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COMMONWEALTH PENNSYLVANIA v. ELMO SCATENA (08/03/84)

filed: August 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ELMO SCATENA, A/K/A TERRY E. SCATENA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GERARD SCATENA, A/K/A JERRY SCATENA, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. LOUIS SCATENA, APPELLANT



NO. 1723 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 655, 655-A and 655-B of 1980, NO. 1724 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 656 and 656-A of 1980, NO. 1725 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 657 and 657-A of 1980.

COUNSEL

William A. DeGillio and Lawrence D. MacDonald, Wilkes-Barre, for appellants.

K. Douglas Daniel and Keith Welks, Deputy Attorneys General, Harrisburg, for Commonwealth, appellee.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Mcewen

[ 332 Pa. Super. Page 423]

This consolidated appeal has been taken from the judgments of sentence*fn1 imposed after a jury found appellants

[ 332 Pa. Super. Page 424]

    guilty of risking catastrophe,*fn2 public nuisances,*fn3 and violations of both the Clean Streams Law*fn4 and the regulation prohibiting the discharge of waste into mines,*fn5 and found appellant Elmo Scatena guilty of conspiracy.*fn6 The brief of appellants expresses the following contentions:

(1) The evidence was insufficient to sustain their convictions for risking catastrophe and for violations of the Clean Streams Law and the regulation prohibiting the discharge of waste into mines, and to sustain the conviction of Elmo Scatena for conspiracy.

(2) The suppression court erred by reason of the denial [ILLEGIBLE WORDS] their motion to suppress certain physical evidence.

(3) The trial court erred by reason of:

(a) The failure to quash as duplicitous the informations charging violations of the Clean Streams Law, 35 P.S. ยงยง 691.301 and 691.307;

(b) The failure to quash, by reason of the failure to comply with Pa.R.Crim.P. 225(c), the informations charging the discharge of waste into mines;

(c) The admission into evidence of business records;

(d) The denial of their motions for mistrial; and

(e) The supplemental instruction to the jury that it could predicate a finding of guilt upon the crimes of

[ 332 Pa. Super. Page 425]

    risking catastrophe, public nuisance and/or criminal conspiracy without being able to specifically identify dates for certain of those charges.

(4) The statute defining the crime of risking catastrophe is unconstitutionally vague.

(5) The fines imposed were illegally assessed.

(6) The term of imprisonment imposed upon Elmo Scatena was both excessive and in violation of his right against double jeopardy.

We affirm in part and reverse in part.

The court en banc aptly summarized the facts:

Elmo Scatena is the owner and operator of a service station known as Highway Auto Service and located on Pa. Route 315 at the intersection with I-81 in Pittston Township, Luzerne County. The Commonwealth charged that from August, 1978 through July, 1979, Elmo and his sons for a fee wilfully or negligently discharged inadequately treated industrial wastes including but not limited to cyanide, dichlorobenzene, napthalene, waste oil and other substances harmful to human health through a borehole on the Highway Auto Service property into an abandoned mine. The Commonwealth further contended that this discharge found its way to groundwater and eventually to the Susquehanna River through the Butler Mine Tunnel in Pittston, commencing on July 29, 1979, and continuing to the filing of criminal charges on February 14, 1980; that the mixture of chemicals underground created toxic gases; and that these actions posed a substantial threat to public safety and welfare. Each day of continued discharge into the Susquehanna River as well as each instance of discharge into the borehole was treated as a separate offense.

To prove the charges contained in the informations, the Commonwealth sought to establish through the testimony of former truck drivers of the Hudson Oil Company of Edgewater, New Jersey, a scheme for disposing of waste materials hauled by Hudson Oil trucks from various industrial manufacturers. Four drivers testified that

[ 332 Pa. Super. Page 426]

    they were instructed by their dispatchers from either the Hudson terminal in Edgewater or the terminal in Syracuse, New York, to travel to Highway Auto where, upon arrival, they would proceed to the southerly side of the garage, back the tanker between some barrels, disabled trucks, and the garage, and with the assistance of one of the defendants, dispose of the contents of the truck through a hose which emptied into the borehole. Each time the Scatenas would receive a cash payment, first $150.00, then $200.00. After the driver delivered the money, which he had received from his dispatcher, and disposed of the waste, he would place a collect telephone call to the Edgewater terminal. The drivers who testified did so under a grant of immunity from prosecution. The Syracuse dispatcher testified following a plea of guilty to a charge of conspiracy to create a public nuisance. The Commonwealth sought to link the dumping of waste materials into the borehole with the discharge of pollutants into the Susquehanna River by the use of a dye test which was performed on August 8, 1979. Two and one-half gallons of a concentrated dye were poured into the borehole by Pennsylvania Department of Environmental Resources (DER) investigators, and sixteen hours later traces of the dye were detected at the Butler Mine Tunnel outfall into the Susquehanna River at Pittston. The Commonwealth also attempted to show the dangerous nature of the waste materials dumped into the borehole through the testimony of a DER official and a private contractor for the federal Environmental Protection Agency who performed inspections of the Butler Mine Tunnel on July 31 and August 1, 1979. The condition of the river in early August, 1979, after discharge began was established through photographs showing the effluent, a sheen on the surface of the water, and containment booms at the outfall of the tunnel.

Appellants assert that the evidence was insufficient to convict them of risking catastrophe, of violation of the Clean Streams Law and of discharge of waste into mines.

[ 332 Pa. Super. Page 427]

They also assert that there was insufficient evidence to sustain the conviction of Elmo Scatena for conspiracy. The well-established test for ...


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