No. 318 Philadelphia, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Bucks County, at Nos. 3850/1980, 3850-01/1980, 3850-02/1980, 3850-03/1980.
Thomas E. Mellon, Philadelphia, for appellant.
Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellee.
Spaeth, President Judge, and Montemuro and Popovich, JJ.
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Following a jury trial, appellant, Victor Hassine and his co-defendant, George Gregory Orlowski, were found guilty of first degree murder,*fn1 several attempted murders,*fn2 and multiple counts of criminal conspiracy*fn3 and criminal solicitation.*fn4 A life sentence was returned by the jury on the first degree murder conviction. After post-verdict motions for a new trial and arrest of judgment were denied, appellant was sentenced to life imprisonment and various consecutive terms of imprisonment. Appellant appeals from this judgment of sentence. We affirm.
Appellant alleges a plethora of alleged points of error. In an effort to provide some order to our review of this particularly lengthy appeal, we shall address each assignment of error seriatim. The issues presented by appellant are as follows:
(1) the lower court erred in refusing to grant appellant's motion to sever;
(2) the lower court erred in denying appellant's trial counsel's motion to withdraw;
(3) the lower court erred as a matter of law and abused its discretion in allowing the prosecution to question and comment upon appellant's pre-arrest and post-arrest silence, which conduct amounted to prosecutorial misconduct;
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(4) the lower court erred in failing to direct the court reporter to record closing arguments, which arguments were highly prejudicial and amounted to prosecutorial misconduct;
(5) the lower court erred in its charge to the jury;
(6) evidence presented at trial, which had been intercepted by a consensual wiretap, was illegally obtained, as the statute permitting such a wiretap is unconstitutional;
(7) the evidence was insufficient to sustain the first degree murder conviction;
(8) the lower court erred in refusing to dismiss various counts of conspiracy;
(9) the lower court erred in refusing appellant's application for a Bill of Particulars;
(10) the lower court erred in denying appellant's motion to compel a psychiatric examination of a key prosecution witness;
(11) there was prosecutorial misconduct in that the Commonwealth failed to disclose the full scope of a plea bargain agreement between the Commonwealth and a key prosecution witness;
(12) the lower court erred in refusing to permit appellant's new counsel to present newly discovered, exculpatory evidence;
(13) trial counsel was ineffective;
(14) the trial court erred in refusing appellant's request for an in camera inspection of the Commonwealth's file; and
(15) the trial court erred in not ordering merged, for sentencing purposes, consecutive sentences and fines relating to inchoate crimes.
While the list of alleged errors is long, we find it short on merit. Indeed, it is worth noting, as an admonishment to the bar, that this court has never decided appeals based upon the number of pages in a party's brief, but rather
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upon the merits of each claim. As to the arguments presented, we look to the quality, not the quantity.
The pertinent facts of this case were fully set forth in our opinion in Commonwealth v. Orlowski, 332 Pa. Super. 600, 481 A.2d 952 (1984), wherein we affirmed the conviction of appellant's co-defendant, Gregory Orlowski. These facts are as follows:
"This tale begins in the remote passages of [Orlowski's] youth and unfolds to a tragic denouement. [Orlowski] was a young boy when he became apprenticed to Albert Kellet, Sr., proprietor of the Kellet Family Market in Fallsington, Bucks County. He was a butcher's boy doing odd jobs and cleaning the market while being taught the intricacies of the trade. He was trained and nurtured by the senior Kellet to such an extent that he was like a member of the family; almost like a brother to Kellet's natural son, Albert, Jr., also known as 'Skip.' Skip also worked at the family market but growing differences between him and his father caused him to seek employment elsewhere, while [Orlowski] remained.
"Since they were reared as brothers, [Orlowski] and Skip had their 'good and bad times.' It would seem that their situation could be characterized as either fighting or between fights. On several occasions, their fights stemmed from drug deals which had soured.
"In 1975, the senior Kellet sold the store. [Orlowski] went with the new owners 'like a piece of equipment,' and he continued to run the meat department. At some point in the late seventies, [Orlowski] rented the store and operated it himself. He also began operating a small side business -- dealing in marijuana and methamphetamine. Coincidentally, Skip Kellet engaged in a similar sideline.
"Enter Victor Hassine, the young scion of a wealthy emigre family which had some real estate holdings in the Fallsington area. Moreover, Hassine was the vessel into which three years of legal education had been poured, and so he was entrusted by the family corporation with the
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management of some of its interests including those in the Fallsington area.
"In 1979, Hassine met [Orlowski] and decided to go into business with him. Together they opened a new store in Morrisville, Bucks County, called Greg's Quality Meat Market, which was financed by the Hassine family, overseen by Victor Hassine, and operated by [Orlowski]. For various reasons, the business did not prosper, and soon [Orlowski] began selling marijuana and methamphetamine out of the store to supplement the store's income. He and several employees of the store engaged in the selling. Hassine also began to advise [Orlowski] how to squeeze more profit out of the drug sales.
"In early June of 1980, Skip Kellet purchased some methamphetamine from [Orlowski] for one hundred and fifty ($150.00) dollars. Upon bringing the drugs back to his apartment, Kellet discovered the drugs were of an inferior quality and he became enraged. In order to gain revenge on [Orlowski], he called him and told him the drugs were good and he wanted more. [Orlowski] came to Kellet's apartment (where coincidentally [Orlowski] had lived for several years prior to Kellet's tenancy) and encountered the enraged Kellet brandishing a cudgel. Kellet threatened him with the club; took the drugs, which [Orlowski] had brought with him, and all of [Orlowski's] money (either sixty-four ($64) or one hundred and four ($104) dollars); and threw him out of the apartment.
"A few days later, a meeting was held at the meat market. Present were [Orlowski], Hassine, various employees of the meat market, and one William Eric Decker, an itinerant drug fiend and convicted felon, who had been doing labor work for Hassine. Hassine told Decker, in [Orlowski's] presence, that he wanted Skip Kellet killed, or 'wasted.' Hassine also said that if Kellet's wife, Lois, was there, she 'was to go also, because any witnesses had to go.' [Orlowski] added that Kellet could be killed at Penn Manor Lakes because he always went fishing there. He also asked one of the employees, Billy Hayes, who lived next
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door to Kellet, if he could shoot Kellet from Hayes' bedroom window with Hayes' father's gun. Hassine then asked everyone to attempt to procure a gun. [Orlowski] went out and made a phone call, ostensibly to attempt to find a gun, but the party he tried to reach was 'sleeping.'
"Thereafter, Decker accompanied [Orlowski] to the home of one David Evans, a friend of [Orlowski]. Their purpose in going there was to look for a gun. However, Evans' gun, a hunting rifle, was not suited to their purposes so they did not take it. Decker also accompanied Hassine to the apartment of one Ted Camera, a tenant of a Hassine family apartment in Trenton, to ask for a gun; but again they did not obtain one.
"[Orlowski] purchased a .25 caliber automatic handgun from a Tom Easterwood for seventy-five ($75) dollars. Sometime in July, 1980, Hassine gave this weapon to Decker and said, '[h]ere, hit him in the head and leave it there.' The gun was test-fired by Hassine and Decker in the back of the market in the presence of [Orlowski] and was found to have a defective part.
"In late July, 1980, there was a confrontation between Kellet and Hassine in front of one of Hassine's apartments (which was coincidentally across the street from Kellet's apartment). Hassine filed criminal charges of harassment against Kellet. Later a charge of terroristic threats was added when Kellet called the meat market and threatened to burn it down.
"On August 1, 1980, Hassine and Decker drove to Edelman's Gun Shop to obtain a part to repair the gun. They did not get the part, but Hassine purchased a box of shells for the gun, for which he signed the register.
"Returning from Edelman's, they passed Kellet's apartment, and seeing Kellet, Hassine told Decker to shoot him. Decker demurred because it was daylight, a witness was present and because Hassine was there. Hassine promised Decker that he could have one of Hassine's apartments if he killed Kellet.
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"On or about August 5, 1980, [Orlowski] and Hassine met with Fred Tuite and Joseph 'Critter' Schwab at [Orlowski's] house. Tuite and Schwab were members of the Breed Motorcycle Gang, and Tuite had just been bailed out of jail by Kerry Conklin, a friend of [Orlowski's] who frequented the market and also worked as a laborer for Hassine. Tuite had been jailed for offenses relating to the possession of a .357 magnum handgun, which he previously had attempted to sell to Hassine. Tuite and Schwab were asked by Hassine how much they wanted to kill Kellet. They answered fifteen hundred ($1,500) dollars. [Orlowski] then asked how much to have Kellet beaten up. They answered two hundred and fifty ($250) dollars. At Hassine's direction, [Orlowski] left the room and returned with an envelope containing the lesser amount. Tuite and Schwab never did the job.
"Thereafter, [Orlowski] told Billy Hayes that Tuite and Schwab were not going to do the job, but rather Eric Decker was designated to kill Kellet. About two and one-half weeks before the shooting, a Paul Koenig, from whom [Orlowski] had tried to obtain an unmarked, unregistered handgun, asked [him] if he still needed a gun. [He] answered 'no' that Victor got one. He also said, 'We're going to do it Victor's way.'
"On the evening of August 22, 1980, Kellet and his wife drove to the 'Dunkin' Donuts' across the street from [Orlowski's] market. Kellet parked the car so that it faced the market. It should be noted that in the period after the drug 'rip-off,' in addition to the above, there was a continuing pattern of cross-harassment between [Orlowski] and Kellet. [Orlowski] saw Kellet, and was worried about his presence. Shortly thereafter, Decker telephoned the market and was told Kellet was there. Decker drove to the market with a friend and after exiting the vehicle, he walked to Kellet's car and sticking his head in the passenger window said, '[a]re you Skipper Kellet?' Kellet answered by exiting his car with a baseball bat in his hand. Decker retreated to his friend's vehicle and then went to the meat market. [Orlowski]
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unlocked the door and allowed Decker to enter. Decker asked [him] if Hassine was coming. [Orlowski] said 'yes.'
"[Orlowski] and Decker went to [Orlowski's] van which was parked in front of the market and waited for Hassine. Decker said to [Orlowski], '[t]his cat has got to go.' [He] and Decker smoked a marijuana cigarette. Hassine then drove up with his brother, Eli, in a Datsun 280Z. Decker and [Orlowski] left the van and approached Hassine's car. Decker said, 'Tonight's the night -- this cat's got to go. We'll use your gun. I want two hundred and fifty dollars.' Hassine said he would come back and pick up Decker.
"While Hassine was gone, Decker asked [Orlowski] for a shirt to cover his tattoos. [He] gave him a long-sleeve tan shirt that was in the market. Hassine returned about fifteen minutes later. He and Decker left and drove to the house of Hassine's parents in Trenton. While Decker waited in the car, Hassine went inside and obtained his father's .380 Llama handgun. They drove back to Fallsington and Hassine dropped Decker off. Hassine gave Decker a New York Yankees batting helmet to cover his hair. Decker walked up the street, but got lost despite the directions which Hassine had given him. After about twenty minutes, he found Kellet's apartment. Before going there, he went to the apartments owned by Hassine across the street and sat for a few minutes. He then walked across the street to Kellet's. Actually, Kellet and his wife occupied a second floor apartment, but on this evening they were in the first floor apartment of George Sofield. Decker entered through the kitchen and proceeded into the living room -- the .380 Llama ready to use. There were four people in the living room watching the Friday night fights -- Skip Kellet, Lois Kellet, George Sofield and James Puerale.
"As Kellet rose from his chair, Decker fired one shot from the .380 Llama, which struck Kellet in the head, injuring him. Decker turned and fired a shot at Lois Kellet which struck her in the neck and wrist. Decker then shot at Sofield, but missed. Finally, he shot Puerale, an innocent
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bystander with no connection to the feud between Kellet and appellant. Puerale was killed instantly.
"In the interim, Hassine had gone to [Orlowski's] house. [Orlowski] and Hassine, and a third person, Michael Thompson, got into Thompson's car. Hassine was carrying a piece of metal pipe approximately twelve inches long. Hassine directed Thompson to drive up and down certain streets while Hassine whistled out the window. He directed Thompson to stop in the parking lot across from Kellet's apartment. He then directed Thompson to drive to the parking lot of a school behind Kellet's apartment. They then drove to Dunkin' Donuts, where they remained for four or five minutes, until Hassine said, 'We've been seen.' The men then drove back into Fallsington, and as they were driving long they heard two shots. Hassine stated: 'Oh shit, that's my father's gun. I hope that asshole doesn't get caught.' [Orlowski] said: 'Oh, shit, it happened.' A few minutes later, Hassine had Thompson stop the car and call, 'Eric.'"
Id., 332 Pa. Superior Ct. at 615-616, 481 A.2d at 957-59.
Appellant's first allegation of error on the part of the trial court is that the court abused its discretion by denying appellant's motion to sever. Appellant argues that severance of his and his co-defendant Orlowski's trial was warranted due to (1) the complexity of the evidence, (2) the introduction of evidence admissible against co-defendant Orlowski and not admissible against appellant which was prejudicial to appellant, and, (3) the antagonistic defenses of appellant and his co-defendant.
In considering these contentions, we note at the outset that our standard for reviewing a lower court's disposition of a severance motion has been definitively set forth in Commonwealth v. Hamm, 325 Pa. Super. 401, 473 A.2d 128 (1984):
"[Q]uestions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his
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rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion." Commonwealth v. Tolassi, 258 Pa. Super. 194, 199, 392 A.2d 750, 753 (1978), aff'd, 489 Pa. 41, 413 A.2d 1003 (1980). See: Commonwealth v. Middleton, 320 Pa. Super. 533, 551, 467 A.2d 841, 850 (1983); Commonwealth v. Johnson, 291 Pa. Super. 566, 581, 436 A.2d 645, 653 (1981). When the crimes charged arise from the same acts or series of acts and much of the same evidence is necessary or applicable to all defendants, a joint trial is "permissible, if not advisable." Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973). See: Commonwealth v. Kloiber, 378 Pa. 412, 415, 106 A.2d 820, 823, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Commonwealth v. Fields, 317 Pa. Super. 387, 398-399, 464 A.2d 375, 381 (1983); Commonwealth v. Norman, 272 Pa. Super. 300, 306, 415 A.2d 898, 901 (1979); Commonwealth v. Weitkamp, 255 Pa. Super. 305, 321, 386 A.2d 1014, 1022 (1978). Especially where a conspiracy to commit crime is alleged, the defendants should be tried together, "unless it can be shown that one or more of the defendants will be actually prejudiced by doing so." Commonwealth v. Johnson, supra, 291 Pa. Super. at 582, 436 A.2d at 653. See: Commonwealth v. Katsafanas, 318 Pa. Super. 143, 156-157, 464 A.2d 1270, 1277-1278 (1983); Commonwealth v. Tolassi, supra, 258 Pa. Super. at 200, 392 A.2d at 753.
Id., 325 Pa. Superior Ct. at 409-410, 473 A.2d at 132-33. See also 18 Pa.C.S. § 903(d)(1)(i), (ii); Pa.R.Crim.P. 1127. As we also noted in Commonwealth v. Orlowski, supra, appellant and his co-defendant were charged with a variety of criminal conspiracies "wherein the Commonwealth alleged agreement . . . to effect the killing of Skip Kellet." Id., 332 Pa. Super. at 624, 481 A.2d at 964.
Appellant first argues that the evidence presented was so "complex" as to make the trial "un-necessarily cumbersome with regard to deciphering the facts and applying the ...