Petition — Davis v. Pennsylvania

Supreme Court brief1983

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Text

Office -Suers tt. US.

Poss J

83-57 JUL 15 i923

= ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1983

DANA DAVIS,

Petitioner,

vs.

THE COMMONWEALTH OF PENNSYLVANIA,

Respondent.

, PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

ALAN ELLIS, Member of the Bar

of the Supreme Court

and

DAVID M. McGLAUGHLIN

Ellis, Fogelnest and Newman

Counsel for Petitioner

Suite 315

1420 Walnut Street

Philadelphia, PA 19102

(215) 545-3773

QUESTIONS PRESENTED FOR REVIEW

I. Were the defendant's rights

under the Fourth Amendment to the

United States Constitution violated

when the state criminal court admitted

evidence seized pursuant to a search

performed as incidental to an arrest

Warrant lacking sufficient probable

cause?

(Answered in the negative by the court

below.)

II. Does the decision in Gates v.

Illinois apply only to search warrants

and not arrest warrants?

(Not addressed by the court below since

Gates v. Illinois decided on June 8,

1983.)

III. Does the decision in Gates v.

Illinois apply prospectively only?

(Not addressed by the court below.

Same reason as # II.)

IV. Was petitioner's conviction

procured in the face of a violation of

his Sixth Amendment right to effective

counsel and a fair trial and his Fifth

Amendment right to due process all of

which are applicable to the states

through the Fourteenth Amendment to the

United States Constitution?

(Answered in the negative by the court

below.)

Table of Contents

SUT GSS ss 6 kris. eo 6 e O8 66

Statement of the case ......

Summary of the argument .....

Argument . . . +. . . . . . . . . .

II.

III.

IV.

The defendant's rights

under the Fourth Amend-

ment to the United States

Constitution were violated

when the state criminal

court admitted evidence

seized pursuant to a search

performed as incidental to

an arrest warrant lacking

sufficient probable cause .

The decision in Gates v.

Illinois applies only to

search warrants and not

arrest warrants ......

The decision in Gates v.

Illinois should apply pro-

Spectively only ..... .

Petitioner's conviction

was procured in the face

of a violation of his

Sixth Amendment right to

effective counsel anda

fair trial and his Fifth

Amendment right to due

process all of which are

applicable to the states

through the Fourteenth

Amendment to the United

States Constitution... .

iii

NE er ee el ae ae ee ee a ee

ee ae a ee oe ee ee er ee |

Appendix A - Opinion of the

Court of Common Pleas of

Beae COURGY «9s e's 0 © © w@ 8 ot 8 Oe

Appendix B - Unpublished

Memorandum Opinion of the

Superior Court of Pennsyl-

A ee a a ee ee |

Appendix C - Order denying

petitioner's petition for

allowance of appeal in the

Supreme Court of Pennsylvania . .17a

TABLE OF AUTHORITIES

CASES

Aguilar v. Texas, 379 U.S. 108,

84 S.Ct. 1509, 12 L.Ed.2d

723 (1964)

Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971)

Commonwealth v. Boykin, Pa.

P A.2d | (1983) —

Commonwealth v. Milliken, 450

Pa. 310, 300 A.2d 78 (1973)

Gates v. Illinois,

BsGGs p

33 Cr.L. 3109 (1983)

U.S. F

Spinelli v. United States, 393

U.S. 410, 89 S.Ct. » aa

L.Ed.2d 637 (1967)

Stovall v. Denno, 388 U.S. 293,

8/ S.Ct. 1967, 18 L.Ed.2d 1199

(1967)

U.S. v. Anderson, 642 F.2d 281

(9th Cir. 1981)

U.S. v. Bronco, 597 F.2d 1300

(9th Cir. 1979)

U.S. v. Graci, 504 F.2d 411

(3rd Cir. 1974)

L.&d.2d ’

10, 19

U.S. v. Holman, 490 F.Supp.

755 (D.C.Pa. 1980)

U.S. v. Johnson, Uehe ’

aus 5.Ct. 2579, L.Ed.2da

(1982)

U.S. v. Long, 674 F.2d 848

(llth Cir. 1982)

Wong Sun v. U.S., 371 U.S. 471,

83 S.Ct. 407, 9 L.Ed.2d 441

(1963)

STATUTES AND RULES

28 U.S.C. 81257 (3)

Fed.R.Crim.P. 8(a)

Pa.R.Crim.P. 3(3)

Pa.R.Crim.P. 119

Pa.R.Crim.P. 2001

ats ee

19, 20,

JURISDICTION

Jurisdiction is conferred upon

this court by virtue of 28 U.S.C.

61257(3).

STATEMENT OF THE CASE

On May 14, 1980, the Honorable

Fred P. Anthony, Judge of the Court

of Common Pleas of Erie County, Penn-

Sylvania, sentenced the petitioner to

one (1) year in jail following his con-

viction by a jury for the possession

of approximately 1/75th of an ounce

of cocaine.

The relevant facts of the case

viewed in a light most favorable to

the prosecution and the procedural

history are as follows:

On or about May 21, 1978, the

petitioner, Dana V. Davis, was arrested

pursuant to an arrest warrant issued

by District Justice Charles R. Wise.

It read in relevant part as follows:

(A)t 5514 Grubb Road ... on

or about 20 May 1978 between

3 p.m. and 3:30 p.m. (Dana

Volkman) that he did sell a

controlled substance to wit:

marijuana quantity approxi-

mately one quarter pound

(alleged for the sum of

$60 to David Wayne Stephen-

son, a white male aged 16

years witnessed by Michael L.

Swab. The defendant being

the age of 23 years and the

recipient being the age of

16." (Sic)

Petitioner was searched by the

arresting officers incident to this

arrest and a vial containing a minute

amount of cocaine was found in the pocket

of the pants he was wearing. Prior to

trial, petitioner timely filed a pre-

trial motion to suppress physical

evidence seized from him alleging

inter alia that there was no probable

cause for the arrest warrant and that,

as such, the evidence should have been

suppressed since it was procured pur-

Suant to a search conducted as an

incident to an unlawful arrest. On

October 12, 1978, the Honorable Edward T.

Carney, President Judge of Erie County,

Pennsylvania, after hearing, denied

petitioner's motion to suppress.

On February 15, 1979, petitioner

proceeded to trial on both the delivery

of marijuana charge and the possession

of cocaine charge. The delivery of

marijuana charge was the charge for

which the arrest warrant had been issued.

At no time was there a motion filed by

counsel to sever these two cases for

independent trial. Following the trial

by jury before the Honorable Fred P.

Anthony, petitioner was found not guilty

of the delivery charge, but was found

guilty of misdemeanor possession of

cocaine.

At no time did trial counsel oppose

consolidation of the possession charges

nor did he move to sever these offenses

despite the fact that they involved

two separate occurrences.

A timely appeal was taken to the

Superior Court of Pennsylvania and the

petitioner's judgment of sentence was

affirmed without an official opinion

on March 4, 1983. A timely petition

for allowance of appeal to the Supreme

Court of Pennsylvania was filed on be-

half of the petitioner. Said petition

for allowance of appeal was denied by

the court on May 18, 1983. The peti-

tioner now files the instant petition

for writ of certiorari to the Supreme

Court of Pennsylvania.

SUMMARY OF THE ARGUMENT

The arrest warrant issued for the

petitioner was illegal since it lacked

probable cause as a matter of law. The

information contained therein was hear-

say and insufficiently verified prior

to the issuance of the arrest warrant

by the District Justice. As such, the

arrest was illegal, and the evidence

procured by the search incidental to

that arrest should have been suppressed.

The decision in Gates v. Illinois,

infra, should now only apply to search

warrants and not arrest warrants. While

a search by government authorities is

devastating, the initiation of criminal

charges by an arrest warrant is even more

severe. Consequently, relaxed standards

of probable cause for search warrants

should not be applied to arrest warrants.

Next, the holding in Gates v.

Illinois, infra, should be applied

prospectively only because it did not

apply established law to a new factual

pattern, nor apply to a case where the

court had no jurisdiction to begin with.

Rather, the Gates decision made a clear

break with the past and overruled two

highly important and much utilized

Supreme Court cases in the area of

search and seizure. Its holding should

be prospective only.

Finally, petitioner's trial counsel

was ineffective in that he permi*sed

the petitioner's Sixth and Fifth Amend-

ment rights under the United States

Constitution to be violated when he

failed to oppose the joining cf two

unrelated cases for one trial. The

charge of sale of marijuana was re-

lated in no other way than by time to

the charge of possession of 1/75th

of an ounce of cocaine. As such, sig-

nificant prejudice inured to the peti-

tioner and a new trial should be ordered.

ARGUMENT

I. THE DEFENDANT'S RIGHTS UNDER

THE FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION WERE VIOLATED

WHEN THE STATE CRIMINAL COURT ADMITTED

EVIDENCE SEIZED PURSUANT TO A SEARCH

PERFORMED AS INCIDENTAL TO AN ARREST

WARRANT LACKING SUFFICIENT PROBABLE

CAUSE.

This Honorable Court has held that

whenever an illegal arrest is made, the

fruits thereof should be suppressed

where the seizure of evidence has no

other independent basis other than the

illegal arrest. Wong Sun v. United

States, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d 441 (1963).

In this case, Mr. Davis' arrest

was illegal since based on an arrest

warrant which did not meet the con-

stutitional standards of probable cause

prior to its issuance by the District

Justice in question.+

Under the tests devised by the

Supreme Court in Aguilar v. Texas, 379

U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723

(1964), and Spinelli v. United States,

aoe wees Sau, 89 &.Ct. 584, 21 L.B4.24

637 (1967), which were applicable to

arrest warrants as well as search war-

rants in Pennsylvania, Commonwealth v.

Milliken, 450 Pa. 310, 300 A.2d 78

(1973), and Spinelli v. United States,

Supra, the hearsay information contained

in an affidavit had to be shown to be

lin Pennsylvania's unified judicial

system, a district justice is the first

level judicial officer in the criminal

system. Except for Philadelphia County,

which has a municipal court system, dis-

trict justices have criminal jurisdiction

limited to summary offenses and selected

third degree misdemeanors, and otherwise

preside at preliminary hearings. 42 Pa.

C.S.A. 61515. They also make the decision

on whether to issue arrest and search

Warrants. Pa.R.Crim.P. 3(3), 119, 2001.

reliable as well as showing a basis of

knowledge by the third party declarant

as to how he knew what he claimed to

have known.

This was clearly not shown as a

matter of law in this affidavit. For

instance, the affidavit does not say

who told the affiant the information

contained therein, let alone now anyone

knew it was marijuana to begin with.

Further, there is no indication of

anything which the officer did to

establish the accuracy of this hearsay

information. *

Therefore, under appropriate law

that more than a mere unsubstantiated

tip is required for the establishment

2The lower court took testimony

on the suppression motion. It found

as a fact, however, some factors which

could support the arrest in the posses-

sion of the police, but that they had

not been communicated to the district

Justice at the time the arrest warrant

was issued. Lower Court Opinion, p. 2.

of probable cause to arrest, peti-

tioner's arrest was illegal as based

on a defective warrant. The evidence

seized, the 1/75th of an ounce of co-

caine, should have been suppressed.

3Even under the holding of Gates

v. Illinois, infra, discussed infra,

the standard is not met. There, the

court stated that the task of the is-

suing magistrate is simply to make a

practical common sense decision whether

all the circumstances set forth in the

affidavit before him including the ver-

acity and basis of knowledge of persons

supplying hearsay information, there

is a fair probability that contraband

or evidence of a crime will be found

in a particular place. In reviewing

this determination, the appellate courts

must determine that there was a substan-

tial basis for concluding that probable

cause existed. Even under this standard,

the above warrant is not valid. (Empha-

sis supplied).

II. THE DECISION IN GATES V.

ILLINOIS APPLIES ONLY TO SEARCH WAR-

RANTS AND NOT ARREST WARRANTS.

The decision in Gates v. Illinois,

_- U8. -.g 2 BOs — 2 eee

___, 33 Cr.L. 3109 (1983), should apply

to search warrants only. Because of

the traditionally greater pressure,

expense, anxiety, notoriety and litiga-

tion which flows from an arrest as com-

pared to a search of a person, home or

automobile, the standards for probable

cause to issue a warrant for that arrest

cannot, and should not be relaxed, along

with the standards for probable cause

for the issuance of search warrants as

a whole enunciated by the court in Gates

v. Illinois, supra.

This argument is logical since any

search conducted even with a warrant will

not necessarily subject the one searched

to criminal charges unless something

is found which shows the police that

they should be charged. In some cases

the items seized are contraband per se,

and provide a basis for charges by

their very possession. Other items,

such as weapons, or tax records, are

not necessarily illegal to possess, but

may be important evidence of a crime,

and ultimately to the filing of criminal

charges. Conversely, many searches will

not ultimately turn up incriminating

evidence nor result in the initiation

of criminal charges.

One of the broader holdings of Gates

v. Illinois, supra, is that where the

question of whether to issue a search

warrant arises, the district justice

need only a substantial basis for con-

cluding that there is a fair probability

that contraband or evidence of a crime

will be found in a particular place.

As the court held, this standard is

more consistent with earlier and tradi-

tional principles of probable cause for

the issuance of search warrants.

However, this court cannot overlook

the fact that a greater intrusion occurs,

and a far greater burden is placed on a

citizen of this country when he is

subjected to arrest rather than just

a search. For while a search of a

home, person or automobile can be a

devastating experience, see Bivens v.

Six Unknown Named Agents, 403 U.S. 388

(1971), the effects are still not as

immediate or severe as when a person

is actually arrested, and the criminal

machinery of a state swings into full

operation.

Thus, the standards for issuance

of arrest warrants based on the state-

ments of third parties must be greater

than mere probability or a totality of

the circumstances, and there should be

a showing of how the officer's informant,

named or not, obtained his information,

and why the police believed it or what

of that information has been verified

by independent police investigation.

In essence, petitioner advocates

the application of the Aguilar-Spinelli

tests to arrest warrants, and the stan-

dards enunciated in Gates v. Illinois

to search warrants. To do otherwise,

would subject all Americans to a far

greater governmental power of arrest than

our founding fathers could have ever

intended in framing our Constitution

and Bill of Rights.

III. THE DECISION IN GATES V.

ILLINOIS SHOULD APPLY PROSPECTIVELY

ONLY.

In United States v. Johnson,

U.S. _, 103 S.Ct. 2579, __—s_— L.Ed. 2d

_._-« (1982), the Supreme Court laid down

guidelines for consideration of when a

new ruling should be applied retroactively

Or prospectively. The court stated that

questions of retroactive or prospective

application only must be analyzed in con-

junction with the type of case or decision

for which retrospective application is

sought. Thus, the court, to answer the

question of retroactivity will apply a

threshold test rather than the factors

listed in Stovall v. Denno, 388 U.S.

293, 87 S.Ct. 1967, 18 L.Ed.2d 1199

(1967).

In U.S. v. Johnson, supra, the court

delineates three types of cases which must

be considered. The first type of case

involves application of existing law

to a new factual situation in order to

arrive at a holding previously unannounced.

Such a decision can best be described as

a refinement in existing law. As such,

full retroactive application is required

by the decision in U.S. v. Johnson,

supra.

The second type of case which the

court discussed was the case which made

a clear break with the past,and in doing

so overruled long-standing precedent of

the court. In this type of case, the

court has indicated that prospective

application is arguably the proper course.

The third type of case involves a

situation where a lower court never had

subject matter jurisdiction to begin with

and thus, the appellate court's holding

is completely retroactive and binding on

the parties involved.

The decision in Gates v. Illinois,

supra, Clearly broke with past precedent.

The case overruled two prior decisions

which, when read together, promulgated

an entire standard for measuring probable

cause affidavits for search warrants

where the affidavit contains hearsay

information from an unnamed source.

Indeed, Aguilar and Spinelli, supra, are

expressly cited in Johnson, supra, as

examples of the first class of case;

that of a refinement in the law utilizing

established holdings and decisions.”

Moreover, even under the requirements

of Stovall v. Denno, supra, prospective

application is mandated. Consideration

of the Gates case in light of those

factors illustrates that the new stan-

dards enunciated in Gates are designed

4cates v. Illinois certaintly does

not fit into the third class of cases.

to serve a purpose; that of relaxing

the requirements of probable cause be-

fore a district justice can issue a

search warrant consistent with the

requirements of the Fourth Amendment

to the United States Constitution.

Next, it cannot be denied that law

enforcement authorities across the

country placed considerable reliance

on the old standards, and finally, it

is illusion to suggest that the effects

on the administration of justice of

a retroactive application of the holding

in Gates v. Illinois would be anything

but utterly chaotic.

Although Mr. Davis' case was on

appeal at the time of the decision in

Gates v. Illinois, see U.S. v. Johnson,

Supra, footnote 8, he is entitled to

make this argument since he could not

have made it before and since to apply

the decision in Gates v. Illinois

retrospectively would have the effect

of denying him the protections afforded

by the case law decisions interpreting

the Fourth Amendment under a standard

more restrictive than that currently

in effect. This the court cannot do,

especially in light of the decision

in U.S. v. Johnson, supra. All things

considered, the decision in Gates v.

Illinois should be applied prospectively

only.

IV. PETITIONER'S CONVICTION WAS

PROCURED IN THE FACE OF A VIOLATION OF

HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE

COUNSEL AND A FAIR TRIAL AND HIS FIFTH

AMENDMENT RIGHT TO DUE PROCESS ALL OF

WHICH ARE APPLICABLE TO THE STATES

THROUGH THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

Federal cases have held that the

trial of two separate cases can be

prejudicial to a defendant to the

point where the right to a fair trial

is compromised. U.S. v. Anderson, 642

F.2d 281 (9th Cir. 1981). In essence,

the courts have held that the trial of

two cases which are not so connected

can severely compromise a defendant's

Sixth Amendment rights to a fair trial.

U.S. v. Bronco, 597 F.2d 1300 (9th Cir.

1979). It is also a violation of the

due process clause to obtain a convic-

tion in such a manner.

While the practice is governed by

Fed.R.Crim.P. g(a)”, the appellate

courts have been quick to reverse where

a violation appears. U.S. v. Graci, 504

F.24 411 (3xrd@ Cis. i976).

The instant case is unlike the case

of U.S. v. Holman, 490 F.Supp. 755 (D.C.

Pa. 1980) or U.S. v. Long, 674 F.2d 848

(llth Cir. 1982). In Holman, the defen-

dants were charged with 12 separate

counts of distribution of drugs. It

was easy to see in that case that all

12 counts were interrelated, and consti-

tuted part of a common scheme or plan.

And in U.S. v. Long, supra, the court

held that it was not improper to jointly

STwo or more offenses may be charged

in the same indictment or information in

a separate count for each offense if the

offenses charged, whether felonies or

misdemeanors, or both, are of the same

Or similar character or are based on the

same act or transaction or on two or more

acts or transactions connected together

or constituting parts of a common scheme

or plan.

try the defendant on charges of drug

smuggling as well as the accompanying

violations of the Federal Aviation

Statute.

But where, as here, the offenses

alleged are totally separate, differing

in date, offense, the type of drug

involved, and based upon entirely dif-

ferent facts, the petitioner's attorney's

failure to move to sever was ineffective-

ness.° Said failure had the effect of

violating Mr. Davis' right to a fair trial

and his right to the effective assistance

of counsel under the Sixth Amendment to

the United States Constitution. It also

means that his conviction was obtained

without due process of law as required

®See the recent case of Common-

wealth v. Boykin, Pa.

A.2d (1983) where the Pennsylvania

Supreme Court held counsel ineffective

for failure to file a motion to sever.

by the Fifth Amendment to the United

States Constitution. On these grounds,

certiorari should be granted and the

petitioner should receive a new trial.

CONCLUSION

Wherefore, for all of the above-

cited reasons and circumstances, the

petition for writ of certiorari to the

Supreme Court of Pennsylvania should

be granted.

Respectfully submitted,

(Tena

ALAN ELLIS

and

Que th.

DAVID M. MCGLAUGHLI

Attorneys for petitioner

SOMMONWEALTH OF PENNSYLVANIA

NW OTEE COMRT OF common Prices

OF ERIE COUNTY, PENNSYLVANIA

DANA V. DAVIZ ; NO. 995 of 1978

OPTNIO}

Defendant has filed motions for a new trial and in

arrest of judgment following his conviction of possessing cocaine

on February 15, 1979.

The first issue raised is whether the suppression

court erred in denying the defendant's motion to suppress a vial

cocaine as the product of an illegal arrest. The alleged

illegal arrest was for a separate offense.

The defendant was arrested on May 21, 1978. An arrest

warrant was issued that day whicn in part read as follows:

"(A)t 5514 Crubb Rozd . . . om or about 20 May

2378 Betw 3 p.m. $ 3:30 p.m. (Dana Volkman) that

he did sell a controlled substance to wit: marijuana

qty. of approz. one quarter pound (alleged for the

sum of $80.00, Sizty Dollars to David Wayne Stephen-

son, 2 white male aced 16 years witnessed by Michae!

L. Swab. The defendant deing the age of 23 yecres

and the recipient being the age of 16." (sic).

The crime in which this warrant implicates end for which

ne was arrested on May 21, 1978, was a felony violation of Sections

13 and 14 of the Pennsylvania Controlled Substance, Drugs, Device

and Cosmetic Act. 35 P.S. Sections 780-113(f) and 780-114 (Supp.

7076

75.) As such, Mr. Davis could have been arrested without a

APPENDIX

‘

warrant upon probable cause. a. FR. Crim. P. 101(3).

A lawful arrest must be based upon protable cause wich

in turn depends upon whe.her at the time of the arrest the arres*ine:

officer possessed such ..nowiedge of particular facts and circure

stances which wculd warrant a prudent man in believing that the

suspect has committed or is committing an offense. Adame v.

Williams, 407 U. S. 143, 925 Ct. 1921, 32 L. Ed. 24 1612 (1972).

See also Commonvealth v. Flowers, supra. Commonvealth v. Badley,

4UU9 Pa. 19, 295 A. 2d B42 (1972).

A review of the suppression testimony establishes that

in the course of investigating an unrelated burglary, one of the

arresting officers on May 21, 1978 spoke with his own cousin who

was implicated in the burglary. (Swab Testimony pp. 4, 11). In

inquiring what happened with the money from the burglary the cousin,

Michael Swab, indicated that it was used to purchase drugs. (iIwac

testimony, p. 7). Michael Swabd further indicated to the arresting

officer that he was present when David Stephenson purchased the

drugs from Dana Davis. Ibid. That same day this officer went “c

David Stephenson's residence and questioned him about the burclary.

(Swad Testimony, p. 5). Although not revealing from whom he

Because the arrest warrant herein was issued prior to July l,

1979, its validity could be measured by whether the facts set forth

therein as well as other facts presented tc the issuing magistrate

established probable cause. Pa. R. Crim. P. 119. However, the

record of the suppression hearing fails to establish that ‘facts

beyond those set forth in the warrant were communicated to tne

magistrate. See Commonvealth v. Flowere, 245 Pa. Super. 198, 269

A. 2d 312 (1972). Thus, we will analyze this case by determining

whether the arresting officer nad probable cause to arrest withcut

a warrant for a felony.

purcnased the marijuana, Stephenson gave it to the officer. (Swab

Testimony, pp. 7-9).

We believe this information warranted the arresting

officer in concluding that the defendant sold Stephenson the mari-

juana and that Stephenson and Swab were reliable. Thus, probable

cause for an arrest existed. Aguilar v. Tezas, 378 0. S. 108,

Ru S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Commonwealth v. Davis,

466 Pa. 102, 351 A. 2d 642 (1976). Although informant Stephenson

did not say he got the marijuana from the present defendant, he did

admit its purchase. Indeed, he produced it for the officer. Such

a declaration against penal interest established Stephensori's

reliability. Commonwealth v. Crumley, 482 Pa. €26, 294 A. 24 697

(1974). Moreover, Stephenson's production of the marijuana corrobe-

orates the information given by "ichael Swab and establishes his

reliability. See Commonveaith v. Barrett, 233 Pa. Super. 523, 33®

A, 24 476 (1975). Thus, we believe that at the time of the arrest

the officers involved possessed sufficient trustworthy information

from which they could conclude that the present defendant sold

marijuana to David Stephenson and that Stephenson and Swab - the

sources of this information - were reliable. The arrest being based

upon probable cause was legal and, therefore, so was the seizure

of the cocaine incident thereto.

Defendant contends that the trial judge erred in

instructing the jury that a prior inconsistent statement could only

be considered for impeachment purposes and could not be considered

as substantive evidence. 4s argument is based on the decision

made by the Pennsylvania Superior Court tn the case of Commonvecith

v. Loar, 399 A. 22 1110 (1379), which was decided May 1é, 1979,

and would thus have to be applied retroactively.

In Commonveaith v. Ernet, 476 Pa. 102, 281 A. 24 1245

(1975), the Supreme Court, citing numerous Gecisions, stated:

"The almost uniform practice of thie court rae

been to apply nonconetitutionally premised

criminal Law decisione in a non-retroactive

manner,”

The Loar case dealt with an evidentiary change and not

&@ constitutional right and thus does not require a retroactive

application in the present case.

Defendant further asserts that his trial counsel was

ineffective in failing to object to the court's instruction to the

Jury on prior inconsistent statements. There is no Question chat

the law at the time was in accord with the court's instruction and

there would have been no basis in law for the trial counsel to

object.

Under such circumstances, it would be utter nonsense to

find trial counsel ineffective.

ORDER

AND NOW, toewit, this 17th day of April, 1980, ‘tt is

ORDERED and DECREED that defendant's Motion for a New Trial and

Arrest of Judgment is denied.

4 Fr Jb. ura

edward k. Cafney, Pid. /

Po > -_ MEA

eet LL.

Fred FP. ee

J. 7732/81

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT

2 OF PENNSYLVANIA

No. $67 Pittsburgh, 1980

DANA V. DAVIS, 3

Appellant. :

Appeal from the Judgment of Sentence of the Court of

Common Pleas, Criminal Division, Erie County, at

No. 995 of 1978.

Before: CERCONE, P.J., CAVANAUGH, and JOHNSON, JJ.

MEMORANDUM OPINION:

Appellant, Dana V. Davis, takes this appeal from his

conviction for possession of cocaine. Appellant raises several

issues in his orief, however, we find none of them to have merit

and we affirm.

The facts of this case are as follows. During the course of

an investigation of a separate, unrelated burglary, Officer Allen

P. Swab of the City of Erie police learned that appellant had

sold a quantity of marijuana to David Wayne Stephenson, a

juvenile. Based on this information, Officer Swad requested and

obtained a warrant for appellant's arrest from District

Magistrate Charles R. Wise.

Pursuant to this warrant, Officers Swab, Joseph Metz and

other officers went to appellant's house and found appellant

outside working on his car. Appellant was duly arrested and a

APPENDIX B

J. 772/81 -2-

search of his person resulted in the seizure of a vial. Later

analysis of the contents of this vial proved that it contained

cocaine. Following a trial before a jury, appellant was

acquitted of the charge of selling marijuana but convicted of the

charge of possessing cocaine.

Appellant first argues that the lower court erred in denying

appellant's motion to suppress physicial evidence, to wit: the

vial containing cocaine, because it was uncovered as part of an

illegal arrest. Appellant contends that the arrest warrant was

not issued on probable cause because the Aguiler-Spinelli test

was not satisfied because the police allegedly did not know the

reliability of their informants.

The Aguilar-Spinelli test was established by the United

States Supreme Court cases of the same names: Aguilar v. Texas,

378 U.S. 108, 84 S.Ct. 1509 (1944); Spinelli v. United States,

393 U.S. 410, 89 S.Ct. 584 (1949). The Aguilar-Spinelli test

comes into play when the facts upon which probable cause is

sought to be established come from an informer's tip, rather than

from the police officer's personal knowledge or observation.

There are two prongs in the Aguilar-Spinelli test. Firstly, in

order to assure that the “tip” is not merely an unsupported

rumor, the officer must know the underlying circumstances from

which the informer concluded that the suspect possessed the

J. 772/81 -3-

fruits or evidence of a crime. Secondly, in order to reduce the

possibility that this “tip” is not just a well-constructed

fabrication, the officer must have some reasonable basis for

concluding that the source of the “tip” is reliable. Aguilar v.

Texas, Id. at 114-115, 84 S.Ct. at 1514; Spinelli v. United

States, Id. at 415-41¢, 89 S.Ct. at 586-590; Commonwealth v.

Milliken, 450 Pa. 310, __, 300 A.2d 78, 80 (1973). The Aguilar-

Spinelli test is also used by the courts for judging probable

cause for a search warrant. Commonwealth v. Milliken, supra, Id.

at ___, 300 A.2d at 80. As was Stated above, appellant contends

that the police did not satisfy the requirements of Aguilar-

Spinelli when they applied for the arrest warrant because

allegedly the police did not know the reliability of the

informants.

At the outset, it should be noted that the arrest warrant in

the instant case was arrested on May 21, 19768, prior to the

effective date of present Pa.R.Crim.Pro. 119, tnat is to say,

prior to July 1, 1979. Rule 2119 now requires that all proof of

probable cause must be set forth within the four corners of the

warrant. Since, however, appellant's case pre-datec Rule 119,

this Court can consider the oral testimony offered by the police

officers at the suppression hearing as evidence of the knowledge

which they had at tne time the warrant was sought. This is in

keeping with Rule 119 which specifically limits its requirements

J. 772/81 -4-

"to arrest warrants issued on or after July 1, 1979." Having set

forth the scope of review, we turn now to the warrant itself.

In relevant part, the warrant provided:

Information was related to this officer that a drug

sale took place at the above location and time. This was

transacted between a one David Wayne STEPHENSON, w, m, l¢

and one Michael Leonard SWAB, w, m, 17, sale consisted of

what was said to be 1/4 1b. This [sic] was made in lose

(sic) form. Sale took place in hall way of the above

residence and person buying the alleged marijuana was David

Wayne STEPHENSON and the sale was witnessed by Michael

Leonard SWAB, who saw the money and marijuana [sic) change

hands.

While the warrant itself is vague as to the source of the

"information...related to this officer,” at the suppression

hearing regarding the arrest warrant, the Officer who signed the

warrant, Officer Allen P. Swab, testified that prior to obtaining

the warrant, he was involved in the investigation of a separate

burglary. One of the suspects of this burglary was David Wayne

Stephenson, who told the officer that the money taken from the

burglary was used to purchase drugs from a person he would not

name. However, Stephenson did turn the marijuana over to Officer

Swab. Officer Swad's further investigation led him to question

his cousin, Michael Leonard Swab, another suspect in the

curglary. It was Michael Swab who named appellant as the one who

sold drugs to Stephenson and him. Officer Swab, however, gave no

testimony at the suppression hearing indicating that he related

any of this information to the magistrate. In this respect, the

J. 772/81 <5-

instant case can be likened to Commonwealth v. Flowers, ___ Pa.

Superior Ct. __» __» 369 A.2d 342, 367 (1974), wherein we

wrote, "From [the suppression hearing) it appears that the

trooper was able to supply the justice of the peace with

sufficient information to support an independent judgment of

probable cause; it does not, however, appear that in fact he did”

(emphasis in original). For this reason, in Flowers we held, "It

is not enough to say that the trooper might have given the

answers for it is at least equally possible that he might not

have. It follows that the Commonwealth did not meet its burden

of proof; evidence consistent with two inconsistent propositions

proves neither." Id. at __, 39 A.26 at 368 (citations

omitted). We therefore find that the Commonwealth failed to

prove that it presented sufficient evidence to the magistrate to

supply probable cause for the arrest warrant.

Our review does not, however, cease with this conclusion.

In Commonwealth v. Whitson, 441 Pa. 101, 334 A.2d 653 (1975), the

Supreme Court ruled that where the arcest was for a felony, the

fact that the arrest warrant is defective because the magistrate

was not presented with sufficient facts to establish probable

cause was not grounds to reverse where the officer in charge who

ordered the arrest had sufficient facts and circumstances within

lda

J. 772/81 ote

his personal knowledge to justify a warrantless arrest. See also

Commonwealth v. Wiggins, 239 Pa. Superior Ct. 254, 341 A.2¢ 750

(1976). This is in keeping with Pa.R.Crim.Pro. 101(3) which

provides:

Criminal proceedings in court cases shall be instituted by:

3. an arrest without a warrant upon probable cause when the

offense is a felony....

When Officer Swab went to arrest appellant, it was for the crime

of selling one-quarter pound of marijuana, which is a felony

under 35 P.S. §§ 780-113(f£) and 780-114. Additionally, at the

time of the arrest, Officer Swab made the arrest, he did so

pursuant to information given to him by at least one accomplice

to the alleged crime and one eye-witness. It is well settled

that the uncorroborated confession of an accomplice or the

information supplied by an eye-witness whose identity is known

will supply probable cause for a warrantless arrest.

Commonwealth v. Stokes, 480 Pa. 38, 7, 389 A.2¢ 74 (1978), and

cases cited therein. We therefore hold that although the arrest

warrant was arguably defective, the arrest was nonetheless valid

because it was executed by an officer who himself had probable

cause to arrest appellant. Commonwealth v. Whitson, Supra,

Commonwealth v. Wiggins, supra.

Lappellant argued that tne lower court erred in instructing the

jury that a prior inconsistent statement could only be considered

for impeachment purposes and could not constitute sudstantive

lla

J. 772/81 <7-

Appellant next argues that trial counsel was ineffective in

not opposing consolidation for trial of the separate criminal

charges of possession of cocaine and of delivery of marijuana.

The well-established test for determining effectiveness of

counsel is whether the course chosen by counsel had some

reasonable basis designed to effectuate his client's interests.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d

349 (1967). A finding of ineffectiveness is not called for

unless the court concludes that the alternatives not chosen by

counsel offered a substantially greater potential for success

than the tactics actually used. Id. at £05 n. 8, 235 A.2d at 353

n. 8. See also Commonwealth v. Hubbard, ' Pa. ’ » 372

A.2d £87, 695-694 (1977).

Keeping the above rule in mind, we turn to the test for

proper consolidation of charges for trial, as set forth by this

footnote 1 cont.

evidence. Appellant cites as authority for this position the

case of Commonwealth v. Loar, Pa. Superior Ct. ___, 399 A.2d

1110 (1979). This aspect of the Loar decision has been

specifically repudiated by the Supreme Court in Sommer aa Vv.

Waller, Pa ’ n. 2, 444 A.2d £53, £54 A. ’

there ore appellant's argument has no merit.

Because of our disposition of the above issue, we also find no

merit in appellant's further contention that trial counsel was

ineffective for failing to take exception to the court's charge

on prior inconsistent statements.

l2a

J. 772/81 <8-

Court in Commonwealth v. Vickers, Pa. Superior Ct. ’ '

394 A.2d 1022, __ (1978), wherein we wrote:

Consolidation or separation of indictments is a matter

within the sound discretion of the trial judge, whose

decision will be reversed only for a clear abuse of

discretion or in cases of clear prejudice and injustice to

an accused. Commonwealth v. Lasch, 4¢4 Pa. 573, 347 A.2d

£90 (1975); Commonwealth v. Loch, 239 Pa. Super. 331, 3¢1

A.2d 758 (1976); v. Wheeler, 200 Pa. Super.

284, 189 A.2d 291 ( . @ have restated the test for a

proper consolidation in Commonwealth v. Jones, 242 Pa.

Super. 303, 3¢3 A.2d 1281 (1976). In that Case we indicated

that consolidation will not be considered an abuse of

discretion if the facts and elements of the charged offenses

would be easily separable in the minds of a jury and if the

fact of the commission of each crime would be admissible as

evidence in a separate trial for the other. Commonwealth v.

Jones, 242 Pa. Super. at 307, 33 A.2é6 1281. ee also

Commonwealth v. Lasch, supra.”

21m Commonwealth v. Morris, __ Pa. __, 425 A.2¢ 715 (1981), the

Supreme Court discussed the problem Of consolidation for trial of

charges against a single defendant. Pursuant to tne Court's

decision in Morris, Pa.R.Crim.Pro. 1127 A(1l) (a) was adopted.

This Rule provide :

(1) Offenses charged in separate indictments or

informations may be tried together if:

(a) the evidence of each of the offenses would be

admissible in a separate trial for the other and

is capable of separation by the jury so that there

is no danger of confusion....

Although Rule 1127 A(1) (a) did not take effect until July l,

1982, well after appellant's trial, nonetheless the essence of

the Rule is the same as the statement of the law on this point

made by Commonwealth v.§ Vickers, supra.

l3a

3. 772/81 =9-

Applying this rule to appellant's case, we conclude that the

court did not abuse its discretion in consolidating the charges

of selling marijuana and of possessing cocaine. First, the facts

of the two crimes charged were relatively simple and could easily

have been separated in the minds of the jury, and it appears by

the verdict of acquittal on the marijuana charge that the jurors

were able to separate the facts; second, the two charges were so

intertwined that the evidence of each violation would have been

admissible at a separate trial for the other. In Commonwealth v.

Muffley, __ Pa. _» 425 A.2d 350 (1981), the Supreme Court was

faced with a comparable fact situation. In Muffley the accused

was arrested for possession of marijuana. While he was being

booked at the station, the police found suspected LSD in the

accused's pockets. The accused pleaded guilty to the marijuana

charge and thereafter sought to have the LSD charge which was

being prosecuted in separate proceedings, dismissed as violating

the double jeopardy provisions of 18 Pa.c.S. § 110.3 The Supreme

3the relevant provisions of § 110 provide:

Although a prosecution is for violation of a different

provision of the statutes than the former prosecution ...,

it is barred by such former prosecution under the following

circumstances:

(i) The former prosecution resulted in... a

conviction ... and the subsequent prosecution is for:

er. + © * ©

l4a

J. 772/81 -10-

Court ruled that the two charges were part of the same criminal

episode and that it was a violation of Section 110 to try the

charges separately.

While we are not now faced with a Section 110 claim, indeed,

since the two charges were tried in the same proceedings no

Section 110 can be raised, nonetheless, the Court's conclusion in

Muffley is relevant. As was just indicated, the Court in Muffley

ruled, under facts quite similar to those in appellant's case,

that the relevant charges were part of the same criminal episode.

In Commonwealth v. Green, __ Pa. __» 413 A.2d £51 (1980), the

Supreme Court ruled that absent any proof that consolidation was

prejudicial or improper, the Court would affirm where the charges

were interrelated and part of one criminal episode. For this

reason, we conclude that the trial court did not err when it

consolidated the charges for trial and that a motion for

severance by defense counsel would have been baseless.

Accordingly, we do not find counsel ineffective as appellant

claims.

Lastly, appellant argues that trial counsel was ineffective

because he failed to call witnesses at trial to testify that the

footnote 3 cont.

(ii) Any offense based on the same conduct or arising

from the same criminal episode, if such offense was known to

the appropriate prosecuting officer at the time of the

commencement of the first trial and was within the

jurisdiction of a single court unless the court ordered a

Separate trial of the charge of such offense.

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J. 772/81 -ll-

vial introduced at the preliminary hearing hac a white cap,

whereas the one introduced at trial nad a clack cap. This

contention is meritless, for trial counsel called just such a

witness to the stand, a Mrs. Janice Davis, and she testified that

she was present at the preliminary hearing and that she observed

that the vial introduced then by the Commonwealth had a white cap

but that the vial introduced at trial had a Slack cap, and also

that the vials were different shapes.

Finding no merit in any of appellant's arguments, we affirm.

Affirmed.

l6a

The Supreme Court of Pennsylvania

Western District

Cam. Rice Eso

PROTHONO Tee

lama T Gamoner

OF PUTS PROTHONO TARY

BO! City-COUNTY BUILDING

PirrseuRGre Pa

15219

May 26, 1963

Alan Ellis, Esquire

1420 Walnut Street, Suite 315

Philadelphia, PA 19102

IN RE: Commonwealth of Pennsylvania v. Dana V. Davis

No. 106 W.D. Allocatur Docket, 1983

Dear Mr. Ellis:

This is to advise you that your Petition for Allowance of Appeal

in the above-captioned matter was denied by the Court on May 18,

ITG:kk

cc: Michael] J. Veshecco, Esquire

Honorable Fred P. Anthony

P.S. Enclosed is your receipt for the

APPENDIX C

17a

1983.

Very truly yours,

DEPUTY PROTHONOTARY

filing fee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.