J-S34008-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHRISTOPHER REED,

                        Appellant                  No. 2109 MDA 2014


           Appeal from the Judgment of Sentence July 16, 2014
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0000208-2014

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHRISTOPHER REED,

                        Appellant                  No. 2110 MDA 2014


           Appeal from the Judgment of Sentence July 16, 2014
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0000209-2014


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 16, 2015

     Christopher Reed appeals from the aggregate judgment of sentence of

eighteen to thirty-six months imprisonment that the trial court imposed after

a jury found him guilty of aggravated assault, simple assault, and disarming
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a law enforcement officer. After careful review, we vacate the judgment of

sentence and remand for separate trials.

      Following his arrest, Appellant was charged at two separate dockets

for two incidents occurring on the same day. The trial court recounted the

following relevant facts.

             Appellant’s simple assault charge arose from an incident
      on January 20, 2014[,] when police were dispatched to Ms.
      [Jacquelyn] Reed’s home after a report of domestic abuse. On
      the morning of that date[,] Appellant and Ms. Reed’s son[,]
      Clayton Reed (“Clayton”)[,] went to an animal shelter to look at
      dogs to adopt while Ms. Reed was at work. Throughout the
      day[,] Appellant had called and texted Ms. Reed about buying a
      new vehicle. However, Ms. Reed told Appellant that they could
      not afford to purchase a new vehicle. After work[,] Ms. Reed
      went home. Appellant and Clayton were not yet there[,] so Ms.
      Reed called Appellant. Appellant explained that he and Clayton
      were looking at new vehicles and wanted Ms. Reed to go down to
      the dealership. Ms. Reed refused and told Appellant to come
      home. On a subsequent phone call, Appellant called Ms. Reed
      and told her that he was on his way home while cursing and
      yelling at her. Ms. Reed hung up the phone on him.

            Ms. Reed saw Appellant and Clayton approach the door in
      the backyard. Ms. Reed unlocked the door and Appellant and
      Clayton walked into the house. Appellant started yelling at Ms.
      Reed[,] and he then wrapped his hands around her neck and
      choked her to a point where she was unable to breathe. Ms.
      Reed testified that she thought Appellant was going to kill her.
      Ms. Reed pushed Appellant to get away and[,] as he was choking
      her[,] he threw her body into the countertop causing pain to her
      right side. Ms. Reed got away from Appellant and grabbed her
      cell phone to call 911. Appellant took the cell phone out of Ms.
      Reed’s hands, threw it on the ground, and stomped on it with his
      foot. Appellant then took the cell phone and threw it against the
      wall. Ms. Reed grabbed the cell phone and left out the back door




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       with Clayton. Appellant followed Ms. Reed asking where she was
       going. Appellant took her cell phone and went back into the
       house.[1]

              Appellant’s aggravated assault and disarming a law
       enforcement officer charges arose from an incident that took
       place after Appellant was arrested and taken to the
       Chambersburg Police Department on January 20, 2014[,]
       following the events at the house. At trial[,] the Commonwealth
       provided evidence of the charges through admission of Exhibit
       10. Exhibit 10 is a video recording at the Chambersburg Police
       Department. The visual is a holding cell where Appellant was
       detained after being arrested.      Patrolman [Jason] McGhee
       testified that he believed Appellant was attempting to use his
       belt to hurt himself by possibly using it to hang himself. As a
       result[,] Patrolman McGhee called another policeman down to
       aid him. Patrolman McGhee opened the holding cell and ordered
       Appellant to hand him the belt. Appellant did not comply[,] and
       Patrolman McGhee then ordered Appellant to sit on the bed.
       Appellant did not comply after ordered again to do so.
       Patrolman McGhee then used force to get Appellant to sit on the
       bed. After sitting down briefly[,] Appellant lunged at Patrolman
       McGhee[,] and the two struggled for approximately 15
       seconds[,] during which time Appellant’s left hand appears to
       have come into contact with the area where Patrolman McGhee’s
       gun was holstered. After the struggle[,] Patrolman McGhee
       stunned Appellant with a stun gun. Appellant then sat down on
       the bed. After some conversing between the two policemen and
       Appellant, the policemen closed the cell door. At that point[,]
       according to the video[,] the following dialogue appeared to
       have taken place:

              Appellant: I was going to take your gun.
              Patrolman McGhee: If you tried to take my gun
              you’d be dead.
              Appellant: No I wouldn’t.
              Appellant: [Incoherent] . . . by the time he pulls his
              gun out I’d shoot you man, you’re dead.[2]
____________________________________________


1
  This incident gave rise to one count of aggravated assault, two counts of
simple assault, and one count of intimidation of a witness.



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Trial Court Opinion, 2/4/14, at 2-4 (footnotes omitted).

       After oral argument and over Appellant’s objection, the trial court

granted the Commonwealth’s motion to consolidate the two matters, and the

case proceeded to a jury trial on June 19, 2014.           A jury found Appellant

guilty of one count of simple assault relating to the incident with Ms. Reed as

well as one count each of aggravated assault and disarming a law

enforcement officer relating to the incident with Officer McGhee. Appellant

was acquitted of all other charges and subsequently sentenced to an

aggregate term of eighteen to thirty-six months incarceration.

       Appellant filed a timely post-sentence motion, in which he requested

judgment of acquittal based on the insufficiency of the evidence and sought

modification of his sentence.         The trial court denied that motion, and this

appeal ensued.         The court directed Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.          Appellant complied,

and the trial court filed its responsive Pa.R.A.P. 1925(a) opinion shortly

thereafter. This matter is now ripe for this Court’s review.

       Appellant levels two questions for our consideration:

    1. Did the trial court abuse its discretion when it consolidated both
       of Appellant’s cases into one single trial, despite the fact that the
       cases and crimes charged were distinct from one another, arose
                       _______________________
(Footnote Continued)
2
  The incident with Officer McGhee gave rise to one charge each of
aggravated assault and disarming a law enforcement officer.



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       out of different circumstances, and evidence of each case would
       not be admissible at a separate trial for the other?

    2. Did the trial court abuse its discretion when it sentenced
       Appellant to an aggregate sentence of 18 to 36 months in a
       State Correctional Institution, which is at the top of the standard
       range of sentences, is a departure above what was
       recommended by the probation department as a result of the
       pre-sentence investigation, and fails to consider the mitigating
       factors present in this case?

Appellant’s brief at 14.3



       Initially, Appellant challenges the trial court’s consolidation of the two

cases. We review the trial court’s decision in this regard under an abuse of

discretion standard.      Indeed, this Court has consistently held that whether

“separate indictments should be consolidated for trial is within the sole

discretion of the trial court and such discretion will be reversed only for a

manifest abuse of discretion or prejudice and clear injustice to the

defendant.” Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa.Super.

2015) (citations omitted).         Importantly, “Appellant bears the burden of

establishing such prejudice.” Id. (quoting Commonwealth v. Melendez–

Rodriguez, 856 A.2d 1278, 1282 (Pa.Super. 2004) (en banc)).

       The Pennsylvania Rules of Criminal Procedure govern the joinder and

severance of offenses as follows:
____________________________________________


3
 The Commonwealth relies solely on the trial court opinion and did not file a
brief in this matter.



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     Rule 582. Joinder—Trial         of   Separate   Indictments     or
     Informations

        (A) Standards

           (1)   Offenses charged in separate indictments or
                 informations may be tried together if:

              (a)   the evidence of each of the offenses would
                    be admissible in a separate trial for the
                    other and is capable of separation by the
                    jury so that there is no danger of confusion;
                    or

              (b)   the offenses charged are based on the same
                    act or transaction.

                                    ***

     Rule 583. Severance of Offenses or Defendants

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

     Interpreting these rules, our Supreme Court established the following

test for deciding whether a court should join or sever charges:

     [1] whether the evidence of each of the offenses would be
     admissible in a separate trial for the other; [2] whether such
     evidence is capable of separation by the jury so as to avoid
     danger of confusion; and, if the answers to these questions are
     in the affirmative, [3] whether the defendant will be unduly
     prejudiced by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting

Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988)).




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      Applying this test, we first must determine whether the trial court

abused its discretion in holding that evidence of one of the offenses would be

admissible in a separate trial for the other. Id.

      While evidence of bad acts is inadmissible at trial to prove that a

defendant acted in conformity therewith, Commonwealth v. Brown, 52

A.3d 320 (Pa.Super. 2012), such evidence may be admissible for a host of

other reasons, such as to prove motive, intent, or opportunity. Id. (citing

Pa.R.E. 404(b)(2)).    In addition, “[o]ur Supreme Court has consistently

recognized that admission of distinct crimes may be proper where it is part

of the history or natural development of the case, i.e., the res gestae

exception.”   Id. at 326.   Under this exception, evidence of other criminal

acts is admissible against a defendant on trial “to complete the story of the

crime on trial by proving its immediate context of happenings near in time

and place.” Commonwealth v. Cascardo, 981 A.2d 245, 250 (Pa.Super.

2009) (en banc) (citations omitted). See also Commonwealth v. Dillon,

925 A.2d 131, 139 (Pa. 2007) (holding that res gestae evidence is

admissible “so that the case presented to the jury [does] not appear in a

vacuum”).

      Herein, Appellant argues primarily that the two incidents are of

insufficient similarity to justify consolidation, noting the dearth of factual

similarities between the two. He further argues that, since the two offenses




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were not so interwoven as to require their consolidation, the application of

the res gestae exception was improper.

      The trial court noted that evidence of the assault against Appellant’s

wife explained Appellant’s incarceration and the “cause of his agitation on

that day.”     Trial Court Opinion, 2/4/14, at 7.     Thus, it reasoned that

evidence of each offense would have been admissible in a separate trial for

the other under the res gestae exception.        Furthermore, the trial court

believed there was little risk of jury confusion, which weighed in favor of

consolidation. For the reasons set forth below, we vacate the judgment of

the trial court and remand the matters to the trial court for separate

proceedings.



      Initially, we note that “there is no specific timeframe that dictates the

applicability of the exception.”   Commonwealth v. Green, 76 A.3d 575,

584 (Pa.Super. 2013).    That the two incidents took place just hours from

one another is of little consequence; instead, this Court is to look to whether

the facts and circumstances surrounding one altercation afforded a direct

evidentiary link to the other. Id. (citing Commonwealth v. Lark, 543 A.2d

491 (Pa. 1988)). Here, we find no such link.

      In Lark, supra, our High Court affirmed consolidation of matters on

the basis that evidence of one matter would be admissible at separate trials

for others because each offense was “interwoven in a tangled web” of

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criminal activity. That is, facts relating to one offense were so essential to

an overall criminal scheme that a jury required evidence of all of the

defendant’s criminal activites in order to fully and properly understand the

complex sequence of events that ultimately led to criminal charges.

      We find very little complexity in the instant matters.          The two

informations addressed incidents that were both factually and contextually

unrelated to one another. Appellant’s first incident involved an altercation

with his wife while at his home that began primarily as a fight over whether

to purchase a new vehicle. The second incident involved a police officer and

Appellant’s attempt to take that officer’s gun while detained at the

Chambersburg Police Department. The incidents were in markedly different

locations, perpetrated against distinctly different victims, and arose from

unrelated disputes. While the trial court reasons that Appellant’s “agitation”

binds the two in such a way as to render them sufficiently “interwoven,” we

cannot agree. There is no story here that requires completion by introducing

evidence of criminal propensity; therefore, the res gestae exception cannot

apply.

      At no point during his detention did Appellant discuss with Officer

McGhee the earlier domestic incident, nor did Appellant make any statement

while at the Chambersburg Police Department that would have aided in his

prosecution. Plainly, evidence of Appellant’s altercation with Officer McGhee

could not be properly admitted at a separate trial for his altercation with Ms.

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Reed as it did not fall within any exception to Pa.R.E. 404 and carries with it

a tremendous prejudicial effect.

       Similarly, evidence of Appellant’s altercation with his wife would not be

admissible at a separate trial for the altercation with Officer McGhee. While

the cause for his incarceration may provide context, the prejudice resulting

from offering evidence of alleged domestic violence outweighs any benefit of

providing non-essential background to the second incident.

       As neither the trial court nor the Commonwealth presents a convincing

argument that evidence of either incident would be admissible at a separate

trial for the other, we find that a consolidated trial of the two informations

was improper under Rule 582.            We vacate the judgment of sentence and

remand for separate trials.4

       Judgment vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015


____________________________________________


4
  Since we vacate judgment of sentence and remand, Appellant’s sentencing
claims are moot.



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