J-S38039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellant

                      v.

DAVID HASSAN ALI HAYWOOD

                                                      No. 3645 EDA 2016


               Appeal from the Order Entered November 16, 2016
       in the Court of Common Pleas of Monroe County Criminal Division
                       at No(s):CP-45-CR-0000115-2016

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 21, 2017

        The Commonwealth appeals from the order entered in the Monroe

County Court of Common Pleas denying the motion for joinder and

consolidation with Commonwealth v. David Assan Ali Haywood, 3644

EDA 2016.1 The order further provided that the Commonwealth would not

be permitted to introduce Appellee, David Hassan Ali Haywood’s, prior

convictions in its case in chief. The court deferred ruling on the remainder of

the    Commonwealth’s      Pa.R.Evid.   404(b)   motion   regarding   other   acts

evidence until the time of trial. We affirm.


*
    Former Justice specially assigned to the Superior Court.
1
 The appeal in Haywood, 3644 EDA 2016, is also before this panel. We
note that the Commonwealth has filed virtually identical briefs in both cases.
The trial court filed one Pa.R.A.P. 1925(a) opinion.
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        The trial court summarized the facts and procedural posture of this

case as follows:

              On November 27, 2015, Trooper Petrucci of the
           Pennsylvania State Police initiated a traffic stop of
           [Appellee’s] vehicle which, while making a turn, almost
           collided with his marked patrol car. During his interaction
           with [Appellee], Trooper Petrucci noticed several indicia of
           intoxication. He also observed tiny pieces of suspected
           marijuana on [Appellee’s] lap.

              Based on these observations, Trooper Petrucci asked
           [Appellee] to step out of the vehicle. [Appellee] complied
           and consented to a search of his person. The search
           uncovered a small baggie of suspected marijuana and
           $995 in cash. [Appellee] was placed under arrest and his
           vehicle was searched incident to arrest. During the search
           of the vehicle, two bundles of heroin, consisting of a total
           of 100 small baggies, were discovered concealed inside
           magazines.

              As a result, [Appellee] was arrested and charged with
           Possession With the Intent to Deliver (PWID) Heroin,[2]
           Possession of Heroin,[3] several counts of Driving Under the
           Influence[4] (DUI), and summary traffic offenses.[5]

              [Appellee] was taken for processing. The marijuana
           and heroin were field tested and confirmed. [Appellee]
           consented to a legal blood draw. During a subsequent
           interview, [Appellee] admitted that he had smoked
           marijuana and told police that he snorts eight to ten bags
           of heroin per day.

                                   *    *    *

2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16).
4
    75 Pa.C.S. § 3802(a)(1), (d)(1).
5
    75 Pa.C.S. § 3309(1); 75 Pa.C.S. § 3331(a).



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        [O]n June 27, 2016, the Commonwealth filed a motion to
        join [this case with 876 Criminal 2016] for trial. As the
        basis for its motion, the Commonwealth cited to the
        proffered 404(b) evidence, claiming that “the evidence of
        each offense would be admissible at trial for the other, the
        jury could easily separate the evidence and avoid
        confusion, and [Appellee] would suffer no undue
        prejudice.” (Commonwealth’s Motions for Joinder, filed
        June 27, 2016, ¶ 6).

                                *    *    *

        On August 26, 2016, [Appellee] filed objections to the
        joinder motion and the introduction of the proffered 404(b)
        evidence.

R.R. at 21a-22a, 24a-26a.6

     On August 11, 2016, a hearing was held on the motion for joinder of

the two cases and the Commonwealth’s notice of intent to introduce Rule

404(b) evidence. Id. at 195a.

        [The Commonwealth:] Your Honor, what I just submitted
        to the [c]ourt are the 404(b) notices that were provided to
        defense counsel in both cases seeking to admit the
        evidence in one case as evidence in the other case.

           Based upon that Your Honor the Commonwealth would
        seek joinder of these two matters for the purposes of trial.

        The Court: So is this separate?

        A: They’re marked collectively, Your honor.

        The Court: No, but is this a separate request? You’re
        saying that because you believe that there is other acts
        evidence from each case that could go in the other you’re
        asking for joinder or are you also asking it in the way of

6
  For the parties’ convenience, we refer to the reproduced record where
applicable.



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          let’s say a motion in limine to be permitted to admit the
          other acts evidence? I’m not clear.

          A: I didn’t file a motion in limine as it relates to─I belive
          that could be taken up as we approach trial or if they’re
          going to file a motion in limine to exclude that evidence or
          challenge that 404(b) notice evidence. I’m not seeking
          to have the [c]ourt today rule on the 404(b), just on
          the joinder Your Honor.

Id. at 198a-99a (emphasis added). The court stated “at this point in time I

think It’s just premature for the [c]ourt to rule on the joinder . . . .” Id. at

200a.    At the conclusion of the hearing, the trial court ordered, inter alia,

that Appellee “shall have 15 days from the date of this Order within which to

file an objection or motion with respect to the Commonwealth’s notices of

prior bad acts.” Id. at 213a.

        On October 27, 2016, a hearing was held on Appellee’s objection to

the Commonwealth’s 404(b) notice and motion for joinder. Id. at 216a.

          [The Commonwealth:] And I would point out first, if we
          could look at it from a 404(b) standpoint, the first offense
          involved─excuse me. The first case involved a traffic stop
          where [Appellee] was then found to be in possession of
          210 bags of heroin as well as some marijuana, and he was
          driving under the influence of marijuana. At that point,
          Your Honor, he had asserted that it was─the 200 bags
          were personal use. Then we─that was in November of
          2015.

             Then in early April of 2016, the facts giving rise to the
          case at 876 Criminal 2016, Pocono Township officers
          responded to [Appellee’s] address for a domestic related
          call. At that time, [Appellee] was exiting the residence,
          was believed to be impaired.       There was an odor of
          marijuana.    When he was searched as part of his
          detention, when the officers were responding to the
          domestic, he was found to be in possession of a small


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          amount of marijuana. There was then a search warrant
          executed upon the residence, and there was 700 bags of
          heroin located inside of the residence. And I would also
          note that both in the search of the vehicle as well as the
          search of the house a large sum of money was also
          recovered from each.

             So if the cases were separated, Your Honor, the
          Commonwealth would be seeking to use evidence of the
          other offense as 404(b) notice in order to establish, most
          importantly, intent. These are [PWID] offenses.

             [Appellee], to my understanding, he’s always asserted
          that these packets of heroin have been for personal use
          and not related to any sort of transaction in illegal
          narcotics.

                                    *        *       *

            And so we would seek to use the evidence of one as
          404(b) evidence in the other.

                                    *        *       *

             With regard to the other [7 PWID7] offenses, Your
          Honor, the Commonwealth is not seeking to introduce
          those, obviously, as a propensity to commit crimes; but it
          goes first in rebuttal to [Appellee’s] assertion that this is
          personal use and also to his intent, which is an element of
          the offense of PWID, that he, in fact, was possessing this
          heroin with intent to deliver it.

                                *       *        *

          [Defense counsel]: Your honor, the seven prior PWIDs,
          you have to─we have to view this in a practical manner.
          The jury is going to hear that, and they are going to say,
          Well, there is absolutely no way he doesn’t have a
          propensity to deal in heroin. That is the way it’s going to
          be done. So it comes with a very high risk of unfair

7
    See also R.R. at 57a-58a.




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           prejudice. And I don’t think that we can simply presume
           in such circumstances that a [c]ourt instruction is going to
           ironclad steel their minds about making that inference.

Id. at 223a-25a, 227a.

        The trial court entered the following order:

              AND NOW, this 15th day of November, 2016, it
           appearing that the Order dated November 1, 2016,
           inadvertently omitted a portion of the Court’s ruling and
           contained an incorrect docket number in the caption, the
           Order dated November 1, 2016 is VACATED and replaced
           with the following:

             After hearing, it is ORDERED that the Commonwealth’s
           motion for joinder and consolidation of these cases is
           DENIED.

              The Commonwealth will not be permitted to introduce
           [Appellee’s] prior convictions in its case in chief.

               The remainder of the Commonwealth’s motion
           regarding other acts evidence will be decided at time of
           trial.[8]



8
    We note that

           [S]ection 5505 of the Judicial Code provides that “a court .
           . . may modify or rescind any order within 30 days after
           its entry, notwithstanding the prior termination of any
           term of court, if no appeal from such order has been taken
           or allowed.” 42 Pa.C.S.A. § 5505. However, this thirty
           day limit only applies to the modification of final orders;
           interlocutory orders can be modified beyond the thirty-day
           time frame.

Commonwealth v. James, 12 A.3d 388, 391 (Pa. Super. 2010), rev'd on
other grounds, 69 A.3d 180 (Pa. 2013) (some citations omitted). In the
instant case, the trial court modified the interlocutory order within thirty
days.



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Id. at 30a.     This timely appeal followed. The Commonwealth filed a court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and

the trial court filed a responsive opinion.

        The Commonwealth raises the following issues for our review:

               Whether the lower court erred in failing to rule on the
           Commonwealth’s evidence of other acts evidence identified
           as the Cross-Case Evidence as provided in the
           Commonwealth’s Pa.R.Evid. 404(b) Notice and allowing for
           modification of the admissibility of such evidence during
           trial by the trial judge, contrary to Pa.R.Crim.P. 580?

              Whether the lower court abused its discretion in
           denying the Commonwealth’s Motion to Join pursuant to
           Pa.R.Crim.P.    582(A)     the   Instant    Matter   with
           Commonwealth v. David Haywood, an issue properly
           before this Court, based upon the erroneous denial of the
           admission of the Pa.R.Evid. 404(b) evidence?

               Whether the lower court abused its discretion in
           denying the admission at trial of all the Commonwealth’s
           proffered Pa.R.Evid. 404(b) evidence, including the Prior
           PWI[D] Evidence and Cross-Case Evidence as provided in
           the Commonwealth’s 404(b) notice?

Commonwealth’s Brief at 5.9

        As a prefatory matter, we consider whether the trial court’s deferred

ruling on the Cross-Case evidence is appealable. In the case sub judice, the

trial court found the issue was unappealable pursuant to Pa.R.A.P. 311(d).

See R.R. at 32a-33a. We agree.

         Pa.R.A.P. 311 provides, in pertinent part, as follows:



9
    For ease of disposition, we have reordered Appellant’s issues.



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          (d) Commonwealth appeals in criminal cases.─In a
          criminal case, under the circumstances provided by law,
          the Commonwealth may take an appeal as of right from an
          order that does not end the entire case where the
          Commonwealth certifies in the notice of appeal that the
          order will terminate or substantially handicap the
          prosecution.

Pa.R.A.P. 311(d).      Pursuant to Pa.R.A.P. 904, “[w]hen the Commonwealth

takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall

include   a   certification   by   counsel   that   the   order   will   terminate   or

substantially handicap the prosecution.” Pa.R.A.P. 904(e).

     When the Commonwealth appealed the November 3rd order they filed

a statement in compliance with Pa.R.A.P. 311(d) stating as follows:

          The undersigned hereby certifies that the Court Order
          dated November 1, 2016, denying the Commonwealth’s
          Motion for Joinder and denying the Commonwealth’s
          404(b) evidence as it related to [Appellee’s] prior
          convictions for [PWID], will substantially handicap the
          prosecution of [Appellee] in the above-captioned case.

Notice of Appeal, 11/18/16 (emphasis added).

          Under [Section 311(d)], the Commonwealth may appeal if
          it certifies the interlocutory order will terminate or
          substantially handicap the prosecution . . . .         Such
          certification is required as a means of preventing frivolous
          appeals and appeals intended solely for delay. Failure to
          include the certification renders the questioned order
          unappealable.

Commonwealth v. Brister, 16 A.3d 530, 533–34 (Pa. Super. 2011)

(citations and quotation marks omitted).




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     In the case sub judice, the Commonwealth’s Rule 311(d) certification

did not refer to the deferred ruling on the Cross-Case evidence. See infra.

n.2. Therefore, the issue is unappealable. See Brister, 16 A.3d at 533-34.

     Next, we consider whether the order denying the motion for joinder is

appealable under Rule 311(d).    The trial court found that it was not an

appealable order.   In Commonwealth v. Woodard, 136 A.3d 1003 (Pa.

Super. 2016), appeal denied, 158 A.3d 1242 (Pa. 2016), this Court opined:

        an order denying joinder, like an order granting severance,
        is interlocutory and thus not appealable.         Here, the
        Commonwealth is free to seek conviction on all counts,
        against each defendant, in . . . separate trials. Therefore,
        denial of the motion for joinder does not terminate or
        substantially handicap the prosecution and is not
        appealable under Rule 311(d). To expand Rule 311(d) to
        encompass such interlocutory review would be to disturb
        the orderly process of litigation. Strict application of the
        Rule assures that trials will go forward as scheduled.

Id. at 1007 (citations and quotation marks omitted). Therefore, the issue is

unappealable. See id.

     Lastly, the Commonwealth contends the trial court abused its

discretion in denying the admission of its proffered Rule 404(b) evidence.

See Commonwealth’s Notice of Prior Bad Acts, R.R. at 56a-58a.           The

Commonwealth argues that “all of [its] proffered Rule 404(b) evidence is

admissible as it is offered to support intent, common scheme, and/or

knowledge of drug trafficking and the lower court’s decision to deny the

admission of the prior PWI[D] evidence and cross-case evidence is an abuse




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of discretion.”10 Commonwealth’s Brief at 16. The Commonwealth contends

“the evidence proffered by [it] in this case has a proper purpose as

permitted by Rule 404(b) and as the Commonwealth has demonstrated a

need for this evidence and shown that the probative value of the evidence

outweighs any prejudicial effect (including use of a cautionary instruction),

the evidence should be permitted at trial.” Id. at 23-24.

     Our review is governed by the following principles:

            Evidence is admissible if it is relevant—that is, if it
        tends to establish a material fact, makes a fact at issue
        more or less probable, or supports a reasonable inference
        supporting a material fact—and its probative value
        outweighs the likelihood of unfair prejudice. Admissibility
        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. Moreover, evidence of prior bad
        acts, while generally not admissible to prove bad character
        or criminal propensity, is admissible when proffered for
        some other relevant purpose so long as the probative
        value outweighs the prejudicial effect. Commonwealth v.
        Morris, [ ] 425 A.2d 715, 720 ([Pa.] 1981) (law does not
        allow use of evidence which tends solely to prove accused
        has criminal disposition). Such evidence may be admitted
        to show motive, identity, lack of accident or common plan
        or scheme. Commonwealth v. Briggs, [ ] 12 A.3d 291,
        337 ([Pa.] 2011) (Rule 404(b)(2) permits other acts
        evidence to prove motive, lack of accident, common plan
        or scheme and identity).       In order for other crimes
        evidence to be admissible, its probative value must
        outweigh its potential for unfair prejudice against the
        defendant, Pa.R.E. 404 (b)(2), and a comparison of the
        crimes proffered must show a logical connection between
        them and the crime currently charged.


10
  We note that the Commonwealth’s Rule 311(d) statement does not raise
the issue of the cross-case evidence. See Brister, 16 A.3d at 533–34.



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Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (some citations

and quotation marks omitted).

      After careful consideration of the record, the parties’ briefs, and the

well-reasoned decision of the Honorable, Jonathan Mark, we affirm on the

basis of the trial court’s decision.     See Trial Ct. Op., 1/24/17, at 17-27

(holding the prejudicial effect of admitting the seven prior PWID convictions

during the Commonwealth’s case in chief would outweigh its probative

value). Accordingly, having discerned no error of law or abuse of discretion,

we affirm the order. See Hicks, 156 A.3d at 1125.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




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