Appeal from the Order Entered May 18, 2011, in the Court of Common Pleas of Lackawanna County, Criminal Division, at No.: CP-35-CR-0003417-2010
The opinion of the court was delivered by: Bowes, J.
BEFORE: BOWES, COLVILLE,*fn1 and FITZGERALD,*fn2 JJ.
The Commonwealth of Pennsylvania appeals from the May 18, 2011 order dismissing two counts of corrupt organization and one count of criminal conspiracy to deliver cocaine, pursuant to 18 Pa.C.S. § 110, the compulsory joinder statute. After careful review, we affirm.
The trial court summarized the facts as follows:
The Defendant, Anthony George, street name "Tone," was arrested on September 20, 2007 by agents of the Attorney General's Office. The Defendant was charged with two counts of delivery of a controlled substance (cocaine) stemming from purchases made by a confidential informant on April 17, 2007 and May 18, 2007, as well as an additional delivery charge due to the two ounces of cocaine discovered in his residence at the time of his arrest. In the case before us at this time, the Defendant was arrested on October 20, 2010, and charged with two counts of Corrupt Organizations, and one count of Conspiracy to Deliver Cocaine allegedly stemming from his drug activity prior to aforementioned 2007 arrest.
At the time of Defendant's 2007 arrest, he provided investigators with a statement in which he indicated that he was involved in a drug distribution ring. See Transcript of January 26, 2011 Hearing at 13. That statement was read into the record at the Habeas hearing before this Court on January 26, 2011. In that 2007 statement, he identified Brent Rafferty, street name "B," as his source of cocaine. Id. He met Rafferty at the Providence Barber Shop on West Market Street, Scranton. Id. at 14. Individuals involved in drug trafficking would frequent the barber shop. Id. During the eight months preceding his arrest he purchased one ounce quantities on a weekly basis from Rafferty, and then distributed the cocaine to his customers. Rafferty purchased the drugs in New York City, and he would contact Rafferty by cellular telephone. Id. He also purchased drugs from Rafferty's girlfriends, one who lived on Pond Avenue, and one who lived on Washburn Street, Scranton. Id. at 13. He also engaged in drug transactions at Fresno's restaurant and Uno's restaurant in Dickson City. Id. at 15. The statement provided the names of the Defendant's previous supplier, namely Walter Pearson. Id. at 14.
The Defendant testified that he provided the statement and cooperated with the Office of the Attorney General because he had been promised leniency, and that no new charges would be filed against him. Id. at 75. The defendant also testified that he attempted to work with Agent [Joseph] Solarczyk, but he was unable to make any purchases for the Attorney General's Office due to the public nature of his arrest. Id. at 76.
The testimony presented by the Commonwealth at the January 26, 2011 hearing reveals that Tyson Joyner was the overall target of the Attorney's General Office at the time the Defendant was initially arrested in 2007. Id. at 47. Agent [Catherine] Bianchi testified that she became aware that the Defendant was involved in a drug trafficking ring with Tyson Joyner and Brent Rafferty only as a result of the Grand Jury investigation. Id. at 51. Agent Bianchi further testified that the Defendant's statement alone did not provide a sufficient basis for corrupt organization charges. Id. at 53. While she suspected that a corrupt organization existed, she needed more than allegations to justify charges. Id. at 53, 54. However, both Agent Bianchi and Supervisor Jerome Smith testified that the Defendant's statement indicated that he was involved in drug trafficking with a group of individuals. Id. at 65, 70.
A State Wide Investigating Grand Jury was convened to investigate narcotics trafficking in Lackawanna County after the 2007 initial arrest of the Defendant. Over a hundred individuals testified before the grand jury. Supervisor Jerome Smith testified that the Defendant was called before the State Wide Investigating Grand Jury to verify the statement that he had provided, linking himself and Brent Rafferty (among others) to cocaine trafficking in the area. Id. at 72, 73. The Defendant had agreed to testify before the grand jury as part of his cooperation, however, prior to his appearance, he invoked his Fifth Amendment rights.
The Defendant ultimately pled guilty to Possession with Intent to Deliver a Controlled Substance (cocaine), and was sentenced on April 1, 2008 to three to six years incarceration.
Id. at 42. The Defendant later was placed in the State Intermediate Punishment Program. The Commonwealth withdrew the remaining charges at the time of sentencing. The Defendant successfully completed the State Intermediate Punishment Program.
On September 22, 2010, the 29th State Wide Investigating Grand Jury handed down Presentment Notice #45, recommending criminal charges against twenty-two defendants. The Defendant was included in the group. On October 20, 2010, the Defendant was arrested and charged with two counts of Corrupt Organization, and one count of Conspiracy to Deliver Cocaine stemming from his narcotic trafficking activity prior to his 2007 arrest.
Trial Court Opinion, 5/18/11, at 1-4.
Appellee filed a petition for writ of habeas corpus arguing that prosecution of the 2010 charges was barred by 18 Pa.C.S. § 110. Following a hearing, the distinguished trial judge, the Honorable Vito P. Geroulo, agreed and granted relief. The ...