October 25, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
ANDRE DWAYNE YOUNG, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
ANDRE YOUNG Appellant
Appeal from the Judgment of Sentence November 14, 2012 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000315-2012, CP-33-CR-0000316-2012.
BEFORE: FORD ELLIOTT, P.J.E., GANTMAN, J., and SHOGAN, J.
Appellant, Andre Dwayne Young, appeals from the judgment of sentence entered in the Jefferson County Court of Common Pleas, following his jury trial convictions for possession of a controlled substance, delivery of a controlled substance, and criminal conspiracy. We affirm.
The relevant facts and procedural history of this appeal are as follows. On April 24, 2012, state police utilized a confidential informant ("CI-1") to conduct a controlled purchase of heroin from Appellant and co-defendant, Anthony Harris, at 229½ Cranberry Alley in Punxsutawney. On April 30, 2012, police utilized another informant ("CI-2") to conduct a second controlled purchase of heroin directly from Appellant at the Cranberry Alley residence. Following the second transaction, police stopped Appellant outside the residence, performed a frisk, and recovered prerecorded buy money from his pocket.
At No. 315 of 2012, the Commonwealth filed a criminal information charging Appellant with conspiracy in conjunction with the April 24, 2012 controlled purchase. At No. 316 of 2012, the Commonwealth filed a criminal information charging Appellant with possession of a controlled substance and delivery of a controlled substance in conjunction with the April 30, 2012 controlled purchase. On September 7, 2012, Appellant filed omnibus pretrial motions to suppress evidence and compel discovery. The court conducted a hearing on the motions on October 31, 2012. After receiving testimony, the court denied the suppression motions and granted the motion to compel discovery. At the conclusion of the hearing, the Commonwealth moved to consolidate the charges for trial. Appellant objected to consolidation, but the court granted the Commonwealth's motion.
Following trial, a jury convicted Appellant of all charges. On November 14, 2012, the court sentenced Appellant to thirty-two (32) months to six (6) years' imprisonment for the conspiracy conviction at No. 315 of 2012. The court imposed a consecutive sentence of seven and one-half (7½) to fifteen (15) years' imprisonment for the drug convictions at No. 316 of 2012. Appellant timely filed post-sentence motions at both docket numbers on Monday, November 26, 2012, which included a challenge to the weight of the evidence. On November 30, 2012, the court denied the post-sentence motions. Appellant did not file a notice of appeal.
On January 3, 2013, Appellant filed a counseled motion for leave to file a notice of appeal nunc pro tunc at both docket numbers. That same day, the court granted Appellant's motion. Also on January 3, 2013, Appellant timely filed notices of appeal nunc pro tunc at both docket numbers. On January 10, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on January 29, 2013. On June 25, 2013, this Court consolidated the appeals sua sponte.
Appellant raises two issues for our review:
DID THE [TRIAL] COURT ERR IN GRANTING THE COMMONWEALTH'S MOTION TO CONSOLIDATE? WAS THE JURY'S VERDICT OF GUILTY ENTERED AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?
(Appellant's Brief at 4).
In his first issue, Appellant contends the Commonwealth did not request consolidation prior to the hearing on Appellant's pretrial motions. Appellant asserts the Commonwealth's motion for consolidation was untimely, and on this basis the court should not have granted the request. Moreover, Appellant argues the evidence underlying the two criminal informations would be inadmissible in separate trials for each criminal information, because the evidence does not demonstrate a common scheme or modus operandi. Appellant claims there are more differences than similarities between the two controlled purchases. Appellant emphasizes that CI-1 gave her buy money to another individual, John Smith, who passed the money to the drug dealers, whereas CI-2 gave the money directly to one of the dealers. Appellant also avers that CI-1 provided an uncertain identification of Appellant at trial. In light of this evidence, Appellant insists the consolidation of the offenses caused confusion for the jury. Appellant concludes the court erred in granting the Commonwealth's consolidation motion. We disagree.
Whether "separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant." Commonwealth v. Cousar, 593 Pa. 204, 225, 928 A.2d 1025, 1037 (2007), cert. denied, 553 U.S. 1035, 128 S.Ct. 2429, 171 L.Ed.2d 235 (2008) (quoting Commonwealth v. Robinson, 581 Pa. 154, 190, 864 A.2d 460, 481 (2004), cert. denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005)). The Pennsylvania Rules of Criminal Procedure govern the joinder and severance of offenses as follows:
Rule 582. Joinder—Trial of Separate Indictments or 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.
(1) Notice that offenses or defendants charged in separate indictments or informations will be tried together shall be in writing and filed with the clerk of courts. A copy of the notice shall be served on the defendant at or before arraignment.
(2) When notice has not been given under paragraph(B)(1), any party may move to consolidate for trial separate indictments or informations, which motion must ordinarily be included in the omnibus pretrial motion.
Pa.R.Crim.P. 582(A)(1), (B).
Rule 583. Severance of Offenses or Defendants
The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.
Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him to a crime. Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003).
The prejudice of which Rule  speaks is, rather, that which would occur if the evidence tended to convict [the] appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.
Additionally, the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial, and it is not grounds for severance by itself.
Id. (internal citations and quotation marks omitted).
Reading these rules together, our Supreme Court established the following test for deciding whether a court should join or sever charges:
 whether the evidence of each of the offenses would be admissible in a separate trial for the other;  whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these questions are in the affirmative,  whether the defendant will be unduly prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 550 Pa. 46, 55, 703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998) (quoting Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97 (1988)).
"Evidence of crimes other than the one in question is not admissible solely to show the defendant's bad character or propensity to commit crime." Collins, supra at 55, 703 A.2d at 422. See also Pa.R.E. 404(b)(1) (providing: "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character"). Nevertheless:
[E]vidence of other crimes is admissible to demonstrate (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) the identity of the person charged with the commission of the crime on trial. Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts.
Collins, supra at 55, 703 A.2d at 422-23; Pa.R.E. 404(b)(2). See also Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super. 2004) (en banc) (reiterating "other crimes" evidence is admissible to show motive, intent, absence of mistake or accident, common scheme or plan, and identity). "Factors to be considered to establish similarity are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed." Commonwealth v. Taylor, 671 A.2d 235, 240 (Pa.Super. 1996), appeal denied, 546 Pa. 642, 683 A.2d 881 (1996). "Where a trial concerns distinct criminal offenses that are distinguishable in time, space and the characters involved, a jury is capable of separating the evidence." Collins, supra at 56, 703 A.2d at 423.
Instantly, Appellant filed pretrial motions on September 7, 2012, and the court conducted a hearing on the matter on October 31, 2012. After ruling on Appellant's motions, the court recognized the potential for consolidation or a Rule 404(b) motion:
No one has filed a motion to consolidate, which has to be in writing or made at the time of the omnibus [pretrial motion]. However, if we don't have a motion to consolidate, I'm sure we may have a motion under [Rule] 404(b) to introduce evidence of modus operandi, which can be filed at any time during the trial. So I want to make sure we clarify positions ahead of time.
(See N.T. Pretrial Hearing, 10/31/12, at 90.) In response, the Commonwealth moved to consolidate the cases. Rather than making an immediate ruling, the court ordered a recess to provide Appellant and counsel with an opportunity to discuss the issues surrounding consolidation and Rule 404(b). After the recess, Appellant formally announced his opposition to consolidation. The court, however, granted the Commonwealth's motion.
Here, the Commonwealth did not request consolidation prior to the hearing on the pretrial motions. Nevertheless, the Commonwealth's motion, was made with the court's permission at the pretrial hearing and substantially complied with Rule 582.
Regarding the merits of the consolidation motion, the common thread connecting the two criminal informations was Appellant's involvement with Mr. Harris in the sale of heroin from a residence in Punxsutawney. Evidence of Appellant's participation in both the April 2012 controlled purchases would have been admissible in separate trials for each purchase to show the natural development of the facts, absence of mistake, and a common scheme to sell heroin. See Collins, supra. Likewise, the evidence of the separate transactions involving different buyers was sufficiently distinguishable and capable of separation by the jury. The court also provided a lengthy instruction, explaining that the jury must consider each case separately. (See N.T. Trial, 11/13/12, at 10-13.) See Pa.R.Crim.P. 582. We see no undue prejudice in the court's decision to allow the jury to hear evidence of the discrete yet interrelated crimes. See Pa.R.Crim.P. 583. Consequently, the court did not abuse of discretion in permitting the consolidation of the conspiracy charge at No. 315 of 2012 with the drug charges at No. 316 of 2012. See Cousar, supra.
In his second issue, Appellant emphasizes Mr. Harris' trial testimony, which absolved Appellant from any criminal conduct. Appellant also claims CI-2's testimony was incredible, because he was under the influence of heroin at the time of the controlled purchase. Further, Appellant maintains CI-2 conducted the controlled purchase only after the Commonwealth agreed not to charge him with certain drug offenses. Regarding CI-1, Appellant reiterates that she provided an uncertain in-court identification of Appellant as one of the drug dealers. Appellant argues that Mr. Harris' exculpatory testimony, combined with the informants' unreliability, demonstrates the jury's verdict was against the weight of the evidence. Appellant concludes the court should have granted his post-sentence motion on this basis. We disagree.
The following principles apply to our review of a weight of the evidence claim:
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435, ] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted).
The offenses of possession and delivery of a controlled substance are defined by statute as follows:
§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
The Crimes Code defines the offense of criminal conspiracy as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(e) Overt act.―No person may be convicted of conspiracy to commit a crime unless an overt act in [pursuit] of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
18 Pa.C.S.A. § 903.
To sustain a conviction for criminal conspiracy:
[T]he Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy.
Commonwealth v. Murphy, 795 A.2d 1025, 1037-38 (Pa.Super. 2002), affirmed, 577 Pa. 275, 844 A.2d 1228 (2004) (quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.Super. 2000)). Circumstantial evidence may provide proof of the conspiracy. Commonwealth v. Davalos, 779 A.2d 1190 (Pa.Super. 2001), appeal denied, 567 Pa. 756, 790 A.2d 1013 (2001).
The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Additionally:
An agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail.
Commonwealth v. Jones, 874 A.2d 108, 121-22 (Pa.Super. 2005) (internal citations and quotation marks omitted).
Instantly, the police utilized CI-1 to conduct a controlled purchase of heroin on April 24, 2012. CI-1 testified that she met with Trooper Michael Boltz at approximately 1:30 p.m. Trooper Boltz immediately searched CI-1 and confirmed that she did not have contraband on her person. Following the search, Trooper Boltz drove CI-1 to 229½ Cranberry Alley. The trooper gave CI-1 official state police funds and instructed her to purchase heroin inside the residence. CI-1 exited the trooper's vehicle and entered the residence through the front door. Inside, CI-1 gave the buy money to one of the occupants, John Smith, whom CI-1 knew from living in Punxsutawney. CI-1 and Mr. Smith walked through the residence and entered a room where two African-American males were located. Mr. Smith handed the buy money to the men, who split the currency. In exchange, one of the men gave ten packets of heroin to Mr. Smith, who passed the drugs to CI-1. CI-1 exited the residence, returned to Trooper Boltz's vehicle, and handed over the drugs. At the conclusion of her testimony, CI-1 stated she was "pretty certain" that Appellant was one of the African-American males who sold the drugs to her. (See N.T. Trial at 27.)
CI-2 testified that he was familiar with the residence at 229½ Cranberry Alley, and he purchased heroin from Appellant and another African-American male at the residence on multiple occasions in April 2012. On April 30, 2012, CI-2 met with Trooper Boltz and Corporal Joseph DiPietro. The police asked CI-2 to perform a controlled purchase from Appellant. In exchange for his participation, the police promised not to press charges against CI-2 for other drug offenses. CI-2 agreed to perform the controlled purchase, and the police searched CI-2 to confirm that he did not have contraband on his person. The police also provided CI-2 with $60.00 in prerecorded buy money. After the meeting, Trooper Boltz observed CI-2 walk to the Cranberry Alley residence. Upon entering the residence, CI-2 gave the buy money directly to Appellant. In exchange, Appellant provided CI-2 with three bags of heroin. After the transaction, CI-2 exited the residence and returned the drugs to Trooper Boltz.
Here, the evidence demonstrated that Appellant sold heroin directly to CI-2. The informants' testimony also provided circumstantial evidence of a conspiratorial agreement between Appellant and Mr. Harris to conduct drug sales inside the Cranberry Alley residence. To the extent Appellant complains the jury gave undue weight to the informants' testimony, the jury was free to believe all, part, or none of the evidence. See Champney, supra. Likewise, the jury was free to reject Mr. Harris' disclaimer testimony in its entirety. Id. The trial court concluded the jury's verdict was not contrary to the weight of the evidence. (See Trial Court Opinion, filed April 25, 2013, at 2.) Based upon the foregoing, we see no abuse of discretion in the court's decision to deny relief on Appellant's weight claim. See Champney, supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.