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filed: September 25, 1989.


Appeal from Judgment of Sentence September 15, 1988, in the Court of Common Pleas of Allegheny County, Criminal, No. CC8512732.


Michael J. Healey, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.

Olszewski, Montemuro and Kelly, JJ. Kelly, J., concurs.

Author: Olszewski

[ 388 Pa. Super. Page 156]

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County after conviction for delivery of a controlled substance and two counts each of perjury and false swearing. On appeal four issues are raised: first, whether the Commonwealth engaged in misconduct consisting of setting a perjury trap for an uncounseled target of a grand jury; second, whether the evidence was sufficient to sustain one of the counts of perjury; third, whether one of the Commonwealth's witnesses voluntarily consented to allow his conversations with appellant to be tape recorded; and fourth, whether there was sufficient evidence to sustain the verdict as to possession of heroin with intent to deliver. For the following reasons, we affirm.

The facts of the crimes underlying the convictions in this case center around the demise of one Isaac "Toddy" Dunning. Mr. Dunning had been shot to death, presumably at the behest of one Alvin "Pons" Frazier, on June 14, 1985, in the Hill District section of Pittsburgh. A subsequent investigation by Detective Terrance O'Leary of the Pittsburgh Police Department led to a primary suspect, Melvin Kessler, a friend of appellant's. Both Kessler and appellant allegedly

[ 388 Pa. Super. Page 157]

    sold heroin for Alvin Frazier. Upon questioning by Detective O'Leary, appellant claimed that he had not seen Dunning, nor Kessler, on the day of the killing, but that he had been at his mother's home around the time Dunning was shot.

Dunning had been close friends with one Coty Youngblood. While Youngblood was serving a sentence in Allegheny County Jail, he had heard about Dunning's death. On the premise of assisting the police in catching those responsible, Youngblood contacted the District Attorney's Office to offer his help.*fn1 In this regard, Youngblood, who was an acquaintance of appellant, agreed to set up a meeting with appellant at a hotel in the Oakland section of Pittsburgh and to have the conversation tape recorded.

On July 31, 1985, during one of these meetings between Youngblood and appellant, the conversation turned to drugs.*fn2 Appellant stated that he was waiting to get some heroin. Later that same evening, appellant brought three balloons of the drug to Youngblood's room and split these with the witness. After appellant had left the room, Youngblood gave the heroin to Detective O'Leary who then bagged, marked, and ultimately sent the drug to the Allegheny Crime Lab.

On August 29, 1985, appellant appeared under subpoena before the Allegheny County Investigation Grand Jury, which had been convened to investigate the death of Isaac Dunning. During that proceeding, appellant denied being in the presence of Dunning or Kessler on the day of the

[ 388 Pa. Super. Page 158]

    killing. He also denied being present at, or being involved in, the beating of one William "Deuce" Kerley.*fn3

At the close of the grand jury investigation, appellant was charged in an eight-count information filed November 8, 1985. Among the crimes were: one count of criminal conspiracy to commit homicide, 18 Pa.C.S.A. § 903(a)(1); one count of delivery of a controlled substance, 35 Pa.C.S.A. § 780-113(a)(30); three counts of perjury, 18 Pa.C.S.A. § 4902(a); and three counts of false swearing, 18 Pa.C.S.A. § 4903(a)(1).

Various motions to dismiss and/or suppress on grounds of prosecutorial misconduct, government overreaching, and entrapment were filed on all counts, as were petitions for writ of habeas corpus. After hearing and argument on the motions, the trial court, on November 18, 1986, dismissed the charge of criminal conspiracy.*fn4 On December 4, 1986, the trial court dismissed one count each of perjury and false swearing.*fn5 All other motions were denied.

On December 2, 1986, appellant was tried non-jury on the remaining two counts each of perjury and false swearing. He was convicted on December 9, 1986, on all counts. Appellant was then tried non-jury for the charge of delivery of a controlled substance, which had been severed at his request, on December 17, 1986. He was convicted of that charge on December 18, 1986. Timely post-trial motions were filed and denied with appellant receiving a sentence of three-to-seven years for the perjury conviction to run consecutive

[ 388 Pa. Super. Page 159]

    to a three-to-six year term on the heroin conviction. No penalty was imposed on the remaining counts. After a hearing on appellant's motion for reconsideration, the sentence on the heroin charge was reduced to a term of two-to-six years. Appellant then filed the instant appeal.*fn6

Appellant first argues that the convictions for perjury and false swearing should be reversed because the Commonwealth engaged in misconduct by bringing the appellant before the grand jury with the primary purpose of extracting perjured testimony from him. In support of this argument, appellant contends that he had already been asked by Detective O'Leary the precise question of whether he had been with Dunning and Kessler on the day of the shooting and that he had responded in the negative. He alleges that as the Commonwealth knew what his answer would be in advance, and because the Commonwealth was prepared with witnesses which would testify that appellant had been with Kessler and the victim, the Commonwealth had therefore set a "perjury trap" for him. This being the case, appellant further contends that it was improper for the Commonwealth to allow him to testify uncounseled and non-immunized in a proceeding where he was a "target" and not merely a witness.

The Commonwealth responds by claiming that no government misconduct occurred. It argues that appellant has failed to show that he was a "target" or was misled as to his status before the grand jury. The Commonwealth points to the colloquy between appellant and the supervising judge of the grand jury prior to appellant's testimony. It is stressed that at this proceeding appellant was fully informed as to his rights, and countenanced an understanding of these rights, as well as the penalty for perjured testimony before the grand jury. Accordingly, appellee contends that it did not subpoena appellant for the sole

[ 388 Pa. Super. Page 160]

    purpose of extracting perjured testimony as it had reason to expect the witness to testify truthfully regarding any information relevant to the investigation of the homicide of Isaac Dunning. As for its decision not to grant appellant immunity, the Commonwealth posits that immunity is not offered until a witness asserts his Fifth Amendment Rights. In this case, no request was made.

Initially, we note that appellant's claim of a "perjury trap" is unique to this Court, having been addressed only during proceedings involving federal grand juries. Neither appellant nor the Commonwealth base their respective arguments as to this claim on state law, nor could they, for our research indicates a complete lack of case law regarding this issue as it relates to our Investigating Grand Jury Act.*fn7 In light of this situation, we feel that this specific issue would be more appropriately addressed by examining federal law. Accordingly, we defer to the federal approach.

When addressing a claim of prosecutorial misconduct before a grand jury, our federal courts look first to see whether the alleged misconduct took place, and next, to whether any sanction, such as dismissal of the indictment or suppression of the evidence, is warranted. United States v. Martino, 825 F.2d 754 (3d Cir.1987). When dismissal is the requested relief, the federal courts take one of two approaches. The first approach finds dismissal proper where the defendant can show that the conduct of the prosecution caused him prejudice. The Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Prejudice will have occurred only "'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Id. at 256, 108 S.Ct. at 2374, 101 L.Ed.2d at 238, quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50, 61 (1986). Under the second approach, dismissal may be proper where no actual prejudice is shown "if there is evidence that the challenged

[ 388 Pa. Super. Page 161]

    activity was something other than an isolated incident unmotivated by sinister ends, or that the type of misconduct challenged has become 'entrenched and flagrant' in the circuit." United States v. Rosenfield, 780 F.2d 10, 11 (3d Cir.1985), quoting United States v. Serubo, 604 F.2d 807, 817 (3d Cir.1979); see also The Bank of Nova Scotia, 487 U.S. at 259-260, 108 S.Ct. at 2376, 101 L.Ed.2d at 240. Under either approach, we must first determine whether any misconduct occurred. We therefore turn to that issue.

When conducting a grand jury investigation, the prosecution may not call a witness before the jury with the sole purpose of eliciting perjured testimony. United States v. Caputo, 633 F.Supp. 1479 (E.D.Pa.1986), rev'd on other grounds sub. nom. United States v. Martino, 825 F.2d 754 (3d Cir.1987). To do so would constitute a violation of a defendant's Fifth Amendment right to due process, United States v. Simone, 627 F.Supp. 1264 (D.N.J.1986), as well as an abuse of the grand jury system. United States v. Crisconi, 520 F.Supp. 915 (D.Del.1981). Where, however, the prosecutor is aware that a witness may commit perjury, s/he need not refrain from questioning the witness so long as the purpose of the examination is for something other than securing a perjury indictment. United States v. Chevoor, 526 F.2d 178 (1st Cir.1976), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1975); United States v. Nickels, 502 F.2d 1173 (7th Cir.1974), cert. denied, 426 U.S. 911, 96 S.Ct. 2237, 48 L.Ed.2d 837 (1976). The question then becomes whether another such purpose existed in the present case.

Instantly, it is clear that the Commonwealth anticipated that appellant might or would commit perjury. The statements made by appellant to police regarding his whereabouts shortly after the killing and his involvement in the beating of "Deuce" Kerley were in direct conflict with information already in the hands of the police. While the Commonwealth surely recognized the possibility that appellant might perjure himself, we are certain that the questions posed to appellant, though almost identical to those

[ 388 Pa. Super. Page 162]

    already asked of him by police, were designed to elicit information regarding the homicide of Isaac Dunning.*fn8 Truthful answers to these questions could have disclosed information that would have been useful in the pending investigation: first, they would have established that appellant and Melvin Kessler were with Mr. Dunning on the morning of his death, and second, they would have established that appellant and Kessler were employed as "enforcers" for "Pons" Frazier, who had allegedly ordered Dunning killed. Because these questions were relevant to the murder investigation, we are unable to conclude that appellant was subpoenaed for the sole purpose of extracting perjured testimony. Cf. People v. Tyler, 46 N.Y.2d 251, 256-258, 413 N.Y.S.2d 295, 297-298, 385 N.E.2d 1224, 1227-1228 (1978) (under New York law, where perjury indictment based on questions irrelevant to underlying investigation, sole purpose of questioning was to extract perjured testimony). Thus, we find no misconduct on the part of the Commonwealth in the questioning of appellant.

Nor do we find support in appellant's contention that it was improper for the Commonwealth to allow him to testify uncounseled and non-immunized in a proceeding where he was a "target" and not merely a witness. Prior to testifying, appellant was fully advised of his rights by the supervising judge of the grand jury, the Honorable Alan S. Penkower, as follows:

THE COURT: Each of you has the right to the advice and assistance of a lawyer. That means that you have the right to the services of a lawyer with whom you may consult concerning all matters pertaining to your appearance before the Grand Jury. You may confer with your attorney at any time either before, during or after your testimony. You may consult with your lawyer throughout your entire contact with the Grand Jury; and your lawyer may be present with you in the Grand Jury Room

[ 388 Pa. Super. Page 163]

    during the time that you are actually testifying and you may confer with your lawyer at that time.

If you cannot afford a lawyer, you are entitled to obtain the services of a lawyer appointed by the Court at no cost to you. If you are not eligible for Court appointed lawyer and you wish to retain a lawyer, I would then give you reasonable time to do so. If you have not consulted a lawyer, this does not mean that you are barred from seeking to obtain counsel. Should you change your mind at any time during your testimony, simply advise the District Attorney who is present in the Grand Jury Room that you wish to consult with or retain counsel. In such event, the District Attorney has been instructed by me that any further ...

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