Com. v. Roman-Rosa, H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR LUIS ROMAN-ROSA :
:
Appellant : No. 111 MDA 2023
Appeal from the Judgment of Sentence Entered December 13, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000218-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED: DECEMBER 6, 2023
I cannot conclude, beyond a reasonable doubt, that the prejudicial effect
of jointly trying the two informations could not have contributed to
Defendant’s guilty verdict. Therefore, I would vacate Defendant’s judgment
of sentence and remand for separate trials.
With regard to the issue of whether to join or sever offenses,1 our
standard of review is as follows:
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* Former Justice specially assigned to the Superior Court.
1 See Pennsylvania Rule of Criminal Procedure 582 states, in relevant part:
Rule 582. Joinder—Trial of Separate Indictments or
Informations
(A) Standards
(Footnote Continued Next Page)
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The general policy of the laws is to encourage joinder of offenses
and consolidation of indictments when judicial economy can
thereby be effected, especially when the result will be to avoid the
expensive and time consuming duplication of evidence. Whether
to join or sever offenses for trial is within the trial court’s
discretion and will not be reversed on appeal absent a
manifest abuse thereof, or prejudice and clear injustice to
the defendant.
Commonwealth v. Ernst, 242 A.3d 389 (Pa. Super. 2020) (emphasis
added), citing Commonwealth v. Johnson, 236 A.3d 1141, 1150-51 (Pa.
Super. 2020). The Majority concludes that the trial court abused its discretion
when it denied defendant’s motion to sever the charges where there “was very
little commonality between the two sets of crimes beyond the fact that
[Defendant] targeted his [then-]girlfriends’ daughters.” Majority
Memorandum, at 17. Despite this conclusion, the Majority deems the effect
of this abuse of discretion as harmless error because:
• The verdicts indicate that the jury separated the charges
and, by returning a not guilty verdict for Y.C., concluded no
crime occurred regarding Y.C.;
• The jury acquitting Defendant of both charges with regard
to Y.C. shows that the jury rejected Y.C.’s testimony in total;
____________________________________________
(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.
Pa.R.Crim.P. 582(A)(1)(a)-(b).
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• There is a presumption that the jury would not have credited
Y.C.’s testimony for purposes of convicting Defendant with
respect to K.R.; and
• It is confident that the jury faithfully applied the law by not
finding Defendant guilty of the Y.C. charges based on fact
that “it clearly credited K.R.’s testimony”
Majority Opinion, at 22, 25.
The majority comes to the conclusion that admission of the Rule 404(b)
evidence was harmless error despite the fact that it thrice acknowledges this
case presents “a close call.” Indeed, in determining that the trial court erred
by not severing the charges with regard to the two victims, the Majority had
to find that the trial court committed a “manifest abuse of discretion,” a finding
that implicitly requires a determination that the defendant has experienced
undue prejudice. See Commonwealth v. Brookins, 10 A.3d 1251 (Pa.
Super. 2010). With these standards in mind and the legal conclusions reached
by the Majority with regard to the failure to sever and the admission of Rule
404(b) evidence, I cannot deem such errors as harmless beyond a reasonable
doubt.
It is difficult to imagine a situation where this error could not have
contributed to the Defendant’s verdict, especially in light of the likelihood that
Y.C.’s testimony bolstered the credibility of K.R.’s testimony, regardless of
whether the jury convicted Defendant of the Y.C. charges. Commonwealth
v. Dillon, 925 A.2d 131, 137 (Pa. 2007) (reason for barring Rule 404(b)
evidence is not one “of relevance, but of policy, i.e., because of a fear that
such evidence is so powerful that the jury might misuse the evidence and
convict based solely upon criminal propensity”). In particular, Y.C. may likely
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have provided the proverbial “push” the jury needed to get over the hump to
find Defendant guilty with regard to K.R. I find this to be especially likely in
cases where a jury is faced with a Defendant who is alleged to have harmed
not just one, but two minor victims, and where credibility played a major role
in the factfinder’s ultimate determination. See Commonwealth v. Hicks,
156 A.3d 1114, 1157 (Pa. 2017) (Wecht, J., dissenting) (“It is natural and
well-nigh inevitable . . . that a juror will conclude that, if a person has
assaulted women before, he likely will do so again.”). See also Majority
Opinion, at 18 (“We conclude that this poses a close call, especially given the
role of credibility in these types of cases.”); id. at 21 (“credibility is paramount
in sexual abuse cases”).
Accordingly, I conclude that the prejudicial effect of the court’s erroneous
evidentiary ruling was significant and not harmless beyond a reasonable
doubt. Because I cannot find that the failure to sever resulted in “no actual
prejudice” to defendant, see id. at 19, I would vacate Defendant’s judgment
of sentence and remand for separate trials. Commonwealth v. Yocolano,
169 A.3d 47, 64 (Pa. Super. 2017); see also Shaffner v. Commonwealth,
72 Pa. 60, 65 (Pa. 1872) (“It is not proper to raise a presumption of guilt, on
the ground[] that[,] having committed one crime, the depravity it exhibits
makes it likely he would commit another.”).
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