J. A21041/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  v.                      :
                                          :
JOSEPH F. MIELUCHOWSKI,                   :        No. 945 EDA 2019
                                          :
                       Appellant          :


       Appeal from the Judgment of Sentence, September 20, 2017,
          in the Court of Common Pleas of Montgomery County
            Criminal Division at No. CP-46-CR-0004906-2015


BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 03, 2020

     Joseph F. Mieluchowski appeals from the September 20, 2017 judgment

of sentence entered by the Court of Common Pleas of Montgomery County

following his conviction of 15 counts of robbery (threat of immediate serious

bodily injury), five counts of robbery (demand money from financial

institution), five counts of possessing instruments of crime, and one count

each of kidnapping, conspiracy to commit robbery (threat of immediate

serious bodily injury), and conspiracy to commit robbery (demand money

from financial institution).1 After careful review, we vacate the judgment of

sentence   and   remand   for   further   proceedings   consistent   with   this

memorandum.


1 18 Pa.C.S.A. §§ 3701(a)(ii) and (vi), 907(b), 2901(a)(2), and 903(a),
respectively.
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     The trial court set forth the following factual and procedural history:

           Between November 18, 2009, and February 5, 2012,
           appellant      and      co-defendant/co-conspirator,
           Robert Wisler, (“Wisler”) conspired to commit, and
           appellant did commit, five (5) distinct bank heists
           throughout the counties of Montgomery, Lancaster,
           and Westmoreland within the Commonwealth of
           Pennsylvania.[Footnote 2] Throughout his spree of
           “takeover-style” bank robberies, appellant employed
           a consistent modus operandi—an outfitted and
           disguised appellant loudly declared to the numerous
           bank hostages that he was conducting a bank robbery
           while brandishing a handgun, intentionally putting
           them in fear of immediate, serious bodily injury; and
           approached multiple bank tellers, demanding there be
           “no dye packs” with the cash that he stashed in a bag
           which he brought with him.

                 [Footnote 2:] The five (5) Pennsylvania
                 robberies throughout 2009 and 2012 were
                 as follows:

                 1.    PNC Bank, North Huntingdon,
                       Westmoreland County, PA,
                       11/18/09.

                 2.    Citizens Bank, 48 Skippack
                       Pike,    Ambler,    Whitpain
                       Township,        Montgomery
                       County, PA, 5/12/10.

                 3.    Royal Bank, 600 York Road,
                       Jenkintown,     Montgomery
                       County, PA, 6/26/10.

                 4.    Susquehanna Bank,         Gap,
                       Lancaster  County,         PA,
                       5/27/11.

                 5.    Citizens Bank, 48 Skippack
                       Pike,    Ambler,    Whitpain
                       Township,        Montgomery
                       County, PA 2/5/12.


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          In or around April of 2014, during the midst of the
          Pennsylvania State Police (“PSP”) Department’s
          investigation into the Pennsylvania robberies, the
          Delaware State Police (“DSP”) contacted the PSP and
          exchanged information and evidence, including DNA
          evidence, collected in their own investigation of
          seven (7) similar-style robberies in Delaware that
          occurred during the same time period and within close
          geographical proximity to those five (5) that occurred
          in Pennsylvania. Said exchange assisted the PSP in
          identifying appellant, and charging him on or about
          June 4, 2015, with numerous criminal counts relating
          to bank robbery within Pennsylvania, and ultimately
          served as part of the Commonwealth’s evidence at
          trial proving appellant’s identity as the perpetrator of
          the robberies and his continuing course of conduct
          during which the robberies took place.

          Specifically, the evidence obtained during the DSP’s
          investigation into the seven (7) Delaware bank heists
          revealed to the Commonwealth appellant’s identity,
          given the consistent modus operandi employed by
          him in carrying out the Delaware and Pennsylvania
          robberies; most notably, the “takeover-style” of the
          robberies, whereby appellant went into the banks,
          “loudly declare[d] there [wa]s a bank robbery,
          display[ed] a weapon, approache[d] multiple tellers,
          g[ot] cash from top and bottom drawers, and [. . .]
          t[ook] over the bank [. . .]”; in other words,
          “everyone in the bank[s] kn[ew] that a robbery [wa]s
          occurring, customers and employees.” The DSP also
          collected a mustache disguise from one of the scenes
          of crime, as well as a ballcap, which the PSP were able
          to test later and determine that appellant’s DNA could
          not be excluded as the source of the DNA profiles
          found on this evidence. The exchange of evidence
          between the two (2) states’ police departments
          further allowed the PSP to map the various cross-state
          robberies, illustrating the close proximity of the
          robberies to appellant’s Pennsylvania home, as well
          as, the location of the robberies on main
          thoroughfares connecting the two (2) states.
          Moreover, the PSP used evidence of appellant’s work


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            history, in part collected from an anonymous tip to the
            DSP, to further develop appellant’s motive for the
            robberies, such that appellant’s income fell due to lack
            of work around the same time in 2009 when the
            robberies began occurring.        The PSP also used
            physical evidence collected by the DSP, i.e.,
            appellant’s fake mustache and ballcap, to test and
            compare with a buccal (cheek) swab sample of
            appellant’s DNA.

            The cross-state sharing of information between the
            police departments assisted the PSP in criminally
            charging appellant on June 4, 2015, with the various
            criminal charges relating to the robberies in
            Pennsylvania.

Trial court opinion, 5/3/19 at 1-3 (extraneous capitalization, footnote 1, and

citations to the record omitted; brackets in original).

      A jury convicted appellant of the aforementioned crimes on December 7,

2016. On May 5, 2017, the trial court sentenced appellant to an aggregate

term of 29-58 years’ imprisonment, to be followed by seven years’ probation.

Appellant filed a post-sentence motion on May 12, 2017, which the trial court

denied in part and granted in part on August 15, 2017.2         The trial court

subsequently re-sentenced appellant on September 20, 2017, to an aggregate

term of 31-62 years’ imprisonment, to be followed by 10 years’ probation.

      Appellant filed a notice of appeal on October 5, 2017. The trial court

ordered appellant to file a concise statement of errors complained of on appeal




2  The trial court vacated appellant’s convictions on five counts of
robbery-threat of immediate serious bodily injury and two counts of
robbery-demand money from financial institution, as the statute of limitations
expired. See 42 Pa.C.S.A. § 5552(b)(1).


                                      -4-
J. A21041/19

pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).

        This court dismissed appellant’s appeal on June 15, 2018, for failure to

file a brief. On January 28, 2019, appellant filed a counseled petition pursuant

to the Post Conviction Relief Act,3 in which he sought reinstatement of his

direct appellate rights nunc pro tunc.        The trial court granted appellant’s

petition on March 1, 2019. Appellant subsequently filed a timely notice of

appeal on March 22, 2019.        The trial court did not order appellant to file

another concise statement of errors complained of on appeal, nor did it file

another Rule 1925(a) opinion.

        Appellant raises the following issues on appeal:

              [1.]   Did the trial court err by allowing the
                     Commonwealth to present evidence obtained
                     during the investigation of seven bank robberies
                     that [appellant] allegedly committed in the state
                     of Delaware as evidence of his “identity” as the
                     perpetrator of the five Pennsylvania bank
                     robberies for which [appellant] was being tried?

              [2.]   Is the trial court’s sentence, which has two
                     conspiracy charges running consecutively,
                     illegal when those conspiracy charges are
                     predicated on the identical conspiracy?

Appellant’s brief at 2.4




3   42 Pa.C.S.A. §§ 9541-9546.

4   For ease of discussion, we have re-ordered appellant’s issues.


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     In his first issue, appellant contends that the trial court erred when it

permitted the Commonwealth to present evidence of seven bank robberies

occurring in the State of Delaware. (Appellant’s brief at 11.) Specifically,

appellant argues that the robberies that occurred in Delaware were not

sufficiently similar to the robberies for which appellant was charged in

Pennsylvania.    (Id. at 13.)   Appellant further avers that evidence of the

Delaware robberies was unfairly prejudicial in that the prejudice outweighed

any probative value that the evidence had. (Id. at 14.)

     When reviewing a trial court’s admission of evidence, we are subject to

the following standard:

           “The admission of evidence is solely within the
           discretion of the trial court, and a trial court’s
           evidentiary rulings will be reversed on appeal only
           upon an abuse of discretion.” Commonwealth v.
           Reid, [] 99 A.3d 470, 493 ([Pa.] 2014). An abuse of
           discretion will not be found based on a mere error of
           judgment, but rather occurs where the court has
           reached a conclusion that overrides or misapplies the
           law, or where the judgment exercised is manifestly
           unreasonable, or the result of partiality, prejudice,
           bias or ill-will. Commonwealth v. Davido, [] 106
           A.3d 611, 645 ([Pa.] 2014).

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied,

137 S.Ct. 92 (2016).

           The particular Pennsylvania Rule of Evidence
           governing the admission of “prior bad acts” is
           Pa.R.E. 404(b) which provides, in relevant part:

           (b)    Other crimes, wrongs, or acts.

                  ....


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                (2)   Evidence of other crimes,
                      wrongs, or acts may be
                      admitted for other purposes,
                      such as proof of motive,
                      opportunity,            intent,
                      preparation, plan, knowledge,
                      identity or absence of mistake
                      or accident.

                (3)   Evidence of other crimes,
                      wrongs, or acts proffered
                      under subsection (b)(2) of
                      this rule may be admitted in a
                      criminal case only upon a
                      showing that the probative
                      value     of   the  evidence
                      outweighs its potential for
                      prejudice.

          Pa.R.E. 404(b)(1)-(3). Under this rule, the admission
          of prior “bad acts” is inadmissible for the sole purpose
          of proving the defendant has a bad character, or a
          “criminal propensity.” Commonwealth v. Powell, []
          956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this
          rule permits the admissibility of such evidence for
          other relevant purposes such as:

                showing the defendant’s motive in
                committing the crime on trial, the absence
                of mistake or accident, a common scheme
                or design, . . . to establish identity [,][or]
                where the acts were part of a chain or
                sequence of events that formed the
                history of the case and were part of its
                natural development.

          Id.   However, admission for these purposes is
          allowable only whenever the probative value of the
          evidence exceeds its potential for prejudice.
          Pa.R.E. 404(b)(3).




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Commonwealth v. Briggs, 12 A.3d 291, 336-337 (Pa. 2011), cert. denied,

565 U.S. 889 (2011). Our supreme court further noted that “[w]hen the trial

court admits evidence of a defendant’s other bad acts, ‘the defendant is

entitled to a jury instruction that the evidence is admissible only for a limited

purpose.’”   Commonwealth v. Crispell, 193 A.3d 919, 937 (Pa. 2018),

quoting Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).

      The Commonwealth avers that the prior bad acts evidence admitted by

the trial court establishes appellant’s identity.   (Commonwealth’s brief at

20-21.) The record reflects that a fake mustache was recovered from the

scene of one of the Delaware bank robberies and was sent off for DNA testing.

(Notes of testimony, 12/6/16 at 191-194.) Detective Grassi testified that,

initially, there were no results returned, as a suspect had not yet been

identified. (Id. at 193-194.) As noted by the trial court, the Pennsylvania

State Police subsequently tested the DNA sample taken in Delaware and, after

comparing the Delaware sample with a buccal sample of appellant’s DNA,

“ultimately determined [a]ppellant’s DNA sample could not be excluded as a

source of the DNA profiles” taken in Delaware. (Trial court opinion, 5/3/19

at 20.)   Further, the trial court noted that, “[t]he limited security footage

collected from the various banks [in Pennsylvania and Delaware] consistently

showed the assailant was a white, stocky male approximately six (6)-feet tall.”

(Id., citing notes of testimony, 12/6/16 at 179-203).




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      Appellant further argues that the prejudice of the prior bad acts evidence

admitted by the trial court outweighed its probative value and had the effect

of “rous[ing] the jury to overmastering hostility[.]” (Appellant’s brief at 14

(citations omitted).) Specifically, appellant contends that “[e]vidence of prior

criminal activity . . . is probably only equaled by a confession in its prejudicial

impact upon a jury.” (Id. at 15, quoting Commonwealth v. Spruill, 391

A.2d 1048, 1050 (Pa. 1978).)

      Here, the record reflects that the trial court provided the following

instruction to the jury before the Commonwealth began its direct examination

of Detective Grassi:

            Ladies and gentlemen of the jury, before I have the
            Commonwealth begin their questioning, I do want to
            instruct you – I asked you questions about this during
            voir dire – but that this witness – what I anticipate
            much of this witness’ testimony will be related to
            robberies that occurred in the State of Delaware.

            I wanted to remind you that this evidence is being
            presented as circumstantial evidence of identification
            and perhaps evidence of motive. The fact that the
            defendant was investigated or even arrested for any
            crimes in Delaware cannot be used against him in this
            matter for anything other than to show identification
            in the Pennsylvania cases, if you find that to be
            relevant after hearing all of the evidence, or for
            motive. You cannot use the fact that he was arrested
            or charged with anything in the State of Delaware as
            evidence of guilt in the cases here in Pennsylvania.

Notes of testimony, 12/6/16 at 155-156.




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      Later during the trial, the trial court again reminded the jury during the

Commonwealth’s direct examination of Mr. Wisler that evidence of prior bad

acts could not be used as evidence of his guilt in the instant charges:

            Ladies and gentlemen, as there has been a reference
            to beginning testimony about a Delaware robbery, I
            will just again remind you that the Delaware robberies
            are being introduced into evidence as to help with
            your determination regarding identification and
            motive. The fact that the defendant has been charged
            with or was considered for any robberies in Delaware
            cannot be used against him to find him guilty in the
            Pennsylvania cases.

Id. at 299-300.

      Finally, during its charge to the jury, the trial court again reminded the

jury of the limits of the prior bad acts evidence:

            As I have instructed you many times during this trial
            and I will repeat at this time, you heard evidence that
            [appellant] has been accused of robberies in the State
            of Delaware in addition to those in this case. The
            evidence presented regarding those robberies has
            been provided to you for a limited purpose: That is to
            show circumstantial evidence of the identification
            and/or to prove evidence of motive. You may consider
            this evidence insofar as that it aids your determination
            of the identification of the person who committed the
            five Pennsylvania robberies which are before you or
            for your consideration of motive.         The fact that
            [appellant] was investigated or accused of other bank
            robberies in the State of Delaware for which the
            charges are not before you shall not be used in
            determining [appellant’s] guilty in the matters that
            are before you today.

Notes of testimony, 12/7/16 at 518-519.




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          It is well settled that juries are presumed to follow the trial court’s

instructions.     Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017),

citing Commonwealth v. Bullock, 913 A.2d 207, 218 (Pa. 2006),

cert. denied sub nom. Bullock v. Pennsylvania, 550 U.S. 941 (2007).

          Based on our review of the record, we find that the trial court did not

abuse its discretion when it permitted the Commonwealth to introduce

evidence of robberies in which appellant allegedly participated in the State of

Delaware.         Indeed,   as    noted    in   detail   supra,   the   Commonwealth

demonstrated that the prior bad acts evidence established appellant’s identity

pursuant to Rule 404(b).              Because the trial court instructed the jury

three times that the evidence of appellant’s alleged involvement in the

Delaware bank robberies could not be used in determining appellant’s guilt

with regard to the Pennsylvania bank robberies at issue here, we hold that the

probative value of the evidence presented by the Commonwealth exceeds its

potential for prejudice.      Pa.R.E. 404(b)(3); Briggs, 12 A.3d at 336-337;

Aikens, 168 A.3d at 143. Accordingly, appellant’s first issue is without merit.

          In his second issue, appellant contends that the trial court imposed an

illegal     sentence   when      it   imposed      two   consecutive    sentences   for

two convictions of conspiracy to commit robbery. (Appellant’s brief at 11.)

The Commonwealth does not oppose remanding the case for the purposes of

resentencing. (Commonwealth’s brief at 25.)




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      Preliminarily, we note that appellant failed to include this issue in his

Rule 1925(b) concise statement of errors complained of on appeal. Generally,

such a failure would result in waiver of the issue on appeal. Commonwealth

v. Smith, 210 A.3d 1050, 1059 (Pa.Super. 2019), appeal denied, 218 A.3d

1199 (Pa. 2019), citing Pa.R.A.P. 1925(b)(4)(ii). Challenges to the legality of

sentence, however, are non-waivable and may be raised at any time, so long

as the reviewing court has jurisdiction. Commonwealth v. Wood, 208 A.3d

131, 136 n.9 (Pa.Super. 2019) (en banc). Accordingly, we shall proceed to

review appellant’s second issue on the merits.

      “A challenge to the legality of sentence is a question of law; our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Alston, 212 A.3d 526, 528 (Pa.Super. 2019), citing Commonwealth v.

Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014), appeal denied, 121 A.3d

494 (Pa. 2015).

      Section 903 of the Crimes Code provides that “[i]f a person conspires to

commit a number of crimes, he is guilty of only one conspiracy so long as such

multiple crimes are the object of the same agreement or continuous

conspiratorial relationship.” 18 Pa.C.S.A. § 903(c). In Commonwealth v.

Lore, 487 A.2d 841, 855 (Pa.Super. 1984), this court held that in cases where

a defendant is convicted of multiple counts of conspiracy, he or she may only

be sentenced on one count if “there were multiple criminal objectives of a




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continuous conspiratorial relationship and each [criminal objective] was a

component of the larger common design.”

         Here, appellant was charged and convicted of one count each of

conspiracy to commit robbery (threat of immediate serious bodily injury) and

conspiracy to commit robbery (demand money from a financial institution).

The trial court sentenced appellant to consecutive sentences of 5-10 years’

imprisonment for appellant’s convictions of conspiracy to commit robbery

(threat of immediate serious injury) and conspiracy to commit robbery

(demand money from financial institution).          (Notes of testimony, 9/20/17

at 5.)

         Based on our review of the record, we find that appellant participated in

one continuous conspiratorial relationship. Indeed, appellant’s co-conspirator,

Mr. Wisler, testified that there was one agreement that covered the series of

bank robberies committed by appellant. (Notes of testimony, 12/6/16 at 296,

355, 359-360.) Further, the trial court referenced a single conspiracy in its

preliminary comments prior to imposing its sentence. (Notes of testimony,

9/20/17 at 3.)       Accordingly, we find that appellant engaged in a single

conspiracy to commit multiple crimes; therefore, he should have been

sentenced for only one count of conspiracy.          See Lore, 487 A.2d at 855.

Because our decision upsets the overall sentencing scheme of the trial court,

as our action affects the length of appellant’s aggregate sentence, we remand

for      resentencing,   while   affirming      appellant’s   convictions.   See



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Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006), appeal

denied, 946 A.2d 687 (Pa. 2008), citing Commonwealth v. Williams, 871

A.2d 254, 266-267 (Pa.Super. 2005) (requiring remand for trial court to

restructure its sentence in cases where appellate disposition upsets trial

court’s overall sentencing scheme).

      On February 18, 2020, appellant filed an application for substitution of

appointed counsel.     We deny appellant’s application without prejudicing

appellant from seeking relief with the trial court.

      Judgment of sentence vacated. Convictions affirmed. Remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/3/20




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