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December 16, 1997


Appeal from the Judgment of Sentence November 15, 1996, In the Court of the Court of Common Pleas of Lackawanna County, Criminal Division at No. 94-CR-1375 94-CR-1880. Before O'MALLEY, J.

Before: McEWEN, P.j., Beck, J. and Cercone, P.j.e. Opinion BY Beck, J.

The opinion of the court was delivered by: Beck


Filed December 16, 1997

In this appeal we decide, inter alia, whether the sentencing court erred in imposing separate sentences for the convictions of conspiracy to commit robbery and conspiracy to commit third-degree murder. We find that pursuant to 18 Pa.C.S.A. § 903 (c) the sentences should merge and the court erred in imposing separate sentences. We therefore remand for resentencing.

Before addressing the sentencing question we decide whether the trial court erred in precluding appellant from presenting certain witness testimony and whether appellant was prejudiced by admission of a pre-trial identification.

Appellant was found guilty of third-degree murder and related offenses. Armed with a baseball bat, appellant and several of his friends sought out the victim with the intention of collecting a drug debt. Following a brutal attack by appellant and the others, the victim died. Appellant was the only person to face trial; his cohorts pled guilty to third-degree murder. A jury found appellant guilty of third-degree murder, conspiracy to commit third degree murder and conspiracy to commit robbery. He received separate, consecutive sentences for each charge, resulting in an aggregate prison term of fourteen (14) to forty (40) years.

Appellant claims that he was precluded from presenting the testimony of two witnesses who would have testified in his favor. Appellant asserts that his effort to offer the witnesses was deliberately undermined by the prosecutor, who threatened the witnesses with perjury charges in the event they took the stand. As a direct result of the threats, appellant claims, the witnesses exercised their Fifth Amendment right not to testify. Appellant characterizes this incident as a violation of his due process rights, specifically his right to compulsory process for obtaining witnesses in his favor. See Commonwealth v. Holloman, 424 Pa. Super. 73, 621 A.2d 1046, 1053-54 (1993).

Two of appellant's partners in crime, Tracy Parks and Dennis Stokes, were sought by appellant to testify in his defense at trial. At the time of trial, both men had pled guilty to third-degree murder for their part in the victim's death. Parks had given a statement to law enforcement personnel at the time he was arrested and both men had appeared before the court for guilty plea colloquies. Appellant wanted the men to testify about their statements to police and the court since, in appellant's opinion, those statements would be favorable to him at trial.

The court held an extensive in-camera hearing on the issue of the prosecutor's alleged threat and its impact on Parks and Stokes. After a thorough analysis of the claims made by appellant, the allegations against the prosecutor and the position of the two witnesses (both of whom testified before the Judge), the court concluded that the witnesses were entitled to invoke their Fifth Amendment rights. The court further found that the invocation of those rights could not be attributed to any alleged or perceived threats by the prosecutor. The court concluded that the testimony of Stokes and Parks would not have been beneficial to appellant, that the reason the two men refused to testify was not based solely on their fear of perjury charges, but on their involvement with other, uncharged criminal conduct not related to the death of the victim, and that appellant had failed to meet his burden in establishing prejudice as a result of the court's ruling. In its opinion, the court explained:

An examination of the testimony leads us to believe that neither Stokes nor Parks was prepared, or in a position, to testify on the [appellant's] behalf anyway. . . . In light of the disinclination of both these witnesses to testify for the [appellant] and also their legitimate reasons for invoking the Fifth Amendment, we are convinced that Mr. Minora's [the prosecutor's] comment was not the reason why Parks and Stokes ultimately chose not to testify. Viewing the episode as a whole we cannot say that Parks and Stokes were precluded from making a free and voluntary choice whether or not to testify. . . .

defendant must establish more than the mere absence of testimony. There must be a plausible showing that an act by the government caused the loss or erosion of testimony that was both material and favorable to the defense. Therefore, in order to prevail on such a due process claim, an accused must, at a minimum, demonstrate some plausible nexus between the challenged government conduct and the absence of certain testimony. . . . No such nexus has been demonstrated here.

Trial Court Opinion at 7-10 (citation omitted).

The court applied the proper standard in assessing appellant's claim. See Holloman, supra (defendant must establish that precluded testimony was material and favorable). Upon review of the applicable case law and the lengthy transcript wherein the court addressed this issue, we ...

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