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COMMONWEALTH PENNSYLVANIA v. BRUCE DIVINCENZO (02/24/87)

filed: February 24, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE DIVINCENZO, APPELLANT



Appeal No. 542 Pittsburgh 1985 from the judgment of sentence of the Court of Common Pleas of Erie County, Criminal Division, No. 444, 445A, 445B of 1984. NYGAARD, Judge.

COUNSEL

Dennis Haines, Erie, for appellant.

Timothy Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.

Rowley, Del Sole and Tamilia, JJ. Tamilia, J., files a concurring and dissenting opinion.

Author: Per Curiam

[ 362 Pa. Super. Page 28]

The following judgments of sentence are vacated and appellant is discharged:

At No. 444 of 1984, one to two years for Count 5, indecent assault.

At No. 445B of 1984, one to two years for Count 3, indecent assault; one to two years for Count 4, simple assault; one to two years for County 6, simple assault; one to two years for count 8, simple assault; one to two years for Count 13, indecent assault; and one to two years for Count 14, simple assault.

The remaining judgments of sentences imposed on the final indecent assault, and various burglary, rape, and attempt convictions are affirmed.

Disposition

The remaining judgments of sentences imposed on the final indecent assault, and various burglary, rape, and attempt convictions are affirmed.

TAMILIA, Judge, concurring and dissenting:

This is an appeal from judgment of sentence entered following a jury trial wherein appellant was convicted of multiple rapes, burglaries and related crimes.*fn1 I write separately on the concurrence as well as the dissent as the majority will file an unpublished Memorandum whereas I believe the issues raised in sentencing are of sufficient importance to warrant publication of the dissent. Therefore, an entire analysis will be more understandable than publishing only that aspect relating to sentencing.

Appellant's convictions arose out of a series of criminal assaults against eight separate female victims in the Erie area between December 4, 1983 and February 13, 1984. Initially, three informations charged appellant with numerous

[ 362 Pa. Super. Page 29]

    offenses including burglary, rape, criminal attempt, indecent assault and simple assault. At the conclusion of trial, appellant was found guilty on all counts, with the exception of one count of burglary and one count of simple assault at information No. 445-B of 1984. A rape charge at information No. 445-A of 1984 was reduced to indecent assault pursuant to a plea of nolo contendere. The aggregate sentence imposed was a term of imprisonment totaling 81 to 162 years, composed of eight terms of 10 to 20 years and a term of 1 to 2 years, all to be served consecutively. A concurrent term of imprisonment of 5 to 10 years was also imposed in addition to seven concurrent terms of 1 to 2 years.

In this appeal, appellant has raised five alleged points of error for our review. The first two concern the ineffectiveness of trial counsel and will be considered simultaneously. Appellant contends that trial counsel was ineffective for failing to challenge, via post-verdict motions, both the sufficiency of the evidence and the joinder of the various offenses for trial.

The initial inquiry, upon review of ineffectiveness claims, must be to determine whether the issue underlying the complaint is of arguable merit. Thereafter, our focus shifts to whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate the interests of his client. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985).

The first of appellant's claims is that the evidence was insufficient to sustain the verdict because it was wholly circumstantial. Recently our Supreme Court has stated, in Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), "We have long held that circumstantial evidence alone can be sufficient to convict a defendant of a crime." (citations omitted).

In determining whether the evidence is sufficient to support appellant's multiple convictions, we must view all the evidence, together with all reasonable inferences therefrom,

[ 362 Pa. Super. Page 30]

    upon which the fact finder could have based its verdict and then ask whether that evidence, when viewed in the light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Hamilton, 339 Pa. Super. 1, 3, 488 A.2d 277, 278 (1985); Commonwealth v. Crawford, 334 Pa. Super. 630, 632-633, 483 A.2d 916, 917 (1984). The Commonwealth's burden to prove guilt beyond a reasonable doubt may be met by relying on wholly circumstantial evidence. Commonwealth v. Shirey, 343 Pa. Super. 189, 494 A.2d 420 (1985).

After a thorough review of the trial transcript, it is evident that the circumstantial evidence presented in the case sub judice, viewed in a light most favorable to the Commonwealth, was clearly sufficient to prove appellant's guilt beyond a reasonable doubt. Due to the voluminous testimony taken at trial, it behooves us to forgo a lengthy recitation of the individual crimes, but note, infra, the similarities in the episodes with which appellant was charged.

Since it is apparent from the record that there was sufficient evidence to convict appellant of all charges, trial counsel cannot be held ineffective for failing to perform a futile act; any post-trial motion based on the sufficiency of the evidence would have been unsuccessful. See Commonwealth v. Davis, 313 Pa. Super. 355, 459 A.2d 1267 (1983).

Appellant further contends that trial counsel's failure to challenge the consolidation of the offenses for trial through post-trial motions, notwithstanding his timely motion to sever the sets of offenses for trial, constitutes ineffectiveness. It is well established that the propriety of consolidating separate indictments for trial is a matter of discretion with the trial judge, and his decision will be reversed only for manifest abuse of discretion or prejudice to the defendant. Commonwealth v. Thomas, 328 Pa. Super. 393, 399, 477 A.2d 501, 504 (1984).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania

[ 362 Pa. Super. Page 31]

    is that the consolidation is proper (i.e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. (citations omitted)

Commonwealth v. Galloway, 302 Pa. Super. 145, 154, 448 A.2d 568, 573 (1982); Commonwealth v. Terrell, 234 Pa. Super. 325, 328, 339 A.2d 112, 114 (1975).

Additionally, evidence of other crimes is admissible 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 other; or (5) identity. Thomas, 328 Pa. Superior Ct. at 400, 477 A.2d at 505.

Thus, offenses may be joined for trial where the separate offenses show the defendant's unusual or distinctive modus operandi. In order to establish a common thread between crimes,

[t]he Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.

Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 721 (1981).

No error is evident in trial counsel's failure to challenge, via post-trial motion, the consolidation of the offenses for trial. First, it is clear that the facts of the incidents were easily separable in the minds of the jury. The evidence of each episode was not complex and there has been no suggestion that the consolidation caused the jury to be confused in weighing the evidence. Moreover, the incidents are so similar in perpetration that they can properly be placed in that uncommon category of crimes where they are

[ 362 Pa. Super. Page 32]

    deemed to be of common scheme, plan or design. See Thomas, supra.

In support of this conclusion, the record establishes the following similarities: (1) all assaults occurred at approximately the same time during the evening and only on nights the appellant's wife was working; (2) entry was made through the front door in all but one case; (3) all the victims were physically assaulted and, in the cases where the victims could not control the situation, were sexually assaulted; (4) all sexual assaults were done from the rear and there was never a vaginal ejaculation; (5) in all the sexual assaults, a lubricant was used and the substance was wiped up or removed by the perpetrator; (6) in all cases, the perpetrator was a white male wearing a dark knit ski mask which covered his entire face except his eyes; (7) in all cases, the perpetrator wore a dark ski jacket or dark nylon jacket and wore gloves; (8) the victims were all young white females; and (9) all the assaults occurred in the same general neighborhood over a nine-week period.

Therefore, since joinder of the episodes was proper, counsel can not be held ineffective for failing to pursue the claim in post-trial motions since such claim would have been properly denied. See Davis, supra.

Appellant also asserts that he was given concurrent terms of imprisonment for offenses that should have been deemed to merge, as a matter of law, with other offenses for which sentence had also been imposed. Specifically, appellant was sentenced to two consecutive terms of imprisonment of 10 to 20 years for rape and burglary against one victim and also two concurrent terms of 1 to 2 years for indecent and simple assault against her. Likewise, two consecutive terms of imprisonment of 10 to 20 years were imposed for rape and burglary against a second victim as were two concurrent terms of 1 to 2 years for indecent and simple assault. Concurrent terms of 1 to 2 years were also imposed for simple assaults against two other victims in conjunction with consecutive terms of 10 to 20 years for burglaries. Finally, a concurrent term of 1 to 2 years was

[ 362 Pa. Super. Page 33]

    imposed for indecent assault against a fifth victim in addition to a consecutive term of 10 to 20 years for burglary. This issue can be easily resolved as the Commonwealth concedes that the court erred in imposing the aforementioned concurrent sentences. It is clear, pursuant to 18 Pa.C.S.A. 3502(d), that sentencing appellant on both the burglary charges and the lesser included offenses of indecent and simple assault constituted error. 18 Pa.C.S.A. 3502(d) provides that:

A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarous entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

Therefore, I agree with the majority in vacating the concurrent sentences for indecent and simple assault while affirming the sentences for burglary and rape. There is no need for a remand to resentence appellant on these matters since it is clear the court below, by imposing concurrent terms for the merged offenses, intended to treat the other offenses as the principal and controlling crimes. See Commonwealth v. Nelson, 337 Pa. Super. 292, 486 A.2d 1340 (1984).

On a related point, appellant asserts ineffectiveness of counsel for his attorney's failure to challenge the constitutionality of 18 Pa.C.S.A. 3502(d) (supra). Appellant claims this provision draws an irrational distinction between offenses which will merge or not merge with the principle offense of burglary. This argument stems from appellant's consecutive terms of 10 to 20 years for two rapes imposed as well as consecutive terms of 10 to 20 years imposed for two burglaries. Appellant's contention is totally devoid of merit. The burden rests with appellant, who is alleging unconstitutionality, to show that the provision "clearly, palpably and plainly violates the constitution." Commonwealth v. Sutley, 474 Pa. 256, 260-261, 378 A.2d 780, 782 (1977) (citations omitted). In Commonwealth v. Whetstine,

[ 362 Pa. Super. Page 34344]

Pa. Super. 246, 496 A.2d 777 (1985), Cirillo, J. (now President Judge) stated:

The doctrine of merger of offenses for sentencing insures that separate sentences are not imposed for what in practical effect was a single criminal act. Commonwealth v. Crocker, 280 Pa. Super. 470, 421 A.2d 818 (1980). In deciding whether offenses merge, the question is whether the offenses charged "necessarily involve" one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question ...


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