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[U] Commonwealth v. Young

Superior Court of Pennsylvania

October 25, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANDRE DWAYNE YOUNG, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANDRE YOUNG Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

GANTMAN, 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.[1] 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).[2]

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

(A) Standards

(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 ...

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