And Justice for All

What follows is the full transcript of the March 5, 1996 sentencing of Ed Cummings (Bernie S. ), an event which should scare the hell out of anyone who is aware of the facts of the case.

We can see firsthand the almost manic obsession of Secret Service Agent Thomas L. Varney as he continually tries to portray Cummings as the most dangerous of criminals.  However, when you look at what is actually said, there is not one thing that proves Cummings is dangerous - the really dangerous accusations come in the form of speculation and references to crimes committed by other people over time.  Although the judge stops Varney from making accusations involving 2600 and Cummings' "followers" and also states that he doesn't share Varney's view of Cummings as "one step above a terrorist," you would never know it from the sentencing and bizarre exchange which takes place here.

At one point, the judge seems to be accusing Cummings of somehow tampering with his criminal record when in actuality the probation officer simply wasn't able to find the appropriate records.  Cummings seems to have been sentenced primarily on his admittedly poor driving record.

Here too, the judge seems to think that he somehow was able to obtain two driver's licenses under the same name (there are presumably checks and balances in the system to prevent someone whose license is suspended from simply going out and getting another one) when in actuality Cummings had properly obtained a state ID card when his license was suspended.  It should also be noted that these violations were for things like having expired stickers on his windshield and continuing to drive while under suspension for not paying a fine - not for anything dangerous like driving while impaired or causing an accident.

When you realize what Cummings was really locked away for (possession of technology that could be used in fraudulent ways but for which he was never accused), the tragedy of this situation and the threat to countless others can be realized.  The events surrounding the initial offense in a small town years earlier were laughable at the time and still would be today had they not been used as a manipulative device to further extend Cummings' suffering.  What kind of cop would leave three suspects alone with evidence that he planned to use against them?  Either this is one incompetent officer or he is a liar who had no right to hold Cummings because the "evidence" hadn't been defined as such at the time.

As a final irony, it should also be noted that Cummings was not the person who destroyed the Red Box instructions but he was held accountable and refused to turn in a friend.  This has been common knowledge for quite some time.  Cummings plead "no contest" in 1994 merely to get the whole matter behind him.

These transcripts cannot convey the deplorable way in which Cummings was treated during the hearing - doubled over coughing after suffering for weeks from a severe virus that Northampton County Prison officials refused to properly treat.  They merely proceeded with the hearing as if they couldn't hear or see his pain.

At press time, despite this ruling which would have qualified him for release in early June, officials at Northhampton County Prison have refused, without explanation, to follow the judge's orders.

Due to space limitations, we could not add Cumming's detailed commentary clarifying the numerous and gross misrepresentations made during his hearing.  However, we intend to make these transcripts with his comments available on our web site.

COMMONWEALTH OF PENNSYLVANIA No. 2173-1993 Vs. EDWARD ELLIOTT CUMMINGS THE HONORABLE JACK ANTHONY PANELLA, Judge, Northampton County, Third Judicial District, Easton, Pennsylvania, on Tuesday, March 5, 1996. APPEARANCES: DANIEL ANTHONY POLANSKI, ESQUIRE Assistant District Attorney - For the Commonwealth KENNETH I. TRUJILLO, ESQUIRE - For the Defendant THE COURT: The parties may approach the bench. EDWARD ELLIOT CUMMINGS, having been duly sworn, was examined and testified as follows: THE COURT: Good morning. Again, let the record reflect we're here for sentencing in Commonwealth vs. Edward Cummings, Number 2173 of 1993. In accordance with Pa.C.S.A. Section 9771 in the Rules of Criminal Procedure Rule 1409, a hearing was held on January 26th, 1996, prior to which the Defendant had been given notice and at which time the Defendant was represented by counsel, given the opportunity to cross-examine witnesses from the prosecution and to present testimony. His probation was revoked after that hearing. A brief summary of the procedural history of the case is as follows: The Defendant was charged on August 15th, 1993, by Police Officer James Rowden of the Forks Township Police Department with the following, possession of installments of crime, theft of services, tampering with or fabricating physical evidence and theft by unlawful taking. After a preliminary hearing on September 22nd, 1993, all charges except theft of services were bound over for court. An information was filed by the District Attorney's Office on October 12th, 1993. The Defendant filed an omnibus pretrial motion on January 14th, 1994, and a hearing was held on that motion on March 18th, 1994. After briefs were filed by way of an opinion and order of September 2nd of 1994, the Court denied and dismissed the pretrial motion. On October 11th, 1994, the Defendant and his counsel appeared before the Court and the Defendant entered a plea of nolo contendere to tampering with evidence in accordance with 18 Pa.C.S.A. Section 4910 (a)(1). Sentencing occurred on the same date and the Defendant was sentenced to, among other things, two years probation. On April 10th of 1995, Federal authorities with the United States Secret Service assumed a prosecution of the Defendant on charges which were originally filed by the Haverford Township Police Department, the local charges were withdrawn. The Defendant was charged by the United States Secret Service with knowingly and with intent to defraud, having custody, control and possession of hardware and software used for altering and modifying telecommunication instruments to obtain unauthorized access to telecommunication services. That charge was filed under Title 18 of the U.S. Code Section 129 (a)(6)(b). After his arrest by the Secret Service or the filing of the charges, rather, by the Secret Service, the Defendant pled guilty to the violation of Title 18 U.S, Codes 129 (a)(5) and (a)(6). He was sentenced by United States Judge Waldman from the District Court to a term of 8 months of incarceration and 3 years of supervised release. After that a detainer was filed against the Defendant under the charges in this matter. The Defendant - a petition for probation violation was filed and a hearing was held, as I have said. Therefore the purposes of today's hearing is for sentencing. The materials which I have used in preparation for today's sentencing, which I fully incorporated into the record, are as follows: The presentence report prepared by the Adult Probation Department, which I fully incorporate into the record. I have also reviewed the file from the Criminal Clerk's Office regarding this offense, and furthermore, I'll also make part of the record correspondences I received one from a Kay Parry, another one from Karen Westervelt and another one from Robert Steele. As I said, I will make all of those documents also part of the record. Because this is a sentencing following a probation violation hearing, a guideline sheet was not prepared by the probation office. The Defendant originally pled guilty before me to a misdemeanor of the second degree, which means the maximum penalties permitted by law are 2 years in prison or a $5,000 fine or both. At this time I'll ask Mr. Polanski anything on behalf of the Commonwealth? MR. POLANSKI: Your Honor, I would indicate that I believe there are certain representatives from the United States Secret Service who have appeared after the commencement of this proceeding. At this point, I don't know if they are simply here to observe or whether or not there is evidence that they believe is relevant. I haven't had the opportunity to speak to them. Gentlemen, if you would come forward. If I may, Your Honor, certain of the evidence that was in the underlying Federal case has been brought here, in the event the Court wish to review it. I understand that it is, in fact, outlined in the presentence report. I don't know whether the Court wishes to review it or not. Also a representative of the Secret Service would indicate that he does wish to make a statement. THOMAS L. VARNEY, having been duly sworn, was examined and testified as follows: DIRECT-EXAMINATION BY MR. POLANSKI: Q. State your name, sir? A. Good morning, Your Honor. My full name Special Agent Thomas L. Varney, V-A-R-N-E-Y. Q. By whom are you employed? A. I'm a Secret Service special agent assigned to the Philadelphia field office, formerly assigned to the telecommunications fraud squad. Q. I assume you were involved in the Federal prosecution of this case and that's what brings you here today? A. Yes, that is correct. I was the case agent regarding Mr. Cummings. Q. And in light of the fact that the underlying conviction in the Federal case forms the basis of the probation violation here, is there anything that you wish to indicate to the Court that may be relevant to sentencing in this proceeding? A. Yes, if I could, I would like to just go over more specifically, as opposed to last time, regarding some of the items that were found during the search of Mr. Cummings residence. The reason I would request that is because I think it has bearing upon this particular case and also would give the Court an opportunity to review more specifically some of the items that were of concern. MR. TRUJILLO: Objection, Your Honor. Objection to the relevance for purposes of this sentencing, what a search warrant of Mr. Cummings' house when Mr. Cummings had several roommates. I don't know if there's been any finding or any record made when it could have been made at the time of the violation hearing that they had additional relevance, but this is the first that we've heard of this and we would object. THE COURT: Well, the characterization of the Defendant is one of the criteria the Court has to review, so I think it's relevant. My only concerns are that these were items found on him after he had already pled guilty before me. They were very relevant in the type of Federal charges that were filed against him, and he was sentenced accordingly by the Federal Court. I have to take that into consideration also. But I think you should be permitted to go through it. As I said, the characterization of the Defendant, and even for the Court to consider and certainly I believe what you're trying to say is relevant to that, but it has to be balanced with a lot of other factors. You may proceed. THE WITNESS: Your Honor, during a search of Mr. Cummings' residence, the following items were located, a list of restrictive radio frequencies that are utilized by the United States Secret Service while providing protection for the President, code words that were used by the Secret Service while providing protection for the President, a list of Secret Service offices, addresses and telephones numbers and names of agents of the United States Secret Service, surveillance photographs of U.S. Secret Service Agents investigating cellular telephone cloning and computer crime books on how to build bombs and make homemade C-4 explosives, books on how to detonate bombs to include radio detonation on bombs, and assortment of radio and electronic communication equipment, mercury switches, books on how to tap phone lines, cellular cloning of cellular telephones, credit card fraud, computer hacking, the manufacturing of false identification documents and assortment of equipment and clothing marked with telephone company logos, white plastic and magnetic stripe readers and encoders used in credit card fraud. Your Honor, white plastic is a term that is used to describe blank credit cards that have a magnetic stripe, These cards are used to commit credit card fraud. The perpetrator charges items at various merchant's bank and altered forms of identification, a false identification document bearing the name Bernard Spindle, bearing the photograph of Edward Cummings. Handwritten notes to obtain blank forms of identification documents for future use, stolen identification documents, personal journals admitting that Mr. Cummings tapped a former girlfriend's phone and subsequently broke into her apartment, drug paraphernalia to include a pipe with residue which tested positive for THC, rolling papers and clips, false Pennsylvania Vehicle Insurance Cards, stolen vehicle registration cards and vehicle insurance cards, blank vehicle insurance cards, lock picking devises to include lock picking books. We also received information from various sources that Mr. Cummings was in possession and was also selling stolen merchandise, telephone company calling cards in the name of Cummings and other individuals, a wide variety of credit cards in the name of Edward Cummings to which large amounts of money were owed, a letter to a credit issuing agency reportedly from the brother of Edward Cummings, Elliot Cummings which explained overdue status of Mr. Edward Cummings' account because Mr. Edward Cummings was out of the country. Additionally, Your Honor, Mr. Cummings throughout this investigation and throughout his Federal trial made various statements while in jail to a talk show WBAI in New York City regarding this investigation. Mr. Cummings would call WBAI and make statements regarding the Secret Service and other agencies and the courtroom proceedings. Additionally, Your Honor, found in the search were copies of 2600 Magazine and bulletin board statements regarding various issues. And just to make the Court aware, the 2600 magazines were originally founded by a group of computer hackers, Your Honor. Additionally covered in the 2600 Magazine, the Internet and various other bulletin boards, electronic bulletin boards with statements by individuals regarding both the Federal case and this case currently before the Court today. Additionally, there have been Internet messages sent to the White House and to the First Lady Mrs. Clinton regarding this case. Your Honor, and also I would like to close with saying that Mr. Cummings' followers have taken upon themselves to make this - MR. TRUJILLO: Objection, Your Honor, this has nothing to do with Mr. - THE COURT: It's sustained Q. Anything further? A. Your Honor, I would like to say that, and previously I've been asked if I felt that Mr. Cummings was a danger. Your Honor, I would only conclude that I believe any reasonable person would feel that Mr. Cummings previous activity, as well as the vast amount of items that were obtained during the search, would lead anyone to believe that Mr. Cummings is a threat to the community because it is obvious that besides just being misguided intellectual curiosity in one particular area, it encompassed a number of areas of criminal activity. Q. Only one question beyond that. I think most of the other matters are not terms of art or matters that would not be ordinarily understood. What's a mercury switch agent? A. A mercury switch is a device that could be utilized to complete an electronic circuit. Basically in layman's terms it would be a glass vial filled with mercury. And at each end it would have an electronic or a wire connection allowing an individual to place that particular electronic circuit. Once the mercury switch is moved, then the circuit then is completed by the mercury itself moving and thus allowing a device to be turned on electrically. Q. And in the course of your training and experience as a Secret Service Agent, what are mercury switches commonly used for? A. They can use it in a host of the different settings. Our concern, of course, was because Mr. Cummings had a great deal of information regarding explosives. I'm not aware of what Mr. Cummings' particular application of this device was to be used for. Q. So I guess, getting to the point, Agent, with a mercury switch is it capable of being used on a bomb? A. Yes, it is. Q. Without making the allegation that that was, in fact, what he was using it for? A. Yes, it is. MR. POLANSKI: Thank you. I have nothing further, Your Honor. THE COURT: Any questions? CROSS-EXAMINATION BY MR. TRUJILLO: Q. Mercury switches are also used, are they not, in any household in order to regulate temperature, are they not? A. They're used in a number of applications, electronic applications. Q. Including simply thermostat, just to use regular temperature? A. That's correct. Q. Mr. Varney, you did not participate in the house - in the search of Mr. Cummings' residence, did you? A. That is correct, Q. So the information that you've given to the Court is all based upon the information you derived from speaking with the other Secret Service agents and members of Haverford Township Police Department? A. No, that is not correct. My information is based on a chain of custody documents regarding the seizure of the evidence. Q. And the house which was searched, can you describe that to the Court, please? A. Yes, I believe it's a one-story split level house, wood and brick construction. I believe there were two people residing at this address. It was both Mr. Cummings and another individual. Q. In fact, there were three people that lived at that house, were there not? A. That I don't know. Q. In fact, this was not Mr. Cummings' house, Mr. Cummings was a tenant in the house, isn't that correct? A. That is correct. He was renting the house from another individual. Q. Mr. Varney, the list that you just read to the Court on the items that were confiscated in the search of Mr. Cummings' residence, first, specifically where the items were found? THE COURT: Can you start that question over again? Q. Regarding the items that were found in the Defendant's residence, where were these items found? A. The items were found in both Mr. Cummings' bedroom as well as a storage area within the garage. Specifically, if you would like me to address each item, I would have to pull the documentation and take a look at that. Additionally, Detective Morris would be able to shed some light over specifically where the items came from. Q. In fact, the items were found in a bedroom, in a garage and also in the basement; is that correct? A. That is correct. Q. And Mr. Cummings had access to both of those, the basement and the garage? A. Yes. Actually, it was Mr. Cummings' roommate that pointed out the areas and the items that belonged to Mr. Cummings. Q. Mr. Varney, in terms of the - let's go through some of these items that you were just talking about, the white plastic - I guess what you called white plastic, as you say, is used or can be used for credit card fraud; is that correct? A. Yes, that is correct. Q. And Mr. Cummings has never been charged with any type of credit card fraud; is that correct? A. No, the United States Attorney's Office opted to charge Mr. Cummings with violation of the 181029 Section (a)(5) and I believe (a)(6). Mr. Cummings was never charged with credit card fraud; isn't that correct? A. That is correct. Q. The stolen identification documents that you referred to, what stolen identification documents were you talking about? A. There were a number of Pennsylvania drivers licenses that were stolen, and I determined that they were stolen by contacting the rightful owners who subsequently had advised me that their drivers license had either been stolen out of a vehicle or were subsequently stolen at an unknown point, an unknown time. Q. And so Mr. Cummings then was also charged with possessing stolen identification documents; is that correct? A. No, the United States Attorney's Office opted not to charge Mr. Cummings with that violation. Q. The - you talked about tapping a telephone. You are part, you said, of the Telecommunications Squad for fraud; is that correct? A. That is correct. Q. Can you tell the Court what tapping a telephone means? A. My definition in a layman's term would just simply be allowing an individual to have access to either real time or subsequent access to individuals telephone communication. Q. Doesn't, in fact, tapping a telephone require at least law enforcement authorities authorization under Title 18 of the United States Code? A. For a law enforcement agency, Federal Law Enforcement Agency, we would have to obtain Title 1 approval. Q. At the time that this "tapping" took place, you're aware, are you not, that this was done on a - any recording that could have been made at this time was not illegal based upon the fact that the use of a scanner to intercept communications and cordless telephones at this time was not illegal? You're aware of that; are you not? A. I don't believe that that was the means that Mr. Cummings used to monitor the telephone calls that we're talking about. Q. What means do you think were used? A. Based on my continued investigation, it was the township of Marple, Marple Township Police Department that had obtained at least one device which was at least one voice activated tape recorder hooked up to a telephone line. Specifically, with regard to the phone tapping referring to Mr. Cummings' personal journals, it was never determined what type of device was used. I can only assume based on the first occurrence that the same type of device was used. Q. What type of device was that? A. A voice activated tape reporter. Q. An answer machine? A. So when an individual would pick up the telephone line, once there was noise on the telephone line, the tape recorder would begin to record both the dial tone, the numbers being dialed, as well as the conversation. Q. It's an answering machine, right? A. No. Q. Well - A. It was a voice activated tape reporter. Q. The - through the use of these - of the journals which you reviewed, can you tell the Court approximately what time frame this took place? A. I believe, and again I apologize, my memory may not be accurate, I believe it was during the summer of 1993 or '94, I would have to go back and take a look at the journal itself. Q. The documents which you've provided to us in discovery, in fact, indicate, and I'll show them to you if you would like, that anything like this took place in the 1992 time frame, would that surprise you? A. No, not at all. Taking a look at these documents these do look like the documents that I provided the United States Attorney's Office, however, without taking a look at the actual documentation, I couldn't say for sure, but they do appear to be. Q. Was Mr. Cummings ever charged with committing any fraud relative to anybody's telephone company calling card, whether in his name or in anybody else's? A. No. Again, the United States Attorney's Office opted not to charge Mr. Cummings with that. Q. Was Mr. Cummings ever charged with the use of or unlawful possession of lock picking devices to include lock picking books? A. I believe the local authorities have not determined as to whether they will charge Mr. Cummings with such, but the United States Attorney's Office did not charge Mr. Cummings with possession of lock picking devices. Q. You're aware, are you not, and I think you stated that there were a number of computers found and information regarding computers and electronic communication equipment; is that correct? A. Yes, that is correct. Q. You're aware, are you not, that Mr. Cummings, for at least five years, made as his living the repair of computers? You're aware of that, are you not? A. Yes, I am. Q. And you have no evidence or no suggestion that indicates otherwise, do you? A. I'm sorry. Could you repeat the question. Q. You have no evidence that suggests otherwise that he was not involved in the repair - in the business of repairing computers during 1990 and 1995? A. I do know that Mr. Cummings had his own business called Electronic Design, which he did repair computers. Q. You're aware, are you not, that Mr. Cummings is also a federally licensed ham radio operator, do you not? A. I don't have first knowledge. Mr. Cummings and I have talked about ham radios previously. Q. And Mr. Varney, you're aware, are you not, that the statute under which Mr. Cummings was charged and did not become law until late October, 1994, are you not? A. The particular section that Mr. Cummings was charged under I believe was codified sometime in October of 1994. MR. TRUJILLO: That's all I have of this witness, Your Honor. THE COURT: Mr. Polanski, anything further? MR. POLANSKI: Nothing further. THE COURT: Mr. Varney, thank you for attending. THE COURT: We'll now turn to the defense. I'll hear anything on the defense side of the case. MR. TRUJILLO: Your Honor, two things, just for the record. The statute is 1029 not 129; and secondly, the presentence investigators report at the - I believe there's Page 2 and I believe you Your Honor also stated that Mr. Cummings was sentenced federally to 8 months imprisonment. The guidelines were 2 to 8 months, but his sentence was 7 months. THE COURT: I thought the presentence on the second page said 8 months and at the end it said 7 months. MR. TRUJILLO: Yes, Your Honor. THE COURT: So the 7 months is correct? MR. TRUJILLO: Yes, Your Honor. THE COURT: Thank you. MR. TRUJILLO: Your Honor, I will not be presenting any evidence, simply argument. I will note for the Court that the Defendant's uncle, Mr. Benjamin Howels, is in support of Mr. Cummings. Your Honor, a week from Sunday will be one year to the day that Mr. Cummings was initially arrested on the charges which were involved in the Federal cases and which formed the basis for the parole - the probation violation to which Mr. Cummings has admitted and which this Court has found that this Defendant has indeed violated. Your Honor. the last year of Mr. Cummings' life, I think Your Honor is well aware, has been an extraordinary difficult one for Mr. Cummings. I think that it's fair to say that the first time that the Defendant came before Your Honor he was probably a different person than he is today. I think Your Honor would - just not only viewing the Defendant, but also the various things that have happened to the Defendant as a result of these prosecutions, I think its fair to say that one of the major portions of sentencing is certainly punishment. And if the punishment portion of sentencing has not already taken place in Mr. Cummings' case, I don't know what else can punish Mr. Cummings. Mr. Cummings was, and I'm not here at all to make light in any way of the violation, but the fact of the matter is that Mr. Cummings was, in fact - came into violation some 5 months after a new Federal Statute was passed. Mr. Cummings certainly knew that he should not have been involved in these activities and Mr. Cummings has indicated to me, to this Court and also to Federal Court, that that will never happen again. I think that Mr. Cummings had never before this time spent any real significant time hardly at all in either a Federal facility or in this facility, and in fact, he's been locked up with what's considered to be the most dangerous criminals in Northampton County Prison on the basis of his bail. Your Honor, the Defendant has been punished. He's been punished severely. He's been punished swiftly. Mr. Hoke, in his report, indicates that the Defendant is not a good - or suitable candidate for continued supervision. I dispute that, and for the one simple reason that Mr. Cummings, with the exception of this one occurrence, always was somebody who showed up. He came here. He came with me at least two different times when he knew that he was probably going to be locked up immediately. He actually, himself, came here three times, even though the hearing for the violation hearing was put off on a couple occasions. He knew here every time on coming here, he expected to be locked up. Your Honor, as I said to the Court the last time I was here, I have not ever in my experience - and I have done this kind of work for a number of years, I was a Federal prosecutor, I have never seen somebody this severely punished for the kind of violation that Mr. Cummings has been charged with, whether it's a probation violation or for an underlying offense for which Mr. Cummings was convicted of either statewide or federally. Your Honor has a tremendous amount of discretion in how to sentence Mr. Cummings. I think Your Honor has certainly told Mr. Cummings in the past and now that his conduct will not be tolerated. Mr. Cummings is under supervised release by the Federal Court for the next three years. I suggest, Your Honor, that it's probably not appropriate for Mr. Cummings to continue to be under two kinds of supervision, and that if he does anything in the next three years to violate his Federal supervision, I have a feeling that Judge Waldman is not going to take too kindly to that either. I think Mr. Cummings has learned his lesson, and I will do everything in my personal power, Your Honor, to make sure that he never, never comes before this Court or any of the other courts again. I know that Your Honor also has to look at the impact on the community and what kind of message you send by your message of Mr. Cummings. I suggest to Your Honor, Mr. Cummings has already spent in state custody and Federal custody almost 10 months in prison, and I would just ask that Your Honor consider that and perhaps consider imposing a sentence which takes into account and makes concurrent any sentence with the time that he has served Federally and certainly gives him credit for the time that he's spent in the state. That's all we have, Your Honor. THE COURT: All right. Let's take a look at some of the materials that have been supplied to me. We first note that when a trial court imposes a sentence following revocation of probation, it must state his reasons on the record. There's a line of cases specifying that, including Commonwealth vs. Mathews, 486 A. 2d. 495 (PA. Super. 1984), must reflect our consideration of the criteria of the Sentencing Code, the circumstances of the offense, and the character of the Defendant. Commonwealth vs. Deluca, 418 A. 2d. 669 (PA. Super. 1980), upon revocation of probation, the trial court possesses the same sentencing alternatives which were available at the time of the initial sentencing. 42 PA. C.S.A. 9771(b). So let's first review the circumstances of the offense. I have reviewed the file from Criminal Division and I set forth the following summary of the original charges that were presented to this Court: On August 15th of 1993, Patrolman James Rowden of the Forks Township Police Department approached an automobile on Klien Road in Forks Township near the vo-tech school where an electronics fair was being held. The officer characterized this area as rural and remote. A red Ford Thunderbird was parked outside the road beside the road with a broken taillight and a broken window behind the driver's door. Patrolman Rowden checked the identification of the vehicle. The vehicle was not reported stolen. The automobile displayed a registration plate of a Chevrolet Sedan titled to an electronics firm, but the vehicle identification number showed the automobile was issued a valid registration plate to a Philadelphia resident so that the plate on the vehicle did not match with the vehicle itself. Patrolman Rowden entered the vehicle to determine the true owner. The nature of equipment, which was in plain view, was electronics equipment that the officer saw inside the car. He looked in the glove compartment and found Mr. Cummings' checkbook but no other ownership documents. Furthermore, a police scanner, a cellular telephone, a tape recorder and a draw string bag were found in the glove compartment and taken by the officer. The bag contained Radio Shack calculators and several automatics phone dialers. Attached to the dialers were sheets of paper containing instructions. The instruction sheets were for programming and operating directions for the devices which were referred to as red boxes, which are to place calls from public telephones without paying. The officer went to the school in an attempt to locate the owner of the vehicle at the fair. The officer paged the owner of the vehicle through a description of the automobile and the Defendant by name. The officer waited for approximately 15 minutes, but received no response. After consulting with his superior, Officer Rowden arranged for the vehicle to be towed. It was at that point that Mr. Cummings and two companions reached the vehicle. Mr. Cummings provided information as an explanation, conflicting information regarding the vehicles registration and identification. Patrolman Rowden informed Mr. Cummings that the vehicle could not be driven without a valid license plate, so he transported Mr. Cummings and his companion to the Forks Township Police Department to issue the Defendant a citation with respect to the registration violation and to allow Mr. Cummings and his companion to arrange transportation back to the Philadelphia area. While at the station, the Officer asked regarding the ownership of the equipment. Mr. Cummings stated that it was his property, but that the devices were merely telephone dialers. Officer Rowden stated that he was aware that they were red boxes after reading the accompanying instructions. Mr. Cummings conceded that he manufactured them. Officer Rowden seized the radio electronic equipment with the corresponding instructions. While at the station, Officer Rowden left Mr. Cummings and his companions in the room with the seized electronic devices. When he returned, he issued Mr. Cummings a summary citation regarding a violation of the Vehicle Code, and at that point told him he was free to go. Mr. Cummings and his companions were unable to find transportation and they left the police station and proceeded on foot. While placing the red boxes into an evidence locker, Patrolman Rowden determined that the instruction sheets were missing and that batteries had been removed from the red boxes. Officer Rowden installed some batteries, but only one device worked. Previously all the devices had been in operation on Officer Rowden's preliminary testing. Since no one else was in the police station when the Officer was involved with Cummings and his associate, he began to look for them. The men were discovered walking along the road about a half a mile from the police station and they were detained for questioning. Officer Rowden inquired about the whereabouts of the instruction sheets and removal of the batteries. Mr. Cummings responded that the sheets were "smoked", meaning that they no longer existed and remarked that he had not been informed he could not have the instructions back. After this exchange, Mr. Cummings was arrested for evidence tampering and the balance of the charges, which I have previously stated, and later he entered a plea of nolo contendere to that charge before me. Let the record reflect that I have, of course, reviewed the circumstances of the underlying offense, and I have also reviewed the grounds for the Court to consider regarding a sentence of probation as specified in 42 PA. C.S.A. 9722, and I do not find the conditions weighing in favor of another order of probation following the revocation. Furthermore, the commission of the new offense violates an implied condition of probation and indicates that the offender is a poor risk for probation. Under Section 9722 I find that there's been no showing whatsoever that the Defendant acted under strong provocation, no evidence at all that there were substantial grounds tending to excuse or justify the criminal conduct of the Defendant, no evidence that the victim of the criminal conducted induced or facilitated its commission, no evidence that the Defendant has compensated or will compensate the victim of criminal conduct. Furthermore, based upon the fact that he was arrested both by local authorities and then Federal authorities only five months after his initial sentence of probation, I cannot find that the criminal conduct of the Defendant was the result of circumstances unlikely to recur. At the time of the original sentencing, I concluded that the character and attitudes of the Defendant indicated that he was unlikely - I'm sorry - I made a finding that there was no evidence that he was unlikely to commit another crime. As a matter of fact, the attitude of the Defendant, his disrespect towards the judicial system and the law enforcement system made me classify the Defendant at that time as a true wise-guy, and I kept his probation local rather than switch it to another county and take the chance that he might slip through the cracks. I find that there's been no evidence whatsoever that the Defendant is likely to respond affirmatively to probationary treatment, and I find no evidence that confinement of the Defendant will provide excessive hardship. I listened to the testimony from the Secret Service Agent, but I have to also balance that with the fact that the United States Attorney's Office had possession of all of that information and made its decision on what charges to file against the Defendant, made its decision on how to negotiate its plea with the Defendant;and I would gather that the sentence from the Federal Judge reflected the consideration of all of the elements - all of the evidence that has been presented to me which was utilized, like I said, both by the Federal Judge and the United States Attorney's Office. However, I have to consider that the Defendant has pled guilty to having in his possession, March of 1995, during which time he was on probation from this Court, two altered telecommunication devices and also admitted to having in his possession software to clone a cellular phone. The communication devices enabled an individual to make phone calls without being billed by the appropriate phone company and the software enabled the possessor to make calls on cellular phones and charge calls to other individuals. At the time was not that only a violation to Federal statutes, but those pieces of equipment were in the Defendant's possession while he was on probation from this Court. Case decisions in Pennsylvania have long held that if a Defendant commits another crime while on probation, the Court may revoke the probation and sentence the Defendant to be imprisoned. Commonwealth vs. Pierce, as an example, 441 A. 2d. 1218, Pennsylvania Supreme Court case of 1982, however, Section 977 imposes a statutory limitation on a sentence of total confinement following revocation of probation, in that the Court cannot impose total confinement unless it finds that: The Defendant has been convicted of another crime, or that the conduct of the Defendant indicates that it is likely that he will commit another crime if is he is not imprisoned, or such a sentence is essential to vindicate the authority of the court. Furthermore, the sentence must not exceed the maximum sentence originally imposed. Commonwealth vs. Anderson, 643 A. 2d. 109, Superior Court case of 1994. I've ordered, as you know, a presentence report, and I've incorporated it into the record. Let's just review that briefly now. What is the county of the Defendant's home address? What county? THE DEFENDANT: Bucks County. THE COURT: The Defendant is 33-years-old? THE DEFENDANT: Thirty-four now. THE COURT: Thirty-four. Okay. I have reviewed the official version, the police version. The police version as we all know, had access to the report quite lengthy includes all the items which Secret Service Agent Varney testified to. Then on Page 8 we referred to the Defendant's prior record. The Federal offenses are, of course, shown, then we get into a rather lengthy history of vehicle violations. This is probably the most lengthy record of vehicle violations I have ever reviewed as an attorney or as a judge. It goes on from Page 8 to Page 15 and although it sounds rather funny, the Defendant's license is suspended until the year of 2007. Apparently this is consistent to the way that you have previously appeared before the Court. Mr. Cummings, you have no respect or regard to county or the state. There's continual violations almost on a monthly basis. After your - first of all, how come, Mr. Cummings, you have two valid Pennsylvania licenses. Can you explain that to me? THE DEFENDANT: I honestly - I don't know the reason. I believe I had one and then I also had a state - after it expired and it was subsequently suspended, after it expired I requested a state identification card from the Department of Motor Vehicles and that was issued to me. I think there's some confusion as to what is a state identification card which is valid and a motor vehicle license. I know that I did not have two valid or two driver's license period. THE COURT: Well, that statement is directly contrary to the information provided to me. I have been informed that you had two valid Pennsylvania licenses and in that fact, both of them have now either been revoked or suspended. I don't believe a formal identification gets revoked or suspended. I can only say that it's reported to me that you had two valid licenses, with two valid license numbers. I can give you their numbers. I don't understand what you're saying. THE DEFENDANT: The second number was for a state identification card and the card said on it non-driver's license and that was issued by Harrisburg, so that's the best explanation I can give you, Your Honor. THE COURT: Yet you were issued vehicle violations to that number because in both numbers you were issued vehicle violations. It seems unusual to me that you would receive vehicle violations for an identification card, but you're permitted to say whatever you want to say. I can only say that the information that's been provided to the Court is contrary to that. Almost on a monthly basis you received violations after your license was either suspended or revoked. You continued to drive and readily admitted that to a probation officer because you had to get to work. You did disregard those suspensions or revocations and continued to drive. When you originally appeared before me for the probation violation, how did you get here? THE DEFENDANT: That day I took a bus. THE COURT: You took a bus? THE DEFENDANT: Yes, sir. MR. TRUJILLO: And Your Honor, I can represent to the Court that the other times that he had came up here he had gotten a ride from a friend of his. THE COURT: I have no reason to dispute that. I don't know personally. All I can say is from 1992 through early 1994, almost on a monthly basis he was receiving vehicle violations. Not only was he - enough said about that. It's one of the most lengthy records of vehicle violations I have ever reviewed. Education, you graduated from Troy High School and attended the Penn State Wilkes-Barre campus. Employment, it does list your employment record. Then the evaluative summary has to be one of the poorest summaries I have ever reviewed from someone who is not charged with a crime of violence. I readily agree with you that you're not charged with anything that involves violence or danger which involves individuals in their personal capacity, but certainly it's one of the poorest evaluative summaries I have either reviewed as attorney or as a judge. Also, another question I have, and this is in line with most of this information I have received about you, your interest in having other types of identifications to driver's license, you reported that you had a record of three offenses which do not appear on your Pennsylvania State Rap Sheet. Do you know why? THE DEFENDANT: No. I truthfully gave that information to Mr. Hoke, THE COURT: Okay, You reported in 1981 a conviction for loitering. THE DEFENDANT: That's correct. THE COURT: Have you always had the same social security number? THE DEFENDANT: Always, Your Honor. THE COURT: Okay. In 1986 you have a conviction for receiving stolen property. Again you used the same social security number then as you do now? THE DEFENDANT: Always, Your Honor. THE COURT: Let me just finish first, then I'll give you a chance to explain. And then 1989 a conviction for harassment, and I don't believe that would be in the state computer. That would only be office of a local magistrate at that time. I believe now that it would be in the state computer, but not back in 1986. Where was that conviction for receiving stolen property? What county? THE DEFENDANT: Delaware County. THE COURT: You said you utilize the same social security number as you do now? THE DEFENDANT: All my life. THE COURT: And there's a 1981 conviction for loitering. Where was that? THE DEFENDANT: What year was that? THE COURT: 1981. THE DEFENDANT: That was in Luzerne County. THE COURT: I don't have any explanation for it. It runs strictly by social security numbers so I don't know why those would not appear on your rap sheet. THE DEFENDANT: I can't explain Mr. Hoke's inability to get the proper information, but I can say that this Court had a copy of that, as you call it a rap sheet, with those charges listed on it at my original sentencing here in this Court in October of 1994. THE COURT: Well, that would be in the possession of the District Attorney's Office. MR. TRUJILLO: And Your Honor, I'll also note that the Federal Probation Office also confirmed that. THE COURT: That they had those? MR. TRUJILLO: And that was taken into account. THE COURT: Mr. Hoke was unable to find those through his check of - in the state computer, but I'm only reporting what's been given to me. It's then concluded in here that you did - well, your license is suspended until the year of 2007. Mr. Hoke was also of great concern that while you were on probation you had reported to him an address which was only a box number, not the actual address where you were residing. Why didn't you provide him with the actual address where you were residing? THE DEFENDANT: I provided the Court with a certified letter indicating my residence address. Initially I did not meet with Mr. Hoke. I met with two other individuals in his office and I explained the situation that I have a mailing address because the mail that I get at my residence address will not get to me because I had the problem with the landlord not giving me my mail. I was not straight with Mr. Hoke about that information. THE COURT: Why not? THE DEFENDANT: I told him three weeks ago when I met him that I was being less than straightforward in giving him that information. I also did have a valid concern about getting mailings from him, but I left it at that and I admitted to him when I spoke with him three weeks or a month ago that I was less than straight forward about that. THE COURT: The probation office also concluded that you appear to accept little responsibility for the crimes committed and that you show no remorse. That, of course, is consistent with the attitude that you have always expressed in the courtrooms. I understand that you may disagree with whether or not certain laws are legitimate or not, but on two separate opportunities, Mr. Cummings, you've had the opportunity to plead innocent and declare your innocence. Instead, on two separate opportunities you entered pleas before different courts. You went with a nolo contendere plea in this Court, and you entered a plea in Federal Court. The probation office concludes that probation supervision has not been successful with you. I find that the conviction of another crime following your sentence of probation here and you were given an opportunity, you were a young man, cocky as you were, I still gave you an opportunity to work this out on probation. I must find, based upon the information that's been provided to me, that there is an undue risk that during the period of probation or partial confinement that you would commit another crime, that you have been convicted of another crime following your sentence of probation, and that you are in need of correctional treatment that can be provided most effectively by your commitment to an institution and that a lesser sentence would depreciate the seriousness of your crime. Mr. Cummings, I say this sincerely that this country provides great liberties and resources to its citizens. It's dependent upon the voluntary cooperation of the citizens to follow the law. Although you get a different perspective than that when you sit in criminal court, we have to remember that the vast majority of citizens obey the law. When I look at someone like you with this God given intelligence whose had an education, when I look at you with all these advantages that you have pled guilty and voluntarily committed crimes, that's a sign that that system is falling apart and that's when we, unfortunately, have to step in and say we must protect the rest of society from this. Now, the information that's been provided to me from the Secret Service, I have to balance. Certainly that makes you appear one step above a terrorist, but I'm not sentencing you on any of that information, and I have to take that apart from my consideration in this case. I'm sentencing you on the charge of tampering of evidence, the same as I had sentenced you initially rather than a term of probation. That information is relevant to your character, but it has to be, as I said, balanced with other information that's been provided to me. I also have to know that you committed these offenses and that you had in your possession these items only five months after you were sentenced to probation by this Court. Therefore, for the reasons that I have stated, I find that I must sentence you to incarceration to a minimum of six (6) months to a maximum of twenty- four (24) months, and that upon your release you shall be under the supervision of the State Parole Board, I'm going to establish a fine of $3,000 and I'll give you the full term of the maximum sentence to pay the $3,000 fine as well as costs and restitution. He may be given credit for time served, only to the time that he has served on this sentence, that would be the day that he was incarcerated on the detainer here in relation to the probation violation and I'm not sure if he did. If he has served any incarceration prior to the time of his original sentence, he's not given time served for the time served on the Federal sentence. That was for different charges. I do agree with one of your original requests, and I'll agree that your incarceration may be transferred to Bucks County so that you may be in touch with your relatives. I didn't permit that the first time around. Perhaps looking back that might be the best thing to help you, because eventually you're going to be released to be better incorporated into society again. Are there any questions regarding his sentence? MR. TRUJILLO: Your Honor, as to the fine, I'm sorry, did the Court make a finding of his ability to pay that fine? THE COURT: I made that finding based upon the information provided to me in the presentence report regarding his work history and his ability to earn income. If, upon his release, he certainly cannot be held in contempt if he does not have the ability to pay the fine. And if circumstances show that that fine is above his means, that's certainly something that I would reconsider. But it's based on what I have been provided as to his income, ability, capacity and as to his prior work history and I rely on the information contained in the presentence report. Do you understand that that you have right to file a written post-sentence motion within ten days from today? All requests for relief must be included in this motion which may include a motion regarding my decision to revoke your probation and a motion to modify your sentence. You have the right to file a motion objecting to any error appearing on the face of the record. You have the right to file a motion for a new hearing raising any errors that you believe were prejudicial to your case or challenging the weight of the evidence or raising any other grounds. You also have the right to file a motion, as I said, to modify the sentence. The post-sentence motion must be decided within 120 days of the filing of the motion. If you file this motion and it is denied, you have the right to file an appeal to the Superior Court within 30 days from the denial of the post-sentence motion. If you do not file a written post-sentence motion, then you still have the right to file an appeal to the Superior Court within 30 days of today. The issues raised on your behalf before and during the hearing are preserved for appeal whether or not you elect to file a post-sentence motion. You have the right to file an appeal on any of the following grounds: That your sentence is illegal, in which case if the Superior Court agreed, you would be resentenced; or on any of the grounds that you could have raised in the post-sentence motion. You have the right to the services of an attorney for preparing and filing such motions and for taking such appeal. And if you cannot afford an attorney, the Court will appoint one for you free of charge on your request, or the appointed or private attorney you now have will continue to serve and represent you free of charge with respect to filing such appeal. If you cannot afford to pay the fees necessary to file the appeal, the Court will waive the fees. So to summarize, you have the right to file a written post-sentence motion within 10 days of today. Do you understand this right? THE DEFENDANT: Yes, Your Honor. THE COURT: You have the right to appeal within 30 days from the denial of your post-sentence motion, or if you do not file a post-sentence motion with in 30 days from today, do you understand? THE DEFENDANT: Yes, your Honor. THE COURT: You have the right to counsel free of charge to you for the preparation and filing of a post-sentence motion and/or appeal if you cannot afford to higher private counsel, do you understand? THE DEFENDANT: Yes, Your Honor. THE COURT: Do you have any questions? THE DEFENDANT: No, Your Honor. THE COURT: If you are going to file either a post-sentence motion in this Court or an appeal to the Superior Court, you have the right to ask me to set bail or maintain the bail you now have. Thank you. That's the conclusion of this matter. (Concluded.)