Com. v. Brookins

Decision Date28 January 2011
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Tawanda I. BROOKINS, Appellant.
CourtPennsylvania Superior Court

Timothy P. Wile, Public Defender, Norristown, for appellant.

James P. Barker, Asst. Dist. Atty., Harrisburg, for Com., appellee.

BEFORE: BENDER, DONOHUE and FREEDBERG, JJ.

OPINION BY BENDER, J.:

Tawanda I. Brookins appeals the judgment of sentence imposed following her conviction of Possession With Intent to Deliver (PWID), Criminal Conspiracy, and Corrupt Organizations, 35 P.S, § 780-113(a)(30), 18 Pa.C.S. §§ 903, 911 (respectively). Brookins contends that the trial court erred in denying her motion to sever her trial from that of her codefendants, denying her motion for change of venue to Philadelphia County, and admitting certainexpert testimony. Upon review, we conclude that the trial court erred in denying the motion for severance, as evidence of conduct by certain other defendants would not have been admissible had Brookins been tried separately. We conclude, in addition, that Brookins was unduly prejudiced by the admission of that evidence in the trial of this case. Accordingly, we vacate Brookins's judgment of sentence and remand this case for a new trial.

Brookins's convictions arise out of a conspiracy with co-defendant Shannon McKeiver to possess cocaine with the intent to deliver it between January and April 2007. Brookins's involvement with McKeiver was documented by enforcement agents of the Office of Attorney General (AG) pursuant to a wiretap executed on McKeiver's telephone. The agents recorded Brookins ostensibly asking McKeiver to sell her a quantity of cocaine for resale and arranging for the drug's delivery. Brookins was one of twenty-two alleged co-conspirators, including co-defendants Janet C. Washington and Mark Carr, whom officers recorded pursuant to the wiretap in question and then charged with unlawful activities, including PWID. The Commonwealth charged the defendants by separate informations but joined all twenty-two in a single action for trial. Although multiple defendants ultimately obtained severance or reached plea bargains with the Commonwealth, the trial court declined to sever Brookins's case, which proceeded for trial with the prosecutions of Washington and Carr as well as Shannon McKeiver, and co-defendants Kevin Dejouin Jordan and Derrick Thompson. In advance of trial, Brookins, Washington, and Carr all moved for changes of venue on the basis that Montgomery County, where the case was ultimately tried, had no significant contact with their cases and that the acts in question occurred predominantly in Philadelphia County. Carr, Washington, and McKeiver also sought suppression of the evidence but did not raise the reliability of the Commonwealth's confidential informant as a basis for the motion. The trial court denied suppression and the cases against all six defendants proceeded to trial for a period of thirteen days commencing on March 10, 2009. The evidence adduced consisted, in substantial part, of wiretap recordings of the individual defendants engaged in planning the crimes charged as well as the testimony of Commonwealth witness Kenneth Bellis, an AG regional director who, at the time of the underlying investigation was a supervisory agent in the AG's Philadelphia office. Bellis was offered as an expert witness and qualified by the trial court to testify "as an expert in cocaine investigations, wiretap investigations, the use of drug lingo and also street jargon as it relates to drug lingo and cocaine and wiretap investigations." N.T., 3/10/09, at 150. Accordingly, Bellis offered a range of opinions concerning the meaning and construction of the language used in the recorded phone calls bearing on all of the defendants' criminal activities. All defendants objected to aspects of Bellis's testimony.

In Brookins's case, the Commonwealth's theory of liability for all of the charges against her, which included Conspiracy and Corrupt Organizations, is that she participated in the drug trafficking ring run by McKeiver and codefendant Kevin Jordan by purchasing drugs from McKeiver and re-selling them to others. In support of its theory, the Commonwealth adduced transcriptions of ten telephone calls between Brookins and McKeiver on March 19, 2007, arranging a sale of cocaine. Agent Bellis testified concerning the "non-standard" language the parties used to explain to the jury that the subject of the calls was drug-related. In addition, because Brookins's case was consolidated for trial with those of Jordan, McKeiver, and Thompson, the Commonwealth also adducedevidence during the trial of participation by the latter three in a plan to rob and kidnap a wealthy drug dealer identified during a phone conversation between them as "the Spanish kid." The Commonwealth had not, however, charged Brookins with either the kidnapping or robbery offenses.

At the conclusion of trial, the jury found Brookins guilty as charged. At the subsequent hearing on sentencing, the trial court, the Honorable Steven T. O'Neill, imposed a sentence of four to ten years' incarceration for PWID, accompanied by concurrent terms of three to six years for Criminal Conspiracy, and one to two years for Corrupt Organizations and a fine of $25,000. Represented by new counsel, Brookins filed this appeal raising the following questions for our review:

[1.] Did the trial court commit manifest abuse of discretion when it failed to grant severance, or alternatively, did the trial court commit manifest abuse of discretion by allowing unfairly prejudicial evidence of violence and robbery, which had no connection to Appellant at Appellant's trial?
[2.] Did the trial court commit manifest abuse of discretion when it denied defen[s]e motions for change of venue?
[3.] Did the trial court commit manifest abuse of discretion when it allowed an expert to opine on the meaning of conversations contained on a wiretap tape?

Brief for Appellant at 4.

Brookins's first question, challenging the trial court's discretion in denying severance of her trial from that of her co-defendants, is common to the appeals of Washington and Carr as well. In support of that claim, Brookins argues that admission of certain evidence in the joint trial allowed the jury to reach a determination of her guilt of PWID, Conspiracy, and Corrupt Organizations based in part on evidence of the kidnapping and armed robbery planned by co-defendants Jordan, McKeiver, and Thompson. Brief for Appellant Brookins at 12. Brookins argues that such evidence would not have been admissible in a separate trial of the charges against her and that the "spillover" effect it engendered in the minds of the jurors caused her undue prejudice. See id. ("Because her case was not severed, she suffered improper prejudice at trial where evidence that was properly admissible against her co-defendants overwhelmed the jury with allegations of violence and robbery. Such evidence should not have been separately admissible against her, since it was irrelevant to the allegations against her and created unfair prejudice by its inclusion in her trial.").

The Commonwealth contends that the evidence of robbery and kidnapping was admissible against all defendants, as Jordan and McKeiver planned those offenses to obtain money and drugs "which were necessary to keep the enterprise in operation.... Thus, each robbery-related offense was admissible in the trial of the criminal enterprise/drug trafficking offenses, and vice versa." Brief for Appellee at 17. The Commonwealth argues further that "[t]here simply was no reason that the jury could not address the evidence and charges relating to the robbery plot separately from the evidence relating directly to the drug-trafficking charges." Id. at 20. The trial court concluded that the pendency of charges of Corrupt Organizations and Conspiracy against all defendants compelled a joint trial, as "the Commonwealth would be using the same evidence, i.e., audiotapes of wiretapped communication, in an attempt to prove the existence and operation of a corrupt organization with respect to each defendant. It was the theory of the Commonwealth's case that the co-defendants, including [Brookins], were among numerous individuals involvedin a widespread drug trafficking ring." Trial Court Opinion, 1/26/10, at 5.

Joinder and severance of separate indictments for trial is a discretionary function of the trial court; consequently, the trial court's decision is subject to review for abuse of that discretion. See Commonwealth v. Dozzo, 991 A.2d 898, 901-903 (Pa.Super.2010); Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa.Super.1999). "Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration." Commonwealth v. Levanduski, 907 A.2d 3, 14 (Pa.Super.2006). Consequently, an abuse of discretion consists not merely of errors in judgment by the trial court, but instead contemplates action unsupported by the evidence, at odds with governing law, or arising from improper motives personal to the judge. See id. "The critical consideration is whether [the] appellant was prejudiced by the trial court's decision.... [The a]ppellant bears the burden of establishing such prejudice." Dozzo, 991 A.2d at 901.

The Pennsylvania Rules of Criminal Procedure limit the joinder of offenses and defendants charged in separate indictments relative to the nature of the evidence adduced and the number of criminal acts or transactions alleged:

Rule 582. 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; or
(b) the offenses charged are based on the
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