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12/18/97 COMMONWEALTH PENNSYLVANIA v. RICHARD LEE

December 18, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RICHARD LEE RICKABAUGH, APPELLANT; COMMONWEALTH OF PENNSYLVANIA, APPELLEE V. RICHARD LEE RICKABAUGH, APPELLANT



Appeals from the Judgment of Sentence of the Court of Common Pleas of Blair County, Criminal Division, at Nos. 208 of 1995 and 39 of 1996, E54931-43. Before CARPENTER, J.

Before: Popovich, Hudock and Hester, JJ. Opinion BY Hudock, J.

The opinion of the court was delivered by: Hudock

OPINION BY HUDOCK, J.:

Filed December 18, 1997

On May 2, 1996, following an extensive undercover investigation, a lengthy trial commenced against Richard Lee Rickabaugh (Appellant), a suspected drug dealer and racketeer. Originally, charges were brought against Appellant in separate County and State informations. At No. 208 of 1995, Appellant was charged by the Blair County District Attorney's Office with one count each of possession with intent to deliver cocaine, possession of cocaine and criminal conspiracy. *fn1 At No. 39 of 1996, Appellant was charged by the Office of the Attorney General with twelve counts of possession with intent to deliver cocaine, two counts of corrupt organizations and one count of criminal conspiracy. *fn2

Pursuant to an unopposed Commonwealth motion, the cases were consolidated for trial and prosecuted jointly by the District Attorney and the Attorney General. Prior to the joinder, Appellant filed an omnibus pre-trial motion seeking, inter alia, suppression of an intercepted wiretap communication as well as $710.00 in marked money discovered in Appellant's front pant's pocket during the arrest which precipitated the filing of the County charges against him. Following an extensive suppression hearing, Appellant's motion was denied in full.

On May 2, 1996, the case proceeded to a jury trial which was presided over by the Honorable Hiram A. Carpenter, III. On May 31, 1996, following deliberation, the jury found Appellant guilty of the three County offenses with which he was charged, guilty of the State corrupt organizations and conspiracy charges, and guilty of five of the twelve State possession with intent to deliver cocaine charges. At this time, sentencing was deferred pending the preparation of a presentence report.

On July 23, 1996, Appellant was sentenced to an aggregate term of forty to sixty-four years' imprisonment. Additionally, Appellant was ordered to pay fines in the amount of $260,300.00. On August 2, 1996, Appellant filed timely post-sentence motions requesting a modification of sentence and/or a new trial. Following extensive briefing and oral argument thereon, Appellant's motions were denied by court orders dated August 20, 1996, and January 9, 1997.

In the instant appeal, Appellant presents a plethora of issues alleging trial court as well as prosecutorial error. Initially, Appellant argues that the trial court erred in failing to grant his pretrial motion to suppress an intercepted taped communication and money found in Appellant's possession at the time of his initial arrest.

When reviewing an order denying suppression, this Court must review the record in the light most favorable to the Commonwealth, as verdict winner, and determine whether the trial court's factual findings are supported by the record. Provided that there is support in the record for the court's factual findings, this Court will not reverse the order denying suppression unless the legal Conclusions drawn from those facts are in error. See, e.g., Commonwealth v. Jackson, Pa. , , 698 A.2d 571, 572 (1997); Commonwealth v. Gelineau, 696 A.2d 188, 191 (Pa. Super. 1997).

With this standard in mind, the record reveals the following: In November of 1994, Detective Norman Young, of the Altoona Police Department, contacted Agent Randy Feathers, of the Office of the Attorney General, and advised him that a controlled purchase of cocaine was going to be made from Detective Young's informant, Crawford Witherow, to Gregory Provenzano. Witherow told Detective Young that Provenzano and Appellant were drug dealers and he agreed to wear a transmitting device during the sales transaction.

On November 24, 1994, using $750.00 in marked money, Witherow bought half of an ounce of cocaine from Provenzano which was then confiscated by the police. Although he was not present at the sale, Appellant provided Provenzano with the drugs and, subsequently, was paid the $750.00 purchase price.

Suspecting that Witherow may be a police informant, Appellant ordered Provenzano to make sure that Witherow actually had the cocaine. When confronted by Provenzano the following day, Witherow stated that his wife had mistakenly given the cocaine to a friend of hers. Stalling for time, Witherow drove Provenzano to several Blair County bars and to Witherow's home. During the course of the evening, the men drank several beers and ingested between three and one-half to six grams of cocaine.

At some point during the evening, Witherow was able to contact Detective Young and inform him that Provenzano was demanding to see the half-ounce of cocaine. After consulting with Agent Feathers, Detective Young decided to arrest Provenzano. Witherow was then instructed to tell Provenzano that he would meet Provenzano in a parking lot and show him the cocaine. After arriving at the appointed time, Provenzano was arrested while seated in the front passenger seat of Witherow's car. A subsequent search of the vehicle revealed twenty-four sealed packages of cocaine under the front passenger seat.

After being advised of his Miranda rights, Provenzano agreed to cooperate with the authorities. Pursuant thereto, Provenzano called Appellant and left a message on Appellant's answering machine relative to the prior cocaine sale to Witherow. Thereafter, Provenzano asked if he could return to his home to care for his wife, who was an invalid. Accompanied by Altoona Police Department Detective Robert Hainey, Provenzano returned home, bathed and medicated his wife, made a meal for her and wrote a grocery list for his son. Fearing that it might arouse suspicion, Provenzano cautioned the Detective not to stand near the front door.

Detective Hainey then informed Provenzano that the police had rented a motel room at the local Econo Lodge. In response, Provenzano stated that he would pack an overnight bag in order, once again, not to appear suspicious. As the men prepared to leave for the motel, Provenzano noticed two of Appellant's associates drive by in front of his house. Provenzano immediately stepped back inside the house, and the two exited through the rear door.

Upon arriving at the motel, Provenzano met with Blair County District Attorney William Haberstroh regarding Provenzano's willingness to permit the police to monitor and record his conversations with Appellant. After approximately one hour of Discussion, after which District Attorney Haberstroh concluded that Provenzano's consent to permit the police surveillance was knowing, intelligent and voluntary, both District Attorney Haberstroh and Provenzano signed a Memorandum of Consent.

Thereafter, Provenzano received a beeper page from Appellant. After the police ensured that the recording devices were working properly, Provenzano returned Appellant's page, told Appellant that he was at the Econo Lodge and waited for Appellant's arrival. At Provenzano's suggestion, the police left the twenty-four seized packages of cocaine in the motel room.

Within an hour, Appellant and his sister-in-law, Sonya Snowberger, arrived at the motel. As soon as Appellant knocked on the motel room door, the police activated the electronic recording device.

Once inside, Appellant and Provenzano discussed whether Provenzano had seen the cocaine sold to Witherow. While not mentioning Witherow by name, Appellant repeatedly asked whether "he" brought the half-ounce of cocaine and whether Provenzano had seen "the bag." At this point, the officers entered the motel room and placed Appellant under arrest. While handcuffing Appellant, Agent Feathers noticed that there was money sticking out of Appellant's front pant's pocket. Believing it to be the same marked currency used in the Witherow sale the previous day, Agent Feathers confiscated the money.

Like Provenzano, Appellant agreed to cooperate with the ongoing police investigation. Based upon his representations, Appellant was released from custody later that evening. At some point in December of 1994, before he was taken back into custody, Appellant took Provenzano for a drive along Kettle Road, a remote road that winds through Sinking Valley near Altoona. While parked near a reservoir, Appellant told Provenzano that, on a previous occasion, another associate had disagreed with him and Appellant "hooked [him] up to the car and drug him down the Kettle on the blacktop." N.T., 5/7/96, Volume I, at 350. Additionally, Appellant offered to pay Provenzano's legal and personal expenses if Provenzano did not testify against him.

At Appellant's preliminary hearing, Provenzano refused to testify. At the subsequent suppression hearing, Provenzano testified favorably for Appellant. Specifically, Provenzano claimed that he did not voluntarily consent to the wiretap interceptions, and only acquiesced to the police demands out of fear, fatigue and intoxication.

After Provenzano confided to law enforcement personnel that he feared for his life should he testify truthfully, Appellant was charged at a separate criminal information with intimidation of a witness. *fn3 At trial, Provenzano testified against Appellant relative to Appellant's drug transactions as well as the threat.

With this background in mind, we review Appellant's first claim of error in which he argues that the trial court erred in denying his motion to suppress the recorded conversation between Provenzano and Appellant at the Econo Lodge Motel. More specifically, Appellant argues that, due to Provenzano's deteriorated mental and physical state, he could not knowingly and voluntarily consent to have his conversations with Appellant recorded.

Pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. section 5701, et. seq., a party may permit governmental officials to record his or her conversations with unknowing third parties. *fn4 Provided that one's consent is knowing, intelligent and voluntary, such one-party consensual interceptions do not violate the state or federal prohibitions against unreasonable searches and seizures. See, e.g., Commonwealth v. Rodriguez, 519 Pa. 415, , 548 A.2d 1211, 1212 (1988).

As our Supreme Court has explained, "consent is not voluntary where it is the product of coercion or duress either express or implied." Rodriguez, 548 A.2d at 1213. In making this determination, a court must evaluate each case individually and consider whether, under the totality of the circumstances, consent was given freely and intelligently. Id.

In the instant matter, Appellant contends that Provenzano's consent was unlawfully induced because Provenzano was under the influence of narcotics and because the police informed him that if he did not cooperate he was facing a potentially long term of imprisonment. *fn5 After carefully reviewing the totality of the circumstances surrounding the taping, however, we find that these facts do not vitiate Provenzano's consent.

This Court has previously held that "intoxication by use of drugs or alcohol was insufficient, in and of itself, to render [consent] involuntary." Commonwealth v. Barone, 383 Pa. Super. 283, , 556 A.2d 908, 910 (1989). Moreover, "a decision to consent is not rendered involuntary merely because it is induced by a desire to avoid the possibility of a well-founded prosecution." Commonwealth v. Clark, 516 Pa. 599, , 533 A.2d 1376, 1379 (1987).

As applied to the instant matter, the attendant facts surrounding Provenzano's consent reveal that he was able to make independent and calculating decisions relative to his police involvement. For example, he told Detective Hainey not to arouse suspicion by standing in view of the street in front of his home. Further, after caring for his invalid wife and determining that he should pack an overnight bag, Provenzano insisted that he and Detective Hainey leave by the back door. Finally, after discussing the taping procedure with District Attorney Haberstroh and signing the consent form, Provenzano suggested that the police leave the seized cocaine in the motel room.

As a whole, we are convinced that Provenzano's actions reflect that his consent was knowing, intelligent and voluntary. He was able to contemplate the situation and clearly communicate his thoughts and suggestions. Therefore, while the fact that he ingested alcohol and/or narcotics during the hours prior to his arrest is a factor for this Court to consider, it is not dispositive. See Barone, supra. Moreover, the fact that Provenzano's decision may have been influenced by the desire to receive favorable consideration when charged and/or sentenced is of no moment. See Clark, supra. Indeed, such contemplative decision-making demonstrates that Provenzano was in control of his faculties and not, as Appellant suggests, unable to comprehend the situation.

Having determined that, under the totality of the circumstances, Provenzano's consent was knowing, intelligent and voluntary, we reject Appellant's claim that the trial court erred in failing to suppress the recorded conversations. *fn6

Next, Appellant contends that the trial court erred in failing to suppress the $710.00 in marked money found on his person at the time of his arrest. In support of his argument that suppression was proper, Appellant argues that he did not commit a crime while in the motel room and that the police, therefore, did not have probable cause to arrest him.

"Probable cause to effectuate an arrest exists when the facts and circumstances within the knowledge of the arresting officer are reasonably trustworthy and sufficient to justify a person of reasonable caution in believing that the arrestee has committed an offense." Commonwealth v. Romero, 449 Pa. Super. 194, , 673 A.2d 374, 376 (1996). In making this determination, this Court has held that "probable cause for a warrantless arrest requires only the probability, and not a prima facia showing, of criminal activity." Romero, 673 A.2d at 377 (emphasis in original) (citing Commonwealth v. Quiles, 422 Pa. Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc)).

In the instant matter, the officers received information from Detective Young's informant, Crawford Witherow, that Appellant and Provenzano were selling large volumes of cocaine in the Blair County area. Provenzano's involvement in the narcotics operation was confirmed by the controlled purchase of a half-ounce of cocaine from Provenzano to Witherow. After agreeing to cooperate with the authorities, Provenzano told the police that Appellant controlled the drug trafficking operation, had supplied Provenzano with the cocaine and had received the $750.00 purchase price. Also, Provenzano told the police that it was Appellant who suspected that Witherow was an informant and who demanded that Witherow produce the half-ounce of cocaine. This information was corroborated by the conversation between Appellant and Provenzano at the Econo Lodge. Appellant repeatedly asked Provenzano whether Provenzano had seen "the bag" and whether "he" had brought the whole half.

As a whole, we find that the police had sufficient information to justify the reasonable belief that Appellant was engaged in criminal activity. Indeed, our Supreme Court has held that "the uncorroborated confession of an accomplice which implicates the suspect will supply the probable cause for a warrantless arrest." Commonwealth v. Zook, 532 Pa. 79, , 615 A.2d 1, 6 (1992). Therefore, under the facts of the instant case, the police did not have to verify Provenzano's information by recording the Econo Lodge conversation. The fact that Provenzano's information was corroborated by both Witherow and Appellant, therefore, makes the argument that probable cause existed even stronger.

We note, as well, that it is of no consequence that Appellant's actions while in the motel were not criminal in nature. As stated, the justification for a warrantless arrest requires only the probability, not the certainty, that the suspect has engaged in criminal activity. Also, the police already had the requisite probable cause to arrest Appellant based solely upon Provenzano's information. Moreover, the statements Appellant made while in the motel cannot be viewed in a vacuum, but rather in the context of the investigation as a whole. When so inspected, Appellant's questions and references to seeing "him" and "the bag" serve to corroborate the suspicion of criminal activity.

In sum, we find that the police had ample probable cause to arrest Appellant for suspicion of possessing and/or selling narcotics. Without further justification, the police were authorized to search Appellant's person. As this Court has held, a search incident to a lawful arrest is one of the well-recognized exceptions to the warrant requirement and "'does not depend upon whether there is any indication that the person arrested possesses weapons or evidence as the fact of a lawful arrest, standing alone, authorizes a search.'" Commonwealth v. Guzman, 417 Pa. Super. 364, , 612 A.2d 524, 526 (1992) (quoting Commonwealth v. Trenge, 305 Pa. Super. 386, 403, 451 A.2d 701, 710 (1982)). Therefore, we find Appellant's averment that the police unlawfully seized the marked currency found in his front pant's pocket after his arrest to be without merit. *fn7

In his next argument, Appellant contends that the trial court abused its discretion in permitting the Commonwealth to use a demonstrative chart during its closing argument. The chart in question was labeled "The Rickabaugh Cocaine Organization" and contained numerous photographs of Appellant and his associates as well as notations of their respective roles in the organization. Appellant contends that the chart's contents were not reasonably based upon the facts in evidence and, therefore, that the chart's use impermissibly permitted the Commonwealth to express its opinion about Appellant's culpability.

"Visual aids may be used to assist the jury in understanding the evidence in appropriate cases, and permission to do so is within the sound discretion of the trial Judge." Commonwealth v. Pelzer, 531 Pa. 235, , 612 A.2d 407, 412 (1992). This rule applies equally to demonstrative aids used during the actual trial phase and during the parties' opening and closing arguments. Moreover, it is well-settled that, during closing arguments, a prosecutor must be given reasonable latitude to present the Commonwealth's theory of the case provided that the evidence and the inferences derived therefrom reasonably support such a scenario. See, e.g., Commonwealth v. Persichini, 444 Pa. Super. 110, , 663 A.2d 699, 706 (1995).

At trial in the instant matter, the Commonwealth contended that Appellant was the leader of a vast cocaine distribution network which operated throughout Blair County. In order to prove Appellant's primary role in the operation, the Commonwealth offered testimony and supporting documentary proof from over twelve former members of Appellant's organization. Each of these witnesses testified as to their particular role in the drug scheme, the manner in which the organization was operated on a daily basis, and the fact that Appellant controlled the group. Conversely, Appellant contended that, rather than being the operation's central figure, he was one of a number of minor figures who sold cocaine throughout the Blair County area.

In light of the fact that only Appellant was charged with running a corrupt organization, and that many of his prior associates received favorable plea agreements in exchange for their testimony, it was critical to determine Appellant's precise role in the distribution network. Based upon the volumes of testimony elicited during the trial which, if believed, established that Appellant headed the distribution ring, we find no error in the content of the Commonwealth's closing argument. The facts in evidence and the reasonable inferences derived therefrom established that Appellant was much more than a minor figure in the drug network.

Having established that the content of the Commonwealth's closing argument was proper, we must now consider the argument's form; that is, whether the court erred in permitting the Commonwealth to display the "Rickabaugh Cocaine Organization" chart. Considering the vast amount of testimony and evidence introduced during the month-long trial, we find that the court properly concluded that the chart could "assist the jury in understanding the evidence." Pelzer, 612 A.2d at 412. As such, the trial court did not abuse its discretion and Appellant's argument that the chart merely expressed the prejudicial, unsubstantiated opinion of the Commonwealth must fail.

Next, we review whether the trial court erred in permitting Provenzano to testify regarding Appellant's pretrial threat that Provenzano would be harmed if he testified against Appellant. As previously stated, Provenzano stated on direct examination that Appellant offered to pay his personal and legal expenses if Provenzano would recant his former statements and refrain from testifying against Appellant. In conjunction with this offer, Appellant also told Provenzano that, when an unrelated associate had disagreed with him, Appellant tied the man to the back of ...


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