Opinion
1136 EDA 2021 J-A09032-22
08-15-2023
COMMONWEALTH OF PENNSYLVANIA Appellant v. CHESTER BOTCH
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered May 5, 2021 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001743-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J. [*]
MEMORANDUM
SULLIVAN, J.
The Commonwealth appeals from the order granting the pre-trial motion to suppress recordings filed by Chester Botch ("Botch"). After careful review, we reverse.
See Pa.R.A.P. 311(d).
In large part the parties do not dispute the facts of this case; their disagreement lies in the application of the law to those facts. The largely-undisputed facts are as follows. On October 24, 2018, police responded to a report of a hanging death at Botch's house on Beartown Road in Canadensis. See N.T., 7/2/20, at 22. The responding officers saw a man later identified as Thomas Bartkovsky ("Bartkovsky") hanging from a rope in the garage, dead from what appeared to be a suicide. See id. at 23. Responding officers, including Detective Ryan Venneman ("Detective Venneman"), also observed in plain view what appeared to be narcotics and drug paraphernalia throughout the house. See id. Officers secured the scene, and obtained a search warrant, and in the subsequent search conducted that same day recovered several packets of drugs and paraphernalia and other items consistent with drug dealing, namely an "owe sheet" and several baggies in safes in Botch's bedroom. See id. at 23, 32-33, 64-65.
Testing identified those drugs as alprazolam heroin (in trace amounts), and N-ethylepentylone,. See N.T., 7/2/20, at 63-65.
Based on previous experience, Detective Venneman, the affiant in this matter, testified that Bartkovsky's death looked suspicious. See id. at 23-29. Following the search that day, Detective Venneman interviewed Botch. At the conclusion of the interview also on October 24, 2018, the police took Botch into custody for a probation violation and incarcerated him at the Monroe County Correctional Facility (the "MCCF"). See id. at 45-52, 83.
On October 31, 2018, police arrested and charged Botch with two counts of possessing a controlled substance with intent to deliver ("PWID"), conspiracy, and other offenses relating solely to the drugs recovered in his house pursuant to the search warrant on October 24, 2018, and he remained at the MCCF. See id. at 51-52; N.T., 5/4/21, at 13; see also Complaint, 10/31/18 (the "2018 Complaint").
See 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. § 903.
In the weeks after the filing of the 2018 Complaint charging Botch with PWID and related offenses for the drugs found in his home, police conducted an investigation into Bartkovsky's suspicious death. The investigation included several witness interviews, an autopsy, which included toxicology testing to determine what, if any, drugs Bartkovsky had in his system when he died. See N.T., 7/2/20, at 28-37. On November 1, 2018, police interviewed Bartkovsky's girlfriend, who stated that Bartkovsky hanged himself on the afternoon of October 23, 2018, the day before police were called to the scene. On December 4, 2018, police interviewed Botch's ex-girlfriend who stated that on the day before police were called, Botch told her Bartkovsky was hanging in the garage and Botch later stated to her that he and others hung Bartkovsky. See id. at 33-36, 77-78, 89-91; see also Affidavit of Probable Cause, 6/7/19, at 10. Several confidential informants ("CI"s) contacted the police to discuss what Botch had disclosed to them about Bartkovsky's death. See N.T., 7/2/20, at 37-42. One CI, Jonathan Geltz, who shared a prison cell with Botch at MCCF, told police he wanted to discuss what Botch had told him about Bartkovsky's death. See id. at 38.
Testing revealed that Bartkovsky had alprazolam, methamphetamine, tramadol, fentanyl, norfentanyl, and metabolites of cocaine and heroin in his system when he died; his death certificate listed "mixed substance toxicity" as the cause of his death. See N.T., 7/2/20, at 29, 59-63.
Geltz met Botch for the first time at the MCCF on or about October 24, 2018. See Statement of Jonathan Geltz ("Geltz Statement"), 12/18/18, at 2-3.
On December 18, 2018, Monroe Country First Assistant District Attorney Michael Mancuso, Detective Venneman, and Detective Michael Kreischer took Geltz's statement. See id. at 38. Geltz said that Botch had described Bartkovsky's overdose and death and admitted he gave Bartkovsky a "hot shot" injection on the night he died and hanged his body to make Bartkovsky's death look like a suicide. See id. at 38-39; see also Geltz Statement, 12/18/18, 8-11. Two other informants also told the police that Botch said he gave Bartkovsky a shot with different drugs that killed him. See N.T., 7/2/20, 39-42.
In January and February 2019, Geltz wore a consensual wire to record conversations with Botch while they were incarcerated together at the MCCF, resulting in approximately forty hours of wiretap recordings over the course of multiple days. See Consensual Calls, N.T., 7/2/20, at 19-20, Exhibit 1. Only a small percentage of the recordings contains conversation between Botch and Geltz. See N.T., 7/2/20, at 19-20, 27, 102.
On June 7, 2019, at the conclusion of the police investigation of Bartkovsky's death, the Commonwealth filed a complaint (the "2019 Complaint") alleging that Botch gave Bartkovsky drugs that resulted in his death and attempted to cover up the overdose death by hanging his body. The 2019 Complaint charged drug delivery resulting in death ("DDRD"), abuse of corpse, conspiracy, criminal use of a communications facility, and tampering with evidence, as well as the two counts of PWID from the 2018 Complaint. The Commonwealth then withdrew the 2018 Complaint.
See 18 Pa.C.S.A. §§ 2506(a), 5510, 903(a)(1), 7512(a), 4910(1).
For unknown reasons, the District Attorney re-filed the PWID charges (which were limited to the drugs seized pursuant to the October 24, 2018 search warrant) in the 2019 Complaint charging DDRD and other offenses relating to Bartkovsky's death. When the Commonwealth filed the 2019 Complaint, the 2018 PWID charges had already been filed and were procedurally ready for trial. It is also unclear why the District Attorney did not elect to put the new charges through the charging and preliminary hearing stages, proceed to the trial court and then file a motion to consolidate the separate matters before a trial court under Pa.R.Crim.P. 582.
It is undisputed that Botch filed an omnibus pre-trial motion that, inter alia, requested suppression of consensually-intercepted statements he made to Geltz in January 2019 and February 2019. See Trial Court Opinion, 7/27/21, at 1, 5. It is also undisputed that on May 4, 2021, after a complicated procedural history that included two suppression hearings, the court's preparation of multiple opinions, and the court's direction to the parties to file supplemental briefs, the court suppressed the six recordings at issue in this appeal, although it did not suppress unrecorded statements Botch made to Geltz and others. See N.T., 5/4/21, at 53-56.
Neither the trial court nor either of the parties identifies the six recordings with particularity.
The trial court's order also makes this distinction noting that "[t]his ruling applies only to matters that were intercepted and recorded" by the CI. See Order, 5/4/21.
The court concluded that Botch's Sixth Amendment right to counsel on the 2018 Complaint charges attached to the charges in the 2019 Complaint as well because the 2019 Complaint included the prior PWID charges. See id. Despite the facts that the PWID charges concerned only the drugs found in Botch's house after the victim's death, not drugs he allegedly gave Bartkovsky, that a DDRD conviction does not require a PWID conviction, and that the DDRD and the other non-PWID charges in the 2019 Complaint were uncharged at the time of recordings, the court barred the use of the recordings at trial. See id.; see also Trial Court Opinion, 7/27/21, at 14, 16.
The Commonwealth timely appealed, and both it and the suppression court complied with Pa.R.A.P. 1925.
The Commonwealth presents the following issue for our review:
Did the trial court err by suppressing recorded statements of [Botch] intercepted by Jonathan Geltz at the [MCCF] when the subject matter of said recordings was conduct[ed when Botch] was not yet charged with, and, therefore, did not yet have a Sixth Amendment right to counsel?
Commonwealth's Brief at viii.
Our standard and scope of review in a Commonwealth appeal from a suppression order is as follows:
We consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. This Court must first determine whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. In appeals where there is no meaningful dispute of fact, as in the case sub judice, our duty is to determine whether the suppression court properly applied the law to the facts of the case.Commonwealth v. Champney, 161 A.3d 265, 271 (Pa. Super. 2017) (en banc) (internal citation omitted).
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" and guarantees him the right to have counsel present at all critical stages of the criminal proceedings. Commonwealth v. Cox, 983 A.2d 666, 680 (Pa. 2009) (internal citation and quotations omitted). The Sixth Amendment right to counsel attaches at the initiation of formal judicial proceedings against an individual by way of formal charge. See Commonwealth v. Hannibal, 156 A.3d 197, 212 (Pa. 2016). After the right attaches, the police may not deliberately elicit a statement from a defendant on the offense to which it attaches unless the defendant waives the right. See id. "Deliberate elicitation" includes instances when the government "deliberately and designedly set[s] out to elicit information from an individual" through the use of an informant acting as a government agent. Commonwealth v. Briggs, 12 A.3d 291, 324-25 (2011) (internal citation, quotation, and brackets omitted); see also Hannibal, 156 A.3d at 212.
An accused's Fifth Amendment right to counsel is not at issue in this appeal.
The Sixth Amendment right to counsel is "offense specific": even when it has attached for a charged offense, it does not bar questioning on uncharged offenses, even if those offenses are "factually related" to the charged offense. See Texas v. Cobb, 532 U.S. 162, 164, 167-78 (2001); accord Cox, 983 A.2d at 680 (stating that under Pennsylvania law the Sixth Amendment is offense specific). Thus, the Sixth Amendment only bars questioning concerning an uncharged crime if that crime is "the same offense" under the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932), which examines whether: (1) the uncharged crime arose from "the same act or transaction" and (2) whether the charged crime and the uncharged crime "require[] proof of a fact which the other does not." See Cobb, 532 U.S. at 173. A mere overlap in proof between two crimes will not establish a violation of the Blockburger test. See Commonwealth v. Jackson, 10 A.3d 341, 345 (Pa. Super. 2010).
Cobb rejects prior lower courts' interpretation of McNeil v. Wisconsin, 501 U.S. 171 (1991), as containing an exception to the offense-specific nature of the Sixth Amendment for crimes that are "factually related" to a charged offense. See Cobb, 532 U.S. at 168.
Here, the parties agree that the Sixth Amendment analysis in Cobb is instructive. Cobb states that where the statement at issue involves facts specific to uncharged crimes it is irrelevant that the offenses are "closely related factually to the offense charged." Cobb, 532 U.S. at 167-68. Thus, if recorded statements involve information about crimes not then charged, the statements should not be suppressed because the Sixth Amendment right to counsel only applies to charged conduct regardless of the similarity of facts (or overlapping facts). See id. at 168.
When law enforcement officials met with Geltz in December 2018, as a result of his offer to provide information concerning Bartkovsky's death, Botch had been charged with PWID and related offenses concerning the drugs and drug paraphernalia seized from his house on October 24, 2018. See 2018 Complaint, at 8. Although there was an ongoing investigation into Bartkovsky's death, Botch had not been charged with offenses relating to that death in January and February 2019, when Geltz recorded conversations with him in prison. Charges related to Bartkovsky's death were not filed until June 7, 2019.
Geltz's and Botch's recorded conversations concerned Bartkovsky's death and the facts surrounding it; Geltz did not ask Botch about the search warrant, any of Botch's general drug-dealing activity, or any of the offenses charged in the 2018 Complaint. In their briefs, the parties identified relevant segments of the intercepted recordings, all of which are limited to information surrounding the victim's death. See Commonwealth's Brief at xii; Botch's Brief at 5-6. Further, in the recorded conversations, Geltz did not seek or elicit any information about Botch's involvement in a larger drug-dealing operation or information regarding the charges in the 2018 Complaint. Thus, under the Cobb test, the Sixth Amendment right to counsel did not attach because the recorded statements at issue relate to uncharged crimes. Accordingly, the recorded conversations should not have been suppressed. See Cobb, 532 U.S. at 168.
On appeal, Botch specifically identifies recordings in which he said he overdosed Bartkovsky first and then "strung him the f*** up;" discussed the air compressor Bartkovsky stood on to hang himself; asserted that "something fishy happened" but he had nothing to do with it; said he gave Bartkovsky drugs but never identified them; and that Bartkovsky hanged himself. See Botch's Brief at 5-6.
In its Rule 1925(a) Opinion, the trial court noted its continued reliance on Maine v. Moulton, 474 U.S. 159 (1985), and ultimately reasoned that the facts of this case were "on all fours with Moulton" and not factually similar to Cobb. See Trial Court Opinion, 7/27/21, at 16. Based on the perceived similarity of this case to Moulton, the court suppressed the intercepted conversations. See id. at 13-20. The court also stated that DDRD and PWID are the same offense. See id. at 20-21.
We conclude that the trial court erred in relying on Moulton and determining that PWID and DDRD are the same offense. First, Moulton is readily distinguishable from this case. In Moulton, the recorded statements at issue were obtained by Moulton's co-defendant, Colson, in a matter that was about to go to trial and involved their conversations strategizing and preparing for a joint trial on charged theft crimes. See Moulton, 474 U.S. at 162-63. Further, the police knew that the men were meeting to discuss pending charges and plan trial strategy. See id. at 176-77. Thus, the police's purpose was to record statements between the parties about charged crimes and obtain admissions from the defendant about charged crimes. There is no evidence in the record that police encouraged Geltz to ask Botch about the 2018 Complaint and/or the PWID charges therein.
Nothing in the facts shows that police were investigating additional and/or uncharged crimes; the recordings showed that the police encouraged the co-defendant to elicit Moulton's admission concerning the charged crimes.
Additionally, in Moulton, the Supreme Court recognized that it is proper to continue investigations of criminal activities "even though the defendant ha[s] already been indicted." Id. at 179. Significant to this case, the Court drew a clear distinction between questioning about charged crimes and uncharged crimes: although it stated "[i]n seeking evidence pertaining to pending charges . . . investigative powers are limited by the Sixth Amendment . . .." id. at 179-80, it recognized, "[o]n the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at th[e] time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." See id. at 180 (emphasis added).
There can be no dispute here that Geltz and Botch were not co-defendants and not preparing for an upcoming joint trial as in Moulton. They only met for the first time when both were incarcerated for unrelated criminal matters at MCCF in October 2018. See Geltz Statement, 12/18/18, at 2-3. Further, when police met with Geltz they only discussed what Botch already related to him. No evidence was presented that Geltz discussed with Botch the already-charged PWID crimes. In fact, the two transcripts of discussions between police and Geltz contain absolutely no instruction to Geltz to ask about anything. Specifically, the police never encouraged him to ask about the PWID charges in the 2018 Complaint. See Geltz Statement, 12/18/19; Geltz Statement, 1/25/20. In the small portion of the recordings that constitute conversations between Botch and Geltz, Geltz limited his discussions with Botch to the facts surrounding Bartkovsky's death. Botch does not claim that Geltz asked him about his alleged drug dealing in general or the drugs that formed the basis for the 2018 PWID charges in particular. Thus, Moulton is not similar procedurally or factually to the case sub judice where the uncontroverted evidence is that the purpose of recording the statements between Geltz and Botch was to obtain information regarding the uncharged crime of DDRD.
There is also no legal basis to interpret the PWID charges in 2018 Complaint and refiled in 2019 Complaint as same offenses as DDRD. In Cobb, the Supreme Court stated that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied is . . . whether each provision requires proof of a fact which the other does not." See Cobb, 532 U.S. at 173 (citation omitted). Under this test, PWID and DDRD are plainly not the same offense.
The crime of DDRD has two elements: (i) intentionally administering, dispensing, delivery, giving, prescribing, selling or distributing any controlled substance, and (2) death resulting from the use of that drug. See, Commonwealth v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015); see also Commonwealth v. Peck, 242 A.3d 1274, 1281 (Pa. 2020) (stating that "a violation of one of the specifically referenced provisions of the Drug Act is an element of the crime of DDRD."). A "violation" is distinct from a charge (or a separate conviction). See Commonwealth v. Magliocco, 883 A.2d 479, 489-92 (Pa. 2005) (holding that a statute that requires the commission of another offense does not require a charge of the commission of that offense). PWID, on the other hand, requires only the intentional possession of a controlled substance with the intent to deliver that controlled substance in violation of the Controlled Substance Act. See e.g., Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).
See 35 P.S. 780-113(a)(13), (14), (30).
Compare Commonwealth v. Caine, 683 A.2d 890, 892 (Pa. Super. 1996) (en banc) (holding that the offense of the offense of homicide by vehicle while driving under the influence ("HVDUI") requires a conviction of driving under the influence ("DUI"), and that an acquittal of the predicate crime of DUI renders the evidence of HVDUI insufficient).
DDRD thus has an element that PWID does not, i.e., the death of a person to whom a controlled substance was administered, dispensed, delivered, prescribed or sold. See 18 Pa.C.S.A. § 2506(a); Kakhankham, 132 A.3d at 992-993 (stating that the first element of DDRD, i.e., a delivery or administration, requires intentionality and the second element requires, inter alia, reckless disregard of death). Likewise, this Court held that DDRD requires an intentional act in providing the contraband and a reckless disregard of death resulting from the use of the contraband. See Commonwealth v. Carr, 227 A.3d 11, 16-17 (Pa. Super. 2020) (emphasis added). The DDRD statute, however, does not require a separate charge of PWID. See 18 Pa.C.S.A. § 2506 (establishing that the offense is committed by a person who violates the Controlled Substance, Drug, Device and Cosmetic Act ("Controlled Substance Act") where another person dies as a result of using the substance). That the DDRD statute requires an act that violates the Controlled Substance Act does not mean that a PWID charge is an element of a DDRD conviction or that they are the same crime. Thus, an additional PWID charge is not an element of a DDRD charge. Pursuant to Cobb, DDRD is separate and distinct from PWID and was uncharged at the time of the CI's recorded statements with Botch.
Pursuant to Cobb, DDRD is separate and distinct from PWID. At the time of Geltz's consensual wires in January and February 2019, DDRD was uncharged. It is irrelevant that in Geltz's de-briefing, he said that Botch had asserted that he gave Bartkovsky drugs from a stash stamped "Death Row," which was stamped on drug packets found in Botch's house during the execution of the search warrant. Geltz's initial interaction with Botch occurred in prison, prior to any police involvement. See Geltz Statement, 12/18/18. As noted, the recordings disclose no evidence that (1) Geltz inquired about the drug packaging, or (2) Botch mentioned how the drugs were packaged. The information on the recordings does not establish that Geltz inquired about the 2018 PWID charges. Geltz's conversations were limited to the facts surrounding Bartkovsky's death.
There is yet another, independent basis for concluding that Geltz's discussions of Bartkovsky's death with Botch did not violate Botch's Sixth Amendment right to counsel. The Commonwealth alleges that Bartkovsky's death resulted from drugs in his system on October 22, 2018, and October 23, 2018, which formed the basis of the DDRD charge. There is no dispute that the drugs that formed the basis the PWID charges in both the 2018 Complaint and the 2019 Complaint concerned the drugs police found when they were called to Botch's house on October 24, 2018, and the drugs they seized later that day pursuant to a search warrant. See Trial Court Opinion, 7/27/21, at 2-4. The police did not know what drugs, if any, were in the victim's body - they learned that later as a result of a toxicology report and thus those drugs could not have been the basis of the PWID charges in the 2018 Complaint. Further, by October 23, 2018, according to several witness accounts, Bartkovsky was dead. Thus, Bartkovsky could not have used the drugs recovered on October 24, 2018. The search warrant executed on October 24, 2018 recovered different drugs than those that were the basis of the 2019 DDRD charge, even though the type of drug was the same. Botch's alleged provision of the drugs to the victim that resulted in the victim's death occurred on October 22, 2018, and October 23, 2018, and constituted the completed offense of DDRD, before occupants of the house summoned the police on October 24, 2018, to report the victim's death and before the police discovered drugs in the house on October 24, 2018. Because the DDRD charge related to different drugs than those that formed the basis of the PWID charges, questioning about the DDRD-related drugs did not address a previously-charged offense and did not violate the Sixth Amendment.
In sum, while it is unclear from a procedural perspective exactly why the Commonwealth elected to file the DDRD charge in the 2019 Complaint along with re-charging the PWID charges originally charged in the 2018 Complaint, this perplexing decision does not change the uncontroverted facts of record that: (1) the 2018 Complaint charged two counts of PWID specifically related to the drugs and drug paraphernalia found at the home pursuant to the October 24, 2018 search warrant; (2) Geltz obtained the consensually-intercepted statements in January and February 2019 and Botch's statements only related to the death of Bartkovsky; (3) law enforcement did not encourage Geltz to discuss the PWID charges in the 2018 Complaint; and (4) the separate crime of DDRD remained uncharged until June 7, 2019. Thus, under Cobb, it is clear that the wiretap recordings at issue involved conversations for a different offense than previously charged. See Cobb, 532 U.S. at 173.
For all of those reasons, we conclude that the Commonwealth did not violate Botch's Sixth Amendment right to counsel and the court erred in suppressing the recorded conversations between Geltz and Botch. Accordingly, we reverse the trial court's order.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Nichols joins this memorandum.
DISSENTING MEMORANDUM
PELLEGRINI, J.
The issue in this appeal is whether the Court of Common Pleas of Monroe County (trial court) erred in granting Chester Botch's (Botch) motion to suppress recordings made at the behest of the Commonwealth by a prison inmate, Jonathan Geltz (Geltz), violated Botch's Sixth Amendment right to counsel because Geltz recorded statements while Botch was represented. The Sixth Amendment right to counsel is offense-specific and, therefore, does not prevent a suspect from being questioned about an unrelated case. I respectfully dissent because, unlike the majority, I would hold the suppressed recordings were related to offenses that had already been charged and would affirm the trial court.
The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e." U.S.C.A. Const. Amend. 6. This right "is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (citation omitted). "The right to counsel guaranteed by Article I, Section 9 of the Pennsylvania Constitution, is coterminous with the Sixth Amendment right to counsel for purposes of determining when the right attaches." Commonwealth v. Gwynn, 943 A.2d 940, 947-948 (Pa. 2008). Therefore, the state constitutional right to counsel attaches at the same time the Sixth Amendment right to counsel attaches, i.e., "'the initiation of adversary judicial proceedings," which is generally arraignment. Id. at 948. Statements made to an informant while incarcerated on different charges does not violate a defendant's right to counsel. See Commonwealth v. Bomar, 826 A.2d 831, 844 (Pa. 2003).
I.
A.
Because the majority set forth in its opinion the factual background, only a short summary of the pertinent facts is needed. When the recordings were made, Botch was in prison for charges filed on October 31, 2018, at case number 2875 Criminal 2018 (2018 Case) and was charged with two counts of Possession with Intent to Deliver (PWID) (heroin and Alprazolam) and related possession charges based on the drugs and paraphernalia found in his home on October 24, 2018. (See 2018 Case Police Criminal Complaint and Affidavit of Probable Cause, 10/31/18, at 3-4). Those charges were instituted when the police were summoned to Botch's home because Thomas Bartkovsky (the Victim) was hanging by a rope in Botch's garage. After obtaining a search warrant, drugs were found and the above charges were filed. Botch had counsel relating to those charges. The investigation continued into the circumstance of the Victim's death.
35 Pa.C.S. § 780-113(a)(3).
Alprazolam is Xanax.
The related charges included Conspiracy to Commit PWID, three counts of Possession of Drugs (heroin, alprazolam and buprenorphine) and two counts of Possession of Drug Paraphernalia.
Regarding that investigation, the police met Geltz, an inmate housed with Botch, who volunteered that Botch admitted that the Victim overdosed on heroin he had given him. After discussions with the police, Geltz agreed to wear a wire and after a court order approving the intercept, the police provided Geltz with a recording device which recorded six relevant segments in which Geltz guided Botch to talk about the Victim's death. Among other statements, Botch told Geltz he gave the Victim a brick of heroin and the Victim overdosed before Botch "strung him up in his garage" with a rope. (2019 Affidavit of Probable Cause, at 12).
As a result of that investigation, on June 7, 2019, a criminal complaint and affidavit of probable cause were filed against Botch at case number 1743 Criminal 2019 (2019 Case), the case on appeal. It contained new charges of Drug Delivery Resulting in Death (DDRD), Criminal Use of a Communication Facility, Abuse of Corpse, Tampering with Evidence and Criminal Conspiracy, as well as the old 2018 charges of PWID, Possession of a Controlled Substance and Possession of Drug Paraphernalia. (See 2019 Police Criminal Complaint and Affidavit of Probable Cause, 6/07/19, at 3-6). The information identified the drugs involved in the PWID as heroin and Alprazolam. (See Information, 8/27/19, at 1). The 2019 affidavit of probable cause contained the same information related to the PWID drug charges, as well as information about the new DDRD related charges.
At the July 11, 2019 preliminary hearing, Detective Venneman confirmed that there was nothing new in the 2019 complaint "drugwise." (See N.T. Preliminary Hearing, at 33). On September 16, 2019, the Commonwealth filed a petition to nolle pros the charges in the 2018 Case on the basis that both PWID and additional charges had been filed in the 2019 Case "arising out of substantially similar facts and circumstances" and that Botch had been arraigned on the 2019 Case. (Commonwealth's Petition for Nol Pros, Docket No. 2575 Criminal 2018, 9/16/19, at ¶ 2).
B.
Botch then filed a motion to suppress as part of his omnibus pretrial motion in which he argued that the six individual segments which Geltz induced Botch to talk about the Victim's death violated, among other reasons, that because the recordings involved matters with which he was already charged, that his Sixth Amendment right to counsel was violated. At the conclusion of the hearing, the trial court granted the motion to suppress the recordings on the record based on the violation of Botch's Sixth Amendment right to counsel. It explained, in pertinent part, that:
In this case, the fundamental problem with the Commonwealth's argument is that there is no separation between … the original charges … and the … new charges. … Given that, the Commonwealth has not argued or even attempted to argue that there is any basis … for holding that the right to counsel did not attach at least as to those charges or how evidence of those charges could come into this trial when you have both old and new that will be heard at the same trial ….
* * *
… [A]fter this case was filed, [] the Petition to Nolle Pros, … subparagraph A of Paragraph 2 lists all the charges that were originally filed in the 2018 case itself. Subparagraph B says that the above-referenced charges have also been filed and are included in … this case. In addition, … the detective who testified at the preliminary hearing in this case was specifically asked if there are any difference[s] in the drug charges, and his response was no. And now … there appears to be no issue with respect to the fact that at least Mr. Geltz is indicating that [Botch] told him that the drugs … were the same.
So for Sixth Amendment purposes, I cannot accept and do not find that the possessory drug crimes that are pled in this case are new, distinct, or separate or in any way different from the crimes originally pled in 2018. To be certain, Drug Delivery Resulting in Death, Tampering with Evidence, Abuse of Corpse, and Criminal Use of a Communication Facility are new crimes. However, again, if this was two different trials, I don't think there would be an issue, but it's not. This is brought together in one information, and it's going to head towards one trial, and I think that you can't separate out the fact that there was a violation of the Sixth Amendment right to counsel as to some but not all of the … charges that have been filed and then somehow try to ask the jury
to consider the evidence as to the quote/unquote new charges but not the old.
* * *
However, I want to make clear … I perceive the Motion to Suppress as seeking only suppression of the recorded statements intercepted by Mr. Geltz. The record demonstrates that there were statements made to Mr. Geltz [and other inmates] by [Botch] … that were not recorded[.] … and I'm going to specifically indicate that my ruling is only with respect to the statements … that were recorded by Mr. Geltz after he was sent back in wearing a wire.(N.T. Hearing, 5/04/21, at 47, 53-56); (see also Trial Ct. Op., at 8).
The majority reverses the trial court because PWID charges originally filed in 2018 and refiled in 2019 do not constitute the same offense and Botch's right to counsel was not violated. It reasons that those crimes are unrelated because, "while it is unclear from a procedural perspective exactly why the Commonwealth elected to file the DDRD charge in the 2019 complaint along with re-charging the PWID charges originally charged in the 2018 complaint, this perplexing decision does not change the uncontroverted facts of record that: (1) the 2018 complaint charged two counts of PWID specifically related to the drugs and drug paraphernalia found at the home pursuant to the October 24, 2018 search warrant; (2) Geltz obtained the consensually intercepted statements in January and February 2019 and Botch's statements only related to the death of Bartkovsky; (3) law enforcement did not encourage Geltz to discuss the PWID charges in the 2018 complaint; and (4) the separate crime of DDRD remained uncharged until June 7, 2019."
Like the trial court, I disagree with the majority that Botch's Sixth Amendment right to counsel was not violated because the Commonwealth brought all the PWID and DDRD charges together in one information, the charges are going to be tried together, and the evidence needed to establish the DDRD charge overlaps with the evidence and cannot be separated from proving the PWID charges. Let me more fully explain.
II.
A.
"Any statement made by the individual . . . which is deliberately elicited by police, without the individual making a valid waiver of the right to counsel, is deemed a contravention of this right. A statement may be deliberately elicited by police through use of an informant." Commonwealth v. Hannibal, 156 A.3d 197, 212-13 (Pa. 2016), cert. denied, 138 S.Ct. 59 (2017) (citations and most quotation marks omitted). However, "a defendant's statements regarding offenses for which he has not been charged are admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses." McNeil v. Wisconsin, 501 U.S. 171, 176 (1991).
The Commonwealth does not contest that Geltz was acting as its agent at the time he elicited and recorded the subject statements.
It is well-settled that "[a] voluntary jailhouse admission made to a fellow inmate is not subject to any more protection than a confession made by the defendant outside of his jail cell to another person willing to notify authorities." Commonwealth v. Ogrod, 839 A.2d 294, 329 (Pa. 2003). Botch did not move to suppress the unrecorded statements he voluntarily made to Geltz or the other two jailhouse informants, and the court limited its holding to only the recorded statements made to Geltz at his encouragement.
"Although it is clear that the Sixth Amendment right to counsel attaches only to charged offenses, we have recognized in other contexts that the definition of an 'offense' is not necessarily limited to the four corners of a charging instrument." Texas v. Cobb at 172-73 (2001), (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). "[W]hen the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test[,]" which provides that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 173; Blackburger, supra at 304. "In this sense, we could just as easily describe the Sixth Amendment as 'prosecution specific' insofar as it prevents discussion of charged offenses as well as offenses that, under Blockburger, could not be the subject of a later prosecution." Cobb, supra at 173 n.3
B.
The issue in this case then is whether the PWID charges originally filed in 2018 and refiled in 2019 require a proof of a fact involved in the DDRD charge so that Botch's right to counsel attached for both the PWID charges and the DDRD charge when the recordings were obtained. The Commonwealth contends that the offenses are unrelated because:
Botch's possession of the controlled substances actually found in his residence consistent with distribution on October 24, 2018, and charged in the October 2018 Complaint and the actual delivery of controlled substances to the Victim resulting in his death prior to that time were distinct criminal violations. Utilizing the Blockburger rationale in the Cobb framework as applied to the case at bar, [Botch]'s Sixth Amendment right to counsel would not have attached regarding the [DDRD] offense and, as such, the trial court's order suppressing the recorded statements should be reversed.(Commonwealth's Brief, at 7-8). The Commonwealth's attempt to separate his 2018 PWID charge from the 2019 DDRD is not persuasive.
PWID is defined as:
the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.36 P.S. § 780-113(a)(30).
DDRD is defined as:
A person commits [DDRD,] a felony of the first degree[,] if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of [The Drug Act], and another person dies as a result of using the substance.
Although Botch was charged with multiple crimes, including PWID, the Commonwealth only focuses its argument on the DDRD charge.
As can be seen, the charge of DDRD includes the same evidence as the PWID, since DDRD is essentially PWID where "another person dies as a result of using the substance." 18 Pa. C.S. § 2506(a). DDRD does not require additional scienter and automatically applies if a death occurs.
C.
In 2018, Botch was charged with PWID of heroin and prescription medications. (See 2018 Criminal Complaint, at 3). In 2019, he was charged with DDRD for PWID of heroin and Alprazolam. (See 2019 Criminal Complaint, at 3); (Information, 8/27/19, at 1). Detective Venneman testified that in Geltz's de-briefing, the informant advised that Botch told him that he gave the Victim drugs from his stash of baggies labeled "Death Row" which lab testing results showed was heroin and Alprazolam, before hanging him to make his death look like a suicide. (See N.T. Suppression Hearing, at 38-42). Botch's possession and delivery of drugs labeled "Death Row" was the basis for both complaints in the PWID and DDRD charges.
Consequently, the informant's recorded questioning of Botch about the facts of the new, unindicted DDRD charge necessarily involved incriminating statements and questions about the heroin and Alprazolam that formed the basis of the indicted PWID charge. In other words, the DDRD and PWID charges were, for all practical purposes, the same charges with the same evidence, other than the undisputed fact that the Victim died as a result of the delivery. If Botch was acquitted of either charge, under Blockburger and Cobb, he could not be acquitted of the other charge or, for that matter, be the subject of a later prosecution.
D.
Further, we are not persuaded by the Commonwealth's argument that Botch's recorded admissions pertained to different drugs than those underlying his PWID charge because there is reference to a "hot shot" and additional drugs were found in the Victim's body. Although the Commonwealth attempts to draw a distinction because there were other drugs found in the Victim's body, the fact remains that Alprazolam was one of those drugs. (See Autopsy Report, at 1). Moreover, although there was testimony that Botch said he gave the Victim a "hot shot," it is not clear from the record provided to this Court exactly what this referred to and does not negate the fact that the Commonwealth's questioning of Botch about the "Death Row" (heroin and Alprazolam) drugs that formed the basis of both complaints violated his right to an attorney. We also note that Detective Venneman stated at the preliminary hearing that there was nothing new in the 2019 complaint "drugwise" and the Commonwealth's petition to nolle pros the 2018 Case stated that the 2019 Case "[arose] out of substantially similar facts and circumstances," and that it did not argue at the suppression hearing that there was any separation between the 2018 and 2019 PWID charges.
Accordingly, for the forgoing reasons, I respectfully dissent.
[*]Retired Senior Judge assigned to the Superior Court.