Com. v. Burton

• Decision Date: 28 February 2001
• Citation: 770 A.2d 771
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frankie Gerald BURTON, Appellant.
• Court: Pennsylvania Superior Court

770 A.2d 771

COMMONWEALTH of Pennsylvania, Appellee, v. Frankie Gerald BURTON, Appellant.

Superior Court of Pennsylvania.

Submitted November 6, 2000.

Filed February 28, 2001.

William E. Moore, Lansdale, for appellant.

Michael Marino, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Before JOHNSON, FORD ELLIOTT, and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

¶ 1 Frankie Gerald Burton appeals his judgment of sentence. We affirm.

On August 30, 1998, ... a man on a bicycle approached [K.V.], then aged thirteen, and asked her whether she liked a musical group named "Bones, Thugs and Harmony." He then asked if she "wanted to get it on," blocked her path with his bicycle and grabbed her buttocks. [K.V.] ... identified that man as [appellant]. The time was approximately 6:47 p.m.

At 7:40, police learned of a woman [Diane Foreman] approximately one mile away in Horsham Township who reported a man matching [appellant's] description, and riding a bicycle, approached her as she walked on the street, talked to her and finally grabbed her buttocks. Although this victim was approximately 30 years old, ... her appearance resembled that of a teenage girl.... [S]he wore shorts, a t-shirt, sneakers and a ponytail, and ... [appellant] "kept asking [her] how old [she] was." She would also testify that [appellant] was wearing a portable CD player on his waistband.

At approximately 8:20 p.m., in Hatboro, Morris Shatzkin, 76, was assaulted by a man he identified as [appellant], who attempted to steal his automobile in the parking lot of a fast-food restaurant. [Mr. Shatzkin testified] that [appellant] "reeked of alcohol," that [appellant] demanded his wallet, and that [appellant] told him he ([appellant]) was in trouble and wanted Shatzkin to "take him somewhere." The location of this attempted robbery was approximately one mile from the previous incident. Between 9:00 p.m. and 9:20 p.m., a man identified as [appellant], and riding a blue Huffy mountain bike, approached [R.E.] and [C.A.], aged 15 and 17, respectively, ... and attempted to rob them of money. This incident occurred less than one-quarter mile from the attempted carjacking.

At approximately 10:00 p.m., police received a report of an attempted burglary of the McPeak residence, only fifty yards from the attempted robbery of [R.E.] and [C.A.]. At approximately 10:15 p.m., police received a report of a burglary from the Frieman residence, which abuts the back yard of the McPeak residence. For both the McPeak and Frieman residences, children's toys were in the yards, and were visible from the street.... [O]ne of the residents of the burgled homes had seen [appellant] riding his bicycle through the neighborhood, looking down the driveways, into the yards.

Finally, at 10:54 p.m., police received a report that a man matching [appellant's] description had broken into the Staples residence, less than one-quarter mile away, and had attempted to abduct a girl before fleeing. The girl, [L.S.], was eight years old at the time. She said that when she escaped from [appellant], she saw her dog leap at [appellant] with his fangs bared, as if preparing to bite him on the wrist. The police later investigated the crime scene at the Staples residence and found a black glove that came from the Frieman residence. As with the McPeak and Frieman residences, children's toys in the back yard were visible from the street.

As soon as they received the last report, police went to a park approximately 50 to 100 yards from the Staples residence. There they found a blue Huffy mountain bike near the park entrance. Next to the bicycle was a woman's purse, which contained identification belonging to Lisa Frieman. Protruding from the purse was a portable CD player. The officers then saw and apprehended [appellant]. He exuded an odor of alcoholic beverage. A search of his pockets revealed a set of automobile keys belonging to the Staples family. He also carried a CD by the musical group "Bones, Thugs and Harmony." He was bleeding from what appeared to be puncture wounds on his wrists. He told the officers the bicycle was his, and that he had stolen the purse by breaking through a screen and entering a home. He also stated that he had cut his arm by punching through a glass pane to burglarize another house, and had knocked a girl down a flight of steps during this burglary.¹

Trial Court Opinion, 6/19/00, at 16-18 (citations omitted). Following a trial, a jury found appellant guilty of robbery as to C.A. and R.E., terroristic threats as to Mr. Shatzkin, C.A., R.E., and L.S., burglary and theft as to the Frieman and Staples residences, indecent assault as to K.V. and Ms. Foreman, attempted burglary of the McPeak residence, attempted kidnapping of L.S., attempted robbery of Mr. Shatzkin's motor vehicle, solicitation and stalking as to K.V., and simple assault as to L.S.²See N.T. Verdict, 7/16/99, at 149-51. The trial court sentenced appellant to 42 to 118 years' imprisonment. See N.T. Sentencing, 9/7/99, at 90. This appeal followed.

¶ 2 Appellant raises nine issues on appeal:

I. Did the Trial Court err in granting [the] Commonwealth's [m]otion to consolidate?

II. Did the Court err in not granting [appellant's] [m]otion for a new jury panel?³

III. Did the Court err in allowing the in-court identification by witnesses?

IV. Was the photo lineup unduly suggestive?

V. Was [appellant] arrested without probable cause and questioned without being advised of his Miranda Warnings [sic]?

VI. Was there sufficient evidence to convict [appellant] of the crime of attempted burglary of the McPeak residence?

VII. Was the sentence excessive and did it constitute cruel and unusual punishment?

VIII. Was trial counsel ineffective for not requesting a live lineup?

IX. Was trial counsel ineffective for refusing to present witnesses requested by [appellant]?

Brief for Appellant at 7.

¶ 3 Appellant first claims that the trial court erred in granting the Commonwealth's motion to consolidate all of the charges against him, as well as in denying his motion to sever the charges. See Brief for Appellant at 16. "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. Boyle, 733 A.2d 633, 635 (Pa.Super.1999). Rules of Criminal Procedure 1127 and 1128 state the appropriate standards for consolidation and severance:

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; or

(b) the offenses charged are based on the same act or transaction.

* * *

RULE 1128. SEVERANCE OF OFFENSES OR DEFENDANTS

The court may order separate trials... if it appears that any party may be prejudiced by offenses ... being tried together.

Pa.R.Crim.P. 1127, 1128. Pursuant to these rules, we 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 the offenses."

Boyle, 733 A.2d at 635 (quoting Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418, 422 (1997)). In deciding whether the evidence of each offense would be admissible in a separate trial, we must keep in mind 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. However, evidence of other crimes ... may be admissible ... where the evidence is relevant for some other legitimate purpose...."

Id. at 636 (citations omitted). Legitimate purposes include:

"(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."

Id. (quoting Commonwealth v. Buchanan, 456 Pa.Super. 95, 689 A.2d 930, 932 (1997)). Further, evidence of other crimes is admissible 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.' " Id. (quoting Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 840 (1989)). "This ... is also known as the `complete story' rationale, i.e., evidence of other criminal acts is admissible `to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.'" Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988) (quoting McCormick, Evidence § 190 (1972 2d ed.)). Here, each separate offense related to the others to form a logical story. Appellant rode around searching for money or items to sell, as well as a young female with which to have sex. With the exception of Ms. Foreman, who looked like a teenager, all of appellant's victims were young girls. Once appellant realized he had to escape, he attempted to steal a getaway vehicle from Mr. Shatzkin, even confiding that he "was in trouble." Trial Court Opinion, 6/19/00, at 17. After Mr. Shatzkin rebuffed his attempt, he began his search for money in attempting to rob R.E. and C.A. He then began systematically invading nearby homes. Her...