J-S55021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                          Appellee       :
                                         :
             v.                          :
                                         :
DANIEL P. CASEY,                         :
                                         :
                          Appellant      :    No. 3256 EDA 2013


    Appeal from the Judgment of Sentence Entered September 20, 2013,
              In the Court of Common Pleas of Monroe County,
             Criminal Division, at No. CP-45-CR-0001334-2012.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 24, 2014

     Appellant, Daniel P. Casey, appeals from the judgment of sentence

entered after a jury convicted him of assault and related crimes charged on

two informations that were joined before trial. We affirm.

     The trial court1 summarized the evidence of the assaults as follows:

           In the incident filed at 1334 CR 2012, the affiant spoke to
     the victim who reported that [Appellant] came home after
     drinking and became upset when he found his property outside
     on the porch. Soon thereafter [Appellant] began to assault the

     residence. The victim stated that [Appellant] smashed a mirror
     over his [own] head and hit his head on the door. [Appellant]
     fled when a neighbor came to help the victim.




1

two cases.        The Honorable Margherita Patti-Worthington presided over
J-S55021-14



            In the incident filed at 2526 CR 2012, the affiant spoke to
      the victim, a subsequent paramour of [Appellant], who stated
      that on October 27, 2012 she was involved in a quarrel with
      [Appellant] after he accused her of lying.        At some point
      [Appellant] held the victim captive in her apartment. [Appellant]
      assaulted the victim by striking her in the face. [Appellant] also
      used pressure points
      consciousness. The victim escaped after [Appellant] fell asleep.

Trial Court Opinion, 4/26/13, at 5.

      The trial court summarized the procedural history as follows:

            On August 13, 2012, in the case docketed 1334 CR 2012,
      the Commonwealth filed an Information charging the Appellant
      with Simple Assault and Harassment.

           On January 22, 2013, in the case docketed 2526 CR 2012,
      the Commonwealth filed an Information charging the Appellant
      with Aggravated Assault, Attempted Aggravated Indecent
      Assault, Unlawful Restraint, Indecent Assault without Consent,
      Indecent Assault by Forcible Compulsion, False Imprisonment,
      Simple Assault, and Kidnapping.

            That same day the Commonwealth filed a Notice of Joinder
      for both cases.

           On January 13, 2013, the Appellant filed a Motion to
      Sever.

            On March 14, 2013, the Commonwealth filed a Notice of
      Prior Bad Acts evidence.

            On March 28, 2013, the Appellant filed a brief in support of
      his Motion to Sever. On April 4, 2013, the Commonwealth filed
      a brief in opposition.

            On April 26, 2013, the Honorable Judge Stephen M.

      Motion to Sever.




                                      -2-
J-S55021-14



           On June 18, 2013, the Appellant filed a Motion in Limine
     seeking to bar introduction of certain prior bad acts.

           On June 20, 2013, a jury found that the Appellant was not
     guilty of Aggravated Indecent Assault, but convicted the
     Appellant of all other charges.

           On September 20, 2013, we sentenced the Appellant [to
     incarceration for an aggregate term of 111 to 240 months].

          On September 26, 2013, the Appellant filed a [post-
     sentence] Motion for Reconsideration of sentence.


     Reconsideration.

Trial Court Opinion, 1/17/14, at 1 2.

     This appeal followed on November 26, 2013. Appellant and the trial

court have complied with Pennsylvania Rule of Appellate Procedure 1925.

     On appeal, Appellant presents a single question for our consideration:

           Was [Appellant] prevented from having a fair trial when
     the Court joined his two cases when the cases were joined solely
     for the purpose of demonstrating a propensity toward assaultive
     behavior and was more prejudicial than probative?



     Our standard of review is well-             Whether to join or sever



on appeal absent a manifest abuse thereof, or prejudice and clear injustice

                    Commonwealth v. Armstrong, 74 A.3d 224, 233 (Pa.

Super. 2013) (quoting Commonwealth v. Wholaver, 989 A.2d 883, 898

(Pa. 2010)).


                                        -3-
J-S55021-14



      In Pennsylvania, the joinder of informations is rule-based:

      (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.

Pa.R.Crim.P. 582(A)(1)(

separate trials of offenses or defendants, or provide other appropriate relief,

if it appears that any party may be prejudiced by offenses or defendants



      Here, the Commonwealth advocated joinder on the basis of judicial

economy. Brief for Joinder, 4/4/13, at 3. Additionally, the Commonwealth

argued that evidence of each incident would be admissible in a separate trial

for the other to prove intent, a common scheme, motive, i.e., alcohol-fueled

jealousy, lack of mistake or accident, and to disprove self-defense.2 Id. at



would be prejudicial . . . to have them tried together and is offered solely to




2
  Appellant attempted to persuade the jury that the victims were the initial
aggressors. N.T., 6/19/13, at 205, 228; N.T., 6/20/13, at 11, 19 20, 34
35, 37 38, 41, 47 48, 74 78.

                                      -4-
J-S55021-14



3/28/13, at 2.     Agreeing with the Commonwealth, the trial court denied



would be admissible in a separate trial to prove motive. Trial Court Opinion,

4/26/13, at 4 6.

      Considering Rules 582 and 583 together, our Supreme Court set forth

the following three-part test for deciding a motion to sever:

      Where the defendant moves to sever offenses not based on the
      same act or transaction that have been consolidated in a single
      indictment or information, or opposes joinder of separate
      indictments or informations, the [trial] court must ... determine:
      [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 inquiries 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, 496 497 (Pa. 1988)). See also

Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991) (affirming denial of

motion to sever under predecessor to Pa.R.Crim.P. 583, where evidence of

two similar rapes that occurred eighteen months apart would have been

admissible in separate trials to prove common design, evidence was easily

capable of separation by jury, and joinder of trials would not prejudice

defendant).

      Upon review, we discern a commonality of roles and circumstances

attending the instant offenses and prior bad acts that supports joinder of the


                                      -5-
J-S55021-14



offenses. See Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991)

                       tments requires only that there are shared similarities



months between the two assaults, that fact does not render severance

necessary. Accord Commonwealth v. Donahue, 549 A.2d 121 (Pa. 1988)

(affirming holding in Commonwealth v. Shively, 424 A.2d 1257 (Pa.

1981), that remoteness in time between distinct offenses is factor to

consider in determining whether admission of evidence of prior crime tends

to show that same person committed both crimes).

     Specifically, the record reveals that Victim I and Victim II were

girlfriends of Appellant and acquaintances. N.T., 6/19/13, at 32, 72, 78 79,



with Appellant;

Appellant. Id. at 32, 155, 11. Leading up to each assault, Appellant had

been drinking heavily and accused each victim of infidelity.   Id. at 34 37,

158, 161 162.     Appellant terrorized each victim by physically restraining

her, choking her, and applying pressure to her mouth or nose. Id. at 37

52, 165, 172, 177.

     Prior to and during the assaults, the victims witnessed Appellant

physically injure himself; they knew him to be destructive, violent, and

suicidal. Id. at 70 72, 159 160, 162 164, 166 167, 170. Shortly before




                                      -6-
J-S55021-14



his assault on the first victim, Appellant slammed his head into her door

three times, knocking himself unconscious; during the assault, he broke two

                                    his head.   Id. at 166 167. During a

previous argument with the second victim, Appellant punched himself in the

face, giving himself a black eye, and he smashed a television remote over

                                                                         he

                                                         72, 105. The first

victim testified that, during a previous assault, Appellant bit her on her

upper breast area, underneath her armpit. Id. at 169, 173. Similarly, the

second victim testified that, during the assault, Appellant bit her on her

thigh and on her side. Id. at 95. Both victims testified that Appellant used

pressure points on them to intimidate, inflict pain, and demand compliance.

Id. at 38 39, 41, 47, 176.

     Based on the foregoing, we agree with the Commonwealth that

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

the other assault to prove motive, intent, common design, lack of self-

defense, mistake or accident. Thus, we conclude that the first prong of the

test for severance was satisfied.   Accord Commonwealth v. Smith, 47

A.3d 862 (Pa. Super. 2012), appeal denied, 60 A.3d 536 (Pa. 2013) (holding

that sufficient similarities existed between two alleged rapes to support

joinder where both victims were twelve years old, had close relationship to




                                     -7-
J-S55021-14



defendant, were assaulted where the victim was residing, reported the

assault involved vaginal sex, knew the defendant through involvement in

                                                                             and

were assaulted by defendant within period of two months).

      Next, we address whether the evidence of the distinct offenses was

capable of separation by the jury so there was no danger of confusion. Upon

review, we observe that, although marked similarities between the two

incidents   existed,   the   evidence   regarding   each   offense   was   easily

distinguishable insofar as each incident involved a different girlfriend,

occurred in a different place, lasted for different durations, and resulted in

different levels of assault.   The evidence was, therefore, easily capable of

separation by the jury both during trial and during deliberations. Thus, we

conclude that the second prong of the test for severance was satisfied.

Accord Armstrong, 74 A.3d 228, 234 (Pa. Super. 2013) (holding that the




      Lastly, we address whether the danger of prejudice to Appellant

outweighed the benefit of consolidation of the offenses at trial.      We have



evidence tended to convict the appellant only by showing his propensity to

commit crimes, or because the jury was incapable of separating the




                                        -8-
J-S55021-14



                                                          Commonwealth v.

Lauro, 819 A.2d 100, 107 (Pa. Super. 2003) (quoting Collins, 703 A.2d at



defendant suffers when th

Id.; Lark, 543 A.2d at 499.

      Our review of the record reveals no danger of prejudice. The evidence

would not tend to convict Appellant by showing his propensity to commit

crimes, but by establishing motive, intent, common design, lack of self-

defense, mistake, or accident.     Moreover, the evidence was capable of

separation by the jury so there was no possibility of confusion. Collins, 703

                                                                        e jury

may use the evidence of one of the crimes charged to infer a criminal



                                             Armstrong, 74 A.3d at 234.

Accordingly, we discern no abuse of discretion by the trial court in permitting



details of the crimes that [prove] that the defendant committed one makes

it very unlikely that anyone else but the defendant committed the oth

Id. (citations omitted).

      Judgment of sentence affirmed.




                                       -9-
J-S55021-14



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2014




                          -10-
