Com. v. Siford, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY WAYNE SIFORD :
:
Appellant : No. 35 MDA 2017
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001793-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY WAYNE SIFORD :
:
Appellant : No. 36 MDA 2017
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001773-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY WAYNE SIFORD :
:
Appellant : No. 37 MDA 2017
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000381-2014
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BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 01, 2018
Terry Wayne Siford challenges the judgments of sentence1 entered in
the Franklin County Court of Common Pleas, following his convictions for
robbery, burglary, and related charges. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant targeted elderly citizens in a string of home invasions in towns near
the borders of Pennsylvania, Maryland, and Virginia. He would wait until the
middle of the night, steal hidden keys or use a crowbar to wrench open a
window or door, and startle the home’s sleeping occupants while he
rummaged through their belongings. When confronted by the victims,
Appellant would use threats to force them to turn over money.
After Appellant looted a residence, he would drive across the county to
commit a second burglary while police responded to the first incident. Noticing
this pattern over several months, detectives in Chambersburg developed a
plan for apprehending him. When they received their next report of a home
invasion in Franklin County, some of the responding officers positioned their
vehicles by Interstate 81. They spotted Appellant, driving erratically in a car
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 Former Justice specially assigned to the Superior Court.
1 As discussed in detail below, the court sentenced Appellant in a single
proceeding and entered a separate sentencing order at each of the above-
captioned docket numbers. Appellant filed a single notice of appeal and
combined his appellate issues in a single brief. For ease of review, we have
consolidated these appeals sua sponte.
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that matched the robbery victim’s description of her assailant’s vehicle. The
officers pulled Appellant over, found items in the car taken from several
robbery victims, and arrested him.
The Commonwealth filed a motion for joinder, arguing that Appellant’s
offenses were all part of the same criminal plan, and that evidence of each
offense would be admissible in separate trials. The court permitted joinder.
Appellant’s appointed counsel filed a pre-trial suppression motion. Appellant
then filed myriad pro se writings, accusing counsel of ineffective
representation, and threatening to report counsel to the Disciplinary Board.
The court permitted counsel to withdraw, appointed new counsel, and held a
hearing on Appellant’s suppression motion. The court ultimately denied the
motion, and Appellant proceeded to a jury trial. The jury convicted him of
sixteen counts of burglary; nine counts of robbery; twelve counts of theft; and
three attempt offenses, for burglary and robbery.2 The court ordered a pre-
sentence investigation report, and ultimately sentenced Appellant to an
aggregate term of 657 to 1,386 months’ incarceration for his crimes. Appellant
timely filed post-sentence motions, which the court denied, and this appeal is
now before us.
Preliminarily, we address the procedural irregularities of these
consolidated appeals. Appellant was charged at three separate dockets. The
Commonwealth filed a motion for joinder, which the court granted. Though
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2 18 Pa.C.S.A. §§ 3502(a); 3701(a)(1)(iv); 3921(a); and 901(a), respectively.
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Appellant was sentenced in a single proceeding, the court entered a separate
sentencing order at each docket number. Once Appellant’s post-sentence
motions were denied, he filed a single notice of appeal with all three docket
numbers listed in the caption. The trial court then forwarded three separate
copies of the notice of appeal to this Court, and each was docketed as a
separate appeal. Appellant filed a single appellate brief to address issues
across all three dockets.
The Note following Rule of Appellate Procedure 341 states:
A party needs to file only a single notice of appeal to secure review
of prior non-final orders that are made final by the entry of a final
order[.] Where, however, one or more orders resolves issues
arising on more than one docket or relating to more than one
judgment, separate notices of appeal must be filed.
Pa.R.A.P. 341, Note (citations omitted).
Our Supreme Court recently addressed this Note in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018). In that case, four defendants in a robbery
case filed motions to suppress evidence, which the suppression court granted.
The Commonwealth then filed a single notice of appeal, listing all four docket
numbers, from the order granting suppression. A panel of this Court found the
single notice of appeal to be improper, and quashed. See Commonwealth v.
Walker, No. 2299 EDA 2015 (Pa. Super., filed Sept. 30, 2016) (unpublished
memorandum).
On appeal, the Supreme Court addressed the issue of joint appeals from
multiple defendants, and the attendant difficulties of considering those
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appeals where the resolution of appealed issues may affect each defendant
differently. It briefly mentions a case from this Court, In Interest of P.S.,
158 A.3d 643 (Pa. Super. 2017), where the panel determined that those
concerns were not present in a case with a single juvenile defendant who filed
a single notice of appeal from multiple dispositions, and declined to quash.
The Walker Court found the Note to Rule 341 had been inconsistently applied
and analyzed by this Court in relevant case law. The Supreme Court therefore
declined to quash the Commonwealth’s appeal, but held that “prospectively,
where a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case.” 185 A.3d at 971.
Here, Appellant filed his single notice of appeal from each docket before
the Walker case was decided. So, while we strongly disapprove of Appellant’s
decision to file merely a single notice of appeal from three separate dockets,
we decline to quash his appeal on that basis. We proceed to a merits analysis.
In Appellant’s first issue, he contends the trial court erred in granting
the Commonwealth’s motion to consolidate all three dockets. Appellant argues
consolidation controverted the requirements of Pa.R.Crim.P. 582(A)(1),
because the Commonwealth failed to show a common practice or scheme that
would make the each offense admissible in a separate trial for the other.
The trial court has discretion in determining whether to join or sever
offenses for trial. See Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa
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Super. 2018). We decline to reverse that decision on appeal absent a manifest
abuse of that discretion. See id.A defendant may be tried for multiple criminal offenses charged in
separate informations if “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 the offenses charged are
based on the same act or transaction.” Pa.R.Crim.P. 582(A)(1)(a)-(b). If the
trial court finds evidence of each offense would be admissible in separate
trials, and finds the jury can distinguish the charges, the court must also
consider whether the defendant will be unduly prejudiced by consolidation.
See Commonwealth v. Torres, 177 A.3d 263, 277 (Pa. Super. 2017).
“While evidence of other criminal behavior is not admissible to
demonstrate a defendant’s propensity to commit crimes, it may be admissible
to prove 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.” Knoble, 188 A.3d at 1205 (internal
quotations, brackets, and citations omitted). See also Pa.R.E. 404(b).
When requesting joinder, the Commonwealth averred Appellant’s acts
constituted a common scheme, plan, and design. Evidence of this pattern of
criminality may also be referred to as a defendant’s modus operandi, or a
signature crime.
To prove identity through the use of other crimes, the other crimes
must be so nearly identical in method and circumstance as to
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earmark them as the handiwork of the accused. … The pattern and
characteristics of the crimes must be so unusual and distinctive as
to be like a signature. Modus operandi requires more than a mere
similarity between crimes. Rather, there must be such a high
correlation in the details of the crimes that proof that a person
committed one of them makes it very unlikely that anyone else
committed the others.
Hon. Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence, §
404.22[2][a] Signature Crimes to Prove Identity, Admissibility, at 165
(2016).
In evaluating the Commonwealth’s motion for joinder, the trial court
agreed that evidence of each crime showed a commonality of practice,
scheme, or plan that would prove the perpetrator’s identity. The court
determined evidence of each crime would be admissible in a trial for the other,
and that the admission of such evidence would not unduly prejudice Appellant.
The court granted the motion for joinder. Appellant now challenges that
decision.
Appellant objects to joinder, stating the crimes lacked any specific
signature. He posits that to be truly related, each crime would need to share
near-identical characteristics. According to Appellant, the Commonwealth
needed to prove suitability for joinder by showing an unusual distinction
between all cases, like a “certain phrase or quote” repeated to each victim.
Appellant’s Brief, at 10. While we agree a catchphrase would provide
convincing evidence that a perpetrator’s crimes were related, such a standard
would preclude all but vaudeville bandits from having separate indictments
joined for trial.
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Appellant’s crimes shared many similar characteristics. Appellant waited
until late at night, when he believed his victims would be asleep, to break into
their homes. He specifically targeted older victims, whom he judged ill-
equipped to resist as he ransacked their homes. Appellant attempted to locate
hidden keys outside of the homes or in garages; when he was unable to find
keys, he used a crowbar or similar device to pry open windows and doors. He
wore dark clothing and obscured his face with hoods and ski masks during his
crimes. When panicked homeowners awoke during his intrusions, he calmly
told them that he was looking for money, and that he would not hurt them if
they gave it to him. He also warned his victims against informing anyone else.
Appellant took cash, coins, jewelry, and other small valuables. Further,
Appellant would typically commit several burglaries on the same evening,
using Interstate 81 and smaller highways to flit between locations in his
vehicle.
Based on all that, we find ample evidence to support the trial court’s
order granting joinder. Appellant’s methods show a distinct criminal signature,
making it highly unlikely anyone else committed these crimes. See Pa.R.E.
404(b)(2). Such evidence would be admissible in separate criminal trials for
each crime. And, this admitted evidence was not unduly prejudicial.
Consequently, the trial court did not err by permitting joinder of the
indictments.
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In Appellant’s next issue, he argues the Commonwealth presented
insufficient evidence to convict him of robbing I.S.
Our standard of review for a challenge to the sufficiency of the evidence
is to determine whether, when viewed in a light most favorable to the verdict
winner, the evidence at trial and all reasonable inferences therefrom are
sufficient for the trier of fact to find that each element of the crimes charged
is established beyond a reasonable doubt. See Commonwealth v. Dale, 836
A.2d 150, 152 (Pa. Super. 2003).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (brackets added; citation omitted). Any
doubt raised as to the accused’s guilt is to be resolved by the fact-finder. See
Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record.” Id. (citation omitted). Therefore, we will not
disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak
and inconclusive “[w]hen two equally reasonable and mutually inconsistent
inferences can be drawn from the same set of circumstances….”
Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946)
(brackets added). However, “[t]he Commonwealth may sustain its burden of
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proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence.” Commonwealth v. Gibbs, 981 A.2d 274,
281 (Pa. Super. 2009) (brackets added; citations omitted).
A person is guilty of robbery if, during the commission of a theft, he
“inflicts bodily injury upon another or threatens another with or intentionally
puts him in fear of immediate bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(iv).
“A reviewing court will consider the defendant’s intent and actions and not
necessarily the subjective state of mind of the victim.” Commonwealth v.
Rodriquez, 673 A.2d 962, 966 (Pa. Super. 1996) (citations omitted). Thus,
whether the victim in fact feared immediate bodily injury under such
circumstances is not controlling. See Commonwealth v. Davison, 177 A.3d
955, 957 (Pa. Super. 2018).
To prove the charge that Appellant robbed I.S., the Commonwealth had
to show that he threatened her with or intentionally put her in fear of
immediate bodily injury. See 18 Pa.C.S.A. § 3701(a)(1)(iv). S.S., I.S.’s
daughter, testified that I.S. was 83 years old at the time of the break-in, used
a wheelchair to move around, and was in poor health. See N.T. Trial, 6/1/16,
at 43. S.S. stated that on January 8, 2014, a man wearing overalls and a ski
cap woke her up around 1 a.m. as he rustled through her nightstand. See id.,
at 45-46. S.S. began yelling, and pushed him out of the room and into the
hallway. See id., at 45. I.S. awoke during the fracas, in a bedroom Appellant
had already ransacked, and shouted, “what’s going on, what’s going on?” N.T.
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Hearing, 9/12/14, at 91; N.T. Trial, 6/1/16, at 46. I.S. rolled her wheelchair
to the hall as S.S. continued pushing Appellant. See N.T. Trial, 6/1/16, at 46.
Appellant called out, “hey, buddy, she’s getting out of hand. Bring in the gun!”
before fleeing as the two women called the police. Id., at 62.
Appellant asserts his threats about the gun were directed solely at S.S.
According to Appellant, no evidence exists to show his conduct put I.S in fear
of immediate bodily injury. We disagree.
Though I.S. did not testify, the Commonwealth presented plenty of
evidence to show Appellant’s intention was to put her and her daughter in fear
of immediate bodily injury. S.S. testified that I.S. awoke in the middle of the
night, found her bedroom had been ransacked as she slept, and saw her
daughter struggling with a masked intruder. The intruder then threated the
women with a gun. The fact that the Commonwealth did not present testimony
from I.S. describing her state of mind is of no moment. As the reviewing Court,
we will consider Appellant’s intent and actions, not I.S.’s subjective state of
mind. See Rodriquez, 673 A.2d at 966. The record makes clear that
Appellant’s intent was to instill fear of bodily injury in the women, so they
would stop resisting as he looted their home. And because Appellant only
contests the fear of bodily injury element of the robbery statute, we need not
address the remaining elements. Therefore, we find sufficient evidence to
affirm Appellant’s conviction for robbing I.S.
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In Appellant’s final issue, he challenges the discretionary aspects of his
sentence.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
brackets and citation omitted).
Here, Appellant filed a timely notice of appeal, and preserved the issue
in a motion to modify his sentence. Appellant’s brief fails to include a concise
statement of reasons relied upon for allowance of appeal pursuant to Pa.R.A.P.
2119(f). Nevertheless, we may review his claim, as the Commonwealth has
not objected, and we can determine the presence or absence of a substantial
question based on his brief. See Commonwealth v. Davis, 734 A.2d 879,
882 (Pa. Super. 1999).
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Appellant contends the sentencing court failed to adequately consider
his rehabilitative needs, because it did not articulate how the sentence
addressed his acknowledged alcohol and opioid addictions. This Court has
repeatedly held the mere assertion that the sentencing court failed to give
adequate weight to sentencing factors of record, without more, does not raise
a substantial question for appellate review. See, e.g., Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc).
Here, Appellant concedes that the sentencing court knew of, and
addressed on the record, his drug and alcohol addictions. We also note the
sentencing court had the benefit of a pre-sentence investigation report
(“PSI”). Where the sentencing court had the benefit of reviewing a PSI, “we
can assume the sentencing court was aware of relevant information regarding
the defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Rhoades, 8 A.3d 912, 919
(Pa. Super. 2010) (internal quotations and citation omitted).
Further, even if we were to address his arguments on the merits, we
would not have found his sentence constituted an abuse of the court’s
discretion. The trial court imposed standard range sentences on each
conviction, but ran them consecutively. A sentences imposed within the
standard guideline range is presumptively reasonable. See Commonwealth
v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009); Commonwealth v.
Fowler, 893 A.2d 758, 767 (Pa. Super. 2006). The sentencing court,
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moreover, did consider Appellant’s substance abuse problems, but also
“considered that [Appellant] had absolutely nothing to say at the time of his
sentencing which would have given us any explanation of what, if any,
rehabilitation [he] would benefit from.” Trial Court Opinion, filed 12/13/16, at
13. We would not find this weighing of relevant factors to be an abuse of
discretion, and consequently would have found that Appellant is due no relief
on this claim. Accordingly, we affirm his judgment of sentence.
Judgments of sentence affirmed.
Judge Olson joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2018
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