Com. v. Presbury

• Decision Date: 21 September 1995
• Citation: 445 Pa.Super. 362,665 A.2d 825
• Parties: COMMONWEALTH of Pennsylvania v. Alan PRESBURY, Appellant.
• Court: Pennsylvania Superior Court

Page 825

665 A.2d 825

445 Pa.Super. 362

COMMONWEALTH of Pennsylvania v. Alan PRESBURY, Appellant.

Superior Court of Pennsylvania.

Submitted June 7, 1995.

Filed Sept. 21, 1995.

David M. McGlaughlin, Philadelphia, for appellant.

Kathy L. Echternach, Assistant District Attorney, for Commonwealth, appellee.

Before MCEWEN, TAMILIA and KELLY, JJ.

TAMILIA, Judge:

Alan Presbury appeals from the May 16, 1994 judgment of sentence imposing a term of life imprisonment and consecutive lesser sentences. Following a jury trial, appellant was convicted of first degree murder, ¹ criminal conspiracy, ² violation of the Uniform Firearms Act (UFA) ³ and possessing an instrument of crime. ⁴ The facts of this case, as recited by the trial court, are as follows.

On the morning of January 17, 1993, at around 9:00 a.m., the decedent, Brian Moore, walked down the 2200 block of Sergeant Street in North Philadelphia with a fifteen-year old girlfriend. Unbeknownst to Moore, [appellant] Presbury and [Maurice] Revels--disguised in black ski masks and armed with semi-automatic firearms--waited nearby in a stolen van for Moore to leave his home. Upon seeing Moore, defendants immediately rode along-side the couple, stopped the van, and emerged with their guns drawn. Moore, believing that he was the intended victim of a robbery, offered defendants his gold chain. Instead of accepting the chain, defendants told Moore that they wanted him.

Defendants pushed the girl aside and pursued Moore as he fled the scene. Although defendants shot Moore in the back, Moore continued running toward the neighborhood community center. Upon reaching the community center, Moore broke the center's door off its hinges and bolted up a flight of stairs to the second floor. Defendants tracked the terrified Moore to the second-floor front room of the community center and shot at Moore when they found him. With nowhere else to run, Moore jumped from the second floor window. As Moore lay immobile on the ground, defendant Presbury came to the second floor window that Moore had just leapt from and proceeded to shoot down at Moore. Meanwhile, having seen Moore jump, defendant Revels ran down the stairs and also fired at the prone Moore. Defendant Presbury soon joined defendant Revels at street-level in shooting Moore.

(Slip Op., Greenspan, J., 10/11/94, pp. 3-4.)

On March 3, 1994, a jury convicted appellant and Maurice Revels of the aforementioned charges. ⁵ Following a penalty hearing, the jury set the penalty for the first degree murder convictions at life imprisonment. The Honorable Jane Cutler Greenspan then imposed upon appellant and Revels the life terms recommended by the jury and consecutive terms of five (5) to ten (10) years' imprisonment for conspiracy and eighteen (18) months to five (5) years' imprisonment for violation of the UFA.

On appeal, appellant first argues that the trial court erred in denying his motion to sever his trial from that of co-defendant Revels. Appellant claims severance was proper because, unlike himself, Revels confessed to killing Brian Moore and his confession implicated appellant. Thus, reasons appellant, he was prejudiced by the admission of Revels' confession.

Criminal defendants may be joined where they allegedly participated in the same act or transaction. Pa.R.Crim.P. 1127(A)(2). Where conspiracy is charged, co-defendants should be tried together. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (reargument denied), appeal denied. Further, "it is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion." Commonwealth v. Jones, 530 Pa. 591, 602, 610 A.2d 931, 936 (1992) (reargument denied). In determining whether to sever certain defendants, the court must balance the need to minimize the prejudice that may be caused by consolidation against the general policy of encouraging judicial economy. Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596 (1988). A better chance of acquittal from a separate trial is not sufficient cause to warrant severance. See Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). Rather, the defenses presented by the various defendants must be "irreconcilable and exclusive" and "conflict at the core" before the substantial prejudice burden is met. Commonwealth v. Bennie, 352 Pa.Super. 558, 566, 508 A.2d 1211, 1215 (1986).

Instantly, Revels' confession, which originally referred to appellant by name, was redacted prior to trial to refer to appellant only as "other guy." Nonetheless, appellant claims that he was deprived of his "confrontation and fair trial rights." (Appellant's brief at 10.) Appellant also claims he was deprived of his right to remain silent because he "was forced to testify to deny not only his involvement in this homicide, but [also] what his own co-defendant had stated in his confession." (Id.) While appellant never states it directly, the obvious implication of his argument is that the jury was able to identify appellant as "other guy" by reading the edited confession in light of other evidence presented at trial. This suggestion necessarily lies at the heart of appellant's argument because, without it, he would have had nothing to "confront" via cross-examination or "deny" upon taking the witness stand.

Modern law regarding the admissibility of a co-defendant's confession in a joint trial has its genesis in the landmark United States Supreme Court case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Our Court has discussed Bruton as follows:

In Bruton, co-defendant Evans' confession, which implicated Bruton in a robbery, was read to the jury. The trial court, in accord with Delli Paoli v. U.S., 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957) admitted the confession unedited and cautioned the jury that Evans' confession was inadmissible hearsay against Bruton and was to be considered only against Evans. Evans exercised his privilege not to testify. The Supreme Court set aside Bruton's conviction, overruling Delli Paoli because "of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton's] guilt." 391 U.S. at 126, 88 S.Ct. at 1622. The Court emphasized that Evans' statement was "powerfully incriminating" as to Bruton since it directly inculpated him in the crime and that Evans' confession "added substantial, perhaps even critical, weight to the Government's case." id. at 128, 88 S.Ct. at 1623. The Court thus held that Bruton had been denied his right of confrontation since Evans' extrajudicial statement inculpating him went to the jury without Bruton having the opportunity to cross-examine Evans.

Commonwealth v. Rawls, 276 Pa.Super. 89, 94, 419 A.2d 109, 111 (1980).

In order to comply with the mandate of Bruton, Pennsylvania courts have approved the practice of redaction, whereby all testimonial references in a confession to anyone other than the declarant are omitted. See Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Hess, 378 Pa.Super. 221 n. 1, 548 A.2d 582 n. 1 (1988), appeal denied, 522 Pa. 618, 563 A.2d 887 (1989); Commonwealth v. Council, 355 Pa.Super. 442, 513 A.2d 1003 (1986), appeal denied, 519 Pa. 664, 548 A.2d 253 (1988); Commonwealth v. Sanford, 323 Pa.Super. 436, 470 A.2d 998 (1984); Rawls, supra; Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979).

In Rawls, we confronted the identical argument advanced by appellant herein, namely, that he was prejudiced by the admission of his co-defendant's confession, even though redacted, because the jury was able to associate appellant with the confession by reading it in light of other trial evidence. The Rawls Court, engaging in a comprehensive review of state and federal law, held as follows:

In a number of cases, non-confessing defendants have argued "contextual inculpation" as does the instant appellant, viz: the edited confession, when read in light of other evidence connecting the defendant to the crime, tends to identify him as a participant, thus violating Bruton. The courts have consistently rejected such an argument and have found Bruton inapplicable since the redacted statement was not "powerfully incriminating" as to the defendant. In [U.S. v. Wingate, 520 F.2d 309 (2d Cir., 1975) ], for example, a co-defendant's redacted confession had been admitted into evidence with cautionary instructions. The complaining defendant (Wingate) argued that the statement, read in light of other evidence connecting him with the declarant, tended to identify him as a co-conspirator. The Second Circuit disagreed reasoning that the co-defendant's statement did not sufficiently incriminate Wingate inasmuch as, "[O]nly when combined with considerable other evidence, which amply established Wingate's guilt [did] the statements tend to incriminate him." 520 F.2d at 314. Similarly, in U.S. ex rel. Nelson v. Follette, 430 F.2d 1055 (2 Cir., 1970) two defendants, Biggins and Nelson, were tried jointly for a bank robbery. Biggins confessed, naming one "Oliver" as his accomplice and physically describing "Oliver". The confession also stated that Biggins and "Oliver" were at a certain bar just prior to the robbery. Other evidence at the trial established a close physical resemblance between Nelson and "Oliver" and further that Nelson and Biggins were often seen together at the bar mentioned in the confession. Nelson contended that confession, considered in light of the other evidence, "necessarily implicated" him as "Oliver". The court held no Bruton violation had occurred: "Biggins' statements were not clearly inculpatory because they alone did not serve to connect Nelson with the crime ... Biggins' statements were not the type of powerfully incriminating statements to which the court had reference in...