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Commonwealth v. Ferguson

Superior Court of Pennsylvania

January 5, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL DUANE FERGUSON, Appellant

Argued October 22, 2014

Page 207

[Copyrighted Material Omitted]

Page 208

Appeal from the Judgment of Sentence Entered November 4, 2013, of the Court of Common Pleas, Crawford County, Criminal Division, No(s): CP-20-CR-0000874-2012 2012 and CP-20-CR-0000761-2012. Before VARDARO, J.

Robert E. Draudt, Meadville, for appellant.

Francis J. Schultz, Paula C. DiGiacomo, Crawford County District Attorney's Office, Meadville, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,[*] JJ.

OPINION

Page 209

STRASSBURGER, J.

Michael Duane Ferguson (Appellant) appeals from the judgment of sentence entered on November 4, 2013,[1] following his convictions for, inter alia, three counts each of robbery, criminal conspiracy to commit robbery, terroristic threats, persons not to possess firearms, and one count of simple assault. Upon review, we affirm Appellant's convictions, vacate his judgment of sentence, and remand for resentencing.

Appellant was charged with several offenses in criminal informations filed at three separate dockets. At docket CP-20-CR-0000761-2012 (761-2012), the Commonwealth charged Appellant with numerous crimes in connection with the armed robberies of three Crawford County bars, which occurred in July 2012. At docket CP-20-CR-0000757-2012 (757-2012), which is not at issue in this appeal, the Commonwealth charged Appellant with multiple offenses relating to Appellant's possession of a sawed-off shotgun subsequently seized by police. At docket CP-20-CR-0000874-2012 (874-2012), the Commonwealth charged Appellant with simple assault and harassment as a result of an altercation between Appellant and Harry Boyer (Boyer), a co-conspirator in the robberies, which occurred on August 28, 2012, at the Crawford County Correctional Facility.

On July 24, 2013, the Commonwealth filed a motion to join all three informations for trial. It appears that the trial court held argument on the motion, wherein the Commonwealth presented " informal" information that, inter alia, suggested that at the time of the altercation between Appellant and Boyer, Appellant made statements loud enough for a correctional officer and Boyer to hear that Appellant had previously warned Boyer that he would kill Boyer if Boyer snitched on Appellant. Trial Court Memorandum and Order, 8/21/2013, at 2, 4. Following argument, the trial court issued a memorandum and order ruling that the offenses listed at dockets 761-2012 and 874-2012 be joined for trial, but that the charges at docket 757-2012 be handled in a separate proceeding.

A jury trial commenced at dockets 761-2012 and 874-2012 on September 9, 2013. Following trial, the jury convicted Appellant on all counts. On November 4, 2013, the trial court sentenced Appellant at both dockets to an aggregate 35 to 73 years' incarceration, with credit for time served. Appellant timely filed post-sentence motions, which the trial court denied on January 3, 2014. Appellant then appealed to this Court.[2]

Appellant presents the following issues for our consideration:

1. Did the [t]rial [c]ourt err in joining for trial the charge of simple assault with the robbery and related offenses?
2. Did the jury fully and adequately deliberate the facts of the cases or the law as it would apply to [A]ppellant's cases?
3. Were the verdicts against the weight of the evidence?

Appellant's Brief at 5.

In his first issue, Appellant argues that joinder was improper because it resulted

Page 210

in prejudice to him, as evidence of each case would not have been admissible in the other, and the robberies and simple assault were not part of the same act or transaction.

" 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. Robinson, 581 Pa. 154, 864 A.2d 460, 481 (Pa. 2004) (quoting Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 277 (Pa. 1991)). Furthermore, " Appellant bears the burden of establishing such prejudice." Commonwealth v. Melendez--Rodriguez, 2004 PA Super 334, 856 A.2d 1278, 1282 (Pa. Super. 2004) ( en banc).

The Pennsylvania Rules of Criminal Procedure govern the joinder and severance of offenses as follows:

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 ...

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