Commonwealth v. Cole

• Decision Date: 07 July 2017
• Docket Number: No. 452 MDA 2016.,452 MDA 2016.
• Citation: 167 A.3d 49
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Cornell Anthony COLE, Appellant
• Court: Pennsylvania Superior Court

167 A.3d 49

COMMONWEALTH of Pennsylvania, Appellee

v.Cornell Anthony COLE, Appellant

No. 452 MDA 2016.

Superior Court of Pennsylvania.

Submitted February 27, 2017

Filed July 7, 2017

Kristen L. Weisenberger, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.^*

OPINION BY BENDER, P.J.E.:

Appellant, Cornell Anthony Cole, appeals from the judgment of sentence of 80–180 months' incarceration, imposed following his conviction of four counts each of burglary and conspiracy. After careful review, we affirm.

Appellant was charged with participating in a string of eight commercial burglaries in 2013, at eight different locations in Dauphin, Chester, Luzerne, and Schuylkill counties. Appellant was also charged with conspiracy offenses related to each burglary, which, depending on the case, involved one or more of Appellant's co-defendants, Troy Baker and Cornelius Smith.¹ Following a jury trial which commenced on January 22, 2016, and concluded on February 5, 2016, Appellant was convicted of burglary and conspiracy counts related to four of the incidents, and acquitted with respect to all remaining counts. Specifically, at CP–22–CR–0000036–2014 (hereinafter "0036"), Appellant was convicted of conspiring to, and having burglarized, Barr's Exxon in Schuylkill County, Thorndale Exxon in Chester County, and Blue Ridge Country Club in Dauphin County. At CP–22–CR–0002152–2014 (hereinafter "2152"), Appellant was convicted of conspiring to, and having burglarized, Shell Gas Station in Luzerne County. On February 23, 2016, the trial court sentenced Appellant to an aggregate term of 80–180 months' incarceration.²

Appellant filed a timely notice of appeal on March 18, 2016. He filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on April 8, 2016. The trial court issued its Rule 1925(a) opinion on September 20, 2016.³ Appellant now presents the following questions for our review:

A. Whether the trial court erred in denying Appellant's pretrial motion to sever offenses where the acts alleged were not considered a single criminal episode[?]

B. Whether the trial court erred in denying Appellant's pretrial motion to sever [his] trial from that of his co-defendants where different evidence applied to each case[?]

C. Whether the trial court erred in denying Appellant's pretrial motion to suppress evidence observed by the Howard County police officers where they acted in violation of the Municipal Police Jurisdiction Act[?]

D. Whether the trial court erred in denying Appellant's pretrial motion to suppress evidence obtained from the cellular phone where police violated the Pennsylvania Wiretap Act[?]

E. Whether the trial court erred in denying Appellant's pretrial motion to exclude evidence of uncharged misconduct as prior bad acts[?]

F. Whether the trial court erred in denying Appellant's request for relief under Pa.R.Crim.P. 600 [?]

G. Whether the trial court erred in denying Appellant's request for a mistrial where the Commonwealth in opening statements averred prior bad acts which fell outside the trial court's pretrial ruling[?]

H. Whether the trial court erred in denying Appellant's request for a mistrial where the Commonwealth mischaracterized testimony presented by their expert witness[?]

I. Whether the trial court erred in denying Appellant's request for a mistrial where a Commonwealth witness averred prior bad acts which fell outside the trial court's pretrial ruling[?]

Appellant's Brief at 7–8 (unnecessary capitalization omitted).

Severance

Appellant's first two claims concern his motions to sever offenses and co-defendants. "We consider the decision of whether to deny a motion to sever under an abuse of discretion standard." Commonwealth v. O'Neil, 108 A.3d 900, 905 (Pa. Super. 2015). With respect to the severance of offenses:

Offenses charged in separate informations may be tried together if they are "based on the same act or transaction" or if "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." Pa.R.Crim.P[ ]. 582(A)(1). The court has discretion to order separate trials if "it appears that any party may be prejudiced" by consolidating the charges. Pa.R.Crim.P[ ]. 583.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005). The comment to Rule 563 (Joinder of Offenses in Information) indicates that "it is assumed that offenses charged in the same information will be tried together, unless the court orders separate trials." Pa.R.Crim.P. 563 (comment).

Our Supreme Court has consolidated these rules into a three-part severance test:

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must therefore 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, 703 A.2d 418, 422 (1997) (quoting Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 496–97 (1988) ).

Here, Appellant was charged with eight burglaries at eight separate locations, which occurred across four counties, and involved numerous investigating police departments. Appellant concedes that certain evidence was common to multiple burglaries, such as cell phone evidence which demonstrated his presence at all eight locations, and expert testimony regarding evidence (paint chips which corresponded to evidence obtained from the Barr's Exxon burglary) found on a crowbar in his car when he was arrested immediately following the Shell Gas Station burglary. However, Appellant argues that

the Commonwealth called at least twelve (12) witnesses who could only testify to only one (1) burglary. The Commonwealth called five (5) witnesses to provide testimony relating only to the Barr's Exxon burglary. The Commonwealth presented four (4) witnesses to provide testimony relating to the Blue Ridge Country Club burglary only. The Commonwealth called at least two (2) witnesses to present evidence as to only the burglary at the Thorndale Exxon. The Commonwealth called an employee and Pennsylvania State Police Trooper to provide testimony only regarding the ... Shell Station [burglary].

If a witness had testimony to give involving more than one burglary, the witness testified more than once, making the trial even longer and more confusing. Investigator John McPhillips, Howard County Officer Dale Kreller, and Detective James Glucksman all testified multiple times.

Appellant was unduly prejudiced by having each burglary tried together. The voluminous testimony presented by the Commonwealth just to establish a burglary occurred made it difficult for jurors to focus on identity evidence relative to each burglary. Especially considering the fact that a burglary occurred was not at issue. Each burglary could have been prosecuted without overlapping witnesses. Grouping all eight (8) burglaries into one (1) trial created confusion and prolonged the trial process.

Appellant's Brief at 24–25.

The trial court decided against severance of offenses because "the burglaries took place over an approximately five (5) month period within and around central Pennsylvania." Trial Court Opinion (TCO), 9/20/16, at 10. Each burglary usually involved the same two co-conspirators, and strikingly similar circumstances in each case, in "the way each burglary was carried out, [and] the time of occurrence of each burglary." Id. Each burglary occurred at night. Each burglary involved the dismantling of the security systems in place, either through the cutting of external alarm wires, or the removal of internal security mechanisms such as alarm panels and DVR systems and, often, both. Cash and cigarettes were the primary targets of the heists. This evidence, collectively, established a modus operandi ("MO") for the multi-month burglary scheme carried out by the perpetrators, evidence corroborated by the items discovered in the vehicle in which Appellant was found and stopped by police following the last burglary incident. Identity evidence was also established with cell phone and GPS tracking data, linking Appellant and his cohorts to the vicinity of the burglary locations at the very same time the burglaries occurred.

We agree with the trial court that the evidence from each of these burglaries would have been admissible in the trials for the others. As noted above, the evidence of each burglary tended to prove in the others, "preparation" and a coordinated "plan," the "identity" of the co-conspirators, as well as a "lack of accident" in terms of explaining why Appellant and his cohorts just happened to be near each location at the time of each of the burglaries. See Pa.R.E. 404(b)(2) (permitted uses of other-bad-acts evidence). His presence near eight burglaries over 5 months, where each burglary was characterized by substantially similar circumstances pointing to a common culprit or culprits, is powerful identity evidence.

With regard to whether the evidence from the different burglaries was capable of separation by the jury, and whether Appellant was unduly prejudiced by the decision not to sever the cases, the trial court notes that the verdict speaks for itself: Appellant was acquitted of several burglaries and conspiracy counts, indicating that the jury clearly was able to parse the evidence involved in each individual case. See TCO at 11. We agree. See Commonwealth v. Dozzo, 991 A.2d 898, 903 (Pa. Super. 2010) (holding that "the jury found [the A]ppellant not guilty of all charges in one...