February 26, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
FATIH ANDERSON, Appellant
Appeal from the Judgment of Sentence entered February 17, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0000555-2009, CP-51-CR-0000583-2009, & CP-51-CR-0006945-2009.
BEFORE: ALLEN, JENKINS, and FITZGERALD [*] , JJ.
Fatih Anderson ("Appellant") appeals from the judgment of sentence imposed after he was convicted in a consolidated bench trial of three counts of first-degree murder, three counts of robbery, and related charges. We affirm.
The trial court summarized the pertinent facts as follows:
[Appellant] committed three (3) murders and three (3) robberies within a three (3) block radius in North Philadelphia during the summer of 2007. James McClain was robbed and shot on July 9, 2007, at approximately 1:00 A.M., on the 1500 block of Dauphin Street. He died as the result of three (3) gunshot wounds to the back and chest. Donte Leak was robbed and shot on September 3, 2007, at approximately 3:00 A.M., in an alleyway behind the Stanton Elementary School at 16th and Cumberland Streets. He died as a result of a single gunshot wound to the head. Steven Gates was robbed and shot on September 20, 2007, at approximately 12:00 A.M., on the 2500 block of North 17th Street. He died as a result of six (6) gunshot wounds to the chest and back.
Trial Court Opinion, 1/15/13, at 2.
Although each murder was charged in separate indictments, the Commonwealth filed a motion to consolidate them for trial on October 1, 2009. Within this motion, the Commonwealth contended that the cases should be consolidated because: 1) Appellant committed three separate gunpoint robberies and murders; 2) each of the three victims were young black males, ranging in age from twenty to twenty-five years old; 3) all of the crimes were committed within a few blocks of each other, "in a neighborhood where, because of a territorially-based grudge held by [Appellant], he bragged that he would kill as many of its inhabitants as possible"; 4) each of these homicide/robberies were committed between the hours of midnight and 6:00 a.m., and within a three-month period; 5) Appellant disclosed information about each of the crimes to Michael Green, who is a witness in all three cases; 6) in all three cases, Mr. Green's testimony would be corroborated by other witnesses and physical evidence; 7) "the ballistics evidence in each case tends to show that the same gun was used for each homicide"; and 8) "the same homicide detectives are needed on all three cases to explain how the investigation developed, and how [Appellant] came to be arrested on each case based on information from the earlier cases, and such evidence would be presented at all trials." See Commonwealth's Motion to Consolidate, 10/1/09, 7-8.
For all of the above reasons, and the fact that consolidation would "complete the story, " the Commonwealth asserted that consolidation was warranted. Id. at 8. According to the Commonwealth, consolidation was proper "because evidence of each of the homicides and robberies with which [Appellant] is charged would be admissible at separate trials under the motive, intent, identity, and the common plan exceptions." Id.
Following a hearing on November 10, 2009, the Honorable Leon Tucker granted the Commonwealth's motion to consolidate the three cases.Thereafter, Appellant waived his right to a jury trial, and tried before the Honorable Rose Marie Defino-Nastasi. On February 17, 2012, Judge Defino-Nastasi found Appellant guilty of three counts of first-degree murder, three counts of robbery, and related charges. That same day, she imposed three concurrent life sentences for Appellant's murder convictions, as well as concurrent terms for the remaining convictions. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant raises the following issue:
Whether the [trial] court erred in granting the Commonwealth's motion for consolidation of offenses pursuant to Pa.R.Crim.P. 582 and whether the consolidation resulted in a violation of [Appellant's] right to a fair trial under the due process clauses of the United States and Pennsylvania constitutions?
Appellant's Brief at 2.
This Court has recently summarized:
Whether or not 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.
Pennsylvania Rule of Criminal Procedure 582 provides that joinder of offenses charged in separate indictments or informations is permitted when "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." Pa.R.Crim.P. 582(A)(1)(a). Evidence of other criminal behavior is not admissible to show a defendant's propensity to commit crimes. However, such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident so long as the probative value of the evidence outweighs its prejudicial effect. Pa.R.E. 404(b)(2), (3).
Commonwealth v. Smith, 47 A.3d 862, 867 (Pa.Super. 2012) (citations omitted). "Consolidation of indictments requires that there are shared similarities in the details of each crime." Id.
Judge Tucker thoroughly explained his reasons for consolidating the three indictments as follows:
Here, the Commonwealth, [sic] moved to consolidate the three instant cases because its evidence would be admissible in separate trials on all three offenses. Specifically, the Commonwealth argued that evidence of identity in the first homicide illustrated identity in the second homicide. In addition, the evidence of each of the homicides and robberies would illustrate motive, intent, and common plan in all three cases. . . . [Appellant] disclosed information about each of the three crimes to one witness; this witness was necessary in all three cases, and this witness's testimony would have been permissible in all three cases. The same Homicide detectives were needed to testify about the subsequent investigation and how [Appellant] came to be arrested based on evidence in the earlier cases. Lastly, at its Motion for Consolidation hearing, the Commonwealth argued that ballistics evidence in each case tended to show that the same gun was used for each homicide, which is permissible evidence of identity.
Turning back to the Rules of Evidence, it is also well settled that an additional exception to the inadmissibility of evidence of other crimes is where "such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts." Commonwealth v. Stiffler, 657 A.2d 973, 975-976 (Pa.Super. 1995); Commonwealth v. Boyle, 733 A.2d 633, 636 (Pa.Super. 1999). Commonly known as the "res gestae" exception to the bar against evidence of other crimes, evidence of other criminal acts are [sic] admissible to "complete the story" of the crime on trial "by proving its immediate context of happenings near in time and place." Stiffler, 657 A.2d at 975-976.
Here, the Commonwealth sought to consolidate three cases for trial under the res gestae where all robberies and murders were committed within blocks of each other. The first offense was committed in July 2007. The second and third offenses were committed in September of 2007. The Commonwealth sought to introduce evidence that [Appellant] bragged that he would kill as many people as possible in [the] neighborhood against which [Appellant] held a territorial grudge. [Appellant] disclosed information about each of the three crimes to one witness. The same Homicide detectives were needed to testify about how the investigation developed. Evidence of all of these cases formed the history and natural development of the facts surrounding [Appellant's] robberies and murder. The offenses occurred over a three month period, all within blocks of each other; evidence of all three cases was presented at the Consolidation hearing as admissible to prove the immediate context of [Appellant's] offenses.
As stated above, joinder or consolidation of cases is permitted pursuant to the Rules of Criminal Procedure. The possibility of prejudice must be weighed against considerations of judicial economy. Commonwealth v. Janda, 14 A.3d 147, 156-157 (Pa.Super. 2011). Nevertheless, relevant evidence linking the defendant to the crimes charged is a "natural consequence of a criminal trial"; such relevant evidence, as here, will not serve as sufficient grounds for severance in and of itself. Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa.Super. 2010) (citing Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 2003)).
Having determined that the evidence of each of the offenses would be admissible in a separate trial of the other, the Consolidation Court found that here, [Appellant] did not meet his burden to show prejudice sufficient to require severance of [the] cases. Based on the briefs submitted at the time of the Consolidation Court's decision on the Motion to Consolidate and arguments thereon, the Consolidation Court was satisfied that consolidation of the three cases would not result in prohibited prejudice to [Appellant]. The Court notes that in all criminal matters, evidence that inculpates the accused is prejudicial; however not all prejudicial evidence is prohibited and therefore excluded. Lauro, 819 A.2d at 107-108 (citing Commonwealth v. Collins, 703 A.2d 418, 423 (Pa.Super. 1997)). The three incidents were distinct enough for the jury, with adequate instructions, to separate the evidence and avoid cumulating the evidence. Commonwealth v. Taylor, 671 A.2d 235, 239-240 [Pa.Super. 1996)]. The lack of prejudicial effect of consolidation, weighed against the benefits of judicial economy in a case with the same witnesses and ballistics information supports the Consolidation Court's decision to grant the Commonwealth's Motion for Consolidation.
Trial Court Opinion, 1/4/13, at 2-5 (some citations omitted).
Our review supports Judge Tucker's conclusions. Evidence at trial revealed that all three murders were gang-related, and therefore, evidence regarding each murder was admissible to show a "common scheme, plan or design, " as well as to "complete the story" regarding the murders. Smith, supra; Stiffler, supra. The establishment of a common scheme, plan or design "requires only that there are shared similarities in the details of each crime." Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991). Thus, Appellant's reliance upon cases rejecting a claim of "modus operandi" as a basis for consolidation is inapposite. See Appellant's Brief at 19; Commonwealth v. Blandy, 444 A.2d 670, 671 n.3 (Pa.Super. 1982) (explaining the difference between the "common scheme" and "modus operandi" exceptions).
The details of each murder in this case were sufficiently similar; each occurred over a three-month period in the summer of 2007, and the victims were all young black men who lived in or were associated with a certain section of the neighborhood. Appellant's attempt to establish that the Commonwealth attempted to mislead the consolidation court by stating within its motion that the ballistic evidence "tended" to show the same gun was used, when in fact trial evidence established the contrary, is unavailing. Within its brief, the Commonwealth asserts that it "made it clear to the court at the [consolidation] hearing on November 10, 2009, that the Commonwealth could not definitely prove the same gun was used[.]" Commonwealth's Brief at 11 n.4. As noted above, the transcript from that hearing is not part of the certified record. Nevertheless, Appellant improperly focuses on only one factor to the exclusion of the overwhelming commonalities of the three murders.
Finally, Appellant cannot establish that he was prejudiced by the trial court's consolidation. To demonstrate prejudice, Appellant was required to establish that he was convicted because of his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence. Newman, supra. Here, Appellant was convicted following a bench trial before Judge DeFino-Nastasi. Thus, there were no concerns regarding jury confusion, and it is presumed that the trial court was capable of separating the evidence to properly consider each criminal charge. See e.g., Commonwealth v. O'Brien, 836 A.2d 966, 972 (Pa.Super. 2003) (explaining that a trial held before a judge rather than a jury "minimizes if not eliminates the potential for prejudice").
In sum, because Judge Tucker properly consolidated Appellant's murder cases, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.