J-S67040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                       v.

MARION BROWN, JR.

                             Appellant                    No. 104 EDA 2016


           Appeal from the Judgment of Sentence December 2, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0003049-2015
                           CP-09-CR-0003054-2015
                           CP-09-CR-0003322-2015


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 29, 2016

       Appellant Marion Brown appeals from the judgments of sentence

entered by the Court of Common Pleas of Bucks County after the Honorable

Diane E. Gibbons convicted him of three counts of felony retail theft, two

counts of criminal conspiracy to commit retail theft, one count of simple

assault, and one count of disorderly conduct.1 On appeal, Appellant claims

the trial court erred in consolidating his three retail theft cases for trial.

After careful review, we affirm.



____________________________________________


1
   18 Pa.C.S.       §§      3929(a)(1),   903(c),   2701(a)(1),   and   5503(a)(1),
respectively.


*Former Justice specially assigned to the Superior Court.
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      The trial court aptly summarized the factual background of the three

cases as follows:

      Information Number 3322/2015 [Rockhill Drive Home
      Depot]

            On Saturday, November 8, 2014, at approximately 8:15
      p.m., [Appellant] and his co-conspirators, Antonio Ray Hunt,
      Leroy Jameel Brown, and Derrick Timothy Vann, Jr., went to a
      Home Depot located in Bensalem, Bucks County, (“Rockhill Drive
      Home Depot”); all four males were wearing backpacks when
      they arrived.    The group then filled shopping carts with
      merchandise, proceeded to the back of the store, transferred
      merchandise from the shopping carts to their backpacks, and
      then ran out of the store, passing all points of sale without
      payment. Three saw blades worth $199.00 each, four saw
      blades worth $165.00 each, a door lock worth $119.00, two
      keypad levers worth $119.00 each, two door lock touchscreens
      worth $199.00 each and a door lock keypad worth $109.00 were
      removed from the store. The total value of the merchandise was
      $2,419.00.

      Information    Number     3054/2015      [Bristol   Pike   Home
      Depot]

            On that same date, at approximately 8:55 p.m., four men
      were observed stealing similar high end merchandise at the
      Home Depot located at 1336 Bristol Pike, Bensalem, Bucks
      County (“Bristol Pike Home Depot”).        All four males were
      wearing backpacks; they took shopping carts and began
      selecting high-end merchandise.        The men then took the
      shopping carts to the back of the store and transferred
      merchandise from the shopping cart to their backpacks. They
      then passed all points of sale without payment and were stopped
      just outside the store in the parking lot. After being stopped,
      one of those men, later identified as [Appellant], assaulted loss
      prevention officer Kevin Dupell and fled the area. The other
      three participants, Antonio Ray Hunt, Leroy Jameel Brown, and
      Derrick Timothy Vann, Jr. were apprehended at or near the
      scene. The merchandise removed from the store was valued at
      $1,568.92.



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      Information     Number     3049/2015      [Bristol    Pike   Home
      Depot]

             On Saturday, April 11, 2015, another retail theft occurred
      at the Bristol Pike Home Depot, the site of the second retail theft
      in November of 2014. During this retail theft, an individual, later
      identified as [Appellant], selected numerous drills, compact
      drivers, and touchscreen thermostats, placed them into a cart,
      and ran out of the store with the stolen merchandise without
      paying for the items. The total value of the property taken was
      $1,314.96.      After he left the store with the merchandise,
      [Appellant] was stopped by loss prevention officer Kevin Dupell,
      the same loss prevention officer whom [Appellant] had assaulted
      during the November retail theft at the Bristol Pike Home Depot.
      [Appellant] fled the scene before police arrived. Mr. Dupell
      identified [Appellant] as the individual who had assaulted him
      and fled the scene following the retail theft at the Bristol Pike
      Home Depot in November 2014 and as the individual who
      committed the retail theft at the Bristol Pike Home Depot in April
      of 2015.     Based on surveillance footage, he also identified
      [Appellant] as one of the individuals involved in the retail theft
      that occurred at the Rockhill Drive Home Depot.

Trial Court Opinion, 4/20/16, at 2-3 (footnotes omitted).

      After Appellant was charged with the aforementioned offenses, the

trial court consolidated all three informations for trial. Appellant waived his

right to a jury trial and stipulated to the prosecution’s evidence.          On

December 2, 2015, the trial court convicted Appellant of all the charges and

sentenced him to an aggregate term of 3½ to 7 years imprisonment.            On

December 30, 2015, Appellant filed a notice of appeal.

      Appellant’s sole claim on appeal is that the trial court erred in

consolidating his three cases for trial. We review a trial court’s decision to

consolidate offenses for trial under an abuse of discretion standard.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa.Super. 2005).                 This



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Court has summarized the principles guiding a trial court’s decision to

consolidate criminal informations as follows:

      Offenses charged in separate informations may be tried together
      if they are “based on the same act or transaction” or if “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.” Pa.R.Crim.P[].
      582(A)(1). The court has discretion to order separate trials if “it
      appears that any party may be prejudiced” by consolidating the
      charges. Pa.R.Crim.P[]. 583.

      Our Supreme Court has established a three[-]part test,
      incorporating these two rules, for deciding the issue of joinder
      versus severance of offenses from different informations. The
      court must determine

         whether the evidence of each of the offenses would be
         admissible in a separate trial for the other; 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, whether the defendant
         will be unduly prejudiced by the consolidation of offenses.

      Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497
      (1988)[.]

Thomas, 879 A.2d at 260.         While evidence of a defendant’s criminal

behavior is not admissible to show a defendant's propensity to commit

crimes, such evidence may be admitted for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident so long as the probative value of the

evidence outweighs its prejudicial effect. Pa.R.E. 404(b).

      Our review of the record supports the trial court’s conclusion that

consolidation of Appellant’s three criminal informations was appropriate


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under the circumstances.      Here, there is overwhelming evidence that

Appellant and his three co-conspirators agreed to work together to commit

the first two instances of retail theft at two Home Depot stores in Bucks

County on the evening of November 8, 2014.            As part of an ongoing

conspiracy, the men committed retail theft in at two different locations of the

same home improvement superstore on the same evening within a forty

minute timespan. The four men executed the same plan in each incident,

entering each store together wearing backpacks, choosing expensive

merchandise off the store shelves to place in their shopping carts, taking the

items to the back of the store, hiding the items in their backpacks, and

fleeing the store together.

      We agree with the trial court that evidence of each retail theft would

be admissible in a separate trial for the others to prove Appellant’s identity

as the perpetrator based on the similarity of the crimes committed and the

circumstances under which Appellant was identified in each retail theft.

Appellant committed the third retail theft just five months after the first two

instances of retail theft, executing each crime in a similar fashion. On the

third instance of theft, Appellant returned to the Bristol Pike Home Depot,

where he had committed his second retail theft.          Security Officer Kevin

Dupell personally witnessed Appellant’s involvement in the second and third

thefts at the Bristol Pike Home Depot, was assaulted by Appellant during the

second theft, and identified Appellant from the video surveillance footage

from the first theft at the Rockhill Drive Home Depot.

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      Moreover, Appellant cannot establish that he was prejudiced by the

trial court's consolidation of the charges.          To demonstrate prejudice,

Appellant was required to show that he was convicted because the jury

believed he had a propensity to commit crimes, or because the jury was

incapable of separating the evidence or could not avoid cumulating the

evidence. Thomas, supra. Here, Appellant waived his right to a jury trial

and was convicted following a bench trial before Judge Gibbons.         We can

presume the trial court was capable of separating the evidence when

considering each criminal charge. See Commonwealth v. O'Brien, 836

A.2d 966, 972 (Pa.Super. 2003) (explaining that a trial held before a judge

rather than a jury “minimizes if not eliminates the potential for prejudice”).

      Accordingly, we conclude that the trial court properly exercised its

discretion in consolidating Appellant’s retail cases for trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




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