Commonwealth v. Rouse, 052820 PASUP, 2282 EDA 2018

Docket Nº:2282 EDA 2018
Opinion Judge:McCAFFERY, J.
Party Name:COMMONWEALTH OF PENNSYLVANIA v. MARTIN ROUSE Appellant
Judge Panel:BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
Case Date:May 28, 2020
Court:Superior Court of Pennsylvania
 
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COMMONWEALTH OF PENNSYLVANIA

v.

MARTIN ROUSE Appellant

No. 2282 EDA 2018

Superior Court of Pennsylvania

May 28, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered July 23, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012569-2015

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM

McCAFFERY, J.

Martin Rouse (Appellant) appeals from the judgment of sentence entered in the Philadelphia Court of Common Pleas following his jury convictions of conspiracy, robbery[1] and related offenses. Appellant contends the trial court erred by denying a requested jury instruction; issuing a manifestly excessive and unreasonable sentence; and imposing probationary sentences for his theft by unlawful taking[2] convictions because they merged with the robbery convictions. We agree with Appellant's merger claim, but conclude his remaining issues are waived. Thus, we affirm in part, vacate in part, and remand for resentencing.

Between November 2009 and March 2013, Appellant and two co-conspirators, Curtis Smith and Dennis Holloman, 3 perpetrated a series of armed robberies and burglaries throughout the City of Philadelphia. In 2013, Holloman gave three written statements to police, admitting to the offenses and implicating Appellant and Smith. Trial Ct. Op., 3/14/19, at 12. Smith also gave a signed statement to police in October of 2013, admitting to his participation; Smith pleaded guilty to charges against him on May 16, 2014. Id.; see also N.T., 3/9/18, at 98.

On May 23, 2014, Philadelphia police arrested Appellant and charged him with numerous offenses at docket numbers CP-51-CR-0012569-2015 (Docket 12569), CP-51-CR-0012570-2015 (Docket 12570), CP-51-CR-0012571-2015 (Docket 12571), CP-51-CR-0012572-2015 (Docket 12572), and CP-51-CR-0012573-2015 (Docket 12573).4 On December 11, 2017, the trial court granted the Commonwealth's motion to consolidate Appellant's cases.5

The charges against Appellant and Holloman proceeded to a week and a half-long joint jury trial commencing March 5, 2018. Smith testified as a Commonwealth witness, but denied remembering anything about the statement he gave police or his guilty pleas. Holloman testified in his defense, disavowing the statements he gave to police because, he maintained, the statements were made under duress and the police detectives' coercion. Appellant did not testify, but presented one exhibit. On March 14, 2018, the jury found Appellant guilty of numerous offenses. The trial court summarized the evidence presented at trial as follows.

I. Docket 12569: Stolen van

At Docket 12569, the jury found Appellant guilty of theft by receiving stolen property6 (RSP) and conspiracy to commit theft by RSP. These charges arose from Appellant, Holloman, and Smith's theft of a van on June 27, 2011, which they used two days later in the armed robbery of a Sunoco gas station (Docket 12573). Police also determined the license plate found on the vehicle was itself stolen.

II. Docket 12570: D&T Auto Body

At Docket 12570, Philadelphia Police determined the license plate on the van in Docket 12569 was stolen from D&T Auto Body (D&T) in Philadelphia on June 24, 2011. A surveillance video of D&T "showed two individuals wearing masks and gloves broke into the front window of the shop, went through the office area, and went to a safe in which they took a license plate from that property." N.T. 3/9/18, at 115. Furthermore, an "office chair" from D&T was found outside, "partially down the street." Id. at 28. Holloman later told police, in a signed statement, that he, "the other person [sic], and [Smith] busted the window and went inside and found the safe and put it on a chair and rolled it down the street and put it in the van." Id. at 51. DNA found on this chair matched Appellant's DNA. N.T., 3/9/18, at 75. The jury convicted Appellant of burglary, [7] conspiracy to commit burglary, and theft by unlawful taking.

III. Docket 12571: Second stolen van

At Docket 12571, the jury found Appellant guilty of theft by RSP and conspiracy to commit theft by RSP. These charges arose from the theft of another van that was used in the robbery of a Quick Stop mini mart (Docket 12572). See Trial Ct. Op., 3/14/19, at 5.

IV. Docket 12572: Quick Stop robbery

At Docket 12572, Appellant was charged with committing a robbery at a Quick Stop mini mart. Nancy Ann Dever testified at trial to the following: on the morning of June 19, 2011, she was working at the Quick Stop counting money from the register when three masked men entered the store. N.T., 3/6/18 at 82-84. One of the men jumped over the counter and threw Dever and her co-worker to the ground. Id. at 83-84. This man had a firearm, threatened them, and hit Dever in the head with the firearm. Id. at 83, 85-86. Meanwhile, one of the other masked men had also jumped over the counter, went into the office, and carried out a safe. Id. at 86, 89. The three men left in a white van. Id. at 90.

The Commonwealth presented a written statement Holloman gave to police, in which he admitted "he was the man who ran straight for the safe, while [Appellant] was the man who carried the gun." Trial Ct. Op. at 5 n.2.

The owner of Quick Stop, Morhaf Sheikh-Yousef, testified at trial to the following: the night before the robbery, he was at the store counting money, when Appellant, a regular customer, walked in and greeted him. N.T., 3/6/18, at 123, 128-29. Sheikh-Yousef placed the money in his safe. Id. at 130. After the robbery, he noticed that Appellant did not come to the store as often and acted "differently" when he did. Id. at 134-35. Sheikh-Yousef also watched the store's surveillance video of the robbery and identified the man who jumped over the counter and "carried the safe" as Appellant. Id. At 161. Sheikh-Yousef emphasized, "The way how he jumped, you can say 100 percent that was him. . . . Because I know the guy. I seen him a million times at the store. I seen the way how he move [sic]." Id. at 161-62.

The jury found Appellant guilty of robbery, conspiracy to commit robbery, and theft by unlawful taking.

At this juncture, we note that on cross-examination, Sheikh-Yousef testified he had two prior...

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