Commonwealth v. Echevarria

POPOVICH, Judge,

dissenting:

I dissent and would hold that appellant should be granted a new trial.

Instantly, the Commonwealth offered evidence of appellant’s cooperation with the authorities after his arrest on the charge of possession with intent to deliver cocaine as evidence of his guilt. 1 The majority found this evidence probative of appellant’s status as a cocaine dealer. The majority also found that the record is devoid of any evidence which demonstrated a promise by the Commonwealth not to use his cooperation against him at trial. However, such a promise would seem to this jurist to be an inherent and inextricable condition of such an agreement, and my sense of justice is offended by the Commonwealth’s actions. 2

It is specious to argue that the lack of an affirmative promise not to use a defendant’s subsequent cooperation against him permits its admission as probative evidence of his propensity to commit the crime charged. If such is the *273 case, I must question why a defendant would ever again cooperate with authorities or, for that matter, why a defendant’s counsel would ever advise or permit such cooperation. 3 At a time when we desire to encourage accused drug dealers to assist law enforcement officers in apprehending “bigger fish,” the majority’s decision will no doubt have a “chilling” effect on such cooperation by the accused.

Upon review of the transcripts, it is obvious that a significant portion of the case against appellant was based on his actions as a “special agent” of the Commonwealth after his arrest. The Commonwealth offered, over objection, an audio tape of appellant setting up a controlled buy of $36,000 worth of cocaine for the Commonwealth and the 1636.85 grams of cocaine seized as a result of appellant’s cooperation to prove his status as a drug dealer. The prejudice to the appellant is obvious, and, certainly, any benefit that a defendant’s cooperation yielded at the time of sentencing was more than offset by the extremely prejudicial effect of its admission at trial.

In sum, I would find that the police breached their inherent promise not to use appellant’s actions as an agent of the Commonwealth as evidence against him in the present action. Therefore, in light of the Commonwealth’s actions and the extremely prejudicial effect of the evidence in question, I would award appellant a new trial. Cf., Commonwealth v. Nellom, 388 Pa.Super. 314 , 565 A.2d 770 (1989) (trial court’s allowing Commonwealth to impeach defendant’s character witness as to her knowledge of defendant’s robbery conviction, which arose out of same incident that gave rise to charges for which defendant was on trial, was reversible error).

. I note that the current charge of possession with intent to deliver was wholly unrelated to the drug purchase arranged by appellant in exchange for which the Commonwealth promised to bring appellant's cooperation to the sentencing court’s attention.

. While I agree wholeheartedly with the majority that “The drug enterprise is manned by the most ruthless, sociopathic and destructive persons in our society”, and that "They extract a toll in human lives and diminish the quality of life for all of us”, I do not believe that precluding the police from inducing a defendant to commit additional criminal acts and then using the very acts solicited against the defendant "would tilt the already precarious battle against drug dealers in favor of the dealers". Rather, such a rule would simply effect the common and, more importantly, just understanding in this situation, that being your solicited cooperation with law enforcement officers will not be used against you at your trial on charges pending at the time of your assistance.

. I note that appellant made his decision to aid police without the advice of counsel, and I would surmise that such is the usual situation when a defendant’s aid is solicited by the Commonwealth.