Com. v. Mieluchowski, J.

J. A21041/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH F. MIELUCHOWSKI, : No. 945 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence, September 20, 2017,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0004906-2015
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2020
Joseph F. Mieluchowski appeals from the September 20, 2017 judgment
of sentence entered by the Court of Common Pleas of Montgomery County
following his conviction of 15 counts of robbery (threat of immediate serious
bodily injury), five counts of robbery (demand money from financial
institution), five counts of possessing instruments of crime, and one count
each of kidnapping, conspiracy to commit robbery (threat of immediate
serious bodily injury), and conspiracy to commit robbery (demand money
from financial institution).1 After careful review, we vacate the judgment of
sentence and remand for further proceedings consistent with this
memorandum.
1 18 Pa.C.S.A. §§ 3701(a)(ii) and (vi), 907(b), 2901(a)(2), and 903(a),
respectively.
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The trial court set forth the following factual and procedural history:
Between November 18, 2009, and February 5, 2012,
appellant and co-defendant/co-conspirator,
Robert Wisler, (“Wisler”) conspired to commit, and
appellant did commit, five (5) distinct bank heists
throughout the counties of Montgomery, Lancaster,
and Westmoreland within the Commonwealth of
Pennsylvania.[Footnote 2] Throughout his spree of
“takeover-style” bank robberies, appellant employed
a consistent modus operandi—an outfitted and
disguised appellant loudly declared to the numerous
bank hostages that he was conducting a bank robbery
while brandishing a handgun, intentionally putting
them in fear of immediate, serious bodily injury; and
approached multiple bank tellers, demanding there be
“no dye packs” with the cash that he stashed in a bag
which he brought with him.
[Footnote 2:] The five (5) Pennsylvania
robberies throughout 2009 and 2012 were
as follows:
1. PNC Bank, North Huntingdon,
Westmoreland County, PA,
11/18/09.
2. Citizens Bank, 48 Skippack
Pike, Ambler, Whitpain
Township, Montgomery
County, PA, 5/12/10.
3. Royal Bank, 600 York Road,
Jenkintown, Montgomery
County, PA, 6/26/10.
4. Susquehanna Bank, Gap,
Lancaster County, PA,
5/27/11.
5. Citizens Bank, 48 Skippack
Pike, Ambler, Whitpain
Township, Montgomery
County, PA 2/5/12.
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In or around April of 2014, during the midst of the
Pennsylvania State Police (“PSP”) Department’s
investigation into the Pennsylvania robberies, the
Delaware State Police (“DSP”) contacted the PSP and
exchanged information and evidence, including DNA
evidence, collected in their own investigation of
seven (7) similar-style robberies in Delaware that
occurred during the same time period and within close
geographical proximity to those five (5) that occurred
in Pennsylvania. Said exchange assisted the PSP in
identifying appellant, and charging him on or about
June 4, 2015, with numerous criminal counts relating
to bank robbery within Pennsylvania, and ultimately
served as part of the Commonwealth’s evidence at
trial proving appellant’s identity as the perpetrator of
the robberies and his continuing course of conduct
during which the robberies took place.
Specifically, the evidence obtained during the DSP’s
investigation into the seven (7) Delaware bank heists
revealed to the Commonwealth appellant’s identity,
given the consistent modus operandi employed by
him in carrying out the Delaware and Pennsylvania
robberies; most notably, the “takeover-style” of the
robberies, whereby appellant went into the banks,
“loudly declare[d] there [wa]s a bank robbery,
display[ed] a weapon, approache[d] multiple tellers,
g[ot] cash from top and bottom drawers, and [. . .]
t[ook] over the bank [. . .]”; in other words,
“everyone in the bank[s] kn[ew] that a robbery [wa]s
occurring, customers and employees.” The DSP also
collected a mustache disguise from one of the scenes
of crime, as well as a ballcap, which the PSP were able
to test later and determine that appellant’s DNA could
not be excluded as the source of the DNA profiles
found on this evidence. The exchange of evidence
between the two (2) states’ police departments
further allowed the PSP to map the various cross-state
robberies, illustrating the close proximity of the
robberies to appellant’s Pennsylvania home, as well
as, the location of the robberies on main
thoroughfares connecting the two (2) states.
Moreover, the PSP used evidence of appellant’s work
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history, in part collected from an anonymous tip to the
DSP, to further develop appellant’s motive for the
robberies, such that appellant’s income fell due to lack
of work around the same time in 2009 when the
robberies began occurring. The PSP also used
physical evidence collected by the DSP, i.e.,
appellant’s fake mustache and ballcap, to test and
compare with a buccal (cheek) swab sample of
appellant’s DNA.
The cross-state sharing of information between the
police departments assisted the PSP in criminally
charging appellant on June 4, 2015, with the various
criminal charges relating to the robberies in
Pennsylvania.
Trial court opinion, 5/3/19 at 1-3 (extraneous capitalization, footnote 1, and
citations to the record omitted; brackets in original).
A jury convicted appellant of the aforementioned crimes on December 7,
2016. On May 5, 2017, the trial court sentenced appellant to an aggregate
term of 29-58 years’ imprisonment, to be followed by seven years’ probation.
Appellant filed a post-sentence motion on May 12, 2017, which the trial court
denied in part and granted in part on August 15, 2017.2 The trial court
subsequently re-sentenced appellant on September 20, 2017, to an aggregate
term of 31-62 years’ imprisonment, to be followed by 10 years’ probation.
Appellant filed a notice of appeal on October 5, 2017. The trial court
ordered appellant to file a concise statement of errors complained of on appeal
2 The trial court vacated appellant’s convictions on five counts of
robbery-threat of immediate serious bodily injury and two counts of
robbery-demand money from financial institution, as the statute of limitations
expired. See 42 Pa.C.S.A. § 5552(b)(1).
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pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court
subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).
This court dismissed appellant’s appeal on June 15, 2018, for failure to
file a brief. On January 28, 2019, appellant filed a counseled petition pursuant
to the Post Conviction Relief Act,3 in which he sought reinstatement of his
direct appellate rights nunc pro tunc. The trial court granted appellant’s
petition on March 1, 2019. Appellant subsequently filed a timely notice of
appeal on March 22, 2019. The trial court did not order appellant to file
another concise statement of errors complained of on appeal, nor did it file
another Rule 1925(a) opinion.
Appellant raises the following issues on appeal:
[1.] Did the trial court err by allowing the
Commonwealth to present evidence obtained
during the investigation of seven bank robberies
that [appellant] allegedly committed in the state
of Delaware as evidence of his “identity” as the
perpetrator of the five Pennsylvania bank
robberies for which [appellant] was being tried?
[2.] Is the trial court’s sentence, which has two
conspiracy charges running consecutively,
illegal when those conspiracy charges are
predicated on the identical conspiracy?
Appellant’s brief at 2.4
3 42 Pa.C.S.A. §§ 9541-9546.
4 For ease of discussion, we have re-ordered appellant’s issues.
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In his first issue, appellant contends that the trial court erred when it
permitted the Commonwealth to present evidence of seven bank robberies
occurring in the State of Delaware. (Appellant’s brief at 11.) Specifically,
appellant argues that the robberies that occurred in Delaware were not
sufficiently similar to the robberies for which appellant was charged in
Pennsylvania. (Id. at 13.) Appellant further avers that evidence of the
Delaware robberies was unfairly prejudicial in that the prejudice outweighed
any probative value that the evidence had. (Id. at 14.)
When reviewing a trial court’s admission of evidence, we are subject to
the following standard:
“The admission of evidence is solely within the
discretion of the trial court, and a trial court’s
evidentiary rulings will be reversed on appeal only
upon an abuse of discretion.” Commonwealth v.
Reid, [] 99 A.3d 470, 493 ([Pa.] 2014). An abuse of
discretion will not be found based on a mere error of
judgment, but rather occurs where the court has
reached a conclusion that overrides or misapplies the
law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. Commonwealth v. Davido, [] 106
A.3d 611, 645 ([Pa.] 2014).
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied,
137 S. Ct. 92 (2016).
The particular Pennsylvania Rule of Evidence
governing the admission of “prior bad acts” is
Pa.R.E. 404(b) which provides, in relevant part:
(b) Other crimes, wrongs, or acts.
....
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(2) Evidence of other crimes,
wrongs, or acts may be
admitted for other purposes,
such as proof of motive,
opportunity, intent,
preparation, plan, knowledge,
identity or absence of mistake
or accident.
(3) Evidence of other crimes,
wrongs, or acts proffered
under subsection (b)(2) of
this rule may be admitted in a
criminal case only upon a
showing that the probative
value of the evidence
outweighs its potential for
prejudice.
Pa.R.E. 404(b)(1)-(3). Under this rule, the admission
of prior “bad acts” is inadmissible for the sole purpose
of proving the defendant has a bad character, or a
“criminal propensity.” Commonwealth v. Powell, []
956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this
rule permits the admissibility of such evidence for
other relevant purposes such as:
showing the defendant’s motive in
committing the crime on trial, the absence
of mistake or accident, a common scheme
or design, . . . to establish identity [,][or]
where the acts were part of a chain or
sequence of events that formed the
history of the case and were part of its
natural development.
Id. However, admission for these purposes is
allowable only whenever the probative value of the
evidence exceeds its potential for prejudice.
Pa.R.E. 404(b)(3).
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Commonwealth v. Briggs, 12 A.3d 291, 336-337 (Pa. 2011), cert. denied,
565 U.S. 889 (2011). Our supreme court further noted that “[w]hen the trial
court admits evidence of a defendant’s other bad acts, ‘the defendant is
entitled to a jury instruction that the evidence is admissible only for a limited
purpose.’” Commonwealth v. Crispell, 193 A.3d 919, 937 (Pa. 2018),
quoting Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).
The Commonwealth avers that the prior bad acts evidence admitted by
the trial court establishes appellant’s identity. (Commonwealth’s brief at
20-21.) The record reflects that a fake mustache was recovered from the
scene of one of the Delaware bank robberies and was sent off for DNA testing.
(Notes of testimony, 12/6/16 at 191-194.) Detective Grassi testified that,
initially, there were no results returned, as a suspect had not yet been
identified. (Id. at 193-194.) As noted by the trial court, the Pennsylvania
State Police subsequently tested the DNA sample taken in Delaware and, after
comparing the Delaware sample with a buccal sample of appellant’s DNA,
“ultimately determined [a]ppellant’s DNA sample could not be excluded as a
source of the DNA profiles” taken in Delaware. (Trial court opinion, 5/3/19
at 20.) Further, the trial court noted that, “[t]he limited security footage
collected from the various banks [in Pennsylvania and Delaware] consistently
showed the assailant was a white, stocky male approximately six (6)-feet tall.”
(Id., citing notes of testimony, 12/6/16 at 179-203).
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Appellant further argues that the prejudice of the prior bad acts evidence
admitted by the trial court outweighed its probative value and had the effect
of “rous[ing] the jury to overmastering hostility[.]” (Appellant’s brief at 14
(citations omitted).) Specifically, appellant contends that “[e]vidence of prior
criminal activity . . . is probably only equaled by a confession in its prejudicial
impact upon a jury.” (Id. at 15, quoting Commonwealth v. Spruill, 391
A.2d 1048, 1050 (Pa. 1978).)
Here, the record reflects that the trial court provided the following
instruction to the jury before the Commonwealth began its direct examination
of Detective Grassi:
Ladies and gentlemen of the jury, before I have the
Commonwealth begin their questioning, I do want to
instruct you – I asked you questions about this during
voir dire – but that this witness – what I anticipate
much of this witness’ testimony will be related to
robberies that occurred in the State of Delaware.
I wanted to remind you that this evidence is being
presented as circumstantial evidence of identification
and perhaps evidence of motive. The fact that the
defendant was investigated or even arrested for any
crimes in Delaware cannot be used against him in this
matter for anything other than to show identification
in the Pennsylvania cases, if you find that to be
relevant after hearing all of the evidence, or for
motive. You cannot use the fact that he was arrested
or charged with anything in the State of Delaware as
evidence of guilt in the cases here in Pennsylvania.
Notes of testimony, 12/6/16 at 155-156.
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Later during the trial, the trial court again reminded the jury during the
Commonwealth’s direct examination of Mr. Wisler that evidence of prior bad
acts could not be used as evidence of his guilt in the instant charges:
Ladies and gentlemen, as there has been a reference
to beginning testimony about a Delaware robbery, I
will just again remind you that the Delaware robberies
are being introduced into evidence as to help with
your determination regarding identification and
motive. The fact that the defendant has been charged
with or was considered for any robberies in Delaware
cannot be used against him to find him guilty in the
Pennsylvania cases.
Id. at 299-300.
Finally, during its charge to the jury, the trial court again reminded the
jury of the limits of the prior bad acts evidence:
As I have instructed you many times during this trial
and I will repeat at this time, you heard evidence that
[appellant] has been accused of robberies in the State
of Delaware in addition to those in this case. The
evidence presented regarding those robberies has
been provided to you for a limited purpose: That is to
show circumstantial evidence of the identification
and/or to prove evidence of motive. You may consider
this evidence insofar as that it aids your determination
of the identification of the person who committed the
five Pennsylvania robberies which are before you or
for your consideration of motive. The fact that
[appellant] was investigated or accused of other bank
robberies in the State of Delaware for which the
charges are not before you shall not be used in
determining [appellant’s] guilty in the matters that
are before you today.
Notes of testimony, 12/7/16 at 518-519.
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It is well settled that juries are presumed to follow the trial court’s
instructions. Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017),
citing Commonwealth v. Bullock, 913 A.2d 207, 218 (Pa. 2006),
cert. denied sub nom. Bullock v. Pennsylvania, 550 U.S. 941 (2007).
Based on our review of the record, we find that the trial court did not
abuse its discretion when it permitted the Commonwealth to introduce
evidence of robberies in which appellant allegedly participated in the State of
Delaware. Indeed, as noted in detail supra, the Commonwealth
demonstrated that the prior bad acts evidence established appellant’s identity
pursuant to Rule 404(b). Because the trial court instructed the jury
three times that the evidence of appellant’s alleged involvement in the
Delaware bank robberies could not be used in determining appellant’s guilt
with regard to the Pennsylvania bank robberies at issue here, we hold that the
probative value of the evidence presented by the Commonwealth exceeds its
potential for prejudice. Pa.R.E. 404(b)(3); Briggs, 12 A.3d at 336-337;
Aikens, 168 A.3d at 143. Accordingly, appellant’s first issue is without merit.
In his second issue, appellant contends that the trial court imposed an
illegal sentence when it imposed two consecutive sentences for
two convictions of conspiracy to commit robbery. (Appellant’s brief at 11.)
The Commonwealth does not oppose remanding the case for the purposes of
resentencing. (Commonwealth’s brief at 25.)
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Preliminarily, we note that appellant failed to include this issue in his
Rule 1925(b) concise statement of errors complained of on appeal. Generally,
such a failure would result in waiver of the issue on appeal. Commonwealth
v. Smith, 210 A.3d 1050, 1059 (Pa.Super. 2019), appeal denied, 218 A.3d
1199 (Pa. 2019), citing Pa.R.A.P. 1925(b)(4)(ii). Challenges to the legality of
sentence, however, are non-waivable and may be raised at any time, so long
as the reviewing court has jurisdiction. Commonwealth v. Wood, 208 A.3d
131, 136 n.9 (Pa.Super. 2019) (en banc). Accordingly, we shall proceed to
review appellant’s second issue on the merits.
“A challenge to the legality of sentence is a question of law; our standard
of review is de novo and our scope of review is plenary.” Commonwealth
v. Alston, 212 A.3d 526, 528 (Pa.Super. 2019), citing Commonwealth v.
Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014), appeal denied, 121 A.3d
494 (Pa. 2015).
Section 903 of the Crimes Code provides that “[i]f a person conspires to
commit a number of crimes, he is guilty of only one conspiracy so long as such
multiple crimes are the object of the same agreement or continuous
conspiratorial relationship.” 18 Pa.C.S.A. § 903(c). In Commonwealth v.
Lore, 487 A.2d 841, 855 (Pa.Super. 1984), this court held that in cases where
a defendant is convicted of multiple counts of conspiracy, he or she may only
be sentenced on one count if “there were multiple criminal objectives of a
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continuous conspiratorial relationship and each [criminal objective] was a
component of the larger common design.”
Here, appellant was charged and convicted of one count each of
conspiracy to commit robbery (threat of immediate serious bodily injury) and
conspiracy to commit robbery (demand money from a financial institution).
The trial court sentenced appellant to consecutive sentences of 5-10 years’
imprisonment for appellant’s convictions of conspiracy to commit robbery
(threat of immediate serious injury) and conspiracy to commit robbery
(demand money from financial institution). (Notes of testimony, 9/20/17
at 5.)
Based on our review of the record, we find that appellant participated in
one continuous conspiratorial relationship. Indeed, appellant’s co-conspirator,
Mr. Wisler, testified that there was one agreement that covered the series of
bank robberies committed by appellant. (Notes of testimony, 12/6/16 at 296,
355, 359-360.) Further, the trial court referenced a single conspiracy in its
preliminary comments prior to imposing its sentence. (Notes of testimony,
9/20/17 at 3.) Accordingly, we find that appellant engaged in a single
conspiracy to commit multiple crimes; therefore, he should have been
sentenced for only one count of conspiracy. See Lore, 487 A.2d at 855.
Because our decision upsets the overall sentencing scheme of the trial court,
as our action affects the length of appellant’s aggregate sentence, we remand
for resentencing, while affirming appellant’s convictions. See
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Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006), appeal
denied, 946 A.2d 687 (Pa. 2008), citing Commonwealth v. Williams, 871
A.2d 254, 266-267 (Pa.Super. 2005) (requiring remand for trial court to
restructure its sentence in cases where appellate disposition upsets trial
court’s overall sentencing scheme).
On February 18, 2020, appellant filed an application for substitution of
appointed counsel. We deny appellant’s application without prejudicing
appellant from seeking relief with the trial court.
Judgment of sentence vacated. Convictions affirmed. Remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/20
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