J-S64005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMIN ACKRIDGE                              :
                                               :
                       Appellant               :   No. 2868 EDA 2017

              Appeal from the Judgment of Sentence July 17, 2017
     in the Court of Common Pleas of Philadelphia County Criminal Division
         at No(s): CP-51-CR-0007098-2016, CP-51-CR-0007099-2016,
              CP-51-CR-0007100-2016, CP-51-CR-0007101-2016

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                  FILED MAY 24, 2019

       Amin Ackridge appeals from the judgments of sentence imposed at the

four above docket numbers after a jury convicted him of twenty-eight

offenses, including multiple counts each of attempted murder, robbery,

conspiracy, and possession of a firearm prohibited. We affirm.

       Appellant and a co-conspirator engaged in a string of robberies over a

period of six weeks in the same geographical area of Philadelphia. In each

instance, Appellant approached his male victim from behind, took the victim’s

valuables at gunpoint, used the same gun to shoot the unarmed victim in a

vital part of the body for no apparent reason after the robbery was completed,1


____________________________________________


1 Appellant’s gunshot victims suffered injuries such as permanent paralysis
from a severed spine, permanent bowel damage, shattered and broken hips,
a collapsed lung, and esophageal and stomach reconstruction surgery.
J-S64005-18


then proceeded to his co-conspirator’s getaway vehicle.          Appellant was

ultimately arrested in Delaware after a police officer caught him in the act of

attempting another robbery with the same modus operandi (albeit with a

different accomplice).

       After a week-long jury trial, at which Appellant challenged the

identification of him as the perpetrator while his co-conspirator and the victims

testified against him, the jury found Appellant guilty of all charges.2 Following

a presentence investigation and a sentencing hearing at which the trial court

heard from the victims as well as from Appellant’s siblings, the trial court

imposed consecutive, guideline-range sentences for each conviction that did

not merge, resulting in an aggregate sentence of 194 to 456 years of

imprisonment.3 Appellant filed timely post-sentence motions, which resulted

in the imposition of a modified aggregate sentence of 178 to 416 years of

imprisonment. Appellant thereafter filed timely notices of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents this Court with the following questions on appeal:

       [1.] Did the trial court err and/or abuse its discretion when it
       removed juror number 1 from the jury and replaced that juror
       with juror number 13 without conducting a colloquy of the
       removed juror where the removed juror appeared to be
       unreceptive towards the Commonwealth’s case and the
____________________________________________


2 Prior to commencement of deliberations, the trial court dismissed a juror for
failure to pay attention to the witnesses, and replaced him with an alternate.

3 The Commonwealth had sought an aggregate term of 224 to 448 years of
imprisonment. See N.T. Sentencing, 7/17/17, at 8.

                                           -2-
J-S64005-18


       prosecutor sought to remove that juror to [sic] as he seemed more
       favorable to the defense and there is no substantial evidence of
       record that the removed juror was failing to abide by the court’s
       instructions or otherwise failing to perform his duties?

       [2.] Did the trial court err and/or abuse its discretion when it
       granted the Commonwealth’s request to consolidate four matters
       charging unrelated robberies for a single jury trial where the
       consolidation was unduly prejudicial to [Appellant] and this
       prejudice outweighed - substantially - any probative value of
       identification or common plan?

       [3.] Did the trial court err and/or abuse its discretion when it
       granted the Commonwealth’s request to present the details of
       [Appellant’s] arrest in the State of Delaware where those details
       included brandishing of a firearm where that firearm was not
       related to the crimes for which [Appellant] was tried and the
       actions in Delaware were not relevant to [Appellant’s] modus
       operandi as this evidence was unduly prejudicial to [Appellant]
       and this prejudice outweighed - substantially - any probative value
       of that evidence as it bore no relation to the crimes for which
       [Appellant] was being tried because it occurred in another state,
       under unknown circumstances, with unidentified accomplices and
       is undisputed that the weapon recovered during the Delaware
       arrest was in no way connected to any crime for which [Appellant]
       was tried in the matters sub judice?

       [4.]   Is the sentence imposed unduly harsh and excessive?

Appellant’s brief at 6-7.4




____________________________________________


4 Appellant’s brief included a statement pursuant to Pa.R.A.P. 2119(f) wherein
he asserts that his claim, that the trial court failed to consider mitigating
factors in imposing an excessive aggregate sentence, raises a substantial
question that his sentence is inappropriate under the sentencing code. See
Appellant’s brief at 43-49. We agree. See, e.g., Commownealth v. Swope,
123 A.3d 333, 339 (Pa.Super. 2015) (holding a substantial question was
presented by claim that imposition of consecutive sentences was excessive in
conjunction with assertion that the court failed to consider mitigating factors).

                                           -3-
J-S64005-18


      The following principles inform our consideration of Appellant’s claims of

error. The decision to discharge a juror is within the sound discretion of the

trial court, even after the jury has been empaneled and sworn, and will not be

disturbed in the absence of an abuse of that discretion.                See, e.g.,

Commonwealth v. Smith, ___ A.3d ___, 2019 WL 1272696 at *7 (Pa.Super.

Mar. 20, 2019).      “[W]hen there is no evidence to support the trial court’s

decision to remove a juror, the court has abused its discretion.” Bruckshaw

v. Frankford Hosp. of City of Philadelphia, 58 A.3d 102, 111 (Pa. 2012).

      With regard to both the consolidation of the four cases and the

admission of evidence of the Delaware incident, we review the trial court’s

rulings for an abuse of discretion. See, e.g., Commonwealth v. Nevels,

203   A.3d    229,     236   (Pa.Super.    2019)   (admission      of   evidence);

Commonwealth          v.   Janda,   14    A.3d   147,     155   (Pa.Super.   2011)

(consolidation). Offenses charged in separate criminal informations may be

joined for trial if the evidence of each would be admissible in a separate trial

and there is no danger of confusing the jury.           Pa.R.Crim.P. 582(A)(1)(a).

“[E]vidence of other crimes is admissible when it tends to prove a common

plan, scheme or design embracing the commission of two or more crimes so

related to each other that proof of one tends to prove the others” or the

identity of the perpetrator. Commonwealth v. Judd, 897 A.2d 1224, 1231-

32 (Pa.Super. 2006).

      As to Appellant’s sentencing challenge,


                                         -4-
J-S64005-18


       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

       When imposing sentence, a court is required to consider the
       particular circumstances of the offense and the character of the
       defendant. In considering these factors, the court should refer to
       the defendant’s prior criminal record, age, personal characteristics
       and potential for rehabilitation.

Commonwealth v. Kitchen, 162 A.3d 1140, 1146 (Pa.Super. 2017)

(cleaned up).

       After a thorough review of the certified record, the parties’ briefs and

the pertinent law, we discern no abuse of discretion on the part of the trial

court as to the issues raised by Appellant, and we affirm the judgment of

sentence on the basis of the cogent and well-reasoned opinion that Honorable

Charles A. Ehrlich entered on March 19, 2018.

       Specifically, Judge Ehrlich observed that Juror No. 1 was properly

excused because he refused to follow the court’s instructions to pay attention

to the witnesses while they were testifying to assess their credibility. 5 See

Trial Court Opinion, 3/19/18, at 3-6. Judge Ehrlich also explained that the

____________________________________________


5 Contrary to Appellant’s contention, there was an extensive record made
concerning the lack of attention paid by Juror No. 1. supporting the trial
court’s decision to remove him. See N.T. Trial, 4/21/17, at 94-95; N.T. Trial,
4/26/17, at 151-58, 161-70.



                                           -5-
J-S64005-18


four cases were appropriate for consolidation because the details of the crimes

were sufficiently distinct to establish identity of the assailant, and the court

minimized any potential for prejudicial effect by instructing the jury as to the

use of the evidence.        Id. at 7-8.6       The trial court likewise validated the

admission of evidence of the subsequent attempted robbery in Delaware as

probative of establishing Appellant’s identity as the perpetrator of the

Philadelphia robberies, and the potential for prejudice was alleviated by a

limiting instruction.      Id. at 9-10.        Finally, Judge Ehrlich supported the

propriety of Appellant’s sentence by discussing how the “unnecessarily violent

nature of these offenses and their impact on the victims and the public”

warranted the lengthy term of imprisonment despite consideration of

Appellant’s mitigating evidence. Id. at 10-13.

       As to all of the foregoing points, we adopt Judge Ehrlich’s reasoning as

our own.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/19

____________________________________________


6 See also Commonwealth v. Janda, 14 A.3d 147, 156 (Pa.Super. 2011)
(affirming consolidation of nine similar burglaries for single trial).

                                           -6-
'   .                                                                                                      Circulated 05/16/2019 10:51 AM


)
l                                                                                                                               FILED
                        IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                FIRST JUDICIAL DISTRICT OF PENNSYLVANIA      20/8 MAR 19 PH 2                                               3:
                                    TRIAL DIVISION - CRIMINAL SECTION       OFFICE Of JUDICIAL F:ECOi
                                                                                 CRIMIH,\L DIVISION
                                                                                                                         FIRST JU()!C!At OISTn/C
                                                                                                                            or Prn;,isn.vA111A
                     Commonwealth of Pennsylvania                               CP-51-CR·0007098-2016
                                                                                CP-5l-CR-0007099-2016
                                                                                CP-51-CR-0007100-2016
                                     v.                                         CP-5l-CR-0007101-2016



                                                                                SUPERIOR COURT
                            Amin Ack.ridge                                      NO. 2868 EDA 2017




                                                             OPINION

        Ehrlich, J.

                   Amin Ackridge, hereinafter referred to as Appellant, was found guilty of four (4) counts of

        criminal attempt-murder, four (4) counts of aggravated assault, six (6) counts of robbery, six (6)

        counts of complicacy to commit robbery, four (4) counts of possession of a firearm prohibited and.

        four ( 4) counts of firearms not to be carried without a license.' The charges stem from a series of

        four gunpoint robberies during the months of June and July 20 l 5. Jury selection occurred over a

        two day period with twelve jurors and three alternates selected and sworn in on April 19, 2017.

        Trial began on April 19, 2017 and continued for five (5) additional days with both the prosecution

        and defense resting on April 26, 2017. The jury reached its verdict on April 28, 2017 finding the

        appellant guilty of all charges. Appellant was sentenced on July 17, 2017, to an aggregate term of
                                                                                     CP·51-CR·0007093-2016 Comm. v Acklidgo, Amin
        192 to 456 years. A timely appeal followed.                                                    Opioioo




                                                                                          111111111111111
                                                                                                8084062341
                                                                                                          I IIIIIIII
        I
            I 8 Pa.C.S.A. § 901 §§A, § 2702§§A I,§ 3701 §§A 11, § 903, § 6105§§A I and§ 6106§§A I, respectively.
On appeal, Appellant avers the following four points of error:

I.     The trial court erred and/or abused its discretion when it removed
       juror number l from the jury and replaced that juror with juror
        number 13. That juror seemed to be unreceptive towards the
       commonwealth's case and the prosecutor sought to remove that
       juror to [sic] as he seemed more favorable to the defense. There was
       no evidence submitted that juror number 1 was failing to abide by
       the court's instructions or otherwise failing to perform his duties.
       The facts alleged by the commonwealth in support of the juror's
       removal were wholly speculative. The juror at issue was not
       colloquied to determine whether or not he was, in fact, performing
       his duties and following the court's instructions. It was error and/or
       an abuse of discretion to remove this juror over the objection of the
       defense where the Commonwealth perceived that juror as
       unreceptive to its witnesses and evidence.

IL     The trial court erred and/or abused its discretion when it granted the
       Commonwealth's request to consolidate the four matters identified
       in the caption above for jury trial. The consolidation was unduly
       prejudicial to the defendant and this prejudice outweighed-
       substantially- [sic] any probative value of identification that the
       consolidation provided as multiple victims were able to
       independently identify defendant at trial without reference to
       defendant's other alleged crimes and where testifying co-defendant
       provided identification testimony of defendant with respect to every
       alleged incident independently of the other alleged crimes.
       Moreover, the identification of the defendant by the testifying co-
       defendant was supported by the evidence including, but not limited
       to cellular telephone records. Accordingly, consolidation of the
       matters for trial was unduly prejudicial, improper, and requires
       reversal and a new trial.

III.   The trial court erred and/or abused its discretion when it granted the
       Commonwealth's request to present the details of the defendant'
       arrest in the State of Delaware where those details included
       brandishing of a firearm where that firearm was not related to the
       crimes for which the defendant was tried. The court determined that
       the facts surrounding the defendant's arrest in Delaware were
       relevant to the defendant's modus operandi. This holding was
       unduly prejudicial to the defendant and this prejudice outweighed -

                                       -2-
                 substantially- any probative value of that evidence as it bore no
                 relation to the crimes for which the defendant was being tried. It
                 occurred in another state, under unknown circumstances, with
                 unidentified accomplices. It is undisputed that the weapon involved
                 recovered during the defendant's arrest in Delaware was in no way
                 connected to any crime for which he was being tried in the matters
                 captioned above. In addition, defendant was not being sought by the
                 Philadelphia Police for the crimes charged in the matters sub judice
                 at the time of his arrest in Delaware, so any flight by defendant was
                 not probative of his responsibility for the crimes charged in these
                 matters.

        IV.      The sentence imposed, which is tantamount to a life sentence under
                  the circumstances of this defendant, is unduly harsh and excessive
                  as if fails to take into account all mitigating, relevant, and necessary
                  factors to be considered by a sentencing court, as set forth in the
                 argument at the sentencing hearing, (including the defendant's age,
                 rehabilitative needs, the fact he was previously the victim of gun
                 violence, became addicted to prescription medications as a result of
                 his injuries, his mental ailments and medication for same and his
                 positive actions in the community including coaching), [sic] and
                 confinement in a state correctional facility for the term imposed is
                 not the least restrictive sentence necessary to effectuate the aims of
                 the Pennsylvania sentencing laws. The sentence imposed is greater
                 than that which would be consistent with protection of the public,
                 the gravity of the defendant's conduct as it relates to the impact on
                 the life of others in the community, and the rehabilitative needs of
                 defendant.

                 Appellant's Pa.R.A.P. l 925(b) Statement.

As will be discussed below, these claims are without merit. Accordingly, no relief is due.



DISCUSSION

   I.         Dismissal of Juror No.I

        On April 26; 2017 immediately after both the commonwealth and defense rested, the

commonwealth made an oral motion to the Court to dismiss Juror No. I due to a "lack of


                                                  -3-
attentiveness as to the observations he's making of the witnesses." N.T. 4-26-17, P. 151. More

    specifically, the commonwealth argued that during trial there were moments when identifying

witnesses made identifications that included 'body language and movement>' that are "essential to

judging credibility and the viability of what they're saying as witnesses." The commonwealth

argued that Juror No. 1 had his head down during significant portions of the examinations of two

of the detectives and several complaining witnesses. The commonwealth further argued that

during witness examinations, this particular juror's gaze was for long periods of time focused

towards the back doors of the courtroom, in opposite of where the witnesses were seated on the

witness stand.

          The issue of this particular juror's inattentiveness had been initially raised with the court

by counsel a few days earlier on April 21, 2017. This court, after considering the high importance

of juror attentiveness, especially while note-taking, gave the jurors a subsequent instruction on

Monday, April 241 2017 about note-taking and the importance of making observations of the

witnesses during their testimony in order             to   assess their credibility.2 This follow-up instruction

was given to the jury in addition to the standard preliminary instructions that were given by the

Court to the jurors at the start of the trial regarding note-taking, which included the following

language:

                  "If you do take notes, remember that one of your responsibilities as a juror
          is to observe the demeanor of witnesses to help you assess their credibility. Do not
          become so involved with note taking that it interferes with your ability to observe
          a witness or distracts you from hearing the questions being asked of the witness and
          the answers being given by the witness.t" N.T. 4-19-171 pp. 16.




2 See Pa. R. Crim. P. 647(E): "The trlal judge may give any other instructions to the jury ... at any time during the trial
as the judge deems necessary and appropriate for the jury's guidance in hearing the case."
3
  See Pa. R. Crim. P. 644

                                                           -4 -
        Prior to making is ruling on the dismissal of this juror, this Court made the following

observations and assessment of Juror No. I:

               "But I watched on the Monday the 241\ the 25111 and today. And from what
       I observed repeatedly is that, for Jong periods of time, this juror looks down. He
       does not look at the witnesses. And when he doesn't look down, he stares straight
       ahead. He stares up briefly then goes back to making mark. He's moving his
       clipboard around in a way that indicates that he could be drawing, Or maybe that's
       how he writes to get everything on the page ... I looked at the other jurors because I
       wanted to compare what was going on last week and this week. What I see with the
       other 14 jurors is that they are taking notes, but they're also looking at the witness,
       and they're looking at the attorneys. They are taking notes but they're observing
       the witnesses, which is what jurors need to do in order to make affair assessment
       of credibility.' Id @ pp. 163-64

               "I am concerned, frankly, about the fairness for a defendant who is entitled
       to a fair trial and the commonwealth which is also entitled to a fair trial. And this
       case has been going on for about a week. It involves many witnesses> key civilian
       witnesses and police. It is a case where credibility determinations are going to have
       to be made, because my understanding of the defenses that Mr. Ackridge did not
       do any of these crimes. Misidentification, it was somebody else who did it. That
       Mr. Oliver is lying, who is the cooperating codefendant; and the civilian witnesses
       are mistaken, those who made identifications and .those who provided information
       to the police.

                I don't see how Juror No.1 can make credibility determinations necessary
       in a fair trial if he has not been looking at the witnesses and has been so engrossed
       in taking notes ... But his conduct during trial, which is so different than the conduct
       of the other 14 jurors who are laking notes and watching the witnesses. It appeared
       that he was not writing. He was just staring straight ahead .... And it didn't even
       make sense where he was staring because Mr. Page [defense counsel] was not even
       sitting at the table when this was going on." Id@ pp. 167-69


In light of the arguments of counsel and this court's own independent observations, this Court

granted the Commonwealth's Motion to Dismiss Juror No. 1, replacing him with alternate Juror

No. I 3, prior to closing arguments.

        On appeal, appellant argues that this court should not have dismissed the juror> absent a

showing that the juror was failing to abide by the court's instructions or otherwise failing to

perform his duties. Appellant further argues that it was the commonwealth's perception that this

                                                -5-
juror was unreceptive to their witnesses and evidence that led to his dismissal and that this court

should have colloquied the juror to determine if he was in fact perfuming his duties.

       The decision to discharge a juror is within the sound discretion of the trial court and will

not be disturbed absent an abuse of the discretion. The discretion to dismiss a juror exists even

after the jury has been empaneled and juror sworn. Commonwealth v. Rush, 162 A.3d 530 (Pa.

Super. 2017). As this court stated on the record prior to making its ruling to dismiss and replace

Juror No. l, it was not a decision this court took lightly. Following this court's own observations

of this Juror's inattentiveness, and at times, his refusal to observe the witnesses in order to assist

with his own credibility and identification determinations, the court again formally re-instructed

the jury panel on the need to observe the witnesses demeanor while testifying.

       However, Juror No. ,l continued for the next several days to glance downward for long

stretches of time and inexplicably look straight towards the back of the courtroom away from the

witness stand for no apparent reason. It was the decision of this Court that Juror No. 1 was not

following the Court's instructions and was refusing to perform one of his main functions, assessing

witness demeanor while they were testifying in order to determine the witness's credibility. As

Juror No. 1 was unwilling to perform this function, both the Commonwealth and the appellant

were being deprived of a fair and impartial trial and this Court therefore dismissed Juror No. l and

replaced him with an alternate prior to closing arguments. There was no information presented as

to the juror's views on the case. Therefore this claim is without merit. Accordingly, this Court

made no error in dismissing Juror No. I.




                                                 -6-
   II.      Granting of Commonwealth's Motion to Consolidate Matters (PA. R.E. 404(b))

          The Commonwealth filed a Motion to consolidate four (4) open matters regarding the

defendant where he was charged in all four with gunpoint robberies I attempted murders where the

victims in all four cases were shot. Identification of the defendant was a major contested issue

despite the fact that the accomplice I getaway driver in all four robberies was testifying against the

defendant. The appellant's contention both at the pre-trial stage and at trial was that the co-

defendant was lying and that the victim identifications of him as the perpetrator were wrong. As

such, the commonwealth was seeking to consolidate the matters not merely for the sake of judicial

convenience but for probative evidence of the appellant's common plan or scheme and identity.

         The Court heard arguments and was satisfied that the evidence that would be offered for

all four cases was being offered for a legitimate purpose, that is, to show a common plan or scheme

for the robberies and the identity of the perpetrator. Further, the court found that the probative

value of this evidence outweighed its potential for unfair prejudice. Commonwealth v, Hairston,

624 Pa. 143, 84 A.3d 657, (2014) cert denied, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).

         Identity as to the charged crime may be proven with evidence of another crime where the

separate crimes share a method so distinctive and circumstances so nearly identical as to constitute

the virtual signature of the defendant. What is required therefore "is such a high correlation in the

details of the crimes that proof that such a person conunitted one of them makes it very unlikely

that anyone else committed the others." Commonwealth v. Novasak, 414 Pa.Super. 21, 606 A.2d

477 (1992). In the four cases sought to be consolidated, there with numerous similarities:

             (I) All occurred in the late afternoon or evening
             (2) All involved robberies of males who were strangers to their assailant
             (3) All victims were approached from behind with a gun pointed at them
                 and taken each time are small amounts of money and cell phones.
             (4) All victims were shot after they were robbed for no apparent reason.



                                                 -7-
            (5) All four times the assailant leaves on foot but then gets into a car to
                escape the scene.
            (6) All four have the same type shell casings found at the scene and match
                the same gun that is recovered from the cooperating co-defendant.
            (7) All four robberies occurred in close proximity to one another with
                three occurring within five blocks of each other and the fourth
                occurring further west, closer to the appellant's home.
            (8) AJ! four occurred within six weeks of one another.


        As such, this court examined the details and surrounding circumstances of each criminal

encounter to assure that the evidence revealed criminal conduct which was so distinct and so nearly

identical as to become the signature of the same perpetrator. Further) this court sought to balance

the potential prejudicial impact of the evidence with the commonwealth's need to present evidence

under the common plan exception, as well as this court's ability to caution the jury concerning the

proper use of such evidence by them in their deliberations. See Commonwealth v. G.D.M, Sr.,

926 A.2d 984� (Pa.Super.2007). appeal denied, 596 Pa.715, 944 A.2d 756 (2008) (quoting

Commonwealth v. Smith 432 Pa.Super. 91, 635 A.2d 1086 (1993)).

       Given the nearly identical manner in which the four crimes were committed, this Court

found that the commonwealth's need to prove a common plan and the identity of appellant

increased its probative value and outweighed any prejudicial impact to the appellant.     Moreover,

this court, having ruled that the four (4) robberies could be consolidated for trial, gave the jury a

limiting instruction before deliberations on their need to give separate consideration as to each of

the four crimes charged. N.T. 4-27-17, pp.38-40. See Id. G.D.M., Jr. at p.987. Accordingly, this

Court's granting of the Commonwealth's Motion to Consolidate was appropriate and not in error.




                                                -8-
    III.    Granting of Commonwealth's Motion to Permit Evidence of a Subsequent Bad
            Act - Appellant's Arrest in the State of Delaware (Pa.R.E.404(b))


     On August 12, 2015, approximately 3 weeks after appellant's latest of four (4) gun point

robberies in Philadelphia, he was arrested in the State of Delaware when he was observed by a

police officer exit the passenger side of a minivan while holding a gun and approach a male seated

on a bicycle from behind with the firearm extended towards the male.             The appellant was

immediately apprehended and the minivan, which had been waiting for him, fled the scene.

    For the reasons set forth above regarding the consolidation for trial purposes of appellant's

four open robbery/attempted murder cases, this court granted the commonwealth's motion to

permit this evidence of his Delaware arrest at trial in order to show a common plan and identity of

the perpetrator. Appellant's arrest in the State of Delaware was almost identical to the four cases

that were consolidated and about to be tried in Pennsylvania. In this subsequent arrest in Delaware,

the appellant exited a vehicle, approached a male from behind, pointed the gun towards him and

attempted to rob him. But for the officer making this observation, appellant would have continued

his robbery and possible assault of this male.

   Moreover, identical to his cases in Philadelphia, there was a vehicle which appellant exited

and which remained on the scene for appellant to make his escape. Although the driver of the

minivan that fled the scene upon appellant's arrest in Delaware was not the same co-conspirator

driver who was testifying against the appellant in the four matters being tried in Philadelphia, this

court was persuaded that the surrounding circumstances of this attempted robbery in Delaware and

those occurring in Philadelphia were nearly identical and thus probative of Appellant's common

plan and identity.   Further, this court found that the probative value of appellant's arrest in




                                                 -9.
    Delaware outweighed any prejudice that would result to the appellant from this evidence being

presented at trial to the jury.

       Moreover, this court gave a limiting instruction to the jury specifically instructing them that

this evidence was to be used by them for the limited purpose to show that the appellant engaged

in a conunon scheme or plan which tends to show identity and that this evidence was not to be

used by them for any other purpose, including bad character or criminal tendencies or to infer

guilt.4 N.T. 4-27-17 at pp.40-41. This Court therefore permitted evidence of appellant's Delaware

arrest to be used for this limited purpose.



       IV.      Harsh and Excessive Sentence

             Appellant was sentenced to a total of 192 to 456 years' incarceration. 5 The sentence was

within the guidelines and appellant does not argue this point on appeal. Rather appellant contends,

inter alia, that this court in sentencing him did not give due consideration to his age (almost 30

when these crimes occurred), his being a previous victim of gun violence, his addiction to

prescription medications, his mental ailments and the need to be medicated for it, his community

involvement (he was once a youth coach).               He further contends that confinement in a state

correctional facility is not the least restrictive sentence necessary to effectuate the aims of

Pennsylvania's sentencing laws.

             The facts of the four cases against appellant had a common chilling theme. Appellant

pointed agun at his victims, and after demanding their possessions, and after each victim complied,




4
 Standard Criminal jury Instruction 3.08 "Evidence of Other Offenses as Substantive Proof of Guilt"
54 counts of Crlminal Attempt-Murder 80-160 years; 6 counts of Robbery-Inflict Serious Bodily Injury 42-120 years;
6 counts of Conspiracy-Robbery-Inflict Serious Bodily Injury 42-120 years; 4 counts of Possessing of Firearm
Prohibited 16-32 years and 4 counts Firearm Not To Be carried Without A License 12-24 years.

                                                      - 10 -
rather than simply leaving the scene in a waiting car, appellant inexplicitly and with extreme

cruelty and callousness chose to shoot each of his defenseless victims.

        Robert Gotwalt was shot in the back as he came to his door to see what was happening

outside as appellant was robbing two other men. The bullet ripped through his lungs and small

intestine. He underwent surgery to repair this damage during which one foot of his small intestine

had to be removed. Following his hospitalization, he spent almost five (5) months at Moss

Rehabilitation Center. He remains paralyzed due to the damage sustained to his spine, which was

completely severed. He remains catheterized and due to damage sustained to his bowels, is unable

to have a bowel movement without the use ofa suppository. N.T. 4-20-17, pp. 15-22. As Mr.

Gotwalt testified to at appellant's sentencing via video, his life was completely destroyed by the

appellant. His paralyzed condition leaves him feeling that he has become a burden on his family

and others. (N. T. 7-17-17, video testimony not transcribed.y

       Maurice Wallace was shot at twice by the appellant after taking his possessions. The first

shot struck him in the hip and the other fortunately missed striking him in the head as it cut a hole

through the brim of his cap. His left hip was shattered and his right hip was broken, as the bullet,

which remains lodged in his right hip, traveled across his torso. He spent three and one-half (3 Y:i)

weeks in the hospital. He was forced to lay flat during his hospitalization, due to the nerve damage

caused by the gunshot. After extensive physical therapy he remains "numb from the knees down."

He continues to treat with doctors for these injuries, takes pain medication every day and continues

to walk with a cane. N.T.4-24-17, pp. 19-28.

       Charles Allen Ruffin was robbed by the appellant and after giving up his possessions was

shot in the chest.' The bullet went through his chest and out his back. He was hospitalized for a

week for his injuries. N.T. 4-19-17, pp. 57-58.



                                               - 11 •
        Elvin Martes was shot twice by the appellant after he was already defenseless and lying on

the ground. He underwent three (3) surgeries to reconstruct his esophagus and stomach, as well as

to treat a collapsed lung. He also sustained significant liver damage and was hospitalized for two

(2) weeks. He continues to be in pain and remains in treatment with his doctors. Due to his injuries

his physical activities are greatly restricted, including leaving him unable to play or engage in

sports with his children. He is unable to do any lifting and due to this physical restriction has not

been able to find a job. N.T. 4�25� 17, pp. 57-68.

        Imposition of a proper sentence is a matter vested in the sound discretion of the trial court.

Commonwealth v. High, 450 A.2d 158, 304 Pa.Super.174 (1982). In determining whether a

sentence is manifestly excessive, the appellate court must give great weight to the sentencing

judge's discretion, as the trial judge is in the best position to measure factors such as the nature of

the crime, the defendant's character, the defendant's display of remorse, defiance or indifference.

Commonwealth v. Andrews, 720 A.2d 764, Pa. Super (1998), affirmed, 564 Pa. 321, 768 A.2d 309

(Pa.2001).

        In the instant matter, this court reviewed the presentencing report and mental health

assessment of the appellant and in keeping with the statutory requirements set forth in 42 Pa. C.S.

§§ 9721 (b), including the need to protect the public and the gravity of the offenses as they relate

to the impact on the victim and community and the rehabilitative needs of the defendant, this court

imposed a guideline sentence for the offenses for which appellant was convicted. The callous and

serious nature of these offenses, shooting defenseless victims after they have turned over their

possessions, dictate that the public needed to be protected from the appellant. This court is very

mindful of the rehabilitative needs of the appellant, as well as his being the previous victim of gun

violence and his addiction and medical issues. However, given the horrific, unexplainable and



                                                - 12 -
unnecessarily violent nature of these offenses and their impact on the victims and the public at

large, a guideline sentence that serves to protect the public clearly serves the needs of society as

set for in the statutory language of 42 Pa. C.S. §§ 9721 (b). This Court therefore sentenced the

appellant accordingly.




                                             Conclusion

       In summary, this court has carefully reviewed the entire record and finds no harmful,

prejudicial, or reversible error and nothing to justify the granting of Appellant's request for relief.

For the reasons set forth above, the judgment of the trial court should be affirmed.




                                               HONORABLE CHARLES A. EHRLICH




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