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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

REAFEAL FIELDS

                            Appellant                    No. 1522 EDA 2013


            Appeal from the Judgment of Sentence February 6, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014201-2010


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 06, 2015

        Reafeal Fields appeals from his judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after a jury convicted him of

first-degree murder,1 criminal conspiracy2 and possessing an instrument of

crime3 (“PIC”). Upon careful review, we affirm.

        The trial court set forth the facts of this matter as follows:

        Timothy Johnson (“Johnson”) arrived at the Ridge Food Market
        at 2632 Ridge Avenue at 10:43 AM on February 11, 2010. When
        he arrived he saw two men, whom he knew as June and Shiz, on
        the corner. Johnson started walking down the street toward 26 th
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 903.
3
    18 Pa.C.S.A. § 907(a).
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       Street and then heard about three gunshots. He turned around
       and saw [Michael Smith (“Decedent”)], a friend of his, lying on
       the ground and June and Shiz running away. Johnson identified
       June and Shiz as [co-defendant Kelvin] Bryant and [Fields],
       respectively.

       Philadelphia  Police   Officer  Patrick Gereaghty    (“Officer
       Gereaghty”) arrived first at the scene, where he found the
       decedent face-down in the snow and unresponsive. Officer
       Gereaghty transported him to Temple University Hospital where
       he was pronounced dead at 2:31 PM.

       Both [Fields] and Bryant later told Amin Payne (“Payne”) that
       they had killed the decedent. Bryant and [Fields] told Payne
       that after they had spoken with Johnson outside the store, they
       had killed the decedent over drug territory: “They did not want
       him selling drugs on Bailey Street.” [Fields] and Bryant told
       Payne that Bryant had used his 9mm and that [Fields] had used
       a .38 caliber revolver.

       Later that evening, Bryant and [co-defendant Milique] Wagner
       were inside Bryant’s mother’s apartment with Payne and Herman
       Adams (“Adams”), where they were heat-sealing bags of drugs.
       Bryant received a phone call, and he and Wagner went outside.
       A short time later, Payne looked out the window and, not seeing
       Bryant and Wagner, went outside and looked down the street.
       He saw Bryant and Wagner at the corner of 25th Street and Cecil
       B. Moore Avenue speaking with [Braheem] King and then saw
       them “just pull out on the boy and shoot him up.” The two then
       ran down the street and turned up 26th Street. Adams testified
       at trial that he heard the gunshots about ten minutes after
       Bryant and Wagner had left the apartment. Bryant called Payne
       thirty minutes later and told him, “I had to holler at [i.e., kill 4]
       another one.” A few days later, Bryant told Payne, “I killed the
       one, I might as well get the rest. I got to get them out of the
       way.”

       At the scene [of the King murder], police recovered a sandwich
       bag containing four smaller ziplock bags, each containing a
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4
  Amir Payne, a key witness for the prosecution, testified that Bryant’s
statement that he “had to holler at another one” meant that he “killed
another boy.” N.T. Trial, 2/1/13, at 213.



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        green, leafy substance, and two heat-sealed bags containing an
        off-white, chunky substance. Police Officer Flade testified that,
        in his experience, the substances appeared to be marijuana and
        crack cocaine. Twenty-seven cartridge casings were also found,
        all fired from one of two 9mm semi-automatic handguns.

        All three defendants left Philadelphia after February 11, 2010
        and were [subsequently] arrested outside the county.

Trial Court Opinion, 11/14/13, at 2-3 (internal citations to the record and

footnotes omitted).

        Prior to trial, the Commonwealth filed a motion to consolidate the bills

of information against Bryant, Fields and Wagner for trial, and Fields filed a

motion to sever. The court granted the Commonwealth’s motion and denied

that filed by Fields.     As a result, Fields was tried jointly with Bryant and

Wagner.

        On February 6, 2013, a jury found Fields guilty of the above crimes

and, on that same date, the court sentenced him to a mandatory term5 of

life imprisonment for the charge of murder in the first degree.6            Post-

sentence motions were denied by order dated May 21, 2013 and this timely

appeal follows, in which Fields claims that the trial court abused its

discretion in granting the Commonwealth’s motion for joinder and denying

his motion for severance.



____________________________________________


5
    18 Pa.C.S.A. § 1102(a)(1).
6
 The court also sentenced Fields to concurrent terms of five to ten years for
conspiracy and one to five years for PIC.



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      Pennsylvania Rule of Criminal Procedure 582 governs the joinder of

defendants and provides that “[d]efendants 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)(2).     Rule 583

addresses severance and provides that separate trials of defendants may be

ordered if it appears that any party may be prejudiced by defendants being

tried together.   Pa.R.Crim.P. 583.   The prejudice alleged must be such as

would occur if the evidence tended to convict the defendant 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.

Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa. Super. 2003) (citation

omitted).

      Joinder and severance of separate indictments for trial is a
      discretionary function of the trial court; consequently, the trial
      court’s decision is subject to review for abuse of that discretion.
      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. Consequently, an abuse of discretion
      consists not merely of errors in judgment by the trial court, but
      instead contemplates action unsupported by the evidence, at
      odds with governing law, or arising from improper motives
      personal to the judge. The critical consideration is whether the
      appellant was prejudiced by the trial court’s decision.        The
      appellant bears the burden of establishing such prejudice.

Commonwealth v. Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010)

(internal citations and punctuation omitted).




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      When criminal conspiracy is charged, it is well-established that the law

favors a joint trial.   Commonwealth v. Serrano, 61 A.3d 279, 285 (Pa.

Super. 2013).

      A joint trial of co-defendants in an alleged conspiracy is
      preferred not only in this Commonwealth, but throughout the
      United States.

      It would impair both the efficiency and the fairness of the
      criminal justice system to require . . . that prosecutors bring
      separate proceedings, presenting the same evidence again and
      again, requiring victims and witnesses to repeat the
      inconvenience (and sometimes trauma) of testifying, and
      randomly favoring the last tried defendants who have the
      advantage of knowing the prosecution’s case beforehand. Joint
      trials generally serve the interests of justice by avoiding
      inconsistent verdicts and enabling more accurate assessment of
      relative culpability.

      A defendant requesting a separate trial must show real potential
      for prejudice rather than mere speculation. The defendant bears
      the burden of proof, and we will only reverse a decision not to
      sever if we find a manifest abuse of discretion by the trial court.

Id., quoting Commonwealth v. Colon, 846 A.2d 747, 753-54 (Pa. Super.

2004) (citations omitted).

      To determine whether a defendant has been prejudiced by a joint trial,

we 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
      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.




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Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010)

(citation omitted).

      Here, Fields argues that the evidence linking the shootings of Smith

and King was minimal and that the alleged common co-conspirator, Bryant,

did not have a plan to kill others at the time Smith was killed. Fields also

claims that application of the second Brookins factor demonstrates that he

was prejudiced by the joint trial because “evidence of the attempt to

eliminate a witness in the murder for which [he] was not charged was

unduly prejudicial” to Fields.   Brief of Appellant, at 12.   He argues that

Brookins is factually on point and should be controlling here.

      Fields’ reliance on Brookins is misplaced.    There, Brookins and an

individual named McKeiver were charged with conspiring to sell drugs.

Brookins’ involvement with McKeiver was documented through wiretaps on

McKeiver’s phone, which recorded Brookins asking McKeiver to sell her

cocaine for resale and arranging for the drug’s delivery. Two additional co-

defendants were charged with drug conspiracy as well as with a plan to rob

and kidnap another drug dealer. Brookins was not charged in relation to the

robbery or kidnap offenses and sought to sever her trial from those

defendants on the basis that the evidence related to the robbery and

kidnapping charges would not be admissible if she were tried separately and

that the evidence caused her undue prejudice.

      In reversing the trial court and remanding for a new trial, this Court

concluded that there was no evidence that Brookins participated in or had

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knowledge of the robbery and kidnapping offenses and, as such, any

evidence related to those crimes would be inadmissible in a separate trial.

The Court found that the robbery and kidnapping were “discrete criminal

transaction[s], independent of Brookins’s acts[.]” Id. at 1257. Accordingly,

the Court concluded that the evidence would not be admissible as “other

crimes” evidence under Pa.R.E. 404, which renders evidence of other crimes

admissible to show:

               (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.

Id., quoting Commonwealth v. Dozzo, 991 A.2d 898, 903 (Pa. Super.

2010).

       Whereas the crimes in Brookins were unrelated, here, the two

murders were tied together by a common motive, i.e., the elimination of

drug rivals.     The shootings occurred close in both time and location and

involved an overlapping actor, Bryant, the protection of whose drug turf

provided the motive. Moreover, evidence of each shooting would have been

admissible as to the other pursuant to Rule 404 in order to show either

motive or common scheme.7 Finally, the facts of the two shootings were not
____________________________________________


7
 Amir Payne told police that Bryant told him “I killed the one [i.e., Smith]. I
might as well get the rest. I got to get them out of the way.” N.T. Trial,
2/1/13, at 214. The Commonwealth presented this as evidence of motive
(Footnote Continued Next Page)


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complicated8 and the jury was capable of distinguishing the evidence as it

related to the three defendants. Indeed, the jury was clearly instructed 9 by

the trial court to

      evaluate the evidence offered by the Commonwealth as to each
      individually. You will then determine whether the evidence
      taken as a whole as to each defendant individually has proved to
      you beyond reasonable doubt each element of each offense
      charged against that defendant.

N.T. Trial, 2/6/13, at 46-47.        The law presumes that the jury will follow the

instructions of the court. Commonwealth v. Sandusky, 77 A.3d 663, 671

n.2 (Pa. Super. 2013) (citation omitted).

      For the foregoing reasons, the trial court did not abuse its discretion

by refusing to sever Fields’ prosecution from that of his co-defendants.
                       _______________________
(Footnote Continued)

and common scheme for both shootings. Fields, however, argues that this
statement suggests that, at the time Smith was killed, Bryant had not
developed a plan to eliminate the other dealers. Thus, Fields claims, there is
really no evidence of a common plan or scheme linking the two shootings.
While this interpretation may be one way of interpreting Payne’s statement,
it is also possible to interpret it to demonstrate Bryant’s motive for
committing both murders, i.e. “I got to get them out of the way.”
8
   We also note that the Commonwealth presented the statement of
eyewitness Timothy Johnson, who told police he had seen Bryant and Fields
at the scene of the crime just prior to the shooting, and then witnessed them
flee from the scene immediately after shots were fired.
9
  To the extent Fields bases his claim on the trial court’s failure to specifically
instruct the jury not to consider evidence of witness intimidation in the King
murder against Fields, this claim is waived for failure to object at trial.
When asked by the trial court whether there were any objections or
corrections to the court’s jury charge, Fields’ counsel answered in the
negative. N.T. Trial, 2/6/13, at 68.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2015




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