Com. v. Boyle

• Citation: 733 A.2d 633
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas BOYLE, Appellant.
• Decision Date: 09 June 1999
• Court: Superior Court of Pennsylvania

733 A.2d 633

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas BOYLE, Appellant.

Superior Court of Pennsylvania.

Submitted March 8, 1999.

Filed June 9, 1999.

Ellen C. Schurdak, Asst. Public Defender, Stroudsburg, for appellant.

Bernard A. Anderson, Asst. Dist. Atty., Stroudsburg, for Com., appellee.

Before ORIE MELVIN, SCHILLER and HESTER, JJ.

SCHILLER, J.:

¶ 1 Appellant, Thomas Boyle, appeals the judgment of sentence entered in the Court of Common Pleas of Monroe County on July 31, 1998. We affirm.

FACTS:

¶ 2 In October 1997, based on information that Appellant trafficked in drugs, the Monroe County Drug Task Force initiated an undercover investigation. From October 16, 1997 until November 18, 1997, undercover agents with the assistance of a paid confidential informant, bought cocaine from Appellant on five different occasions. On January 22, 1998, Appellant was arrested and charged with 5 counts of delivery of a controlled substance,¹ and related offenses including intentional possession of a controlled substance² and possession with intent to deliver.³ Appellant waived a preliminary hearing and on March 16, 1998 was arraigned on the cases at criminal informations Nos. 81-1998 and 170-1998.⁴ The case was placed on the Criminal Trial List for May 5, 1998. On May 4, 1998, the Commonwealth moved to join the two cases pursuant to Pa.R.Crim.P. 1127; Appellant then moved to sever. The trial court, however, denied Appellant's motion to sever the cases.

¶ 3 On May 13, 1998, after a two-day jury trial, Appellant was found guilty on all counts. The Commonwealth gave notice that it would seek sentencing enhancements noting that the drug convictions arose from separate transactions. On June 23, 1998, Appellant was sentenced to a term of incarceration of not less than nine (9) nor more than eighteen (18) years. Appellant filed a motion for new trial and for reconsideration of sentence. The former was denied but on July 31, 1998, the trial court modified Appellant's sentence to a prison term of not less than five (5) years and not more than ten (10) years. Appellant timely appeals.

DISCUSSION:

¶ 4 Appellant raises the following two issues on appeal: 1) whether the trial court committed reversible error in joining Appellant's two cases; and 2) whether the trial court committed reversible error in denying Appellant's written request for a missing witness and an egregious police conduct jury instruction?

¶ 5 The determination of 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. Newman, 528 Pa. 393, 398, 598 A.2d 275, 277 (1991). Here Appellant argues that the trial court's grant of the motion for joinder prejudiced him because the jury heard evidence relating to four drug transactions rather than two bolstering the Commonwealth's theory that Appellant was an entrenched drug trafficker. He also claims that his repeated drug buys may not be joined because they were not part of one, continuous criminal episode, and the Commonwealth did not argue, nor does the evidence support, any other exception to joinder.

¶ 6 Rules of Criminal Procedure 1127 and 1128 establish the substantive standards for joinder and severance of offenses and defendants, and state in pertinent part:

Rule 1127. 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; ...

....

Rule 1128. 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.

Pa.R.Crim.P. 1127; Pa.R.Crim.P. 1128. The Pennsylvania Supreme Court recently reiterated the appropriate three-part test under these rules:

... the court must ... 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, 550 Pa. 46, 55, 703 A.2d 418, 422 (1997), cert. denied, ___ U.S. ___, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998) (quoting Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496-97 (1988)).

¶ 7 We turn then to a determination of whether the evidence of each of Appellant's offenses was admissible in a separate trial for the other. It is well-settled that

[e]vidence of distinct crimes are [sic] not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts. Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1 (1987); Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of bad character. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985)....

[T]he general rule prohibiting the admission of evidence of prior crimes nevertheless

allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.

Commonwealth v. Morris, supra at 493 Pa. 175, 425 A.2d 715....

Commonwealth v. Buchanan, 456 Pa.Super. 95, 689 A.2d 930, 932, appeal denied, 548 Pa. 678, 699 A.2d 733 (1997) (quoting Commonwealth v. Lark, 518 Pa. 290, 302-04, 543 A.2d 491, 497 (1988)). Three more exceptions to the general rule of exclusion of prior crimes have evolved: "[]to impeach the credibility of a defendant who testifies in his trial; [in] situations where [a] defendant's prior criminal history had been used by him to threaten or intimidate the victim; [and in] situations 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 (sometimes called `res gestae' exception)." Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989).

¶ 8 At trial, the supervisory police officer, a member of the Monroe Country Drug Task Force, testified to the planning and organization of each of the four drug buys and to his observations of each while on surveillance. The undercover detective then testified to the three buys he made with the CI and the other which he observed. N.T., 5/13/98, at 11-40. He said that at the first buy Appellant had a quantity of both powder and rock cocaine. The undercover agent bought a small amount and Appellant could not give him change but indicated he would give it to him the next time. The agent confirmed he would be back for more. N.T., 5/13/98, at 20, 22. He also testified that at the second meeting, Appellant advised him that if he needed more, he could call again. N.T., 5/13/98, at 22, 29. Appellant also took the stand and admitted that "[o]n four occasions I got cocaine for someone who wanted it," and that he was paid. N.T., 5/13/98, at 712. However, he denied that he sold drugs regularly for profit, and claimed that he did so on these four occasions simply to support his drug habit. N.T., 5/13/98, at 60, 62-63, 64, 67.

¶ 9 As is evident, Appellant's identity, motive and intent were not at issue at trial, nor was Appellant claiming mistake. Appellant's theory was that he was not part of a regular scheme of drug trafficking and that he was entrapped by law enforcement. However, the testimony revealed a common scheme in which a deal for a specified dollar amount of powder cocaine was set up by the CI using Appellant's coded page number and waiting for Appellant to call back. A meeting place was set to which the CI and the undercover agent drove in an unmarked vehicle and waited for Appellant, who on each occasion, working with a group of co-conspirators, quickly obtained the amount of cocaine. Appellant then delivered the drug to the CI or the undercover agent and was paid in cash. These multiple drug deliveries were clearly related and revealed a common plan through which Appellant could and did obtain and deliver cocaine whenever money was offered.⁵

¶ 10 Thus, evidence of the details of Appellant's involvement in one transaction tends not to prove Appellant's propensity to commit crimes, but rather the likelihood that he was actively involved in each related transaction. Buchanan, supra.

Moreover, testimony about Appellant's offer during the second transaction to get the undercover agent more cocaine in the future would have been admissible at a separate trial for the later transactions. See Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982) (holding evidence of prior discussions admissible at trial for later drug transaction to show how criminal activity was arranged). Finally, if Appellant took the stand in each case, the evidence of other similar transactions would clearly be admissible to impeach his credibility. Thus, we agree with the trial court which denied the motion to sever finding that "each delivery possessed a...