Com. v. Gibbons

• Decision Date: 04 November 1988
• Citation: 549 A.2d 1296,379 Pa.Super. 285
• Parties: COMMONWEALTH of Pennsylvania v. Freddie GIBBONS, Appellant.
• Court: Pennsylvania Superior Court

Page 1296

549 A.2d 1296

379 Pa.Super. 285

COMMONWEALTH of Pennsylvania v. Freddie GIBBONS, Appellant.

Superior Court of Pennsylvania.

Submitted May 9, 1988.

Filed Nov. 4, 1988.

Maryann F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 1103, and possession of an instrument of crime, 18 Pa.C.S.A. § 1104. Appellant contends that the trial court erred in (1) denying his motion to dismiss under Pa.R.Crim.P. 1100; (2) granting the Commonwealth's motion to consolidate six separate cases for trial; (3) denying his motion to suppress evidence seized during a consent search of appellant's home; (4) excusing a juror; and (5) refusing to charge the jury to view identification testimony with caution. Appellant also contends that the court abused its discretion in imposing an excessive sentence. For the reasons set forth below, we affirm the judgment of sentence.

On December 13, 1985, appellant was arrested and charged with six counts of robbery and six counts of possession of an instrument of crime. The charges stemmed from six separate incidents that occurred over a three month period in 1985. The Commonwealth filed, and the court below granted, a motion to consolidate the six cases on the basis that they involved a common scheme. Following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. Appellant was sentenced to an aggregate term of twenty-one-to-forty-two years imprisonment. This appeal followed.

Appellant contends initially that the court erred in denying his pre-trial petition to dismiss under Rule 1100. According to appellant, Rule 1100 requires that all requests for extension of trial date must be in writing. Specifically, appellant argues that because the Commonwealth orally amended its petition and failed to file a written amendment as required by Rule 1100, the Commonwealth did not comply with the requirements of Rule 1100. We disagree.

Pennsylvania Rule of Criminal Procedure 1100 sets forth the prompt trial requirement and provides in relevant part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Id. Rule 1100 mandates that a defendant be discharged unless all periods of delay beyond the one-hundred-eighty day run date for the commencement of trial are attributable to either an extension granted to the Commonwealth or an exclusion of time resulting from either the unavailability of defendant or counsel, or a continuance chargeable to the defense. Pa.R.Crim.P. 1100(c)(1) and (d)(3). See also Commonwealth v. Lafty, 333 Pa.Super. 428, 433, 482 A.2d 643, 645 (1984).

Prior to the expiration of the date scheduled for the commencement of trial, the Commonwealth may apply to the court for an order extending the trial date. Pa.R.Crim.P. 1100(c)(1). "Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension." Commonwealth v. Colon, 317 Pa.Super. 412, 420, 464 A.2d 388, 392 (1983). Once the Commonwealth has filed a petition for an extension, it may orally amend the existing petition provided that notice was given to defendant at the time of the filing of the initial petition. Commonwealth v. Smith, 348 Pa.Super. 81, 90-91, 501 A.2d 656, 661 (1985).

Here, the written complaint against appellant was filed on December 10, 1985, and the run date for the commencement of trial was June 11, 1986. Appellant's trial, however, did not commence until October 7, 1987, five-hundred-eighteen days after the complaint was filed. The running of the one-hundred-eighty-day period was initially tolled for four months by the unavailability of the trial judge. See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 392. In addition, because of several requests for continuances and defense counsel's unavailability as a result of other trial commitments, appellant concedes, in his brief, that two-hundred-twenty-eight days are excludable from the computation. See Pa.R.Crim.P. 1100(d)(3)(i) and (ii).

In response to the judicial delay, the Commonwealth filed a written petition requesting additional time for trial premised on the preparation time necessary to accommodate the consolidation of the six cases. The petition was timely filed and served on appellant and it maintained how the Commonwealth was diligent in attempting to bring appellant to trial despite the court's and defense counsel's scheduling problems (the court's four month unavailability and the withdrawal of initial counsel). See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 395. The court granted the petition.

On three subsequent occasions, the Commonwealth orally amended its petition. The grounds for the amendments included a defense request for a continuance, unavailability of defense counsel, and judicial delay. See Commonwealth v. Smith, 348 Pa.Super. at 91, 501 A.2d at 661. The court granted the amendments and again extended the date for trial. We note that the Commonwealth's oral amendments were not separate entities from the original petition, but requests to enlarge the period of time as a primary result of the court's and defense counsel's scheduling problems. See id. Thus, because the Commonwealth previously filed a written petition meeting all the requirements of Rule 1100, the oral amendments were permissible. See id.

Accordingly, because the amendments were not new requests but "merely ... reasonable amendment[s] to the existing petition which previously established the Commonwealth's diligence and provided appellant with the requisite notice." id., the Commonwealth's oral amendments were not improper.

Additionally, appellant's claim is without substance because after deducting the excludable and extendable time from the period of time between the filing of the complaint and the commencement of trial, appellant was tried well within one-hundred-eighty days. Thus, the court correctly denied appellant's motion to dismiss under Rule 1100. See id.

Appellant next contends that the court erred in granting the Commonwealth's motion to consolidate the six cases pending against him. Appellant argues that the Commonwealth failed to offer proof that all the crimes were the product of the same common scheme. According to appellant he was prejudiced by the consolidation of his six separate cases, because it permitted evidence of unrelated crimes to be presented to the jury. Because the court improperly granted the motion to consolidate, appellant believes that he is entitled to six new individual trials. We disagree.

The decision to grant or deny a motion for consolidation of charges for trial is a matter within the discretion of the trial court judge, and that decision shall not be reversed absent a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant. Commonwealth v. Peppers, 357 Pa.Super. 270, 274, 515 A.2d 971, 973 (1986) (citations omitted); Commonwealth v. Thomas, 361 Pa.Super. 1, 6, 521 A.2d 442, 445 (1987). The consolidation of indictments or informations for trial is encouraged when the needs of judicial economy will be best served. Commonwealth v. Thomas, 361 Pa.Super. at 6, 521 A.2d at 445 (1987).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at trial for another. The present rule in Pennsylvania [Pa.R.Crim.P. 1127] is that consolidation is proper ... if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; [or] (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other.

Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982) (citations omitted).

Although as a general rule evidence of crimes unrelated to the one charged are inadmissible, it is well-established that evidence of one crime is admissible in limited circumstances against a defendant where it tends 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. Commonwealth v. Robinson, 361 Pa.Super. 87, 89-90, 521 A.2d 940, 941 (1987) (citing Commonwealth v. Peterson, 453 Pa. 187, 197-193, 307 A.2d 264, 269 (1973), quoted in Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295, 299 (1986)). Generally, when the evidence is relevant and concerns one of these five issues, the prejudicial effect to the defendant may be outweighed by the probative value. Commonwealth v. Clayton, 516 Pa. 263, 276 n. 8, 532 A.2d 385, 392 n. 8 (1987).

Here, we are satisfied that there is sufficient similarity between the cases to justify consolidation and admission of evidence regarding each at the trial for the other for the purpose of showing a common scheme. Factually, all the offenses are of the same character within the meaning of Rule 1127(A)(1). Each of the six offenses was a robbery and involved identical methods. The Commonwealth offered proof of the following common elements of the six separate offenses: Each of the six victims was a deliveryman in the process of making a delivery in the early afternoon hours. All of the offenses occurred during a five-and-one-half week period and all took place within the same vicinity. All the victims were robbed at knifepoint by a single actor and had money taken directly from their pants pockets.

Consolidation is proper "where the crimes are such that the fact of...