Appeal from the Judgment of Sentence, October 31, 1995, in the Court of Common Pleas of Armstrong County, Criminal Division, No. 1991-0370-CRIM. Before NICKLEACH, J.
Before: Hudock, Ford Elliott, And Hester, JJ. Opinion BY Ford Elliott, J.
The opinion of the court was delivered by: Elliott
OPINION BY FORD ELLIOTT, J.:
This appeal is taken from a judgment of sentence imposed October 31, 1995, after appellant was found guilty by a jury of possession of a controlled substance, possession with intent to deliver a controlled substance, delivery of a controlled substance, criminal conspiracy, corrupt organizations, and corrupt organizations (conspiracy).
The factual underpinnings of this case are rather complicated. Appellant's convictions originated with the delivery of information from a confidential source that there was a low-level street drug dealer of marijuana and cocaine operating in the Kittanning area of Armstrong County. Based on the tip, the Pennsylvania Attorney General's Regional Narcotics Task Force began an investigation, which utilized confidential informants, controlled drug purchases, and physical and electronic surveillance, including wiretaps and pen registers.
The source of drugs for the suspected low-level dealer was found to be one William Todd North. Agents who conducted surveillance of North determined that his supplier was one Ivan Shankle. *fn1 Agents arrested North for possession of marijuana and cocaine in November of 1989, and subsequently obtained North's cooperation in the investigation. As a result, on November 9, 1989, North made two controlled buys of cocaine from the Shankles. North testified that at the time he made the second purchase, appellant and Robert Hockenberry were both present at the Shankle residence. (Notes of testimony, 2/10/93 at 80.)
The Narcotics Task Force obtained a record of long distance telephone calls made from the Shankle residence. Agents also requested and received permission to install a pen register (to record the telephone numbers of outgoing calls) on the Shankles' telephone. The pen register recorded many calls to the Hockenberry residence and several to appellant's residence. Agents subsequently applied for and received authorization for a wiretap, to record phone conversations on the Shankle telephone, for 30 days beginning on January 31, 1990. Agents then successfully applied for a 30-day extension of the wiretap.
From these telephone intercepts, and information from North, agents learned that Ivan Shankle planned to travel to New York with several other individuals to purchase a kilogram of cocaine for $28,000. Agents followed these individuals by car, but were discovered. The New York trip was therefore not completed. Agents subsequently confronted Ivan Shankle with what they had learned about his drug sales, and confiscated his drug funds. Shankle gave a detailed statement to agents concerning his involvement in the drug-selling operation. Shankle initially refused to cooperate in the investigation of Robert Hockenberry. In March of 1991, however, Shankle offered his cooperation to the Narcotics Task Force. Ultimately, a special grand jury returned an indictment for appellant and over twenty additional co-defendants, including his co-defendants Robert and Sherry Hockenberry. Ivan and Dorothy Shankle eventually testified for the Commonwealth at appellant's trial.
Dorothy Shankle testified that she met appellant through Hockenberry, when the two came to see her husband, Ivan Shankle, at the Shankle home. (Notes of testimony, 2/10/93 at 216.) She stated that Hockenberry and appellant supplied Shankle with cocaine. (Id. at 218.) Dorothy Shankle further testified that she delivered proceeds from drug sales to appellant and Hockenberry on behalf of Ivan Shankle. (Id. at 219.)
Ivan Shankle testified that he had known Hockenberry practically all of his life. (Id. at 262.) He stated that he obtained cocaine from appellant and Hockenberry (Id. at 265, 272-273), and that he began dealing in cocaine with appellant within two weeks of the commencement in 1989 of his drug-selling career (Id. at 272). Ivan Shankle stated that Hockenberry and appellant were "like a team." (Id. ; Id. at 275-276.) Shankle testified that he discussed the first New York volume drug-buying trip with appellant. (Id. at 291.) He also discussed with appellant the fact that Narcotics Task Force agents confiscated $28,000 in drug proceeds from him. (Id. at 303.)
Todd North testified that in the course of attempting to obtain cocaine from Hockenberry, appellant arrived at Hockenberry's residence to speak with him. (Id. at 95-97.) North stated that he heard the men conversing about going over Ivan Shankle's head to sell cocaine to North. (Id. at 97-98.)
Following a verdict of guilty, post-trial motions requesting a new trial and/or arrest of judgment were denied by order dated August 10, 1995.
Appellant raises three arguments:
1.) whether the trial court erred in failing to grant appellant's motion for arrest of judgment on the corrupt organization charges, where, as here, there was no legitimate business enterprise as required by our supreme court?
2.) whether the trial court erred, and a new trial should be granted, when it failed to grant appellant's motion to suppress statements obtained through the use of electronic surveillance?
3.) whether the trial court erred in denying appellant's motion to sever and, in the alternative, in denying appellant the right to cross-examine a key Commonwealth witness regarding his prior incarceration with appellant's co-defendant?
Concerning the first argument, appellant directs our attention to Counts V and VI of the Commonwealth's information, which charged violation of and conspiracy to violate the Pennsylvania Corrupt Organizations Act, 18 Pa. C.S. § 911 et seq. (hereinafter "C.O.A." or "Act"). Both Counts describe the illegal drug selling enterprise in which appellant was engaged, in violation of § 911(b)(3) and (b)(4).
The crux of appellant's first argument is that his conviction under the Act cannot be upheld because the enterprise in which he was involved was not a legal entity. In support of this argument, appellant relies on the recent Pennsylvania Supreme Court decision, Commonwealth v. Besch, 544 Pa. 1, 674 A.2d 655 (1996), issued six months after his convictions, which defined the term "enterprise" for purposes of the Act. In Besch, as here, the defendant was found guilty of violating the C.O.A. on the basis of numerous drug trafficking offenses. Based upon an examination of the preamble to the Act, however, the Besch court concluded that the statute was not intended to encompass the "prosecution of a wholly illegitimate enterprise." Id. at 3, 674 A.2d 655. While the court had examined the Act's preamble in earlier cases, Besch was the first instance in which the supreme court interpreted the C.O.A. in this restrictive manner, so as to reverse a conviction.
Prior to Besch, and as late as 1994, the supreme court reviewed and upheld convictions under the C.O.A. which were based upon a defendant's participation in an illegal enterprise. See Commonwealth v. Wetton, 537 Pa. 100, n.5, 641 A.2d 574, 579 n.5 (1994) (equally divided court affirming superior court; plurality noting that "neither the preamble nor the express language of the statute prevents its proscription from reaching enterprises organized and existing for illegal purposes," citing with approval Commonwealth v. Yacoubian, 339 Pa. Super. 413, , 489 A.2d 228, 231 (1985)); Commonwealth v. Bobitski, 534 Pa. 310, , 632 A.2d 1294, 1296 (1993) (individual who committed series of methodical crimes not subject to Act, because statute was intended to prevent infiltration of legitimate business by organized crime, and to target organized crime "as it is commonly understood"; intent of statute was to punish those who engage in organized crime through pattern of racketeering activity); Commonwealth v. Yacoubian, (supra) (relying on United States v. Turkette, 452 U.S. 576, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)).
In summary, although the supreme court acknowledged that the express intent was to prevent the invasion of legitimate enterprises by organized crime, the Act was historically interpreted so as to reach illegitimate as well as legitimate enterprises. The majority in Besch, however, citing the preamble of the C.O.A., found the ...