Commonwealth v. Ferguson

• Decision Date: 05 January 2015
• Docket Number: 68 WDA 2014,Nos. 67 WDA 2014,s. 67 WDA 2014
• Citation: 2015 PA Super 1,107 A.3d 206
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael Duane FERGUSON, Appellant. Commonwealth of Pennsylvania, Appellee v. Michael Duane Ferguson, Appellant.
• Court: Pennsylvania Superior Court

107 A.3d 206

2015 PA Super 1

COMMONWEALTH of Pennsylvania, Appellee

v.Michael Duane FERGUSON, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Michael Duane Ferguson, Appellant.

Nos. 67 WDA 2014

68 WDA 2014

Superior Court of Pennsylvania.

Argued Oct. 22, 2014.

Filed Jan. 5, 2015.

Robert E. Draudt, Meadville, for appellant.

BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,^* JJ.

Opinion

OPINION BY STRASSBURGER, J.:

Michael Duane Ferguson (Appellant) appeals from the judgment of sentence entered on November 4, 2013,¹ following his convictions for, inter alia, three counts each of robbery, criminal conspiracy to commit robbery, terroristic threats, persons not to possess firearms, and one count of simple assault. Upon review, we affirm Appellant's convictions, vacate his judgment of sentence, and remand for resentencing.

Appellant was charged with several offenses in criminal informations filed at three separate dockets. At docket CP–20–CR–0000761–2012 (761–2012), the Commonwealth charged Appellant with numerous crimes in connection with the armed robberies of three Crawford County bars, which occurred in July 2012. At docket CP–20–CR–0000757–2012 (757–2012), which is not at issue in this appeal, the Commonwealth charged Appellant with multiple offenses relating to Appellant's possession of a sawed-off shotgun subsequently seized by police. At docket CP–20–CR–0000874–2012 (874–2012), the Commonwealth charged Appellant with simple assault and harassment as a result of an altercation between Appellant and Harry Boyer (Boyer), a co-conspirator in the robberies, which occurred on August 28, 2012, at the Crawford County Correctional Facility.

On July 24, 2013, the Commonwealth filed a motion to join all three informations for trial. It appears that the trial court held argument on the motion, wherein the Commonwealth presented “informal” information that, inter alia, suggested that at the time of the altercation between Appellant and Boyer, Appellant made statements loud enough for a correctional officer and Boyer to hear that Appellant had previously warned Boyer that he would kill Boyer if Boyer snitched on Appellant. Trial Court Memorandum and Order, 8/21/2013, at 2, 4. Following argument, the trial court issued a memorandum and order ruling that the offenses listed at dockets 761–2012 and 874–2012 be joined for trial, but that the charges at docket 757–2012 be handled in a separate proceeding.

A jury trial commenced at dockets 761–2012 and 874–2012 on September 9, 2013. Following trial, the jury convicted Appellant on all counts. On November 4, 2013, the trial court sentenced Appellant at both dockets to an aggregate 35 to 73 years' incarceration, with credit for time served. Appellant timely filed post-sentence motions, which the trial court denied on January 3, 2014. Appellant then appealed to this Court.²

Appellant presents the following issues for our consideration:

1. Did the [t]rial [c]ourt err in joining for trial the charge of simple assault with the robbery and related offenses?

2. Did the jury fully and adequately deliberate the facts of the cases or the law as it would apply to [A]ppellant's cases?

3. Were the verdicts against the weight of the evidence?

Appellant's Brief at 5.

In his first issue, Appellant argues that joinder was improper because it resulted in prejudice to him, as evidence of each case would not have been admissible in the other, and the robberies and simple assault were not part of the same act or transaction.

“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. Robinson, 581 Pa. 154, 864 A.2d 460, 481 (2004) (quoting Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 277 (1991) ). Furthermore, “Appellant bears the burden of establishing such prejudice.” Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278, 1282 (Pa.Super.2004) (en banc ).

The Pennsylvania Rules of Criminal Procedure govern the joinder and severance of offenses as follows:

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.

Pa.R.Crim.P. 582(A)(1).

Severance of Offenses or Defendants

The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him to a crime. Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super.2003).

[T]he “prejudice” of which Rule [583] speaks is not simply prejudice in the sense that appellant will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule [583] speaks is, rather, that which would occur if the evidence tended to convict [the] appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.

Id. (emphasis in original) (quoting Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418, 423 (1997) ). Moreover, “the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial, and it is not grounds for severance by itself.” Id. (quoting Collins, 703 A.2d at 423 ).

Reading these rules together, our Supreme Court established the following test for severance matters:

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.

Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 496–97 (1988) ).

Pursuant to this test, we must first determine whether the trial court abused its discretion in holding that evidence of each of the offenses would be admissible in a separate trial for the other. In making this determination, we are mindful that “[e]vidence of crimes other than the one in question is not admissible solely to show the defendant's bad character or propensity to commit crime.”Id.; see Pa.R.E. 404(b)(1) (providing that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character”). Nevertheless, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2) ; see Melendez–Rodriguez, 856 A.2d at 1283 (explaining that evidence of other crimes is admissible to show, inter alia, motive, intent, absence of mistake or accident, common scheme or plan, and identity). “In order for evidence of prior bad acts to be admissible as evidence of motive, the prior bad acts ‘must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.’ ” Melendez–Rodriguez, 856 A.2d at 1283 (quoting Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002) ). “Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts.” Lauro, 819 A.2d at 107 (quoting Collins, 703 A.2d at 423 ).

Upon review, we agree with the trial court that evidence of each of the offenses would be admissible in a separate trial for the other. As stated previously, Appellant and Boyer were co-conspirators in a string of robberies occurring in July 2012. In August 2012, Appellant assaulted Boyer at the Crawford County Correctional Facility. Testimony at trial indicated that Appellant made statements to Boyer during the course of the assault that connected the assault with the prior robberies. Specifically, Boyer testified that Appellant stated, “I told you I was going to effing kill you,” and that the altercation was over Boyer giving a statement to police. N.T., 9/11/2013, at 4–5. Two corrections officers, Sally Jean Bullis and Joshua James Lintz, also testified that during the course of the altercation, Appellant stated, “Why did you say that[?] Why did you do that[?]” and “I told you I would get you.” Id. at 31, 37. Thus, evidence relating to the robbery charges would be admissible to establish Appellant's motive for assaulting Boyer. Conversely, evidence of the assault would be admissible in a trial for the robbery charges to establish the existence of a conspiracy between Appellant and Boyer. Further, all of the evidence formed part of the “natural development” of the facts and history of this case. See Lauro, 819 A.2d at 107 (quoting Collins, 703 A.2d at 423 ).

Moreover, Appellant fails to establish that the jury was incapable of separating the crimes to avoid confusion. Our Supreme Court has held that “[w]here a trial concerns distinct criminal offenses that are distinguishable in time, space and the characters involved, a...