Com. v. Fisher, S. ( 2014 )

J. S08004/14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1768 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000008-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1769 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000053-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1770 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000064-2009
J. S08004/14
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1771 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000065-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1772 WDA 2012
:
Appellant :
Appeal from the Sentencing, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000072-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1773 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000073-2009
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J. S08004/14
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1774 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000013-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SCOTT DALTON FISHER, : No. 1775 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Cameron County
Criminal Division at No. CP-12-CR-0000033-2010
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 08, 2014
Appellant appeals from the judgment of sentence imposed in the
above-captioned consolidated cases. Finding no error below, we affirm.
Appellant was charged in connection with dozens of camp/cabin
burglaries which occurred between November of 2007 and August of 2008 in
*
Retired Senior Judge assigned to the Superior Court.
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the counties of Cameron, Clinton, Tioga, Potter, Clearfield, and Elk. All of
the cases were eventually consolidated and tried in Cameron County.
Appellant was arrested in Cameron County on August 18, 2007, following a
high-speed chase of his vehicle. Burglary tools and stolen property were
found in the vehicle after a consent search.
An omnibus pre-trial motion, which included a motion to suppress
evidence, was filed on October 19, 2009, and was eventually denied on
June 21, 2011. A jury trial was commenced on August 22, 2011, but on
August 23, 2011, a mistrial was declared after a witness testified that
appellant had previously been in jail in Wellsboro. On August 26, 2011,
appellant filed a motion to bar re-trial on grounds of double jeopardy. On
September 15, 2011, appellant filed a motion for change of venue/venire.
On November 22, 2011, the court denied the motion to bar re-trial. On
December 28, 2011, the trial court denied the motion for change of
venue/venire.
On March 15, 2012, appellant filed a motion for dismissal or release
for nominal bail pursuant to Pa.R.Crim.P., Rule 600, 42 Pa.C.S.A. The
motion was denied on March 26, 2012. Thereafter, appellant waived his
right to a jury trial and proceeded to a bench trial. On July 18, 2012, the
trial court found appellant guilty of 76 counts of conspiracy to commit
burglary. On October 12, 2012, appellant was sentenced to an aggregate
.
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Appellant raises the following issues on appeal:
1.
Omnibus Pretrial Motion.
a. Trial counsel was ineffective for
failing to raise in the lower court
the issue that the consent to
search the trunk of Defenda
vehicle was not valid as the
Defendant was in custody at the
time that State Troopers requested
consent to search the trunk.
b. Trial counsel was ineffective for not
raising the issue that the search
was not valid because there was no
evidence presented that the
Defendant was given his Miranda
warnings before the police asked
for a consent to search the vehicle.
c. The lower court erred in ruling that
the traffic stop was valid.
2.
Motion to Bar Retrial Based on Double
Jeopardy.
3.
Motion for Change of Venue or Venire.
4.
Motion for Release on Nominal Bail.
5.
failing t
behalf after Defendant requested that trial
counsel call witnesses.
6.
asked for an attorney at the Pennsylvania
State Police Barracks in Emporium, and the
State Police denied him an attorney and
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attempted to question Defendant after he
was ineffective for failing to raise this issue in
the lower court.
7. The lower court erred in denying Defendant a
new attorney when he requested that he get
new counsel prior to his first trial commencing.
8.
9.
agreeing to a non-jury trial for
second trial when Defendant did not consent to
the same.
10.
questioning of the co-Defendant who testified
against Defendant for failing to raise
inconsistencies between the co-
preliminary hearing testimony and his trial
testimony.
11. The lower court erred in allowing hearsay
12. The lower court erred in finding Defendant
guilty of the crimes for which he was
sentenced as there was insufficient evidence
presented as to each of the crimes for which
Defendant was convicted.
-8.
We first note that we cannot or need not address a number of these
issues. Issues 1a, 1b, 5, 8, 9, and 10 directly raise ineffective assistance of
counsel claims. Generally, such issues cannot be reviewed on direct appeal
but must await collateral review. Commonwealth v. Grant, 813 A.2d 726,
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738 (Pa. 2002). Issue 6 concedes that it was not raised before the trial
court. An issue cannot be raised for the first time on appeal and is deemed
waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. To the extent that Issue 6 is
Grant.
Finally, in the body of the brief, appellant withdraws Issues 2 and 11 from
review only Issues 1c, 3, 4, 7, and 12, and we will address them in the order
presented.
In Issue 1c, appellant argues that the trial court erred in failing to
was invalid because appellant was in custody at the time and because he
had not been apprised of his Miranda warnings.2 These concerns are
irrelevant because we find that at the time the police requested permission
to search the vehicle, they already had probable cause to perform a
warrantless vehicular search.
Our supreme court has recently held that probable cause alone is
sufficient to justify a warrantless search of an automobile:
In sum, our review reveals no compelling
reason to interpret Article I, Section 8 of the
Pennsylvania Constitution as providing greater
protection with regard to warrantless searches of
motor vehicles than does the Fourth Amendment.
Therefore, we hold that, in this Commonwealth, the
law governing warrantless searches of motor
vehicles is coextensive with federal law under the
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Fourth Amendment. The prerequisite for a
warrantless search of a motor vehicle is probable
cause to search; no exigency beyond the inherent
mobility of a motor vehicle is required. The
consistent and firm requirement for probable cause
is a strong and sufficient safeguard against illegal
searches of motor vehicles, whose inherent mobility
and the endless factual circumstances that such
mobility engenders constitute a per se exigency
allowing police officers to make the determination of
probable cause in the first instance in the field.
Here, there is no dispute that probable cause
existed to search
more is required.
Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014).
police have probable cause where the facts and
sufficient to warrant a person of reasonable caution
in the belief that an offense has been or is being
Commonwealth v. Rogers, 578 Pa.
127, 849 A.2d 1185, 1192 (2004). We evaluate
probable cause by considering all relevant facts
under a totality of circumstances analysis.
[Commonwealth v.] Luv, 735 A.2d [87 (Pa. 1999)]
at 90 (citing Commonwealth v. Gray, 509 Pa. 476,
503 A.2d 921 (1985)).
Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007).
At the time of the stop, the camp/cabin burglaries had been happening
for months, and the State Troopers were on duty late at night following
every vehicle they came across. (Suppression hearing notes of testimony,
2/16/10 at 5-6.) The State Police had developed a particular profile of the
burglaries. (Id. at 6.) According to this profile, it was believed that multiple
individuals were involved and that some participants were being discharged
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from a vehicle remotely from the camp/cabin and that the discharged
individuals were communicating with the driver by radio. (Id. at 29-30.)
This was based on the fact that no tire tracks were ever found at or leading
up to the camps/cabins. (Id.)
In the early morning hours of April 18, 2007, Troopers Michael W.
Smith and Allen L. Brothers were travelling southbound in an unmarked
(Id. at 6-7.) As Trooper Smith initiated a three-point turn to begin pursuit,
Id. at 7.)
Trooper Smith stated that they were travelling at speeds well over 85 miles
Id. at 8.) Eventually,
appellant slowed enough for the police to catch up, but even then he was
travelling at 62 to 65 miles per hour on a roadway with a 55 miles per hour
speed limit. (Id. at 9.) Appellant again slowed his vehicle, this time to
50
twice cross the yellow line dividing the lanes of traffic. (Id.) At this point,
the troopers illuminated a red bubble light and effected a traffic stop. (Id.
at 10, 25.)
wheel dressed in sweatpants and a sweater jacket. (Id. at 10-11.)
Edward Whitten was riding in the passenger seat beside appellant, and
Id.) Whitten and Travis
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were in full camouflage outfits. (Id. -way radio
attached to it, and a two-way radio was on the seat beside Travis. (Id. at
11.) Additionally, there were flashlights and various gloves strewn
throughout the vehicle. (Id.) In the backseat was a black canvas bag in
which the troopers could see a Nintendo game system, a thick coil of white,
insulated wire, and several DVDs. (Id. at 11-12.) These items matched the
type of items stolen in the prior burglaries. (Id. at 12.) Finally, the deck lid
behind the rear passenger seat had two holes cut into it where there had
been audio speakers. (Id. at 15.) When he directed his flashlight into these
Id. at 15-
16.) In the trunk, Trooper Smith saw a red toolbox, extension cords, a black
DVD player, a red gas can, a box of kitchen knives, as well as various other
merchandise. (Id. at 16.)
When asked why they were wearing camouflage outfits, the
passengers responded that it was because they were playing paintball. (Id.
at 13.) When asked why there was no paint on their outfits, they responded
Id.) When
asked where the paintball guns, masks, and equipment were, they stated
Id.
telephone number from the group and contacted him. (Id. at 13-14.)
Dunlap, responded. (Id. at 14.) She stated that
she knew appellant and Travis, but that they had not been at their residence
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that evening and that Eaton had been asleep for several hours. (Id.) It was
at this point that Trooper Smith asked appellant for permission to look in the
trunk. (Id. at 15.)
Simply stated, the State Troopers did not need permission to look in
the trunk because they had probable cause to perform a vehicular search,
having already witnessed overwhelming evidence that appellant and his crew
were in fact the wanted burglars. From the initial high speed chase, to the
passenger compartment strewn with burglary tools and contraband, to the
poorly explained camouflage outfits, to the two-way radios, and finally to the
outright lie involving Eaton, the police had a tremendous number of
indicators that appellant had been committing burglaries. Because the
we find no error in
In Issue 3, appellant complains that the trial court erred in denying his
motion for change of venue/venire. Appellant argues that excessive pre-trial
publicity called for a change of venue or venire. The standard of review for a
denial of a motion for change of venue is whether the trial court abused its
discretion. Commonwealth v. Johnson, 612 A.2d 1382, 1384-1385
(Pa.Super. 1992). First, we find that this issue was made moot by
decision to proceed by bench trial; there was no jury to be
prejudiced by pre-trial publicity. Appellant does not argue that he was
improperly forced to submit to a bench trial by the denial of this motion.
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Second, even if not moot, we find no abuse of discretion in the trial
below: four articles from the Cameron County Echo published July 27, 2011,
August 10, 2011, August 24, 2011, and August 31, 2011; and one article
from the Bradford Era published September 2, 2011. (Trial court opinion,
12/28/11 at 1-2.)3 The court examined each article and found no pervasive
or inflammatory information. (Id. at 2.) The July 27, 2011 article was on a
back page and gave only general information about appellant and other
criminal defendants. (Id.) The August 10, 2011 article was on the front
page but featured another, unrelated criminal defendant, Jason Kamats.
(Id.) The passing reference to appellant came at the end of the article
noting that he was facing charges in a crime spree involving over
100 offenses. (Id.) The August 24, 2011 article was front page, but
not present any conjecture that would taint a subsequent jury pool. (Id. at
3.) The final two articles, August 31, 2011, and September 2, 2011, both
presented unbiased accounts of the mistrial that was declared. (Id.) We
find that the trial court did not abuse its discretion in denying the motion for
change of venue/venire.
In Issue 4, appellant argues that the court erred in denying his motion
for dismissal or release on nominal bail pursuant to Rule 600. Again, our
3
The pages of the opinion are not enumerated; this is by our count.
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standard of review is abuse of discretion. Commonwealth v. Thompson,
93 A.3d 478, 486 (Pa.Super. 2014).
We first note that outright dismissal of charges pursuant to Rule 600
was never at issue below. Rule 600 provides the following remedies:
(D) Remedies
(1) When a defendant has not been brought
to trial within the time periods set forth
in paragraph (A), at any time before
defendant if unrepresented, may file a
written motion requesting that the
charges be dismissed with prejudice on
the ground that this rule has been
violated. A copy of the motion shall be
served on the attorney for the
Commonwealth concurrently with filing.
The judge shall conduct a hearing on the
motion.
(2) Except in cases in which the defendant is
not entitled to release on bail as provided
by law, when a defendant is held in
pretrial incarceration beyond the time set
forth in paragraph (B), at any time
the defendant if unrepresented, may file
a written motion requesting that the
defendant be released immediately on
nominal bail subject to any nonmonetary
conditions of bail imposed by the court
as permitted by law. A copy of the
motion shall be served on the attorney
for the Commonwealth concurrently with
filing. The judge shall conduct a hearing
on the motion.
Pa.R.Crim.P., Rule 600(D), 42 Pa.C.S.A.
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Dismissal under Rule 600(D)(1) was not available because the time for
bringing appellant to trial under Rule 600(A) had not yet elapsed:
(A) Commencement of Trial; Time for Trial
(2) Trial shall commence within the following
time periods.
(d) When a trial court has
granted a new trial and no
appeal has been perfected,
the new trial shall commence
within 365 days from the
date on which the trial
Pa.R.Crim.P., Rule 600 (A)(2)(d), 42 Pa.C.S.A.
The trial court granted appellant a new trial on August 23, 2011, when
Rule 600(A)(2)(d), the Commonwealth had until August 23, 2012, to bring
appellant to trial. Appellant filed his motion for dismissal or release for
nominal bail on March 15, 2012, well within that time period and no
dismissal of charges was therefore available under Rule 600(D)(1).
However, release for nominal bail under Rule 600(D)(2) was at issue
because appellant was facially beyond the maximum time for pre-trial
incarceration under Rule 600:
(B) Pretrial Incarceration
Except in cases in which the defendant is not
entitled to release on bail as provided by law,
no defendant shall be held in pretrial
incarceration in excess of
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(4) 120 days from the date on which
the order of the trial court is filed
granting a new trial when no
appeal has been perfected;
Pa.R.Crim.P., Rule 600(B)(4), 42 Pa.C.S.A.
As noted by the trial court, the mechanical 120-day run date from
August 23, 2011 was December 21, 2011. (Order, 3/26/12 at 2).4
However, following the grant of the mistrial, appellant filed two motions. On
August 26, 2011, appellant filed his motion to bar re-trial on grounds of
double jeopardy, which was denied November 22, 2011, and on
September 15, 2011, appellant filed a motion for change of venue/venire,
which was denied December 28, 2011. The time between the filing and
-trial motions is excludable from the Rule 600
period only if the motion delayed trial and thus made the defendant
unavailable and if the Commonwealth exercised due diligence in opposing or
responding to the motion. Commonwealth v. Lynn, 815 A.2d 1053, 1058-
1059 (Pa.Super. 2003).
delayed trial. Since the hearing
on both matters transpired only five days after the filing of the second
motion, on September 20, 2011, there is no issue as to the Commonwealth
failing to exercise due diligence; consequently, the time period between the
-trial motions and their resolution is excludable.
4
The pages of the order are not enumerated; this is by our count.
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Thus, as correctly calculated by the trial court, the period between
August 26, 2011 and December 28, 2011, a period of 124 days, is
excludable from the Rule 600 calculation. (Order, 3/26/12 at 3.) The trial
court also properly excluded the eight days between the time appellant filed
the motion for dismissal or release for nominal bail on March 15, 2012, and
the March 23, 2012 date of its order disposing of the motion. (Id.) Thus,
the trial court properly excluded 132 days from the Rule 600 time period,
arriving correctly at an adjusted run date of May 1, 2012. (Id.) Therefore,
at the time appellant filed his motion for dismissal or release for nominal
bail, he was not entitled to release for nominal bail. We find no error here.
In Issue 7, appellant asserts that the trial court erred in denying
defendant a new attorney when he requested same before his first trial.
Unfortunately, counsel for appellant concedes that she is unable to locate
at 30.) An appellant must identify where in the record an issue was
preserved or it is waived. See Pa.R.A.P., Rules 2117(c) and 2119(e),
42 Pa.C.S.A.; Commonwealth v. Maisonet, 31 A.3d 689, 694 (Pa. 2011),
cert. denied, Maisonet v. Pennsylvania, 133 S.Ct. 117 (2012). Also, as
previously noted, issues may not be raised for the first time on appeal.
Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. Consequently, we find that appellant
has waived this issue.
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Finally, in Issue 12, appellant contends that the evidence was
insufficient to convict him of 76 separate conspiracies to commit burglary.
We observe our standard of review:
The standard we apply when reviewing the
sufficiency of the evidence is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a -
finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced is free to believe all, part or none
of the evidence. Furthermore, when reviewing a
sufficiency claim, our Court is required to give the
prosecution the benefit of all reasonable inferences
to be drawn from the evidence.
However, the inferences must flow from facts
and circumstances proven in the record, and must be
of such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an
beyond a reasonable doubt. The trier
of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on
suspicion will fail even under the limited scrutiny of
appellate review.
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Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa.Super. 2014), quoting
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa.Super. 2014)
(citations omitted).
the evidence proved the existence of only one larger, overarching conspiracy
rather than 76 individual conspiracies. Second, appellant claims that the
Commonwealth presented the testimony of only 29 burglary victims and that
the testimony of Whitten failed to identify each individual camp/cabin that
the conspirators burgled; therefore, there was insufficient evidence to tie
appellant to a significant number of the burglaries.
single, overarching conspiracy. We note:
In determining whether a single conspiracy or
multiple conspiracies have been established, we
must consider several relevant factors:
The factors most commonly considered
in a totality of the circumstances analysis
of the single vs. multiple conspiracies
issue . . . are: the number of overt acts
in common; the overlap of personnel;
the time period during which the alleged
acts took place; the similarity in methods
of operation; the locations in which the
alleged acts took place; the extent to
which the purported conspiracies share a
common objective; and, the degree to
which interdependence is needed for the
overall operation to succeed.
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Commonwealth v. Davis, 704 A.2d 650, 654
(Pa.Super.1997) citing Commonwealth v. Savage,
388 Pa.Super. 561, 566 A.2d 272, 278 (1989).
Commonwealth v. Barnes, 871 A.2d 812, 820 (Pa.Super. 2005),
affirmed, 924 A.2d 1202 (Pa. 2007).
Commonwealth v. Grekis, 601 A.2d 1275 (Pa.Super. 1992). In Grekis,
appellant was the owner of the Quick Stop restaurant in Allegheny County,
-in- -in-
law conspired with one Lance Neuring, a burglar and a thief, to supply the
Quick Stop with cigarettes. Between August 16, 1987, and February 19,
1988, Neuring forcibly entered numerous stores in Pittsburgh and stole over
1,600 cartons of cigarettes which he then resold to appellant. Appellant was
subsequently convicted of 19 separate conspiracy convictions. On appeal,
this court reversed:
More troublesome, howev
assertion that the Commonwealth did not prove
nineteen conspiracies but a single, continuing
conspiracy which included, inter alia, nineteen
deliveries of stolen merchandise. In this matter, we
conclude that appellant must prevail. Given the
nature of the evidence here, we agree that it proved
a single, ongoing and continuous conspiracy rather
than a distinct criminal agreement each time Neuring
delivered the cigarettes. Recently, this court has
explained:
Under Pennsylvania law, a single
conspiracy may have multiple criminal
objectives . . . . Thus, when on a single
occasion there is a single agreement to
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commit two crimes, e.g. murder and
arson, a single conspiracy exists . . . .
Likewise, a single conspiratorial
agreement may involve a continuing
course of criminal conduct involving the
repetition of a single crime or the
commission of a series of crimes.
Commonwealth v. Savage, 388 Pa.Super. 561,
571, 566 A.2d 272, 276-277 (1989); see also
Commonwealth v. Troop, 391 Pa.Super. 613, 621,
571 A.2d 1084, 1088-89 (1990) (where the evidence
demonstrated that the co-conspirators formulated a
distinct and separate criminal plan and committed a
robbery each time their need for money for cocaine
arose, evidence warranted a finding of three
separate conspiracies).
In light of this standard, we find that the
evidence here substantiates only a single conspiracy
to accomplish several, repeated crimes. By so
concluding we do not fail to appreciate that this
conspiracy involved numerous serious offenses. No
facilitated and encouraged the many separate
burglaries committed by Neuring. Nonetheless, the
heart of the offense of conspiracy is the agreement
and in our view the evidence at trial reasonably
supports the inference of only one. See
Commonwealth v. Perez, 381 Pa.Super. 149, 553
A.2d 79, appeal dismissed, 525 Pa. 132, 577 A.2d
1340 (1989). Thus, we vacate the convictions on all
but one count of criminal conspiracy.
Grekis, 601 A.2d at 1283-1284.
We find Grekis to be distinguishable. Although not directly stated in
the facts, it appears that there was an initial, ongoing agreement between
-in-law and Neuring to supply the Quick Stop with stolen
cigarettes. Thereafter, Neuring simply made deliveries to the Quick Stop
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without further discussion. All of the burglaries in Grekis shared a common
objective: supplying the Quick Stop with cigarettes. Instantly, however, the
evidence does not show an ongoing agreement to achieve a common
objective. Rather, it appears that appellant and his crew ventured out on a
burglary detail whenever the mood or the need struck them.
The Commonwealth cites to Commonwealth v. Troop, 571 A.2d
1084 (Pa.Super. 1990), appeal denied, 584 A.2d 317 (Pa. 1990), wherein
this court found the lack of a common goal or objective critical. In Troop,
the conspirators committed multiple robberies to supply money for drugs as
they needed them. The Troop court held:
A single, continuing conspiracy is
demonstrated where the evidence proves
that the essential feature of the existing
conspiracy was a common plan or
scheme to achieve a common, single,
comprehensive goal . . . . A single,
continuing conspiracy may contemplate a
series of offenses, or be comprised of a
series of steps in the formation of a
larger, general conspiracy ....
Therefore, where the evidence at trial is
sufficient for the jury to infer that the
essential features of the existing
conspiracy were a common plan or
scheme to achieve a common, single,
comprehensive goal or end, then the
conclusion that the conspiracy was a
single, continuing conspiracy is justified.
United States v. Continental Group,
Inc., 456 F.Supp. 704, 716
(E.D.Pa.1978), , 603 F.2d 444 (3d
Cir.1979), cert. denied, 444 U.S. 1032,
100 S.Ct. 703, 62 L.Ed.2d 668 (1980).
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Commonwealth v. Lore, 338 Pa.Super. 42, 67-68,
487 A.2d 841, 855 (1984) (citations omitted),
allocatur denied (July 18, 1985).
Here, appellant argues that the trial evidence
established that the robberies and other offenses
resulted from one ongoing conspiracy, with the
single purpose of obtaining money to use to
purchase cocaine. We disagree. According to the
testimony of one of the accomplices, Bess Brown,
the first robbery, on April 11, 1988, occurred after
appellant and his four accomplices had taken
cocaine, and discussed the need to get money to buy
more cocaine. N.T. November 16, 1988 at 55-62.
The money taken in the robbery was used to
purchase cocaine, which the five shared. Id. at 63.
Some twenty-seven hours later, on April 13, 1988,
the five accomplices were together again, and there
was a discussion concerning the need to obtain
money to purchase more cocaine. Id. at 66-67.
Appellant, along with James Troop and Daniel
Verosko,
robbed it. Id. at 67 70. Once again, the proceeds
from the robbery were used to purchase cocaine for
the entire group. Id. at 70 71. The final robbery
occurred later that morning. Bess Brown testified
that, prior to this robbery, James Troop mentioned
the need to obtain more money for cocaine. Id. at
72 73. Appellant Larry Troop agreed, and four of
the five then drove to a convenience store and
robbed it. Id. at 73 77. The proceeds again were
used to purchase cocaine. Id. at 77.
This testimony alone clearly was sufficient to
justify a finding that appellant and his accomplices
entered into three separate agreements to commit
the robberies. The three criminal episodes that
onvictions were
separated in time and place. In addition, there was
no evidence of a single, pre-existing criminal plan
that encompassed the three separate robberies.
Instead, the evidence suggested that the group
formulated a separate criminal plan and committed a
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robbery each time the group needed money to buy
more cocaine. As the Commonwealth aptly notes in
robbery was formed only after the available cocaine
had been used by the co-defendants. Each time the
need for cocaine surfaced and each time the need for
money to purchase the cocaine surfaced, the group
Appellee at 32. Accordingly, we hold that the
evidence warranted a finding of guilt for three
separate conspiracies.
Troop, 571 A.2d at 1089-1090.
As in Troop, there is no evidence that all of the burglaries committed
by appellant were to further some overarching goal. There is no evidence
that these burglaries were anything more than spur of the moment forays.
Thus, we conclude that these burglaries constituted multiple conspiracies
rather than a single, overarching conspiracy.
Finally, appellant offers a second theory as to the evidence being
insufficient. Appellant claims that the Commonwealth presented the
testimony of only 29 burglary victims and that the testimony of Whitten
failed to identify each individual camp/cabin that the conspirators burgled;
therefore, there was insufficient evidence to tie appellant to a significant
number of the burglaries. We disagree.
The Commonwealth presented the testimony of 75 different burglary
victims each of whom identified their camp/cabin, identified the time period
when they discovered the burglary, identified the damage done and/or the
items taken, stated that they did not know appellant, and related whether
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they had recovered any of their stolen belongings. (See notes of testimony,
5/14/12 at 8-169 (59 victims); 5/15/12 at 7-50, 72-76 (16 victims).) Many
of the victims claimed items that the pol
residence. (Notes of testimony, 5/15/12 at 90-98 (police seized stolen
burglaries were done. Many victims described stolen property consistent
with what the police found and which Whitten also described such as flat
screen televisions and copper piping. Finally, Whitten testified that the
police escorted him to various camps/cabins and asked him if they looked
familiar. (Id. at 54-55.) In sum, given the nature of these burglaries and
their time frame, and the voracious criminal appetite described by Whitten,
we think sufficient evidence was presented that appellant committed each of
these burglaries. We see no merit here.
Accordingly, having found no merit in the arguments raised on appeal,
we will affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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