Pennsylvania Superior Court Cases - Superior Court Case Law from PA - Pennsylvania Superior Court - unoffical reports

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

J.A05040/00
2000 PA Super 150
COMMONWEALTH OF PENNSYLVANIA,
:
IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA
:
v.
::
GEORGE PATTAKOS,
:
Appellant
:
No. 1673 PGH 1998
Appeal from the Judgment of Sentence Entered August 11, 1998
In the Court of Common Pleas, Criminal Division
Allegheny County, No. CC 9708248
BEFORE: DEL SOLE, EAKIN and TODD, JJ.
***Petition for Reargument Filed 5/30/00***
OPINION BY TODD, J.:
Filed: May 16, 2000
***Petition for Reargument Denied 7/26/2000***
¶ 1
George Pattakos appeals from the judgment of sentence entered after
a jury convicted him of violating two provisions of the Controlled Substance,
Drug, Device and Cosmetic Act: Possession With Intent to Deliver and
Possession of a Controlled Substance (35 Pa.C.S.A. §§ 780-113(a)(30) and
113(a)(16)). Following trial, Allegheny County Common Pleas Court Judge
Raymond Novak sentenced Appellant to serve thirty days incarceration with
a recommendation of alternative housing and work release, sixty days
intermediate punishment on electronic monitoring and five years probation.
For the reasons that follow, we affirm.
¶ 2
The relevant facts are as follows. Pennsylvania State Trooper Conrad
Williams, acting undercover in an ongoing drug investigation, encountered
Frank Moffitt, who sold Conrad marijuana on three occasions. As a result of
these sales, Conrad secured a search warrant for Moffitt's home, where

J.A05040/00
marijuana and drug paraphernalia were found. The three drug purchases,
as well as the illegal items lawfully seized from Moffitt's residence, resulted
in the filing of four criminal cases against Moffitt. In an effort to gain
favorable treatment from the court, Moffitt agreed to assist the State Police
in their quest for drug suppliers and provided the name of his supplier,
Appellant Pattakos.
¶ 3
Moffitt's cooperation with the police led him to meet with Trooper
Conrad and Trooper Paul Dschuhan at a baseball field in Glassport. Moffitt
called Pattakos and advised him that he would be coming to Pattakos' home
shortly. The Troopers then proceeded with Moffitt in his van to Pattakos'
residence and gave him $200 in marked "official funds" for use in the sting
operation. While the Troopers remained in the van out of sight, Moffitt
proceeded into Pattakos' residence. Soon after, Moffitt returned to the van
with a plastic bag of marijuana, having given Pattakos the $200 in official
funds.
¶
4
Pattakos subsequently was arrested and charged with the
aforementioned crimes, as well as 35 Pa.C.S.A. § 780-113(a)(16), Delivery
of a Controlled Substance. At a suppression hearing on June 17, 1999
before Judge Novak, the warrant under which Pattakos' home was searched
was held to be invalid and the fruits of the illegal search and seizure,
including the "official funds", additional marijuana and drug paraphernalia,
- 2 -

J.A05040/00
were suppressed. Following the suppression hearing, a jury convicted
Pattakos of the remaining charges and this appeal followed.
¶ 5
On appeal, Pattakos raises two questions for our review:
1)
Whether the trial court erred in allowing the
Commonwealth to introduce testimony regarding prior
uncharged drug transactions between Appellant and the
informant;
2)
Whether the trial court erred in prohibiting Appellant's
counsel from specifically arguing to the jury that there was
no evidence in the record as to what happened to the
marked "official funds" that had been suppressed as a
result of the illegal search of Pattakos' residence and
seizure of the evidence contained therein.
¶ 6
Pattakos first argues that the trial court abused its discretion in
allowing the Commonwealth to introduce evidence of prior uncharged drug
transactions between Appellant and Moffitt, the informant. Over objection,
the trial court permitted the Commonwealth to elicit testimony from Moffitt
of previous marijuana deals he had made with Pattakos in describing how
Moffitt knew Pattakos and was able to lead police to him. Pattakos
maintains that Moffitt's testimony pertaining to previous drug transactions
with him was inadmissible because Pattakos did not raise a defense "in
which he claimed to have no knowledge of Mr. Moffitt, or no knowledge of
marijuana, or not to have been home at the time the events in question took
place, or that this was some sort of accident or mistake." (Appellant's Brief
at 11.)
- 3 -

J.A05040/00
¶ 7
Our standard of review in analyzing evidentiary claims is well settled:
The admissibility of evidence is a matter directed to the
sound discretion of the trial court, and an appellate court may
reverse only upon a showing that the trial court abused its
discretion.
Commonwealth v. Robinson, 554 Pa. 293, 304, 721 A.2d 344, 350
(1998).
¶ 8
Moreover, Appellant is correct in stating that evidence of prior crimes
is generally inadmissible because of its potentially prejudicial effect on a
jury. Pattakos argues that the trial court's failure to preclude the
Commonwealth from eliciting testimony of prior drug transactions between
Moffitt and Pattakos was so prejudicial as to outweigh any probative value of
the testimony. The Supreme Court of Pennsylvania has stated that
"[e]vidence of prior crimes and/or acts of violence are inadmissible merely to
show the defendant's propensity for violence or bad character."
Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17 (1987)
(citations omitted).
¶ 9
However, our Supreme Court also has carved out certain exceptions to
this general rule. Specifically, the Court stated that:
[The] general rule prohibiting the admission of evidence of prior
crimes nevertheless allows evidence of other crimes to be
introduced to prove (1) motive; (2) intent; (3) absence of
mistake or accident; (4) a common scheme, plan or design
embracing commission of two or more crimes so related to each
other that proof of one tends to prove the others; or (5) to
establish the identity of the person charged with the commission
of the crime on trial, in other words, where there is such a
logical connection between the crimes that proof of one will
- 4 -

J.A05040/00
naturally tend to show that the accused is the person who
committed the other.
Banks, 513 Pa. at 350, 521 A.2d at 17.
¶ 10 Keeping these principles in mind, we review Pattakos' specific
assertions of error.
¶ 11 In support of its position that Moffitt's testimony regarding his prior
drug transactions with Pattakos properly was admitted, the Commonwealth
cites Commonwealth v. Echevarria, 575 A.2d 620 (Pa. Super. 1990). The
facts of Echevarria are comparable to those of the instant case. There, the
defendant had been charged with the intent to deliver a large quantity of
cocaine seized from his home. Id. at 622. At trial, the Commonwealth
introduced testimony that an informant twice previously had purchased
cocaine from the defendant prior to the sale that resulted in the defendant's
arrest. Id. at 623. On appeal, this Court held that such testimony was
admissible as probative of defendant's status as a cocaine dealer and that its
probative value outweighed its prejudicial effect. Id.
¶ 12 Pattakos argues that the prosecutor's reference to prior transactions in
his opening statement to the jury was not even permissible as rebuttal
testimony as the defense had not "opened the door" to such testimony so
early in the proceedings. (Appellant's Brief at 13.) He asserts that none of
the stated exceptions to the prohibition against admission of evidence
regarding prior bad acts applies to his situation and that the repeated
references to his past criminal activity created a presumption in the jury's
- 5 -

J.A05040/00
mind that "if he did it before he must be doing it again." (Appellant's Brief at
15.) We disagree.
¶ 13 In Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974), the
Supreme Court analyzed whether reports prepared by a homicide victim
containing references to previous drug contacts and conversations with the
defendant were admissible. In acknowledging that evidence of prior criminal
activity normally is inadmissible, the Court held that even assuming that the
mention of drug involvement implied criminal activity, the evidence was
admissible in that case to show the relationship between the defendant and
the victim. Id. at 7, 326 A.2d at 306.
¶ 14 Similarly, Judge Novak, in his well-reasoned decision in this case, also
determined that the existence of the relationship between Moffitt and
Pattakos was critical to the jury's understanding of the case. Judge Novak
held that "the Commonwealth was entitled to show that this was not a
random meeting between the parties; but rather, Mr. Moffitt would receive
drugs on consignment from the defendant on a regular basis." (Trial Court
Opinion, 1/29/99, at 5.) We agree. The establishment of a prior
relationship between these parties was critical to the explanation of why
Moffitt and the police would have targeted Pattakos, rather than an
- 6 -

J.A05040/00
individual at random, in the first place. Accordingly, the testimony properly
was admitted.1
¶ 15 Appellant next argues that the trial court erred in refusing to allow his
counsel to argue in closing remarks to the jury that there was no evidence of
record as to the whereabouts of the marked "official funds." The money,
marijuana, and other items were suppressed as "fruits of the poisonous tree"
by the trial court following a determination that the search warrant
authorizing a search of Pattakos' residence had been issued without
sufficient probable cause. Before closing arguments, the Commonwealth
requested a conference in chambers wherein counsel advised the trial judge
that he believed that Appellant's counsel planned specifically to discuss in his
closing argument the absence of evidence as to the official funds. Pattakos
asserts that his counsel should have been able to argue to the jury that
"there was no evidence as to what happened with the official funds" and
there was "nothing on this record indicating anything about the official
funds." (N.T., 6/17/98, at 171.)
¶ 16 The trial court disallowed argument of that nature, stating:

1 We note that despite defense counsel's continuing objection to Moffitt's
testimony concerning prior transactions with Pattakos, counsel actually may
have waived his right to object to the admission of such testimony by virtue
of his own cross-examination of Moffitt wherein he questioned the witness
about his past relationship with Pattakos, about the fact that he had been to
Pattakos' residence many times before to procure marijuana, and about the
fact that Pattakos was Moffitt's "source." (N.T., 6/17/98, at 131133.)
- 7 -

J.A05040/00
Well, I don't feel that it is proper. If we have anything
along this line, Mr. Boas, I will declare a mistrial. We will
start the whole trial over again.
The Court feels that you are taking advantage of the
suppression ruling. You are attempting to try to take
advantage of the suppression ruling. You are looking for
the protection to [sic] your client and also looking to
receive other benefits.
(N.T., 6/17/98, at 172.) Thus, defense counsel was precluded from making
such an argument to the jury.
¶ 17 Appellant's able trial counsel argues that this trial strategy was
"perfectly proper" (Appellant's Brief at 19) in that every time a suppression
of the evidence is granted, the defendant takes advantage of the ruling in
that he or she is able to keep the evidence out of the record. He asserts
that he had a right to argue zealously to the jurors that they may only
consider what the witnesses testify to, along with the documentary and
physical evidence presented in the courtroom. He further argues that he
was ethically bound to comment in a light most favorable to his client on the
evidence or lack thereof (Appellant's Brief at 20), and that the trial court's
prohibition on counsel's reference to the lack of evidence regarding the
official funds denied him his strongest argument to the jury. Despite
persuasive argument by Appellant's counsel, we must disagree.
¶ 18 Pattakos' counsel took numerous opportunities to comment in closing
on the lack of evidence of record on which the jury could render a verdict
beyond a reasonable doubt. The trial court, in its wisdom and discretion,
- 8 -

J.A05040/00
ruled that allowing Pattakos' counsel to address directly the absence of the
official funds from the evidence of record effectively would permit him to
create an inference in the minds of the jury that the money was never
recovered. Judge Novak, in his Opinion, stated:
Suppression is an artificial prophylaxis intended to
vindicate a violation of the defendant's constitutionally
guaranteed rights. The defendant received the full benefit of
that ruling. None of the evidence seized as a result of the
defective warrant was introduced before the jury. The defendant
was free to argue the paucity of the Commonwealth's evidence,
and, in fact, in no less than nine instances in his closing
argument, defense counsel did just that.
If you put all of the weight of the Commonwealth
evidence over here and all of the weight of the
defense evidence over here and the Commonwealth
reaches this particular point, that is not enough for
you to convict the defendant. Even if it is right here,
members of the jury, that is not enough for you to
convict the defendant. (N.T. 6/17/98, p. 182.)
Let's look at what the Commonwealth presented.
The Commonwealth presented Trooper Conrad
Williams. Let's face it, the Commonwealth has not
presented any direct evidence to you involving Mr.
Pattakos. (N.T. 6/17/98, p. 186.)
Trooper Williams didn't offer any direct evidence
whatsoever against my client. (N.T. 6/17/98, p.
187.)
What it comes down to, members of the jury, is that
we dispute that they have proven their case. They
have failed to prove their case. They have failed to
prove anything regarding George Pattakos.
What we have here is a lot of smoke. There is
nothing in the Commonwealth's case other than a lot
of smoke . . . They could have done a lot of things
- 9 -

J.A05040/00
to prove their case. They chose not to. They didn't
prove their case . . . (N.T. 6/17/98, p. 188.)
Remember that a reasonable doubt can arise from
the evidence or out of the lack of evidence. There is
no body wire. There is no investigative techniques.
There is nothing. The Commonwealth is coming to
you with nothing. (N.T. 6/17/98, p. 192.)
Ladies and gentlemen, this is one of those cases.
This is one of those cases where we don't have
enough. There is not enough credible evidence . . .
The Commonwealth does not have enough to
convince you beyond a reasonable doubt. (N.T.
6/17/98, p. 196.)
Do you have enough based upon what Frank Moffitt
told you? Do you have enough -- do you believe
Frank Moffitt? . . . (N.T. 6/17/98, p. 198.)
Why didn't the police do certain things? Why didn't
they further investigate this matter? Why didn't they
look for proof?
I keep coming back to the reasonable doubt. Has
the Commonwealth proven Mr. Pattakos guilty
beyond a reasonable doubt? Have they proven
George guilty? (N.T. 6/17/98, p. 199.)
I am going to conclude by asking you to consider the
credible testimony. Look at the witnesses. Look at
the lack of evidence. Look at the reasonable doubt
that arises from the lack of evidence. (N.T. 6/17/98,
p. 200.)
(Trial Court Opinion, 1/29/99, at 7-9, citing defense counsel's closing
remarks.)
¶ 19 Judge Novak appropriately notes, and we agree, that Appellant
undeniably received the benefit of the court's suppression ruling in that the
suppressed evidence, including the official funds, was not permitted at trial
- 10 -

J.A05040/00
and did not become evidence of record. Pattakos' counsel had ample
opportunity to point out to the jury the lack of evidence on the record before
them for consideration. To allow Appellant's counsel to draw a specific
negative inference in the jury's minds about the existence or absence of the
official funds on the record would afford Appellant more than just the benefit
of the suppression. It would allow his counsel to improperly draw a
misleading inference for the jury, leading them to conclude that the official
funds were not found at all.
¶ 20 A review of Pennsylvania case law, as well as that of other
jurisdictions, has led us to conclude that there is a dearth of case law on
point, presumably because it is rare to find defense counsel seeking to argue
the absence of evidence which was not introduced at trial because it was
suppressed. However, we find the dissents of Justices Roberts and Flaherty
in Commonwealth v. Smith, 494 Pa. 518, 521-523, 431 A.2d 975, 976-
977 (1981), to be instructive in setting the limits of prosecutorial and
defense comment in closing arguments regarding the presence or absence of
evidence which has been suppressed.
¶ 21 In Smith, the Supreme Court affirmed a murder conviction, holding,
inter alia, that the prosecutor's reference to suppressed evidence during
closing argument (in response to the defense counsel's reference to the
absence of evidence of record regarding a struggle) was error but was
insufficient to entitle the appellant to a new trial. During closing argument,
- 11 -

J.A05040/00
defense counsel suggested to the jury that, if as the Commonwealth alleged,
the victim had been brutally beaten at the scene, the Commonwealth would
have presented evidence of a struggle. Id. at 976. Such evidence did, in
fact, exist, but had been ruled inadmissible, upon defense counsel's motion,
by the suppression court on grounds that the evidence was obtained by
means of a search conducted without a warrant. In response, the
prosecutor stated during closing argument that, "because of a ruling prior to
trial, we cannot introduce that evidence." Id. at 978. Defense counsel
objected to this remark and the trial judge gave a curative instruction to the
jury.
¶ 22 The majority opinion in Smith does not address the propriety of the
comment by defense counsel. However, Justice Roberts, in evaluating the
impropriety of the prosecutor's reference to the suppressed evidence, stated
that "[t]he prosecutor's use of closing argument as a vehicle for the
introduction of suppressed evidence was improper." Smith, 494 Pa. at 521,
431 A.2d at 977 (Roberts, J., dissenting). Citing ABA Standards of
Professional Conduct, Justice Roberts stated:
[I]t is unprofessional conduct for the prosecutor intentionally to
refer to or argue on the basis of facts outside the record whether
at trial or on appeal, unless such facts are matters of common
public knowledge based on ordinary human experience or
matters of which the court may take judicial notice.
Id. at 521, 431 A.2d at 977 (citing American Bar Association Project on
Standards for Criminal Justice, Standards Relating to the Prosecution
- 12 -

J.A05040/00
Function § 5.9 (Approved Draft, 1971)). See Id., § 5.8(a); ABA Standards
Relating to the Function of the Trial Judge § 5.10(ii) (Approved Draft, 1972);
Code of Professional Responsibility, DR 7-106(C)(3).
¶
23 Justice (now Chief Justice) Flaherty, in a separate dissent,
characterizes defense counsel's reference in closing argument to the absence
of physical evidence of a struggle on the record when the evidence had been
suppressed as "improper argument by defense counsel." Id. at 523, 431
A.2d at 977 (Flaherty, J., dissenting). Clearly, Justice Flaherty, as well as
Justice Roberts, although dissenting to the ultimate holding of the majority
that the appellant was not entitled to a new trial based on the improper
comment by the prosecutor, intended to send a message that a reference by
either defense counsel or a prosecutor to evidence which has been
suppressed is improper argument to the jury.
¶
24 Furthermore, to permit such a reference by defense counsel
necessarily would open the door to allowing the Commonwealth to make
reference to suppressed evidence. See Commonwealth v. Stakley, 365
A.2d 1298, 1300 (Pa. Super 1976) ("If defendant delves into what would be
objectionable testimony on the part of the Commonwealth, then the
Commonwealth can probe further into the objectionable area.") Indeed, as
stated by Justice Flaherty in his dissent in Smith,
the prosecutor's reference to the suppressed evidence would
strongly have prejudiced the jury in favor of deductions not
legitimately to be derived from the admissible evidence.
Evidence that is suppressed is not to be drawn to the jury's
- 13 -

J.A05040/00
attention, and mention of such evidence nullifies the effect of the
suppression in a manner that could not, under the
circumstances, have been cured by an instruction from the
court. Thus, notwithstanding the impropriety of defense
counsel's remark, the prosecutor's reference to suppressed
evidence further polluted the trial.
431 A.2d at 978.
¶ 25 As the trial court in the instant case correctly noted, allowing such
argument would open a "battle of inferences between defense counsel and
the prosecutor." (Trial Court Opinion, 1/29/99, at 9.) If this were to occur,
the purpose and intent of the Exclusionary Rule would be subverted, and
appropriately suppressed evidence would be considered by the jury.
Accordingly, for all of the foregoing reasons, we affirm the judgment of
sentence imposed by the trial court.2
¶ 26 Judgment of Sentence affirmed.

2 Because we hold that the trial court did not err in its evidentiary
determinations, we need not reach the Commonwealth's assertions that any
error by the trial court was harmless.
- 14 -