J-A11042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TONY EDWARDS                               :
                                               :
                       Appellant               :      No. 14 MDA 2017


           Appeal from the Judgment of Sentence November 8, 2016
               in the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0004026-2015


BEFORE:      STABILE, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED JULY 20, 2018

        Appellant, Tony Edwards, appeals from the judgment of sentence

imposed after his conviction of two counts of criminal attempt to commit

homicide.1 We affirm.

        The relevant facts and procedural background of this case follow. On

April 4, 2015, Appellant and co-defendant, Wandalee Balcacer, conspired to,

and did, confront victims Sherry Ann Rivera and Izhar Ramos-Ramirez2 about

drugs Rivera allegedly stole from Ms. Balcacer, and money she earned from

their subsequent sale.       (See N.T. Trial, 404-05, 887).   Appellant and Ms.


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1   18 Pa.C.S.A. §§ 901, 2501(a).

2At trial, the victims were referred to as “China” and “Izzy.” (See N.T. Trial,
9/19/16, at 180, 400).
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* Retired Senior Judge assigned to the Superior Court.
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Balcacer threw the victims to the ground, and Appellant shot them, wounding

Ramirez in the head and Rivera in the head and upper back. (See id. at 387,

392).

        The Commonwealth filed an information against Appellant and Ms.

Balcacer on December 8, 2015, which contained the aforementioned charges,

plus criminal conspiracy to commit homicide, and persons not to possess

firearms. On May 4, 2016, the Commonwealth filed a motion to consolidate

the cases for trial pursuant to Pennsylvania Rule of Criminal Procedure 582.3

The court granted the motion on May 19, 2016 without defense objection.

(See Order, 5/19/16). On June 20, 2016, Appellant’s counsel filed a motion

either to preclude the testimony of the Commonwealth’s witness or for the

appointment of conflict counsel. On June 21, 2016, the trial court permitted

Appellant’s counsel to withdraw. On June 30, 2016, conflict counsel entered

her appearance.

        On September 6, 2016, Appellant filed a motion to sever his case from

Ms. Balcacer’s case.4 On September 9, 2016, the court held a hearing on

Appellant’s motion, which alleged that he would suffer prejudice if the cases

were not severed, because testimony regarding his prior gang affiliation would

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3 Rule 582 provides, in pertinent part, that “[o]ffenses charged in separate
indictments or informations may be tried together if . . . the offenses charged
are based on the same act or transaction.” Pa.R.Crim.P. 582(A)(1)(b).

4Appellant also filed a motion to sever the firearms charges from his jury trial,
which the court granted on September 9, 2016.

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then be entered into evidence. (See Motion to Sever, 9/06/16, at 2-4). The

court denied Appellant’s motion. (See N.T. Hearing, 9/09/16, at 21). At trial,

co-defendant’s brother, Felipe Nerry Balcacer, testified that he and Appellant

became friends while at a halfway house in Philadelphia. (See N.T. Trial, at

785-88). In an effort to help his friend obtain housing after his release, Mr.

Balcacer testified that he asked his sister, co-defendant Ms. Balcacer, if

Appellant could temporarily stay with her. (See id. at 793-94). Ms. Balcacer

agreed to the arrangement, and Appellant temporarily moved into her home

in Wilkes-Barre. (See id. at 794-95).

       On September 19, 2016, following trial, the jury convicted Appellant of

two counts of criminal attempt to commit homicide. On November 8, 2016,

the trial court sentenced Appellant to a term of not less than forty nor more

than eighty years’ incarceration. On November 14, 2016, the Commonwealth

withdrew the charges for the firearms violations.      Appellant filed a timely

motion for modification of his sentence that the court denied on November

28, 2016. Appellant timely appealed.5

       Appellant raises one question for this Court’s review: “Whether the trial

court erred in denying trial counsel’s motion to sever Appellant’s trial from his

co-defendant’s trial, causing undue prejudice to the Appellant, as his co-



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5On May 10, 2017, Appellant filed a timely statement of errors complained of
on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on August 9, 2017. See Pa.R.A.P. 1925(a).

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defendant called her brother, who testified that he had met Appellant in a

halfway house[?]”      (Appellant’s Brief, at 6) (unnecessary capitalization

omitted).

      It is well-settled that:

             [A] motion for severance is addressed to the sound
      discretion of the trial court, and . . . its decision will not be
      disturbed absent a manifest abuse of discretion. The critical
      consideration is whether [the] appellant was prejudiced by the
      trial court’s decision not to sever. [The a]ppellant bears the
      burden of establishing such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010), appeal

denied, 5 A.3d 818 (Pa. 2010) (citation omitted).

      Pennsylvania Rule of Criminal Procedure 583 provides: “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.” Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the

defendant suffers due to the joinder must be greater than the general

prejudice any defendant suffers when the Commonwealth’s evidence links him

to a crime.” Dozzo, supra at 902 (citation omitted). Further:

             The prejudice of which Rule [583] speaks is, rather, that
      which would occur if the evidence tended to convict [the]
      appellant only by showing his propensity to commit crimes, or
      because the jury was incapable of separating the evidence or
      could not avoid cumulating the evidence.        Additionally, the
      admission of relevant evidence connecting a defendant to the
      crimes charged is a natural consequence of a criminal trial, and it
      is not grounds for severance by itself.

Id. (citation omitted).


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      Appellant maintains that he “made a showing prior to trial that it was

likely that his co-defendant would produce evidence that tended to

demonstrate . . . that he had a prior criminal history that would have

otherwise been withheld under Pa. R.E. 404(b).” (Appellant’s Brief, at 10).

We disagree.

            Evidence of crimes other than the one in question is not
      admissible solely to show the defendant’s bad character or
      propensity to commit crime. [See] Pa.R.E. 404(b)(1) (providing:
      “Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show action in
      conformity therewith”). Nevertheless:

                  [E]vidence of other crimes is admissible to
            demonstrate (1) motive; (2) intent; (3) absence of
            mistake or accident; (4) a common scheme, plan 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 (5) the identity of the person
            charged with the commission of the crime on trial.
            Additionally, evidence of other crimes may be
            admitted where such evidence is part of the
            history of the case and forms part of the natural
            development of the facts.

Dozzo, supra at 902 (citing Pa.R.E. 404(b)(2)) (case citations and most

quotation marks omitted; emphasis added).

      In Appellant’s motion to sever, he raised concerns about Ms. Balcacer’s

introduction of evidence regarding Appellant’s gang affiliation. (See Motion

to Sever, at 2-4). At the hearing on the motion, Appellant’s counsel reiterated

concerns about the gang evidence issue, as well as the potential prejudice

that could arise if Ms. Balcacer did not testify, and counsel introduced her




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statements through her brother’s testimony.6 (See N.T. Hearing, 9/09/16, at

6, 18-19). However, Ms. Balcacer’s counsel responded that she did not intend

to introduce evidence of Appellant’s gang affiliation because it was irrelevant,

but that Mr. Balcacer would testify, inter alia, that he met Appellant at a

halfway house as part of the development of the case’s history. (See id. at

11-12). Based on the argument presented at the hearing, the court denied

Appellant’s motion, stating:

             . . . Based on what I’m hearing, I don’t hear any grounds
       for severance. Anything you’re raising is merely speculative and
       obviously if some issue comes up during the trial, parties can
       make objections as done at almost every trial. . . .

(Id. at 20).

       At trial, Mr. Balcacer testified, in pertinent part, that he befriended

Appellant in a halfway house in Philadelphia.     (See N.T. Trial, at 786-88).

When Appellant was due to be released, Mr. Balcacer contacted Ms. Balcacer

about providing him with a place to stay “while he gets on his feet[.]” (Id. at

794). Thereafter, Appellant and Ms. Balcacer met each other when he “went

to Wilkes-Barre to live with [her] . . . for a temporary time.” (Id. at 795; see

id. at 794).

       This reference to the halfway house was not evidence precluded by Rule

404(b). It merely was “part of the history of the case and form[ed] part of



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6Ms. Balcacer did testify at trial, and Appellant’s counsel thoroughly cross-
examined her. (See N.T. Trial, at 877-982).

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the natural development of the facts.”      Dozzo, supra at 902 (citations

omitted). Additionally, immediately after Mr. Balcacer’s direct testimony, the

court provided the jury with a cautionary instruction, in which it stated:

      . . . You have just heard certain testimony indicating that Felipe
      Balcacer met [Appellant], and established a relationship with him
      while they were living together in a halfway house.            That
      testimony is provided to you and to be considered by you for
      certain limited purposes and only for those purposes in
      understanding the natural development of the facts, history and
      chronology of the case and the sequence of events in this matter,
      and it may assist you in judging credibility of certain witnesses
      who testify in this matter. You are not to regard that evidence as
      showing that [Appellant] is a person of bad character or criminal
      tendencies from which you might be inclined to infer his guilt. So,
      again, I caution you that you’re only being offered that testimony
      for a limited purpose and to consider it for those limited purposes
      only and not as any type of evidence of bad character or . . .
      criminal tendencies.

(N.T. Trial, at 837). The jury is presumed to have followed this instruction.

See Commonwealth v. Jones, 668 A.2d 491, 504 (Pa. 1995), cert. denied,

519 U.S. 826 (1996).

      Based on all of the foregoing, we discern no abuse of discretion by the

trial court.   The Commonwealth charged Appellant and Ms. Balcacer with

criminal conspiracy.   Both individuals participated in the same transaction

constituting the offense. Mr. Balcacer’s testimony that he met Appellant at a

halfway house was not testimony about another crime, wrong or act. Instead,

it was introduced to provide “the history of the case and form[ed] part of the

natural development of the facts.” Dozzo, supra at 902 (citations omitted).

Appellant has failed to meet his burden of establishing prejudice justifying


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severance. See id. at 901. Therefore, we conclude that the trial court did

not manifestly abuse its discretion in denying Appellant’s motion to sever

where the denial did not result in prejudice that was “greater than the general

prejudice any defendant suffers when the Commonwealth’s evidence links him

to a crime.” Id. at 902 (citation omitted). Appellant’s issue does not merit

relief.

          Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/20/2018




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