J-A24024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANDRE COLLIER

                            Appellant               No. 3491 EDA 2014


            Appeal from the Judgment of Sentence of June 26, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0006868-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 09, 2015

       Andre Collier appeals the June 26, 2014 judgment of sentence.       We

affirm.

       On May 5, 2013, Collier, Omar Miller, Rasheed Teel, and Charles

Freeman devised a plan to rob nineteen-year-old Kareem Borowy. Freeman

drove the group to Borowy’s house in Pottstown, Pennsylvania, and waited in

the car while Miller, Teel, and Collier entered into the residence.     Once

inside, Collier, armed with a .45 caliber Glock pistol, demanded that Borowy

hand over a large quantity of marijuana and $3,000.00 in cash.        Borowy

pleaded with the robbers, insisting that there was no money in the home.



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     Sensing that the trio was growing impatient, Borowy falsely told them

that he kept his money in a “stash house” at a different location. The men

then took Borowy outside and forced him into the getaway car.        Freeman

drove away from the residence, presumably intending to travel to Borowy’s

contrived stash house. When the vehicle slowed down on a rural roadway in

Lower Pottsgrove Township, Borowy managed to escape from the vehicle.

Collier chased after Borowy and shot him twice. When he returned to the

vehicle, Collier told the others that he saw Borowy fall to the ground, and

instructed Freeman to drive away.

     Although severely injured, Borowy managed to crawl on his hands and

knees to the main roadway. A passing motorist spotted Borowy lying beside

the road a short time later and called 911. When the police arrived, Borowy

was unresponsive. He was pronounced dead at the scene.

     On June 3, 2013, a team of federal, state, and local law enforcement

officers arrested Miller on the sidewalk outside of his uncle’s home in

Philadelphia, Pennsylvania.   The officers transported Miller to the homicide

unit of the Montgomery County Detectives’ Bureau.       Miller initially denied

participating either in the robbery or in the murder. However, after several

hours of questioning by detectives, Miller confessed that he had participated

in the robbery, was at the scene of the murder, and saw Collier shoot

Borowy. He told the detectives “[Collier] killed that boy and I told him not

to.” Notes of Testimony (“N.T.”), 4/18/2014, exh. C-22 at 12.




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       Collier evaded arrest until August 5, 2013, when the Pennsylvania

State Police and the United States Marshals arrested him in Carbon County,

Pennsylvania. On the following day, Collier was arraigned in Pottstown on

charges of homicide, kidnapping, robbery, persons not to possess a firearm,

receiving stolen property, false imprisonment, and conspiracy to commit

each of those offenses.1         Members of the press gathered outside of the

courthouse before Collier’s arraignment.         As the police led Collier into the

courthouse, he looked directly into a television camera and exclaimed, “Stop

snitching.” N.T., 4/18/2014, at 164.

       Teel pleaded guilty to third-degree murder, and agreed to testify for

the   Commonwealth        against    his   co-conspirators.   Prior   to   trial,   the

Commonwealth filed notice of its intent to consolidate the cases against

Collier, Miller, and Freeman. See Pa.R.Crim.P. 582 (“Defendants charged in

separate indictments or informations may be tried together if they are

alleged to have participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or offenses.”).

       On December 30, 2013, Collier filed a motion seeking, inter alia,

severance from the prosecution of his co-defendants.           Specifically, Collier

maintained in his motion that separate trials were necessary because Miller’s

confession “would clearly implicate [Collier] when read to a jury.”                 See

____________________________________________


1
     18 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105, 3925, 2903, and
903(b), respectively.



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Collier’s Motion for Severance, 12/30/2013, at 2 (citing Bruton v. United

States, 391 U.S. 123 (1968) (holding that a non-testifying defendant’s

confession implicating another co-defendant in the charged offense is

inadmissible      against   the   co-defendant     because      it       violates   his   Sixth

Amendment right to confront and to cross-examine witnesses testifying

against him)).      On March 14, 2014, following a hearing, the trial court

denied Collier’s motion to sever.

       Collier,   Miller,   and   Freeman      proceeded   to        a    jury   trial,   which

commenced on April 15, 2014.             On April 16, 2014, Teel testified for the

Commonwealth. He explained that he and his co-conspirators concocted a

plan to rob Borowy, and that Collier shot Borowy after he escaped from

Freeman’s vehicle in Lower Pottsgrove Township.                      On April 18, 2015,

Detective Todd Richard of the Montgomery County Detectives’ Bureau read

to the jury Miller’s confession, which, pursuant to Bruton, supra, the

Commonwealth redacted to eliminate all references to Collier and Freeman.2

The trial court then instructed the jury to consider Miller’s confession as

evidence against Miller only, and not as evidence against Collier or Freeman.

____________________________________________


2
      Prior to trial, both Collier and the Commonwealth submitted to the trial
court proposed redactions to Miller’s statement. Although both versions
were very similar, Collier took issue with a reference to Freeman’s paramour
(on page four of Miller’s statement) and a reference to Teel as “Andre’s
cousin” (on the tenth page of Miller’s statement).          In response, the
Commonwealth deleted both of those answers and the questions that
preceded them.



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At the close of the Commonwealth’s case, Collier moved for a mistrial,

arguing, once again, that the court should have severed his trial from that of

his co-defendants.      See N.T., 4/21/2014, at 45-46 (“[J]ust for the record,

. . . I still contend—and I want to just make a record that—these charges

should have been severed[.]”).

       On April 21, 2014, the jury found Collier guilty of first-degree murder,

robbery, kidnapping, conspiracy to commit kidnapping, robbery, and

conspiracy to commit robbery.3 On June 26, 2014, the trial court sentenced

Collier to life imprisonment. Collier then filed a post-trial motion, which the

court denied on November 20, 2014.

       On December 10, 2014, Collier timely filed a notice of appeal.       On

December 17, 2014, the trial court ordered Collier to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Collier

timely complied.       On February 9, 2015, the trial court filed a Pa.R.A.P.

1925(a) opinion.

       Collier presents one issue for our consideration:

       Did the trial court err by not granting a mistrial once the
       statement of co-defendant Omar Miller was read into the record
       and [Miller] presented the defense that he was present at the
       robbery and the murder; thus creating inconsistent and
       conflicting defenses among [Miller] and [Collier] during the same
       trial and allowing the testimony of a testifying co-defendant,
____________________________________________


3
     The jury convicted Miller and Freeman of second-degree murder,
kidnapping, conspiracy to commit kidnapping, robbery, and conspiracy to
commit robbery.



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      Rasheed Teel, to be corroborated by [Miller’s] statement without
      giving [Collier] the benefit of cross-examining [Miller?]

Brief for Collier at 2 (capitalization modified).

      A mistrial is warranted only “when an incident is of such a nature that

its unavoidable effect is to deprive the appellant of a fair and impartial trial.”

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003).                  The

decision whether to grant a mistrial is within the sound discretion of the trial

court. Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa. Super. 2000).

On appeal, our standard of review is whether the trial court abused that

discretion.

      When the discretion exercised by the trial court is challenged on
      appeal, the party bringing the challenge bears a heavy
      burden . . . . [I]t is not sufficient to persuade the appellate
      court that it might have reached a different conclusion if, in the
      first place, [it was] charged with the duty imposed on the court
      below; it is necessary to go further and show an abuse of
      discretionary power. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will as shown by the evidence of record, discretion is
      abused. We emphasize that an abuse of discretion may not be
      found merely because the appellate court might have reached a
      different conclusion.

Tejeda, 834 A.2d at 623-24.

      In his motion for a mistrial, Collier essentially sought to relitigate his

pre-trial motion to sever. Thus, we must determine whether the trial court




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erred in denying severance in the first instance.4                 Rule 582 of the

Pennsylvania Rules of Criminal Procedure, which permits joinder of offenses

or defendants, provides as follows.

       (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.

       (2) Defendants charged in separate indictments or informations
       may be tried together if they are alleged to have participated in
       the same act or transaction or in the same series of acts or
       transactions constituting an offense or offenses.

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

       Where a party can show that he or she will be prejudiced by a joint

trial, “[t]he court may order separate trials of offenses or defendants, or

provide other appropriate relief[.]”           Pa.R.Crim.P. 583.     In determining

whether to grant or deny a motion to sever, the trial court should consider

the following factors:

       (1) Whether the number of defendants or the complexity of the
       evidence as to the several defendants is such that the trier of
       fact probably will be unable to distinguish the evidence and apply
____________________________________________


4
     The decision whether to grant a motion for severance is within the
sound discretion of the trial court and “should not be disturbed absent a
manifest abuse of discretion.” Commonwealth v. Chester, 587 A.2d
1367, 1372 (Pa. 1991).



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      the law intelligently as to the charges against each defendant;
      (2) Whether evidence not admissible against all the defendants
      probably will be considered against a defendant notwithstanding
      admonitory instructions; and (3) Whether there are antagonistic
      defenses.

Commonwealth v. O’Neil, 108 A.3d 900, 910 (Pa. Super. 2015).

      Collier focuses his argument upon the third factor delineated in O’Neil.

He maintains that the trial court should have granted his motion for a

mistrial because it was apparent that his defense was “on a collision course”

with Miller’s defense.   Brief for Collier at 13.   Collier underscores that he

wanted the jury to reject Teel’s testimony that Collier was the gunman,

whereas Miller wanted the jury to accept that testimony.           Collier also

contends that Miller’s confession in effect corroborated Teel’s otherwise

impeachable testimony.

      Although it is well settled that joint trials are preferred when

defendants are charged with conspiracy, “[s]everance may be proper where

a party can establish the co-defendants’ defenses are so antagonistic that a

joint trial would result in prejudice.”   Commonwealth v. Housman, 986

A.2d 822, 834 (Pa. 2009); Chester, 587 A.2d at 1372-73.          However, the

party seeking severance must present more than a mere assertion of

antagonism:

      The fact that hostility exists between the defendants or that one
      defendant may try to save himself at the expense of the other
      constitutes insufficient grounds to require severance. Moreover,
      the mere fact that one defendant might have a better chance of
      acquittal if tried separately is an insufficient ground to require
      severance. Further, defenses only become antagonistic when
      the jury, in order to believe the testimony offered on behalf of

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      the one defendant, must disbelieve the testimony offered by his
      or her co-defendant. Chester, 587 A.2d at 1373.

Commonwealth v. Jones, 668 A.2d 491, 501 (Pa. 1995) (some citations

omitted).

      Collier’s claim that his defense was antagonistic to Miller’s defense is

without merit.   Our review of the trial record reveals that Miller did not

testify, nor did he call any witnesses to testify on his behalf. In his brief,

Collier attempts to characterize the Commonwealth’s introduction of Miller’s

confession as a “defense.” See Brief for Collier at 18 (“[Miller’s] statement

basically fit hand-in-glove with [Teel’s] testimony, as was his intention, and

gave credibility to [Teel] where none previously existed.”).   However, this

evidence was neither helpful to, nor introduced by, Miller.     As explained

supra, “defenses only become antagonistic when the jury, in order to believe

the testimony offered on behalf of the one defendant, must disbelieve

the testimony offered by his or her co-defendant.” Jones, 668 A.2d at

501 (emphasis added) (citing Chester, 587 A.2d at 1373); see also

Commonwealth v. Hetzel, 822 A.2d 747, 763 (Pa. Super. 2003) (holding

that co-defendants’ defenses were not antagonistic where the only evidence

of the defendant’s guilt was presented by the Commonwealth). Far from a

“defense,” Miller’s confession was a key piece of evidence that led to his

conviction for second-degree murder.

      The fact that the co-defendants attempted to place the blame

elsewhere is insufficient to warrant separate trials based upon antagonistic



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defenses.   Indeed, “mere finger[-]pointing alone—the effort to exculpate

oneself by inculpating another—is insufficient to warrant a separate trial.”

Housman, 986 A.2d at 834 (Pa. 2009) (citing Commonwealth v.

Lambert, 603 A.2d 568, 573 (Pa. 1992)). Accordingly, Collier’s claim that

he was entitled to a trial separate from his co-defendants is without merit,

and the trial court did not err in denying his motion for a mistrial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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