Com. v. Reed, C. ( 2015 )

J-S34008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER REED,
Appellant No. 2109 MDA 2014
Appeal from the Judgment of Sentence July 16, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000208-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER REED,
Appellant No. 2110 MDA 2014
Appeal from the Judgment of Sentence July 16, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000209-2014
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 16, 2015
Christopher Reed appeals from the aggregate judgment of sentence of
eighteen to thirty-six months imprisonment that the trial court imposed after
a jury found him guilty of aggravated assault, simple assault, and disarming
J-S34008-15
a law enforcement officer. After careful review, we vacate the judgment of
sentence and remand for separate trials.
Following his arrest, Appellant was charged at two separate dockets
for two incidents occurring on the same day. The trial court recounted the
following relevant facts.
Appellant’s simple assault charge arose from an incident
on January 20, 2014[,] when police were dispatched to Ms.
[Jacquelyn] Reed’s home after a report of domestic abuse. On
the morning of that date[,] Appellant and Ms. Reed’s son[,]
Clayton Reed (“Clayton”)[,] went to an animal shelter to look at
dogs to adopt while Ms. Reed was at work. Throughout the
day[,] Appellant had called and texted Ms. Reed about buying a
new vehicle. However, Ms. Reed told Appellant that they could
not afford to purchase a new vehicle. After work[,] Ms. Reed
went home. Appellant and Clayton were not yet there[,] so Ms.
Reed called Appellant. Appellant explained that he and Clayton
were looking at new vehicles and wanted Ms. Reed to go down to
the dealership. Ms. Reed refused and told Appellant to come
home. On a subsequent phone call, Appellant called Ms. Reed
and told her that he was on his way home while cursing and
yelling at her. Ms. Reed hung up the phone on him.
Ms. Reed saw Appellant and Clayton approach the door in
the backyard. Ms. Reed unlocked the door and Appellant and
Clayton walked into the house. Appellant started yelling at Ms.
Reed[,] and he then wrapped his hands around her neck and
choked her to a point where she was unable to breathe. Ms.
Reed testified that she thought Appellant was going to kill her.
Ms. Reed pushed Appellant to get away and[,] as he was choking
her[,] he threw her body into the countertop causing pain to her
right side. Ms. Reed got away from Appellant and grabbed her
cell phone to call 911. Appellant took the cell phone out of Ms.
Reed’s hands, threw it on the ground, and stomped on it with his
foot. Appellant then took the cell phone and threw it against the
wall. Ms. Reed grabbed the cell phone and left out the back door
-2-
J-S34008-15
with Clayton. Appellant followed Ms. Reed asking where she was
going. Appellant took her cell phone and went back into the
house.[1]
Appellant’s aggravated assault and disarming a law
enforcement officer charges arose from an incident that took
place after Appellant was arrested and taken to the
Chambersburg Police Department on January 20, 2014[,]
following the events at the house. At trial[,] the Commonwealth
provided evidence of the charges through admission of Exhibit
10. Exhibit 10 is a video recording at the Chambersburg Police
Department. The visual is a holding cell where Appellant was
detained after being arrested. Patrolman [Jason] McGhee
testified that he believed Appellant was attempting to use his
belt to hurt himself by possibly using it to hang himself. As a
result[,] Patrolman McGhee called another policeman down to
aid him. Patrolman McGhee opened the holding cell and ordered
Appellant to hand him the belt. Appellant did not comply[,] and
Patrolman McGhee then ordered Appellant to sit on the bed.
Appellant did not comply after ordered again to do so.
Patrolman McGhee then used force to get Appellant to sit on the
bed. After sitting down briefly[,] Appellant lunged at Patrolman
McGhee[,] and the two struggled for approximately 15
seconds[,] during which time Appellant’s left hand appears to
have come into contact with the area where Patrolman McGhee’s
gun was holstered. After the struggle[,] Patrolman McGhee
stunned Appellant with a stun gun. Appellant then sat down on
the bed. After some conversing between the two policemen and
Appellant, the policemen closed the cell door. At that point[,]
according to the video[,] the following dialogue appeared to
have taken place:
Appellant: I was going to take your gun.
Patrolman McGhee: If you tried to take my gun
you’d be dead.
Appellant: No I wouldn’t.
Appellant: [Incoherent] . . . by the time he pulls his
gun out I’d shoot you man, you’re dead.[2]
____________________________________________
1
This incident gave rise to one count of aggravated assault, two counts of
simple assault, and one count of intimidation of a witness.
-3-
J-S34008-15
Trial Court Opinion, 2/4/14, at 2-4 (footnotes omitted).
After oral argument and over Appellant’s objection, the trial court
granted the Commonwealth’s motion to consolidate the two matters, and the
case proceeded to a jury trial on June 19, 2014. A jury found Appellant
guilty of one count of simple assault relating to the incident with Ms. Reed as
well as one count each of aggravated assault and disarming a law
enforcement officer relating to the incident with Officer McGhee. Appellant
was acquitted of all other charges and subsequently sentenced to an
aggregate term of eighteen to thirty-six months incarceration.
Appellant filed a timely post-sentence motion, in which he requested
judgment of acquittal based on the insufficiency of the evidence and sought
modification of his sentence. The trial court denied that motion, and this
appeal ensued. The court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant complied,
and the trial court filed its responsive Pa.R.A.P. 1925(a) opinion shortly
thereafter. This matter is now ripe for this Court’s review.
Appellant levels two questions for our consideration:
1. Did the trial court abuse its discretion when it consolidated both
of Appellant’s cases into one single trial, despite the fact that the
cases and crimes charged were distinct from one another, arose
_______________________
(Footnote Continued)
2
The incident with Officer McGhee gave rise to one charge each of
aggravated assault and disarming a law enforcement officer.
-4-
J-S34008-15
out of different circumstances, and evidence of each case would
not be admissible at a separate trial for the other?
2. Did the trial court abuse its discretion when it sentenced
Appellant to an aggregate sentence of 18 to 36 months in a
State Correctional Institution, which is at the top of the standard
range of sentences, is a departure above what was
recommended by the probation department as a result of the
pre-sentence investigation, and fails to consider the mitigating
factors present in this case?
Appellant’s brief at 14.3
Initially, Appellant challenges the trial court’s consolidation of the two
cases. We review the trial court’s decision in this regard under an abuse of
discretion standard. Indeed, this Court has consistently held that 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. Ferguson, 107 A.3d 206, 210 (Pa.Super.
2015) (citations omitted). Importantly, “Appellant bears the burden of
establishing such prejudice.” Id. (quoting Commonwealth v. Melendez–
Rodriguez, 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:
____________________________________________
3
The Commonwealth relies solely on the trial court opinion and did not file a
brief in this matter.
-5-
J-S34008-15
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 or transaction.
***
Rule 583. Severance of Offenses or Defendants
The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being
tried together.
Interpreting these rules, our Supreme Court established the following
test for deciding whether a court should join or sever charges:
[1] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these questions are
in the affirmative, [3] whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting
Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988)).
-6-
J-S34008-15
Applying this test, we first must determine whether the trial court
abused its discretion in holding that evidence of one of the offenses would be
admissible in a separate trial for the other. Id.
While evidence of bad acts is inadmissible at trial to prove that a
defendant acted in conformity therewith, Commonwealth v. Brown, 52
A.3d 320 (Pa.Super. 2012), such evidence may be admissible for a host of
other reasons, such as to prove motive, intent, or opportunity. Id. (citing
Pa.R.E. 404(b)(2)). In addition, “[o]ur Supreme Court has consistently
recognized that admission of distinct crimes may be proper where it is part
of the history or natural development of the case, i.e., the res gestae
exception.” Id. at 326. Under this exception, evidence of other criminal
acts is admissible against a defendant on trial “to complete the story of the
crime on trial by proving its immediate context of happenings near in time
and place.” Commonwealth v. Cascardo, 981 A.2d 245, 250 (Pa.Super.
2009) (en banc) (citations omitted). See also Commonwealth v. Dillon,
925 A.2d 131, 139 (Pa. 2007) (holding that res gestae evidence is
admissible “so that the case presented to the jury [does] not appear in a
vacuum”).
Herein, Appellant argues primarily that the two incidents are of
insufficient similarity to justify consolidation, noting the dearth of factual
similarities between the two. He further argues that, since the two offenses
-7-
J-S34008-15
were not so interwoven as to require their consolidation, the application of
the res gestae exception was improper.
The trial court noted that evidence of the assault against Appellant’s
wife explained Appellant’s incarceration and the “cause of his agitation on
that day.” Trial Court Opinion, 2/4/14, at 7. Thus, it reasoned that
evidence of each offense would have been admissible in a separate trial for
the other under the res gestae exception. Furthermore, the trial court
believed there was little risk of jury confusion, which weighed in favor of
consolidation. For the reasons set forth below, we vacate the judgment of
the trial court and remand the matters to the trial court for separate
proceedings.
Initially, we note that “there is no specific timeframe that dictates the
applicability of the exception.” Commonwealth v. Green, 76 A.3d 575,
584 (Pa.Super. 2013). That the two incidents took place just hours from
one another is of little consequence; instead, this Court is to look to whether
the facts and circumstances surrounding one altercation afforded a direct
evidentiary link to the other. Id. (citing Commonwealth v. Lark, 543 A.2d
491 (Pa. 1988)). Here, we find no such link.
In Lark, supra, our High Court affirmed consolidation of matters on
the basis that evidence of one matter would be admissible at separate trials
for others because each offense was “interwoven in a tangled web” of
-8-
J-S34008-15
criminal activity. That is, facts relating to one offense were so essential to
an overall criminal scheme that a jury required evidence of all of the
defendant’s criminal activites in order to fully and properly understand the
complex sequence of events that ultimately led to criminal charges.
We find very little complexity in the instant matters. The two
informations addressed incidents that were both factually and contextually
unrelated to one another. Appellant’s first incident involved an altercation
with his wife while at his home that began primarily as a fight over whether
to purchase a new vehicle. The second incident involved a police officer and
Appellant’s attempt to take that officer’s gun while detained at the
Chambersburg Police Department. The incidents were in markedly different
locations, perpetrated against distinctly different victims, and arose from
unrelated disputes. While the trial court reasons that Appellant’s “agitation”
binds the two in such a way as to render them sufficiently “interwoven,” we
cannot agree. There is no story here that requires completion by introducing
evidence of criminal propensity; therefore, the res gestae exception cannot
apply.
At no point during his detention did Appellant discuss with Officer
McGhee the earlier domestic incident, nor did Appellant make any statement
while at the Chambersburg Police Department that would have aided in his
prosecution. Plainly, evidence of Appellant’s altercation with Officer McGhee
could not be properly admitted at a separate trial for his altercation with Ms.
-9-
J-S34008-15
Reed as it did not fall within any exception to Pa.R.E. 404 and carries with it
a tremendous prejudicial effect.
Similarly, evidence of Appellant’s altercation with his wife would not be
admissible at a separate trial for the altercation with Officer McGhee. While
the cause for his incarceration may provide context, the prejudice resulting
from offering evidence of alleged domestic violence outweighs any benefit of
providing non-essential background to the second incident.
As neither the trial court nor the Commonwealth presents a convincing
argument that evidence of either incident would be admissible at a separate
trial for the other, we find that a consolidated trial of the two informations
was improper under Rule 582. We vacate the judgment of sentence and
remand for separate trials.4
Judgment vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2015
____________________________________________
4
Since we vacate judgment of sentence and remand, Appellant’s sentencing
claims are moot.
- 10 -