Com. v. Andrews

Citation768 A.2d 309,564 Pa. 321
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Danny ANDREWS, Appellant.
Decision Date26 March 2001
CourtUnited States State Supreme Court of Pennsylvania

John W. Packel, Owen Larrabee, Philadelphia for Danny Andrews.

Anya K.R. Rosin, Catherine Marshall, Philadelphia, for Com.

Before: FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN, and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

In this case, we address the propriety of imposing separate consecutive sentences for multiple counts of criminal conspiracy and possessing an instrument of crime, resulting from related robberies.

Relevant to this inquiry, Appellant, Danny Andrews ("Andrews"), and his co-defendant, Wendell Johnson ("Johnson"), appeared at the rental office for the Garden Court Apartments at approximately 1:00 p.m. on November 27, 1990, asking to see apartments. After taking a tour with one of the rental agents, Andrews and Johnson left the building without incident. On the same day, at approximately 3:00 p.m., Andrews and Johnson entered the rental office of the Brynfield Court apartment building and inquired about leasing an apartment. When the owner of the building asked Andrews and Johnson what type of apartment they desired and to whom it would be leased, she received vague answers. Feeling uncomfortable, the owner attempted to radio the building superintendent, at which point Johnson brandished a handgun and Andrews confronted the building's general manager, who was also present. Andrews and Johnson directed the victims to a back office, ordered them to lie on the floor, and removed their jewelry. After repeatedly demanding the location of the safe, and being told that the office did not have one, Andrews and Johnson asked for the victims' pocketbooks and bound the victims' arms.

On November 28, 1990, at approximately 1:00 p.m., Andrews and Johnson returned to the Garden Court Apartments and asked about renting an apartment, indicating that they had spoken to a rental agent the previous day. Shortly after they were asked to complete a rental application, one of the individuals approached the property manager with his gun drawn. Andrews and Johnson forced the victim into a vault inside the office, demanded cash, and removed her watch and necklace. As was the case with the Brynfield Court robbery, the victim was told to lie on the floor and her hands were tied. Later the same day, at approximately 3:00 p.m., Andrews and Johnson inquired about rental possibilities at the Korman Suites apartment complex, where a leasing agent showed them a sample apartment. Upon returning to the rental office, Andrews and Johnson drew their guns, took jewelry and money from the agent and three office workers, forced them to lie on the floor, and then bound their legs.

Andrews drove from the scene, making an illegal turn as he and Johnson left the apartment complex. A police officer observed the infraction, and a chase ensued, with Andrews and Johnson eventually abandoning their vehicle and fleeing on foot. They were apprehended shortly thereafter and returned to the scene, where they were identified by one of the victims. A search of the perpetrators' vehicle revealed evidence linking them to the Garden Court and Korman Suites robberies. In addition, police recovered a revolver and a semi-automatic pistol, which matched the description of the handguns used during those robberies.

Andrews and Johnson were charged in separate criminal informations with armed robberies of the office workers at the three apartment buildings. The informations treated the crimes not as a continuing event but as individual incidents; thus, each defendant was charged with three counts of criminal conspiracy and three counts of possessing an instrument of crime related to each of the incidents. Concerning the conspiracy counts, the Commonwealth alleged as criminal objectives, inter alia, robbery and possession of an instrument of crime, and both informations included as an overt act possession of a gun.1 Prior to trial, the Commonwealth petitioned to consolidate the offenses and to have Andrews and Johnson tried together. In its petition, the Commonwealth alleged that Andrews and Johnson were co-conspirators, who participated jointly in a continuing series of acts over a twenty-six-hour period, and that the same evidence was applicable to each defendant. In addition, the Commonwealth averred that the robberies were perpetrated in a similar manner, namely, that Andrews and Johnson entered apartment rental offices posing as potential tenants and, after making inquiries regarding the apartments, brandished handguns, ordered the workers to lie on the floor, bound them, and stole personal effects and money. This similarity was equated with a modus operandi, which tended to establish the identity of the perpetrators. The Commonwealth's petition was granted, and the case proceeded to a jury trial.

At trial, Andrews' defense sought to challenge the accuracy of the identification evidence based upon certain inconsistencies. During his closing argument, counsel for Andrews argued that the robberies were not part of a common plan or scheme and were not connected. In response, the Commonwealth argued that the overlapping evidence from the robberies, in conjunction with the distinct manner in which the crimes were committed, constituted a modus operandi that was akin to a signature demonstrating the identity of the perpetrators. Notably, Andrews did not request a jury instruction as to whether the evidence supported a finding of multiple conspiracies or a single conspiracy with multiple objectives. The jury convicted Andrews and Johnson each of five counts of robbery, two counts of criminal conspiracy, and two counts of possessing an instrument of crime, relating to the Garden Court and Korman Suites robberies; they were acquitted of the offenses stemming from the Brynfield Court robbery.2

Andrews filed post-verdict motions, which included a claim that the charges were improperly joined.3 He did not, however, challenge the multiple convictions for conspiracy and possessing an instrument of crime. The trial court denied the motions, reasoning, with regard to the joinder claim, that the robberies reflected a common scheme or plan, thus providing a basis for consolidation. Andrews was sentenced to an aggregate term of imprisonment of 65 to 130 years, following which he sought reconsideration, claiming that the sentence was excessive. This request was also denied.

On appeal, the Superior Court agreed with the trial court that the robberies were properly joined, as the offenses "were sufficiently interrelated so as to constitute evidence of a common scheme, plan or design." See Commonwealth v. Andrews, 434 Pa.Super. 682, 641 A.2d 1218 (1993) (table), appeal denied, 538 Pa. 639, 647 A.2d 895, cert. denied, 513 U.S. 1021, 115 S.Ct. 588, 130 L.Ed.2d 502 (1994). However, the Superior Court vacated the judgment of sentence and remanded for re-sentencing, citing the trial court's failure to refer to the applicable sentencing guideline ranges. On remand, Andrews was re-sentenced to the same term of imprisonment. Andrews again sought reconsideration, alleging, inter alia, that the court should arrest judgment on one count each of possessing an instrument of crime and criminal conspiracy, as sentencing on these charges violated the doctrine of merger and due process principles because the Commonwealth prosecuted the crimes as one continuing transaction. The trial court denied the motion, and Andrews appealed.

A divided panel of the Superior Court affirmed in a published opinion. See Commonwealth v. Andrews, 720 A.2d 764 (Pa.Super.1998)

. Addressing Andrews' claim as one that implicated the legality of his sentence,4 the majority reasoned that, although the crimes were consolidated for trial because of their similarity, the concept of consolidation is distinct from that of merger. See id. at 769. In this regard, the majority noted that consolidation focuses only upon whether evidence of one crime would be admissible in a separate trial for the other, whereas the doctrine of merger is a rule of statutory construction designed to determine whether the General Assembly intended the punishment for one offense to encompass that for another. See id. Thus, the majority concluded that, while joinder was appropriate because of the similarity of the crimes, the robberies did not constitute an overlapping common scheme, and therefore it was proper to impose separate sentences for each count of conspiracy and possessing an instrument of crime, since the charges involved separate robberies of different individuals at different locations. See id. Likewise, the majority held that double jeopardy principles were not violated, as the convictions were for different offenses. See id.

The dissent noted that, while a defendant challenging the imposition of multiple sentences on the basis that he committed only one offense should ordinarily raise the issue through a sufficiency of the evidence claim, precedent existed for addressing such issue through a challenge to the legality of the sentence. See id. at 772 (Brosky, J., dissenting). In this case, the dissent reasoned that, "given the short time between robberies, it strains logic to suggest that both robberies were not the result of a single criminal conspiracy." See id. at 773. Furthermore, the dissent viewed this rationale as even stronger in the context of the offense of possessing an instrument of crime, since "possession is a continuing status." See id. This Court allowed appeal, limited to the propriety of imposing separate sentences on each of the two counts of conspiracy and possessing an instrument of crime.

I.

As a preliminary matter, Andrews frames his claim as involving the legality of the sentence, namely, the power of the court to impose double punishment for the same offense. Consequently, Andrews asserts that his failure to...

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