Com. v. Shackelford, J.

J-S06034-23
2023 PA SUPER 66
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY WARREN SHACKELFORD :
:
Appellant : No. 1297 MDA 2022
Appeal from the Judgment of Sentence Entered August 29, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004171-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY WARREN SHACKELFORD :
:
Appellant : No. 1298 MDA 2022
Appeal from the Judgment of Sentence Entered August 29, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003662-2021
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: APRIL 14, 2023
Jeffrey Warren Shackelford (“Appellant”) appeals from the February 27,
2019, judgment of sentence entered in the Court of Common Pleas of
Lancaster County after a jury found him guilty on Docket 4171-2021 of Drug
Delivery Resulting in Death and Criminal Use of a Communication Facility and
guilty on Docket 3662-2021 of Possession with Intent to Deliver 17 grams of
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S06034-23
Fentanyl and Possession with Intent to Deliver 87.68 grams of
Methamphetamine. After careful review, we affirm.
The trial court has authored an opinion pursuant to Pa.R.A.P. 1925(a)
in which it sets forth the pertinent facts and procedural history, as follows:
In the early morning hours of April 14, 2021), Carrie Hamilton’s
boyfriend, Elvin Bradley, found her unresponsive on his bathroom
floor. Notes of Testimony, Jury Trial, June 6-8, 2022, at 108-109
(hereinafter “N.T. at ____.”). Carrie had no heartbeat when
emergency medical personnel arrived and although lifesaving
interventions were able to temporarily restore her pulse, she died
in the hospital several hours later. N.T. at 123-25, 260. A screen
of Carrie’s urine performed shortly before she was pronounced
dead was positive for fentanyl, cocaine, and opioids. N.T. at 260.
The Lancaster County Coroner subsequently determined that the
cause of Carrie’s death was combined drug toxicity. N.T. at 261.
The investigation into Carrie’s death revealed that on the evening
prior to her overdose, Mr. Bradley picked Carrie up, took her to an
ATM, and subsequently drove her to a Turkey Hill gas station
where Carrie said that she had to meet and “get some stuff from
a friend of hers.” N.T. at 85, 92-93, 97, 100-01. When Carrie
and Mr. Bradley arrived at the Turkey Hill, Carrie got out of the
vehicle and entered a white Jeep where she remained for
approximately five minutes before returning to Mr. Bradley’s car.
N.T. at 100-01.
After Carrie and Mr. Bradley returned home, they both got ready
for bed. N.T. at 108. Mr. Bradley fell asleep and woke around 4
a.m. N.T. at 108-09. When he realized that Carrie was not next
to him, he got up to look for her, found her unresponsive on the
bathroom floor and called 911. N.T. at 108-09 After Carrie was
transported to the hospital, Detective Lee Billiter from the
Manheim Township Police Department organized an investigation
of the scene. N.T. at 174. Detectives located, among other
things, cocaine, heroin laced with fentanyl and tramadol,
associated drug paraphernalia, and Carrie’s cell phone. N.T. 220-
221.
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A search of Carrie’s phone revealed that on the night before her
death, she had been communicating with a number ending in
“7678”, labeled in her phone contacts as “Jazz.” N.T. at 195-208.
Detective Billiter contacted Detective Thomas Ziegler, a member
of the Lancaster County Drug Taskforce to inquire about the
“7678” number. N.T. at 196. Detective Ziegler indicated that he
was familiar with the “7678” number and the moniker “Jazz”—he
identified both as belonging to Appellant Jeffery Shackleford,
whom he was presently investigating for dealing drugs. N.T. at
196; 318-19.
The text message thread between Carrie and “Jazz” included a
request from Carrie to buy drugs—namely, crack cocaine,
methamphetamine, and heroin—from “Jazz.” N.T. at 203-05. The
thread also included messages between the two outlining when
and where they would meet. N.T. at 208-12. The texts aligned
precisely with video footage captured from surveillance cameras
that showed Carrie stopping at an ATM and entering a white Jeep
in the Turkey Hill parking lot. N.T. at 98-107; 212-14.
After learning of Detective Billiter’s investigation involving
Appellant, Detective Ziegler executed a search warrant on
Appellant’s home [] on August 20, 2021. N.T. at 320-22.
Searching detectives and officers located a large amount of wax
packets and rubber bands used for packaging and selling drugs, a
digital gram scale, a scraping tool, approximately $ 7,900 in U.S.
currency, over 250 wax paper bags of packaged fentanyl mixed
with heroin, over 80 grams of methamphetamine, and quantities
of cocaine and marijuana. N.T. at 337-39, 341, 344, 350.
When Detective Ziegler and accompanying police officers
executed the warrant, Appellant was present in the home. He was
arrested and then transported to the Lancaster City Police
Detective Unit to be interviewed. N.T. at 328; 395. Appellant
admitted that he got paid to bag up drugs to be sold and that the
$7,900 found in his residence was money he had earned from
packing drugs. N.T. at 363, 366. He also admitted that he sold
drugs to Carrie Hamilton the night before her death and identified
the ”7678” number saved as “Jazz” in Carrie’s phone as belonging
to him. N.T. at 395; 399.
Charges were thereafter filed against Appellant on two information
numbers. On 4171-2021, Appellant was charged with Drug
Delivery Resulting in Death and Criminal Use of a Communication
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Facility; on 3362-2021, Appellant was charged with Possession
with Intent to Deliver Fentanyl, possession with intent to Deliver
Methamphetamine, possession of Marijuana, and Possession of
Drug Paraphernalia.
On March 14, 2022, the Commonwealth filed a Notice of Intent to
try both Informations together. On March 22, 2022, Appellant
filed a Motion for Separate Trial. [The trial court] presided over a
hearing on Appellant’s motion on May 16, 2021. On May 20, 2021,
[the trial court] denied Appellant’s request to have the
Informations severed.
A jury trial commenced on June 6, 2022. On June 8, 2022, the
jury found Appellant guilty of the following: on docket 4171-2021,
Drug Delivery Resulting in Death and Criminal Use of a
Communication Facility; on docket 3662-2021, Possession with
Intent to Deliver 17 grams of Fentanyl and Possession with Intent
to Deliver 87.68 grams of methamphetamine. After ordering and
receiving a Pre-Sentence Investigation [report], [the trial court]
sentenced Appellant on August 29, 2022, to an aggregate term of
11-25 years imprisonment.
On September 9, 2022, Appellant filed a Notice of Appeal to the
Superior Court.[1] On that same day, [the trial court] ordered
Appellant to file a statement of matters complained of on appeal.
Appellant timely filed his Concise Statement of Matters
Complained of on Appeal (“Statement”) on September 12, 2022.
The Commonwealth responded on September 22, 2022.
____________________________________________
1 On August 29, 2022, Appellant was sentenced at two trial court dockets (CP-
36-CR-0004171-2021 and CP-36-CR-0003662-2021). On September 9,
2022, counsel for Appellant filed two notices of appeal, pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which were docketed
in this Court at Nos. 1297 MDA 2022 and 1298 MDA 2022. Each notice
contains two trial court docket numbers, and one number was specifically
marked on each notice. See Commonwealth v. Johnson, 236 A.3d 1141,
1148 (Pa. Super. 2020) (approving the filing of separate but identical notices
of appeal as compliant with the dictates of Walker). Pursuant to this Court’s
policy regarding multiple Walker appeals, the instant appeals were
consolidated, sua sponte, by order of September 27, 2022.
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Trial Court Opinion, 11/9/2022, at 1-4.
Appellant presents the following issues for this Court’s consideration:
1. Did the Suppression Court err by failing to find that the search
warrant issued without probable cause?
2. Did the Trial Court err by failing to order separate trials of the
Informations?
Brief of Appellant, at 4.
In Appellant’s first issue, he challenges the order denying his motion to
suppress evidence obtained from the execution of the search warrant issued
for the search of Appellant’s residence at 501 Goldfinch Drive. The search
warrant issued without probable cause, he maintains, because no facts were
presented to the district judge to explain the CI’s basis of knowledge for
making the claim against him. He posits, therefore, that his motion to
suppress was wrongly denied such that all post-arrest evidence obtained
should have been deemed inadmissible at trial.
We begin by acknowledging the applicable standard of review:
Our standard of review in addressing a challenge to a
trial court's denial of a suppression motion is whether
the factual findings are supported by the record and
whether the legal conclusions drawn from those facts
are correct. When reviewing the ruling of a
suppression court, we must consider only the
evidence of the prosecution and so much of the
evidence of the defense as remains uncontradicted
when read in the context of the record. Where the
record supports the findings of the suppression court,
we are bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error.
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Commonwealth v. Bumbarger, 231 A.3d 10, 15 (Pa. Super.
2020) (citation and ellipses omitted). Our scope of review is
limited to the evidence presented at the suppression
hearing. Commonwealth v. Bellamy, 252 A.3d 656, 663 (Pa.
Super. 2021). With respect to a suppression court's factual
findings, “it is the sole province of the suppression court to weigh
the credibility of the witnesses. Further, the suppression court
judge is entitled to believe all, part or none of the evidence
presented.” Commonwealth v. Caple, 121 A.3d 511, 516-17
(Pa. Super. 2015) (citation omitted).
At a suppression hearing, “the Commonwealth has the burden of
establishing by a preponderance of the evidence that the evidence
was properly obtained.” Commonwealth v. Galendez, 27 A.3d
1042, 1046 (Pa. Super. 2011) (en banc) (citation, quotation
marks, and brackets omitted); see also Pa.R.Crim.P. 581(H) (at
a suppression hearing, the Commonwealth “shall have the burden
... of establishing that the challenged evidence was not obtained
in violation of the defendant's rights.”). The preponderance of the
evidence is “the lowest burden of proof in the administration of
justice, and it is defined as the greater weight of the evidence, i.e.,
to tip a scale slightly in one's favor.” Commonwealth v. Ortega,
995 A.2d 879, 886 n.3 (Pa. Super. 2010).
Commonwealth v. Heidelberg, 267 A.3d 492, 498–99 (Pa. Super. 2021)
(en banc).
Our review of a challenge to a search warrant based on an affidavit of
probable cause is limited to “the information within the four corners of the
affidavit.” Commonwealth v. Batista, 219 A.3d 1199, 1202 (Pa. Super.
2019) (quoting Commonwealth v. Rogers, 615 A.2d 55, 62 (Pa. Super.
1992) and citing Pa.R.Crim.P. 203(D))2. Thus, a reviewing court “may not
____________________________________________
2Pennsylvania Rule of Criminal Procedure 203, “Requirements for Issuance”,
provides in subsection (D) the following:
(Footnote Continued Next Page)
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conduct a de novo review of the issuing authority’s probable cause
determination” but, instead, is tasked simply with the duty of ensuring the
issuing authority “‘had a substantial basis for concluding’ that probable cause
existed.” Batista, 219 A.3d at 1202 (quoting Commonwealth v
Huntington, 924 A.2d 1252, 1259 (Pa. Super. 2007) and Illinois v. Gates,
462 U.S. 213, 238-39 (1983)). Unless the issuing authority had no substantial
basis for its decision, a reviewing court must affirm. Commonwealth v.
Lyons, 79 A.3d 1053, 1064 (Pa. 2013) (citing Commonwealth v. Johnson,
42 A.3d 1017, 1031 (Pa. 2012)). See also Commonwealth v. Gagliardi,
128 A.3d 790, 795 (Pa. Super. 2015) (“If a substantial basis exists to support
the magistrate’s probable cause finding, [the suppression court] must uphold
that finding even if a different magistrate judge might have found the affidavit
insufficient to support a warrant.”).
The existence of probable cause is measured by examining
the totality of circumstances. [] Gates, [462 U.S. at 238].
“Probable cause exists where the facts and circumstances within
the affiant's knowledge and of which he [or she] has reasonably
trustworthy information are sufficient in and of themselves to
warrant a [person] of reasonable caution in the belief that a search
should be conducted.” [] Johnson, [supra]. A magisterial district
judge, when deciding whether to issue a search warrant, must
“make a practical, common-sense decision whether, given all of
____________________________________________
At any hearing on a motion for the return or suppression of
evidence, or suppression of the fruits of evidence, obtained
pursuant to a search warrant, no evidence shall be admissible to
establish probable cause other than the affidavits provided for in
paragraph (B).
Pa.R.Crim.P. 203(D).
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the circumstances set forth in the affidavit ... including the
veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Id. (citation
omitted).
Commonwealth v. Jacoby, 170 A.3d 1065, 1081–82 (Pa. 2017).
When information in a search warrant affidavit depends on a tip from
a confidential informant, this “may constitute probable cause where police
independently corroborate the tip, or where the informant has provided
accurate information of criminal activity in the past, or where the informant
himself participated in the criminal activity.” Commonwealth v. Manuel,
194 A.3d 1076, 1083 (Pa. Super. 2018) (en banc) (emphasis omitted)
(citing Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011)).
In the case sub judice, the August 18, 2021, affidavit of probable cause
averred that a reliable CI whose information had led to at least two felony
convictions related that Appellant was in the business of selling
Methamphetamines and was residing at 501 Goldfinch Drive along with a
known drug dealer from whom the CI completed a controlled buy of
Methamphetamine in July 2021. According to the affidavit, Lancaster Drug
Task Force surveillance of Appellant’s housemate’s activities, which included
the controlled buy, established the housemate’s pattern of leaving 501
Goldfinch Drive for a short time to meet with individuals before returning
directly to the residence. The affidavit also averred that the CI identified
Appellant by the moniker “Jazz” when shown a PA JNET photograph of
Appellant and reported to Detective Adam Weber within 48 hours of the search
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warrant application that Appellant possessed a quantity of Methamphetamine
for sale. Affidavit of Probable Cause, 8/18/21, at paragraphs 3-13.3
____________________________________________
3 The relevant portions of the Affidavit of Probable Cause provided the
following:
3. [D]uring the month of July[] 2021, Detective Adam Weber
spoke with reliable Confidential Informant who reported that
she/he had spoken with an unidentified white male that had state
to CI that he had a quantity of controlled substances for sale. This
CI is considered reliable in that the information the [sic] she/he
has provided has resulted in two or more Felony convictions in
regards to controlled substances. CI identified the subject with
the first name of “Frank” as a white man with short, dark hair, a
medium build and a light complexion. . . [who] was in the business
of selling Heroin and Methamphetamines in Lancaster County,
Pennsylvania. CI knew this to be true and correct as she/he had
conversations with unidentified white male of buying
Methamphetamines during the month of July 2021.
4. [D]uring the month of July[] 2021, your affiant used DI’s
description of “Frank” to locate a a [sic] JNET photograph of Frank
A. Doman . . . . During the same month, Detective Weber showed
CI a photograph of Frank A. Doman . . . who [sic] positively
identified him as the subject that she/he referred to in paragraph
3 of this affidavit.
5. During the month of July[] 2021, Detective Weber had a
conversation with CI, at which time CI reported that Frank A.
Doman . . . was currently living at 501 Goldfinch Drive, Columbia,
Lancaster County, 17512.
6. [D]uring the month of July[] 2021 your affiant was
conducting surveillance when Frank A. Doman . . . was observed
exiting the residence before meeting with individuals in Lancaster
County for short periods, then re-entering the property.
...
(Footnote Continued Next Page)
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Through these averments, the Commonwealth established: the CI’s
reliability; investigating officers’ independent corroboration in July of the
housemate’s participation in controlled buys occurring shortly after exiting 501
Goldfinch Drive; the CI’s July confirmation that a dealer he knew as “Jazz”
resided at 501 Goldfinch Drive; the CI’s August identification of Appellant as
“Jazz”; and the CI’s report within 48 hours prior to execution of the warrant
____________________________________________
9. [D]uring the week of July 11, 2021, CI made a controlled
buy of Methamphetamine from Frank A. Doman . . . . While
[under] surveillance, Frank A. Doman . . . was observed exiting
501 Goldfinch Drive, Columbia, Lancaster County, PA, before
meeting with CI in an area of Lancaster County. After meeting
with CI for a short period of time, Doman was observed breaking
contact with CI before returning to and re-entering the same
address. . . .
10. That during the month of July 2021, Detective Weber spoke
with CI who advised him that she/he was aware that a subject he
knew as “Jazz” who was also in the business of selling controlled
substances in Lancaster County, PA was also residing at 501
Goldfinch Drive, Columbia, PA . . . .
...
12. [D]uring the month of August[] 2021, your affiant searched
the PA JNET database for a photograph of Jeffrey Shackelford . . .
and showed it to CI. CI positively identified the person in the
photograph as the subject she/he referred to in paragraph 10 of
this affidavit.
13. [W]ithin 48 hours of this request, Detective Adam Weber
spoke with CI, CI reported that Jeffrey Shackelford . . . had a
quantity of Methamphetamine for sale.
....
Affidavit of Probable Cause, 8/20/21, ¶¶ 3-6, 9-10, 12-13.
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that Appellant had methamphetamine for sale. As such, the Affidavit of
Probable Cause set forth a totality of circumstances establishing the fair
probability that Methamphetamine possessed or controlled by Appellant and
his housemate with the intent to deliver would be found at their 501 Goldfinch
Drive residence, which was serving as the base of their operation.
Accordingly, we discern no error with the suppression court’s determination
that the issuing authority possessed a substantial basis for determining there
was a fair probability that contraband would be found at 501 Goldfinch Drive.
In Appellant's second issue, he challenges the trial court’s ruling that
denied his motion to sever the Drug Delivery Resulting in Death case at docket
number 4171-2021 from the PWID case at docket number 3662-2021. He
argues, “evidence tending to show that [A]ppellant is criminally responsible
for the April 13, 2021, death of Ms. Hamilton is of no evidentiary value to
proving [A]ppellant possessed controlled substances with the intent to
distribute on August 18, 2021, or any of the other crimes charged under
docket #3662-21.” See Brief for Appellant, at 15. Therefore, he maintains,
evidence concerning the April drug delivery to, and proximate death of, Ms.
Hamilton would have been inadmissible in a separate trial on the charges of
PWID stemming from the execution of the search warrant in August 2021, and
thus required severance of the Drug Delivery Resulting in Death case.
The Commonwealth responds that the decision against severance was
within the sound discretion of the trial court and is not subject to reversal
unless Appellant establishes that a manifest abuse of discretion or prejudice
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and clear injustice to Appellant resulted. See Brief for Commonwealth, at 15.
A review of the record considering relevant rules of criminal procedure and
evidence, respectively, shows Appellant has not borne his burden in this
regard, the Commonwealth insists.
Whether separate criminal informations should be consolidated for trial
is within the sole discretion of the trial court. We will reverse only for “a
manifest abuse of discretion or prejudice and clear injustice to the defendant.”
Commonwealth v. Robinson, 864 A.2d 460, 481 (Pa. 2004). It is the
appellant's burden to establish prejudice. Commonwealth v. Melendez-
Rodriguez, 856 A.2d 1278, 1282 (Pa. Super. 2004) (en banc).
Pa.R.Crim.P. 582 and 583 address joinder and severance. Rule 582
provides that offenses charged in separate 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).
Rule 583 authorizes courts to order separate trials if joinder of offenses
in a single trial would prejudice a party. Prejudice, for purposes of Rule 583,
“must be greater than the general prejudice any defendant suffers when the
Commonwealth's evidence links him to a crime.” Commonwealth v.
Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015) (quoting Commonwealth
v. Lauro, 819 A.2d 100, 107 (Pa. Super. 2003)). Contemplated, instead, is
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prejudice that “would occur if the evidence tended to convict the appellant
only by showing his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid cumulating the
evidence.” Ferguson, supra.
Reading these rules together, our Supreme Court
established the following test for severance matters:
Where the defendant moves to sever offenses not
based on the same act or transaction that have been
consolidated in a single indictment or information, or
opposes joinder of separate indictments or
informations, the court must therefore determine:
[(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 inquiries 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 [(1997)]
(quoting Commonwealth v. Lark, ... 543 A.2d 491, 496–97
([Pa.] 1988)).
Ferguson, 107 A.3d at 210–11 (Pa. Super. 2015) (citations omitted).
Appellant’s argument focuses solely on the first prong of the three-part
test identified above and is confined to the assertion that evidence of the April
2021 delivery to, and death of, Ms. Hamilton would not have been admissible
in a separate trial on the PWID charge based on Appellant’s August 2021
possession of controlled substances in his home.
We observe, first, that evidence of crimes other than the one in question
may not be admitted solely to show a defendant's bad character or propensity
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to commit the crime. Pa.R.E. 404(b)(1). However, evidence of other crimes
is admissible to demonstrate motive, intent, absence of mistake or accident,
a common scheme, plan, or design embracing the commission of two or more
crimes so related to each other that proof of one tends to prove the others, or
the identity of the person charged with the commission of the crime on trial.
Pa.R.E. 404(b)(2). Additionally, evidence of other crimes may be admitted
where such evidence is part of the history of the case and forms part of the
natural development of the facts. Lauro, 819 A.2d at 107 (internal citations
and quotation marks omitted). See also Commonwealth v. Brown, 52
A.3d 320, 326 (Pa. Super. 2012) (acknowledging that evidence of another
crime may be admissible under the res gestae exception, defined as a
“situation where the distinct crimes were part of a chain or sequence of events
which formed the history of the case and were part of its natural
development”).
The trial court opines that evidence of each offense was admissible in a
separate trial for the others to prove identity and the chain of events that
linked the two cases pursuant to Pa.R.E. 404(b)(2). It follows, the trial court
continues, that evidence of the April delivery to Ms. Hamilton was relevant
and admissible to prove Appellant’s August PWID:
[T]he investigation into Carrie Hamilton’s overdose death was
inextricably linked to the investigation that culminated in the
August 20, 2021, search of 501 Goldfinch Drive, which led to the
PWID charges on information number 3362-2021. After
discovering a chain of texts between Carrie and an individual
saved in her phone as “Jazz”, Detective Billiter reached out to
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Detective Ziegler. Detective Ziegler was familiar with the number
and identified it as belonging to “Jazz”—Appellant Jeffrey
Shackleford—whom Detective Ziegler was investigating for
dealing drugs.
At trial, Detective Ziegler testified that it was as a result of the
investigation into Ms. Hamilton’s death that he eventually applied
for and executed the August 2021 search warrant that resulted in
the seizure of controlled substances and the filing of the PWID
charges against Appellant. It was only after Appellant’s residence
was searched and [he was] detained that he admitted to selling
drugs to Carrie on the night before her death. Hence, there is a
narrative relationship between the investigation into Carrie’s
overdose death and the subsequent search of 501 Goldfinch Drive.
The two cases are naturally bound in such a way that the evidence
relevant to each case was also admissible . . . to the other case
under Rule of Evidence 404(b)(2) and under the “history of the
case” exception. See [Commonwealth v.] Keys, [Nos. 2535,
2536 EDA 2021, 2022 WL 13737416, at *7 (Pa. Super. Oct. 24,
2022) (unpublished memorandum); Commonwealth v.
Arrington, Nos. 913 MDA 2019, 1658 MDA 2019, 2020 WL
2070386, at *6 (Pa. Super. Apr. 29, 2020).
Trial Court Opinion, 11/9/22, at 7.
Appellant disagrees with the trial court’s rationale and relies, instead,
on Commonwealth v. Carroll, 418 A.2d 702, (Pa. Super. 1980), which held
that the trial court in that case erred in failing to sever the charge of “Former
convict not to own a firearm”, 18 Pa.C.S. § 6105, from other charges including
recklessly endangering another person, disorderly conduct, and two violations
of the Uniform Firearms Act. We find Carroll distinguishable, however, both
because it involved the admission of a previous conviction and because the
previous conviction itself was relevant only to prove a necessary element to
the “Former convict not to own a firearm” charge, had no connection to any
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other charge, and therefore was not admissible under any of the exceptions
enumerated in 404(b)(2).
Instead, far more instructive is the memorandum decision in Arrington,
supra, to which the trial court’s Pa.R.A.P. 1925(a) opinion cites for support of
its ruling in favor of joinder.4 The pertinent facts in Arrington are quite
similar to those in the present matter, as the defendant Arrington was arrested
and charged with three crimes—a February 22, 2017, Drug Delivery Resulting
in Death charge; a July 5, 2017, Delivery of a Controlled Substance charge;
and, a July 10, 2017, PWID charge filed after his arrest, which occurred at the
completion of authorities’ extended surveillance of his dealings with the
assistance of a CI. Id. at **1-2.
The Commonwealth provided notice to Arrington that it intended to have
a joint trial on the Drug Delivery resulting in Death case and the delivery of a
controlled substance case. When Arrington moved to sever the cases, the
Commonwealth moved to consolidate the PWID case as well. In denying
Arrington’s motion to sever and granting the Commonwealth's motion to
consolidate, the trial court reasoned that evidence of each offense was
admissible in a separate trial for the others to prove identity and the chain of
events that became the history of the case. Id.
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4 We acknowledge that the Arrington decision is not binding precedent but
may be considered as persuasive authority. See Pa.R.A.P. 126(b) (permitting
the citation of non-precedential decisions filed by this Court after May 1, 2019,
for their persuasive value).
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Following a jury trial on all three cases, Arrington was acquitted of the
Drug Delivery Resulting in Death charge but convicted on the remaining
Delivery and PWID charges. Following sentence, Arrington filed a direct
appeal nunc pro tunc and alleged, inter alia, that the trial court erred in trying
the February Drug Delivery Resulting in Death charge together with the July
Delivery and PWID charges. Id.
Relevant for purposes of the case sub judice is that Arrington claimed
on appeal that joinder was inappropriate under Rule 582 because the evidence
of each of his alleged offenses would not be admissible in separate trials on
the other offenses. The Commonwealth responded that evidence of each
offense related to the other offenses and, taken together, the evidence formed
a logical narrative necessary to support its theory of the case, namely, that
Arrington (who had operated under a pseudonym) supplied fentanyl to the CI,
who provided it to Arrington’s co-defendant, who provided it to the victim,
who died of an overdose. As such, it was authorities’ investigation into the
February 2017 fatal overdose case that enabled it to collect evidence over the
ensuing months needed to pierce Arrington’s pseudonym, identify him as the
supplier of fentanyl, and arrange a July 2017 controlled buy that resulted in
Arrington’s arrest and PWID charge. Id. at *5.
In affirming the trial court’s order granting consolidation, we agreed with
its rationale that evidence of each offense was admissible in a separate trial
for the others to prove identity and the chain of events that became the history
of the case. Id. at *6 (citing Pa.R.E. 404(b)(2) and Brown, supra). For the
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same reasons, we supported the trial court’s rejection of Arrington’s prejudice
claim that the evidence of other crimes only served to show his propensity to
commit crimes, agreeing that “[a]t a minimum, the proffered evidence
establishes identity and forms a complete story.” Arrington at *6.
An identical rationale applies in the case sub judice. Here, the record
establishes how the evidence surrounding the April drug delivery to Ms.
Hamilton that resulted in her death enabled investigators to learn of
Appellant’s identity and his role in a drug dealing enterprise operating out of
501 Goldfinch Drive. In this way, evidence relevant to the Drug Delivery
Causing Death charge provided the history of the case connected to both the
July controlled buy and the August execution of the search warrant
culminating with Appellant’s PWID charge, and for that reason it was
admissible. Accordingly, we discern no merit to Appellant’s second issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2023
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