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COMMONWEALTH PENNSYLVANIA v. DAVID SAVAGE (11/08/89)

filed: November 8, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID SAVAGE, APPELLANT



Appeal from the Order entered June 22, 1988 in the Court of Common Pleas of Wyoming County, Criminal Division, No. 87-215.

COUNSEL

Joseph M. Devecka, State College, for appellant.

Brendan J. Vanston, Dist. Atty., Tunkhannock, for Com., appellee.

Cirillo, President Judge, and Beck and Kelly, JJ.

Author: Kelly

[ 388 Pa. Super. Page 565]

This is an appeal from an order denying appellant's motion to dismiss a charge of criminal conspiracy to distribute cocaine. Appellant contends that the present conspiracy charge arises from the same conspiracy which was the basis for the federal conspiracy charge to which he has already entered a negotiated guilty plea, and therefore the present charge must be dismissed in accordance with 18 Pa.C.S.A. § 111. The Commonwealth responds that two separate cocaine distribution conspiracies are involved. We conclude that the Commonwealth failed to meet its burden of proof to establish separate conspiracies; consequently, we are constrained to reverse.

The relevant facts and procedural history may be summarized as follows. Pursuant to a lawfully obtained wiretap order issued by this Court, telephone calls to and from the residence shared by Mrs. Cindy Janoski and Mr. Robert Lipinski a/k/a Rod Sun, were monitored and recorded by narcotics agents of the Pennsylvania Attorney General's Region VIII Narcotics Strike Force. Calls to and from appellant, and subsequent surveillance of appellant established probable cause to arrest appellant on a charge of criminal conspiracy to deliver cocaine to Ms. Janoski and Mr. Lipinski. Ms. Janoski subsequently agreed to cooperate with the Commonwealth, and revealed that appellant had in fact delivered cocaine to her on April 29, 1987.

[ 388 Pa. Super. Page 566]

Appellant was arrested and charged with criminal conspiracy on August 3, 1987.

While the state charge was pending, appellant was arrested by federal authorities. The multicount indictment returned by a federal grand jury against appellant included a charge that appellant had conspired with Alexander Eugenio Moskovitz, Charles O'Rourke, Lola Fulin, and others known and unknown, to import, possess with intent to deliver, and deliver cocaine in Pennsylvania. Appellant elected to enter a negotiated guilty plea to the federal charge.

The factual basis for the plea presented at the plea hearing involved evidence which provided at least probable cause to believe the following. Between 1983 and 1987, Alexander Moskovitz controlled and directed a large scale criminal conspiracy which involved the importation of multikilogram amounts of cocaine from Columbia, South America to Miami, Florida, and then the transportation of the cocaine from Miami, Florida to Philadelphia, Pennsylvania for sale and distribution to wholesale and retail dealers in Pennsylvania. The volume of cocaine imported during the continuance of Moskovitz's importation and distribution conspiracy increased from approximately ten ounces (0.331 kilograms) to four kilograms per month during the last six months of the conspiracy.*fn1

[ 388 Pa. Super. Page 567]

Charles O'Rourke and Lola Fulin, named co-conspirators in the federal action, acted as "mules" for Moskovitz in his importation operation; that is to say, they carried money to Columbia on some trips and returned with cocaine on others. While the record in the federal case does not include the names of other "mules," it does suggest that the existence of such persons as unnamed unindicted co-conspirators. The record also suggests the existence of other unnamed unindicted co-conspirators acting (like appellant) as wholesalers and/or retailers of the cocaine imported by Moskovitz.

Appellant joined the already operating conspiracy in March, 1986 and continued to purchase cocaine from Moskovitz on a regular basis in amounts which increased from an initial four ounce purchase (113 gr.) to an eventual purchase amount of two kilograms.*fn2 There is no indication in the statement of the factual predicate for the federal charge as to whether Moskovitz was appellant's only source of cocaine, or whether appellant had other suppliers as well. It is clear, however, that appellant was not the only wholesaler or retailer of illegal cocaine to whom Moskovitz distributed the product of his importation operation. This is evident based upon the difference between Moskovitz's importation amounts and appellant's purchase amounts.

Appellant entered his negotiated guilty plea to the federal conspiracy charge on December 11, 1987. On April 20, 1988, appellant moved to have the pending state conspiracy charge dismissed based upon his contention that it was barred by 18 Pa.C.S.A. § 111. A hearing was held on the motion on June 17, 1988. On June 22, 1988, the motion was denied. This timely appeal followed.

[ 388 Pa. Super. Page 568]

On appeal, appellant contends that the state and federal conspiracy charges arise from the same criminal conspiracy, and therefore the pending state charges are barred by 18 Pa.C.S.A. § 111, which provides in pertinent parts as follows:

§ 111. When prosecution barred by former prosecution in another jurisdiction

When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances:

(1) The first prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless:

(i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; . . . .

18 Pa.C.S.A. § 111(1)(i). Appellant emphasizes that the state and federal conspiracy charges both alleged conspiracies to distribute cocaine in Pennsylvania during overlapping time periods. He suggests that while the named state co-conspirators are not named federal co-conspirators, the state co-conspirators should be considered to have been subsumed in the general category of unnamed co-conspirators included in the federal indictment. Appellant cites Commonwealth v. Abbott, 319 Pa. Super. 479, 466 A.2d 644 (1983) in support of his contentions.

[ 388 Pa. Super. Page 569]

The Commonwealth responds that while the state and federal conspiracies related to the same drug at roughly the same time, in the same general area, the conspiracies involved only one common participant, and were in fact wholly separate conspiracies. The Commonwealth cites Commonwealth Page 569} v. Abbott, supra, in support of its response. The trial court, applying Commonwealth v. Abbott, supra, agreed with the Commonwealth that separate conspiracies were involved and denied the motion to dismiss. We reverse.

I. Jurisdiction

It is well settled in Pennsylvania that a defendant is entitled to an immediate interlocutory appeal as of right from an order denying a non-frivolous motion to dismiss on state or federal double jeopardy grounds. See Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). Appellant has presented a statutory claim under 18 Pa.C.S.A. § 111, which provides a qualified renunciation of authority to reprosecute under the "separate sovereigns" doctrine a defendant previously tried for the same crime in federal court. The reasoning which permits an interlocutory appeal from an order denying a non-frivolous motion to dismiss pursuant to either the state or federal double jeopardy clauses, applies equally to an order which denies a non-frivolous motion to dismiss pursuant to 18 Pa.C.S.A. § 111. The trial court did not find appellant's Section 111 claim to be frivolous; hence, we conclude that appellant's interlocutory appeal is properly before this Court.

II. Conspiracy Generally

The common law of conspiracy was cogently summarized by Justice Powell in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), as follows:

Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. Unlike some crimes that arise in a single transaction, the conspiracy to commit an offense and the subsequent commission of that crime do not merge into a single punishable act. Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end. Indeed, the Court has even held that the conspiracy can be punished

[ 388 Pa. Super. Page 570]

    even more harshly than the accomplishment of its purpose.

The consistent rationale of this long line of decisions rests on the very nature of the crime of conspiracy. This Court repeatedly has recognized that a conspiracy poses distinct dangers ...


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