A Hollidaysburg man who gave a suspected heroin dealer a ride on two occasions will face trial on charges stemming from one of those trips.
Magisterial District Judge Todd Kelly dismissed a felony conspiracy charge filed against Cory M. Gates, 37, of 140 Mountain Ave. related to an alleged drug deal June 9 for lack of evidence, but Kelly said it would be up to a Blair County Court to determine whether Gates was a part of a suspected June 14 deal.
Gates was arrested June 14 along with Ashley N. Shiffler, 31, of 3519 Oneida Ave., Apt. 5, following what Altoona police contend was a delivery of a bundle of heroin to a confidential informant.
Shiffler testified for the defense at Gates' preliminary hearing June 25 that Gates wasn't involved in any heroin deal and that he was only giving her rides on June 9 and 14. Gates' defense attorney, Steven Passarello, argued the police had no evidence that Gates was a part of any conspiracy to sell heroin, only that he happened to drive Shiffler to and from the home of James Fulton Lee Skinner, 42, at 2013 18th St.
Shiffler is accused of supplying Skinner with heroin that he in turn sold to a police informant on four occasions dating back to March. Following the last alleged sale on June 14, police pulled over Gates' Cadillac and took both he and Shiffler into custody.
Passarello argued that while $140 in police buy money was on the vehicle's center console along with another $220 in cash, police didn't find any heroin in the car. The heroin found was in Shiffler's underwear, and Passarello said that state law says unless the heroin was in a place equally accessible to both Gates and Shiffler, it can't be considered conspiracy.
Passarello said "intent and knowledge" were also prerequisites to any case against Gates and that police never showed any evidence that his client knew by giving Shiffler rides to her friend's house that he was participating in a heroin deal.
Blair County Assistant District Attorney Pete Weeks argued that Shiffler wasn't a credible witness but added case law indicates it also shouldn't be considered by the court. Weeks said if all a defendant needed to get a case dismissed was to have a co-conspirator to take the stand at every preliminary hearing and testify the defendant didn't have anything to do with the crime, then no one would ever face conspiracy charges.
Weeks pointed out police identified Shiffler as the source of Skinner's heroin and that Skinner named her as the source to the informant. Weeks added that Gates drove Shiffler twice, dropped her off and circled the block and returned to pick her up. Weeks said police testified that was typical behavior associated with drug dealers and pointed out that apart from the buy money found sitting on the console of Gates' car, he had $1,196 in cash in his pocket when he was arrested.
"Shiffler - who has no credibility - said they were going fishing," Weeks said on Wednesday as the attorneys made their final arguments. "Who needs $1,300 to go fishing?"
Shiffler's testimony presented the court with a unique situation, Kelly said. Because credibility isn't considered at preliminary hearings - instead an issue left to the trial court - Kelly said he was forced to disregard Shiffler's testimony altogether because to do so would take the proceeding beyond the intended scope of a preliminary hearing, which is to determine if a crime was committed and if police have enough evidence to send the case to trial.
Kelly pointed out that he could have considered the testimony had the defense presented a witness who testified to an irrefutable fact, such as the defendant was in another place at the time of the crime, or some other "outside fact," but given the testimony hinged solely on Shiffler's credibility, he was unable to consider it.
"If I consider it, I have to weigh the credibility of it," Kelly said, adding he would be overstepping his power if he did.
It would be up to a jury to determine if Shiffler was telling the truth about Gates' involvement, Kelly said.
Apart from dismissing a conspiracy charge against Gates, Kelly also dismissed heroin delivery and related charges against Shiffler stemming from an alleged sale on March 25 as well as a felony criminal use of a communication facility count connected with a suspected heroin deal on April 10.
Mirror Staff Writer Greg Bock is at 946-7458.