Opinion
2942 EDA 2019
06-02-2021
COMMONWEALTH OF PENNSYLVANIA v. KYLE MARCEL PAGE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.
Appeal from the Judgment of Sentence Entered July 2, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0002704-2017
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E. [*]
MEMORANDUM
McCAFFERY, J.
Kyle Marcel Page (Appellant) appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his jury convictions of robbery, retail theft, and related offenses, arising from several incidents committed on different days. Appellant argues the trial court erred in: (1) denying his motion to suppress physical evidence recovered from the vehicle he was driving because there was no probable case for a search; and (2) consolidating charges of retail theft, from an incident on January 27, 2017, and robbery, from an incident on February 20, 2017, committed at the same store. We reverse the ruling denying Appellant's suppression motion and affirm the ruling consolidating his charges for a January 27, 2017, theft and a February 20, 2017, robbery. Accordingly, we vacate the judgment of sentence and remand for a new trial.
The trial court summarized the facts as follows:
On January 27, 2017, Appellant committed a retail theft at a Metro PCS in Tullytown. Appellant used fake names to sign up for 3 iPhones and when the Metro PCS employee was distracted, Appellant ran from the business, stealing the three iPhones. Approximately 51 minutes after . . . Appellant steals the phone[s], he is seen on video at the Oxford Valley Mall selling the phones.
On February 11, 2017, Appellant committed a retail theft at a Metro PCS in Falls Township where Appellant stole two phones, [an] iPhone and a Samsung Galaxy. The Metro PCS employee chased Appellant out of the store and took a picture of Appellant's white Ford Fusion fleeing the scene. Fourteen minutes later, Appellant was seen at the Oxford Valley Mall selling the phones. While at the mall, Appellant called the police to report his vehicle, the white Ford Fusion, was stolen. Appellant gave a fake name to the officer and when the officer ran the registration of the vehicle, it was linked to the retail theft that occurred on January 27, 2017. [The vehicle belonged to Appellant's girlfriend.
On February 20, 2017, an armed and masked assailant enter[ed] the Metro PCS in Tullytown[.] A Metro PCS employee and a customer were directed by the assailant by gunpoint into the backroom of the business. Nine phones were stolen along with money from the register. The assailant is seen entering the driver's seat of a white Ford Fusion and the assailant flees the scene. Two of these stolen phones were sold at the Neshaminy Mall and one phone was sold at the Oxford Valley Mall by [Appellant].Trial Ct. Op. 8/6/20, at 1-2.
N.T., 12/4/18, at 55. The record does not indicate Appellant's girlfriend's name, nor when officers learned the vehicle belonged to her.
On February 20, 2017, the same day of the Tullytown robbery, Appellant contacted Tullytown Police Chief Daniel Doyle, stating he "wanted to provide information." N.T. 12/4/18, at 20. At approximately 2:25 p.m. that day, Appellant met with Chief Doyle, Detective Timothy Carroll, and Detective Eric Landamia in the parking lot of St. Mary's Hospital. Id. at 19-20. Appellant drove a white Ford Fusion, owned by his girlfriend, to the meeting where he provided information about the robbery to Detective Carroll. Id. at 55.
Appellant also played a voicemail for the police, allegedly from the perpetrator of the robbery. Id. at 24, 27. Upon listening to the voicemail, Detective Carroll believed the speaker was Appellant himself. Id. at 24. Appellant told the officers that he had to leave the meeting but agreed to meet later. Id. Prior to leaving, Detective Carroll searched the white Ford Fusion and, inside a child's backpack in the trunk of the vehicle, found six "new condition" iPhones and an empty iPhone box, as well as "some loose cash" in the glove compartment. Id. at 26-27. Appellant did not consent to this warrantless search.
Appellant was charged at three separate informations. On information 2704-2017 - the instant case - he was charged with both the January 27, 2017, retail theft and the February 20th robbery, both committed at the Metro PCS store in Tullytown. These charges were:
[C]ount 1, robbery by threat of immediate serious bodily injury; 1 count 2, theft by unlawful taking; 2 count 3, receiving stolen property; 3 count 4, retail theft; 4 count 5, possession of an instrument of a crime; 5 count 6, possession of a weapon; 6 count
7, making a false report; 7 count 8, unsworn falsification to authorities; 8 counts 9 and 10, false imprisonment; 9 count 11, damaging an unattended vehicle; 10 count 12, driving with a suspended license; 11 and count 13, harassment. 12 . . .
1 18 Pa.C.S. § 3701(a)(1)(ii) (F1).
2 18 Pa.C.S. § 3921(a) (F3).
3 18 Pa.C.S. § 3925(a) (F3).
4 18 Pa.C.S. § 3929(a)(1) (F3).
5 18 Pa.C.S. § 907(a) (M1).
6 18 Pa.C.S. § 907(b) (M1).
7 18 Pa.C.S. § 4906(a) (M1).
8 18 Pa.C.S. § 4904(a)(2) (M2).
9 18 Pa.C.S. § 2903(a) (M2).
10 75 Pa.C.S. § 3745(a)(S).
11 75 Pa.C.S. § 1543(a) (S).
12 [18] Pa.C.S. § 2709(a)(1) (S).
On information 2795-2017, Appellant was charged with the following: count 1, retail theft, and count 2, receiving stolen property. These charges stemmed from the retail theft occurring on February 11, 2017, at the Metro PCS in Falls Township.
On information 2524-2017, Appellant was charged with one count of false reports. This charge stemmed from the false report made on February 11, 2017, that Appellant filed with the Middletown Township police [reporting the] white Ford Fusion had been stolen from the Oxford Valley Mall.Trial Ct. Op. at 2-3 (paragraph breaks inserted).
Appellant entered a nolo contendre plea on information 2704-2017 and guilty pleas on informations 2795-2017 and 2524-2017 on September 13, 2017. N.T. Plea Hearing, 9/13/17, at 38-39. On the same day, the Commonwealth filed a motion to consolidate the three informations.
The Commonwealth filed for consolidation before Appellant filed his "Motion to Withdraw Plea of Nolo Contendre[.]"
On October 4, 2017, the Public Defender's office motioned the trial court to appoint private counsel because Appellant asserted defense counsel's ineffectiveness. Trial Ct. Op. at 3. The Public Defender's office also filed a "Motion to Withdraw Plea of Nolo Contendre" and a motion to recuse the Honorable Diane E. Gibbons. Id. The trial court appointed Timothy Barton, Esquire, on November 30, 2017, and "granted Appellant's motions to withdraw both pleas" on June 8, 2018. Id.
However, at the proceeding on November 30, 2017, the trial court stated Appellant could not withdraw a plea on one information where "there were two other cases that were part of the global agreement [ ] handled at the same time." N.T. 11/30/17, at 23. The court then stated Appellant would be scheduled for trial "on all three matters should [it] allow him to withdraw his guilty plea." Id. at 24. Although the trial court's opinion stated it permitted Appellant to withdraw all of his pleas, the court's June 8, 2018, order only specified granting the withdrawal of Appellant's nolo contendre plea.
On September 25, 2018, Appellant filed a counseled motion to sever the two crimes committed at the Tullytown store, which were included in information 2704-2017, arguing he "would be substantially prejudiced by evidence of the [r]etail [t]heft that occurred on [February 11, 2017, ] being introduced at the trial of the [r]obbery that occurred on [February 20, 2017]." Appellant's Motion for Severance, 9/25/18, at 2 (unpaginated). On October 1, 2018, Appellant filed an omnibus motion to suppress the physical evidence found in the trunk of the vehicle, arguing the officers searched the vehicle "without consent, authorization, exigent circumstances, probable cause, or a valid warrant." Trial Ct. Op at 4.
Appellant's motion to sever did not discuss the fact that he had pleaded nolo contendere and guilty to these offenses one year earlier.
The trial court conducted pre-trial hearings on December 4 and 5, 2018. With respect to Appellant's suppression motion, the Commonwealth presented the testimony of Detective Carroll and Chief Doyle. The trial court noted:
Detective Carroll had known Appellant from prior dealings and first met Appellant when Appellant was a witness in another case. Appellant was placed in [the] witness protection program and Detective Carroll was his contact person and transported Appellant while he was in the program.Trial Ct. Op. at 4.
These officers' testimony established the following details of the search of Appellant's vehicle. On February 20, 2017, the same day of the robbery at the Tullytown Metro PCS store, Detective Carroll went to the St. Mary's Hospital parking lot at "approximately 2:25 p.m" to meet with Chief Doyle, Detective Landamia, and Appellant. N.T., 12/4/18, at 19-20. During the meeting, Detective Carroll learned from Chief Doyle there was an armed robbery where phones were stolen "[a]bout three hours" earlier and about "eight miles or 20 minutes" away from the meeting point. Id. at 22, 28, 44. Detective Carroll testified that he learned from Chief Doyle that Appellant "either left with the [perpetrator, or] had contact with the [perpetrator]." Id. at 23. However, Chief Doyle did not recall telling Detective Carroll that Appellant had "[driven] anyone to [the] location [of the robbery.]" N.T. 12/5/18, at 44-45. After the robbery, Appellant contacted the Tullytown Police, stating he had information about the robbery and wanted to "cooperate." N.T. 12/4/18, at 23-24.
In the parking lot, Detective Carroll discussed the robbery with Appellant, who admitted the vehicle he was driving, a white Ford Fusion owned by his girlfriend, was at the scene of the robbery. N.T. 12/4/18, at 24. Appellant played a voicemail for the officers, ostensibly to show he "was merely a provider of transportation" to the perpetrator. Id. at 24, 27.
Detective Carroll, who knew Appellant for "[f]ive or six years" and often dealt with him "face to face," listened to the voicemail and told Appellant, "[T]hat's your voice, that's you." Id. at 19, 24. Detective Carroll believes Appellant's "voice may have been changed by an app. But the way of speaking, the mannerism, [Detective Carroll] recognized it as [Appellant]." Id. at 28. At this point, Detective Carroll became "skeptical" of the information Appellant provided. Id. at 24. Appellant advised the officers that he had to leave, but agreed to meet later. Id.
Before Appellant could leave the St. Mary's Hospital parking lot, Detective Carroll conducted a warrantless search of the "cab portion of the vehicle, front, rear seats, and [ ] the trunk[ ]" for a handgun. N.T., 12/4/18, at 25. Appellant did not consent to the search, and as noted the officers did not have a search warrant. See id. at 38. Inside the trunk, Detective Carroll found six "new condition" iPhones and an empty iPhone box in a child's backpack along with "some loose cash" in the glove compartment. Id. at 26-27. No handgun was recovered. Id. at 27.
During the suppression hearing, Appellant's counsel, Attorney Barton, argued Detective Carroll did not have probable cause to conduct a warrantless search of the vehicle. N.T. 12/5/18, at 16. During the hearing, Detective Carroll admitted that prior to the search, Appellant told him "there was a robbery, someone else committed the robbery, [and Appellant] fled from the scene of the robbery." Id. at 17. Appellant contends that the information available to Detective Carroll prior to the search, from his conversation with Chief Doyle and Appellant, was limited to the fact that Appellant had "left the scene where [ ] a crime had occurred [ ] four hours earlier, but [did] not include that the individual who committed the robbery was ever in the car, that [the] gun was ever in the car, [or that] any proceeds from the robbery were in the car. Id. at 47. Thus, police lacked probable cause to conduct a warrantless search of Appellant's automobile.
The Commonwealth responded that even if Chief Doyle had not given Detective Carroll information regarding "whether [Appellant] transported the robber[, ]" Chief Doyle told Detective Carroll "that the car leaving the scene from the robbery was essentially the same car that Detective Carroll searched." N.T., 12/5/18, at 49. The Commonwealth stated this information, combined with the temporal connection and close proximity to the meeting, coupled with the voicemail Appellant played for Detective Carroll, and "cash visible in the [vehicle's] console," gave Detective Carroll probable cause to search the vehicle. Id.
On December 5, 2018, the trial court denied Appellant's motion to suppress the evidence found in the car, concluding there was probable cause and the automobile exception for a warrantless search applied in this case, stating "[n]o exigency beyond the inherent mobility of the motor vehicle is required." N.T. 12/5/18, at 60-61. The trial court stated that from Appellant's phone conversation, Chief Doyle "knew [ ] that someone else was involved, and [Chief Doyle would have shared that information] with Detective Carroll in the normal course of things[.]" Id. at 61.
As we discuss infra, during the pendency of the instant appeal, the Pennsylvania Supreme Court overruled Gary in its decision in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), a plurality of the Pennsylvania Supreme Court "adopt[ed] the federal automobile exception to the [search] warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of a motor vehicle." Id. at 104 (opinion announcing judgment of the court).
With respect to the Commonwealth's motion to consolidate all three informations, the court granted the motion in part and denied it in part. The court ruled that with respect to information 2704-2017 - which included both the January 27, 2017, retail theft and February 20, 2017, robbery of the same Tullytown store - "the case would stand alone." Trial Ct. Op. at 5. The court "reasoned that the prejudicial value in permitting the evidence of the retail theft in Falls Township would outweigh its probative value." Id. However, the court consolidated informations 2524-2017 and 2795-2017, relating to the retail theft of the Falls Township store and Appellant's report of a stolen car, both committed the same day, February 11, 2017.
The instant case -information 2704-2017 - proceeded to a jury trial on January 29, 2019. The Commonwealth presented the testimony of an eyewitness to the February 20, 2017 robbery, three Metro PCS employees, Detective Carroll, and Detective Landamia. Appellant did not testify or present any evidence. The jury found Appellant guilty of robbery, theft by unlawful taking, receiving stolen property, retail theft, possession of an instrument of crime, possession of a weapon, two counts of false imprisonment, damaging an unattended vehicle, and harassment.
We note Appellant filed a motion to proceed pro se on December 3, 2018, which the trial court addressed on January 28, 2019, before commencing trial. N.T., 1/28/19, at 3. Appellant ultimately decided to continue with Attorney Barton's representation after discussing the matter with the trial court. Id. at 10.
On July 2, 2019, the trial court sentenced Appellant on robbery to nine to 20 years' imprisonment. On July 10th, Appellant filed a timely post-sentence motion, which the trial court denied on September 9th. On October 9th, Appellant filed a timely notice of appeal. On October 10th, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal and on October 30th, Appellant timely complied.
Appellant was given no further penalty on all other charges for which he was found guilty.
Appellant also filed two pro se notices of appeal, on October 7, 2019, and October 24, 2019.
On November 18, 2019, Appellant filed a pro se petition for removal of counsel. On February 18, 2020, a Grazier hearing was held and Appellant appeared by video. Trial Ct. Op. at 6. The trial court denied Appellant's motion to represent himself and allowed Attorney Barton to continue to represent Appellant in his appeal. Id.
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) ("When a waiver of the right to counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one.").
Appellant raises two issues on appeal:
1. Did the Trial Court err in denying Appellant's Motion to Suppress Physical Evidence?
2. Did the Trial Court abuse its discretion in consolidating the charges of a Retail Theft that occurred on 1/27/17 and a Robbery that occurred on 2/20/17?Appellant's Brief at 4.
In his first issue, Appellant argues the search of the vehicle, which he drove to his meeting with Chief Doyle and Detectives Carroll and Landamia, was not supported by probable cause, a warrant, or consent and thus the trial court erred in denying his motion to suppress. Appellant's Brief at 14. Appellant maintains the "totality of the circumstances [does] not demonstrate a fair probability" that any evidence would be present in the car at the time of the search. Id. Appellant states the search was conducted at a meeting he requested with the officers "three and one-half hours after the robbery and approximately 8 miles or a 20 minute drive from the scene of the robbery." Id. at 15. Appellant contends that, based on the information Detective Carroll had regarding the robbery at the time of the search, "Detective Carroll lacked any independent probable cause that could possibly justify a search." Id. at 15-16. Appellant states Detective Carroll only received information that: a single perpetrator committed the armed robbery at the Tullytown Metro PCS; Appellant had information regarding the robbery that he wanted to share with the officers; no one communicated to Detective Carroll that the perpetrator was ever in Appellant's car; and Detective Carroll had no information leading him to believe any weapons or evidence was in the car at the time of the warrantless search. Id. at 15.
The Commonwealth argues, for the first time on appeal, that Appellant lacks standing to challenge the vehicle search and failed to establish any reasonable expectation of privacy in the automobile. Commonwealth's Brief at 19-20. The Commonwealth argues Appellant did not present evidence of permissive use the vehicle. Id. at 23. The Commonwealth argues Appellant must show he was authorized to use the vehicle "on the day of the search at issue." Id. at 22. Neither Appellant, nor the trial court, addressed these issues.
We first address Commonwealth's argument regarding standing. The Commonwealth failed to raise this issue at the suppression hearing. Thus, the Commonwealth has waived this argument. See Commonwealth v. McRae, 5 A.3d 425, 429 n.1 (Pa. Super. 2010) ("At no time in this matter has either the Commonwealth or the suppression court addressed whether [the defendant/appellant] was first required to legitimize his challenge to the police entry by showing he held a reasonable expectation of privacy in the premises, before the court determined whether police entry was in fact lawful. Accordingly, we decline to consider this issue sua sponte) (citation omitted), see Commonwealth v. Govens, 632 A.2d 1316, 1320 (Pa. Super 1993) (en banc) (where appellee/Commonwealth did not challenge defendant's standing to contest police conduct at the suppression hearing, this Court rejected its attempt to raise the issue on appeal); see also Pa.R.A.P. 302 (a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal").
Our standard of review is well settled:
Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.Commonwealth v. Wilson, 111 A.3d 747, 754 (Pa. Super. 2015) (citation omitted).
A warrantless search of a vehicle must be supported by probable cause. Commonwealth v. Scott, 210 A.3d 359, 363 (Pa. Super. 2019). This Court has stated:
[A] determination of probable cause requires only that the totality of the circumstances demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place. . . . [T]he evidence required to establish probable cause for a warrantless search must be more than a mere suspicion or a good faith belief on the part of the police officer.Id. (citations and quotation marks omitted).
At the time of the suppression hearing, Gary, 91 A.3d 102, was the controlling law upon which the parties and the trial court relied. See N.T. 12/5/18, at 60; Commonwealth's Brief at 24 citing Gary, 91 A.3d at 104 (opinion announcing the judgment of the court). Gary "adopt[ed] the federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so[, ] and does not require any exigency beyond the inherent mobility of a motor vehicle." Gary, 91 A.3d at 104 (emphasis added). However, on December 22, 2020, our Supreme Court overruled Gary in Alexander, 243 A.3d 177. The Court held:
[W]e return to the pre-Gary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances; "one without the other is insufficient." "This dual requirement of probable cause and exigency is an established part of our state constitutional jurisprudence." . . .Id. at 207. The Court further explained:
Obtaining a warrant is the default rule. If an officer proceeds to conduct a warrantless search, a reviewing court will be required to determine whether exigent circumstances existed to justify the officer's judgment that obtaining a warrant was not reasonably practicable. . . . Courts will have to decide, just as they did pre-Gary, whether exigent circumstances justified warrantless searches in discrete scenarios, with a focus on the particular facts.Id. at 208. Although Gary was in effect at the time of the suppression hearing, we apply Alexander to this appeal. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) ("[W]hen a decision of this Court results in a 'new rule,' that rule applies to all criminal cases still pending on direct review.").
Here, Appellant met with Chief Doyle and the Detectives three to four hours post-robbery and 8 miles away from the Tullytown store. N.T., 12/4/18, at 28; N.T., 12/5/18, at 47. Appellant did not admit to committing the robbery but asserted knowing who committed the robbery. N.T., 12/4/18, at 23-24. During the meeting, Appellant gave no indication to Detective Carroll that he was in possession of the proceeds of the robbery nor the gun used. The trial court determined "Detective Carroll had probable cause to search the vehicle at the time given the facts that were known to him[.]" N.T., 12/5/18, at 61. We disagree. Instead, on the particular facts before us, we conclude the officer merely acted on a hunch. Because police did not obtain a warrant to search Appellant's vehicle, they needed probable cause and exigent circumstances. See Alexander, 243 A.3d at 207; see Scott, 210 A.3d at 363.
Appellant argues in his brief the search happened "three and one half hours" after the robbery. Appellant's Brief at 15. However, at the suppression hearing, Detective Carroll stated the search was conducted "[a]bout three hours" later. N.T., 12/4/18, at 28; N.T., 12/5/18, at 47.
Based on the totality of the circumstances- the amount of time and distance between the robbery and the search, Appellant's assertion another person committed the robbery, his willingness to cooperate with police regarding that information, and the lack of any indication that proceeds or weapons were in the vehicle - we conclude the "totality of the circumstances" did not demonstrate a "fair probability that contraband or evidence of a crime [would] be found" in Appellant's vehicle. See Scott, 210 A.3d at 363.
Furthermore, we conclude, under Alexander, that when reviewing the context of the record as a whole, the suppression hearing evidence did not establish exigent circumstances. See Wilson, 111 A.3d at 754. Here, it was Appellant who contacted Chief Doyle, informing him that he wished to provide information about the robbery. Appellant met the officers at a hospital parking lot, three to four hours after the robbery, and before the search, agreed to meet them again. The Commonwealth presented no evidence of exigent circumstances or probable cause to justify a warrantless search of the vehicle. See Alexander, 243 A.3d at 207-08. Accordingly, we conclude the trial court erred in denying Appellant's motion to suppress the physical evidence recovered as a result of the vehicle search. We thus reverse the order denying Appellant's motion to suppress. In so holding, we also vacate the judgment of sentence and remand for a new trial.
In Appellant's second issue, he argues the trial court abused its discretion when it consolidated the charges for a theft committed on January 27, 2017, and a robbery committed on February 20, 2017. Appellant's Brief at 16. Appellant cites Pa.R.Crim.P. 582(A)(1), "Joinder -Trial of Separate Indictments or Informations," which states:
(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.Id. at 16-17 (emphases added). Appellant contends there is an "inescapable conclusion" that once the jury heard evidence he "committed a retail theft, . . . to which he admitted and wanted to plead guilty, it [was] not a great leap of logic" for the jury to also suspect he also committed the robbery. Id. at 18.
Appellant states the consolidation of these cases was "not warranted" because they were committed 24 days apart, were not based on the same act, and would not be admissible in the other's trial if severed. Appellant's Brief at 18. Appellant argues the Commonwealth relied on the "common scheme and/or identity exceptions and in part on the preparation, plan and knowledge exception" provided at Pa.R.E. 404(b). Id. at 19. Appellant argues, however, the "preparation, plan, and knowledge exception becomes very superficial when looked at from a benefit analysis." Id. at 20. Appellant maintains there was no "benefit . . . added to a" future robbery at the Metro PCS store by first committing a retail theft that could not have been achieved by walking into the store and "looking around." Id. Appellant argues the motive of selling phones stolen in retail theft and in a robbery ``share[s] almost universal commonality and therefore lack[s] any probative value[ ]" and "is not unique in any way." Id. Appellant contends that presenting him "as a thief who could possibly commit an armed robbery" has far more prejudicial value than any probative value. Id. Appellant further maintains "the crimes share almost no similarity except the location of the crime and what was stolen[, ]" thus failing to meet the standard required by Pa.R.E. 404(b) Id. at 20-21, citing Commonwealth v. Johnson, 160 A.3d 127, 143 (Pa. 2017); Commonwealth v Hicks, 156 A.3d 1114, 1129 (Pa. 2017).
As stated above, Appellant cites Pa.R.Crim.P. 582(A)(1), which refers to "[o]ffenses charged in separate indictments or informations[.]" See Pa.R.Crim.P. 582(A)(1). However, our review of the record reveals one information listing both the February 20, 2017, robbery and the January 27, 2017, retail theft. Information, 5/11/17, Counts 1 & 4. Meanwhile, we note that the comment to Pa.R.Crim.P. 563, "Joinder of Offenses in Information," states "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 (emphasis added).
The standard of review on this matter is well settled:
Whether to consolidate the informations [is] a decision within the discretion of the trial court, and the decision will not be reversed absent an abuse of discretion. Consolidation is proper if the facts of each offense are easily separable, and evidence of one offense would have been admissible in a separate trial for the other offense.Commonwealth v. Laurenson, 470 A.2d 122, 124 (Pa. Super. 1983) (citations omitted). In the event of substantial prejudice to either party, the court may order separate trials. Our Supreme Court has explained:
The prejudice of which [Pa.R.Crim.P. 583] speaks [ ] would occur if the evidence tended to convict [ ] 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. . . .Commonwealth Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010) (citation omitted); see Pa.R.Crim.P. 583.
The ``[a]dmissibility of evidence is within the sound discretion of the trial court and we will not disturb an evidentiary ruling absent an abuse of that discretion." Hicks, 156 A.3d at 1125. Evidence of a defendant's other crime is not admissible to prove their "character in order to show that on a particular occasion the person acted in accordance with the character." Pa.R.E. 404(b)(1). However, such evidence can be introduced for other purposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E. 404(b)(2).
In the instant case, the trial court stated at the pre-trial hearing:
I do think that the retail theft and robbery, both occurring at the same location, the evidence would come in the robbery case, at least most of the evidence would come, and it's part and parcel of the Commonwealth's theory involving [Appellant]. So I'll grant the Commonwealth's motion to consolidate.N.T., 12/5/18, at 51. It was within the trial court's discretion to rule on these evidentiary matters. See Hicks, 156 A.3d at 1125. The trial court found similarities in the two crimes - that they were committed at the same Metro PCS store, and "that the stolen phones from each incident were both sold by Appellant." Trial Ct. Op. at 10. The trial court also pointed to the opportunity, in the January 27th retail theft, to gain knowledge of the store to commit the February 20th robbery. Id. The evidence of the motive for the retail theft would have been admissible at a separate trial on the robbery charge. Id. at 11. Finally, in both instances, the perpetrator fled the scene in the same white Ford Fusion. Based on the above reasoning pertaining to this specific set of facts, the trial court's consolidation of the offenses was "proper" and not an abuse of discretion See Laurenson, 470 A.2d at 124. Consolidation is within the trial court's discretion and we see no basis to suspect abuse. See id. Accordingly, we affirm the order of the trial court consolidating the charges related to the theft on January 27, 2017, and the robbery of February 20, 2017, both of which were committed at the Tullytown Metro PCS store.
Although we affirm the order consolidating the charges at information 2704-2017, we reverse the order denying Appellant's motion to suppress, and accordingly vacate the judgment of sentence and remand a new trial.
Judgment of sentence vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.
President Judge Panella Concurs in Result.
President Judge Emeritus Stevens Concurs in Result.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.