regina Webster. Although Jury had additional discussions with Ms. Webster thereafter, and also with Missien, no additional purchases of cocaine were made. This may have been due in part to the arrest in New York of Robert Bavisotta, who was suspected of being the New York supplier of Missien and Webster.
On December 17, 1980, Trooper Jury was again in Regina Webster's home, where he discussed with her the purchase of a large quantity of marijuana. On this occasion, he observed an estimated twenty-four pounds of marijuana and was present when Webster sold marijuana to an unidentified third person. Webster arranged for Jury to meet with one Alfred Rowe, whom Webster represented to be her source for marijuana, on December 21, 1980. After Jury had visited the site where a large quantity of marijuana was stored and had made arrangements to purchase the marijuana, an arrest was made of Webster, Rowe and Rowe's wife. A search of the home shared by Webster and Missien, conducted pursuant to warrant on the morning of December 22, 1980, resulted in the finding and seizure of
[ 323 Pa. Super. Page 169]
the twenty-four pounds of marijuana seen earlier by Trooper Jury.
Regina Webster was initially named as defendant in two criminal complaints. The first charged her with possession and delivery of cocaine on November 5, 1980. The second complaint alleged a conspiracy to deliver and an attempt to deliver six hundred pounds of marijuana to Trooper Jury on December 21, 1980. Later, on January 14, 1981, appellant was also charged with possession and possession with intent to deliver the marijuana found in her home on December 22.
On March 27, 1981, Regina Webster appeared in New York before a Steuben County Grand Jury and, pursuant to a grant of transactional immunity by the New York court, answered questions pertaining to the purchase of drugs from Robert Bavisotta on November 4 and November 9, 1980. She was not asked and did not give testimony concerning her sale of cocaine to Trooper Jury on November 5.
In Pennsylvania, the several charges against Regina Webster were returned to court and were included in three separate informations. Omnibus pre-trial motions were filed and included (1) a motion to dismiss because of immunity granted in New York and (2) a motion to consolidate all charges for trial. On July 31, 1981, the trial court denied the motion to dismiss. It also denied the application to consolidate in one trial all charges against Webster. Instead, the court granted a prosecution request to consolidate in separate trials the charges against all defendants involved in each transaction.
On September 23, 1981, Webster was tried for the sale of cocaine to Jury on November 5, 1980 on a case stated basis. She was found guilty. Post trial motions were denied, and a sentence of imprisonment was ...