Appeal from the Judgment of Sentence January 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0006396-2009 CP-51-CR-0009692-2009
BEFORE: GANTMAN, J., ALLEN, J., and PLATT, J. [*]
Appellant, Anthony Armstrong, appeals from the judgment of sentence entered following his conviction of two counts of attempted burglary as felonies in the first degree, and one count of possessing instruments of crime. After careful review, we affirm in part and vacate in part and remand for resentencing consistent with this opinion.
The following facts are taken from the trial court's opinion of August 15, 2012:
On January 3, 2009, complainant Holly Curtis was alone inside her home on Harvey Street when, at approximately 12:30[ a.m.], [she] heard a knock at her door. She didn't answer the door. A few minutes later, she heard loud noises in the back of her home, and immediately called police and directed them to the rear of her home. Officers arrived within seconds, and observed [Appellant] attempting to pry open the only window in complainant's home that was not secured by bars. [Appellant] dropped his tool and fled by jumping over a nearby fence. However, he was apprehended by police a short distance from complainant's home.
On March 2, 2009, at approximately 10:30[ p.m.], complainant Floretta Tiggett was alone inside her apartment on Upsal Street when she heard a loud bang at her window. Complainant Tiggett went to the window to investigate, and looked directly at [Appellant] as he attempted to pry open her window with a crowbar. Complainant immediately called 911, and while waiting for the police to arrive, she yelled at [Appellant] to leave, but he continued trying to pry open her window until her alarm system was activated. Complainant repeatedly called 911 and gave a description of [Appellant's] appearance and clothing. When her alarm alerted her neighbors, Ms. Tiggett left her apartment to go outside. Seeing [Appellant], she asked him "Why are you trying to break into my apartment?" Within a few minutes, officers arrived on the scene. Ms. Tiggett described [Appellant's] appearance and the crowbar he carried to the officers. Officers observed [Appellant], based on the description given by complainant, as he attempted to flee around the back of the building and he was immediately apprehended. Within minutes, complainant was taken to the location where officers detained [Appellant], and she positively identified him as the person who attempted to break into her home.
(Trial Court Opinion, 8/16/12, at 2-3 (record citations omitted)).
The trial court granted the Commonwealth's motion to consolidate Appellant's cases on November 10, 2009. Trial was delayed several times by Appellant and due to case transfers arising from the reorganization of the Philadelphia criminal trial courts.
On December 1, 2011, a jury convicted Appellant of the above-mentioned charges, and on January 27, 2012, the trial court found that Appellant was a fourth-strike offender and sentenced him to consecutive mandatory terms of not less than twenty-five to fifty years' incarceration for each attempted burglary conviction, plus not less than two and a half nor more than five years for possessing an instrument of crime, for an aggregate sentence of not less than fifty-two and one half nor more than one hundred five years. Appellant timely appealed.
Appellant raises six questions for our review:
1. Did not the court below err and abuse its discretion in ordering a joint trial in the two instant matters, where evidence of one offense would not have been admissible in a trial on the other, where the two offenses alleged were not part of a common plan, scheme or design, where no other basis for joinder existed, and where a joint trial was highly prejudicial to the defense?
2. Did not the court below err in denying appellant's motion to dismiss pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure, where the Commonwealth failed to bring appellant to trial within 365 days of the filing of the criminal complaint and where this failure was the result of a lack of due diligence on the part of the Commonwealth?
3. Did not the court below err in denying appellant's motion to suppress identification evidence in the matter docketed at CP-51-CR-0006396-2009, inasmuch as appellant was subject to an unduly suggestive identification procedure, which included improper statements by police prior to the identification, as to render the out-of-court identification so unreliable as to require suppression, while also so tainting the in-court identification as to also require suppression?
4. Did not the lower court err as a matter of law in determining that appellant was subject to a mandatory "third strike" sentence of twenty-five to fifty years under 42 Pa.C.S. § 9714, where the evidence presented by the Commonwealth showed that appellant had previously been convicted of two prior crimes of violence, but had not been sentenced on one of those crimes prior to the commission of the other, as required by Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005)?
5. Did not the lower court err in imposing two consecutive sentences of twenty-five to fifty years each, effectively sentencing appellant as a "fourth-strike" offender, even though he had never been previously sentenced as a third-strike offender, and therefore violating the requirements of 42 Pa.C.S. § 9714 and Commonwealth v. McClintic, 909 A.2d 1241 (Pa. 2006)?
6. Was not appellant's aggregate sentence of 52 ½ to 105 years of incarceration manifestly excessive and unreasonable?
(Appellant's Brief, at 4-5).
In his first issue, Appellant alleges that the trial court "abused its discretion in joining the instant cases for trial." (Id. at 16). Specifically, he claims that "[j]oinder was improper, and grossly prejudicial" where the underlying attempted robberies "shared no significant characteristics not shared by many or most other burglaries." (Id.). We disagree.
Our standard of review is well-settled:
Whether to join or sever offenses for trial is within the trial court's discretion and will not be reversed on appeal absent a manifest abuse thereof, or prejudice and clear injustice to the defendant. The Rules of Criminal Procedure provide:
Joinder—Trial of Separate Indictments of Informations
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 2010), cert. denied, 131 S.Ct. 332 (2010) (case citation omitted).
It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury's mind. The general rule, however, 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 naturally tend to show that the accused is the person who committed the other. Thus, although the law does not allow ...