J-S36005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CRAIG ROBERT GOOD                          :
                                               :
                       Appellant               :   No. 8 MDA 2019

       Appeal from the Judgment of Sentence Entered December 6, 2018
                 In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000217-2018


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                       FILED SEPTEMBER 06, 2019

        Appellant, Craig Robert Good, challenges the judgment of sentence

entered in the Berks County Court of Common Pleas, following his convictions

for criminal trespass and related crimes. Specifically, Appellant contests the

denial of his motion to sever the charges stemming from multiple criminal

episodes in which he broke into his victims’ homes. After careful review, we

affirm.

        Police investigated a series of nighttime home break-ins, beginning with

Danny O’Boyle’s home in Sinking Spring, Pennsylvania, late in the evening on

November 30, 2017. The burglar entered through an unlocked back door

sometime after 10 p.m., when O’Boyle and his wife were asleep, and took

O’Boyle’s iPhone, iPad, wallet, and 2005 Hyundai Sonata. O’Boyle identified

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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several fraudulent transactions on the card made after the burglary, including

two purchases at different Sunoco gas stations, and another transaction at a

Wawa.

     The next victim, Heather Smith, lived in West Lawn, a short distance

away from O’Boyle’s home. On the morning of December 1, 2017, Smith rose

for work around 3 a.m., and looked for her purse downstairs. During the

search, she noticed a second purse and a lunchbox were missing, and that the

back door was ajar. Smith called police to report the burglary. Smith’s credit

card was charged four times beginning at 2 a.m., and ending two days later

when Smith cancelled the card. Smith’s credit card company did not inform

her of where the card had been used; however, Smith had not authorized any

of the charges.

     Stephanie Ruffing also reported a break-in just over a week later, on

December 9, 2017. Ruffing also lived in West Lawn, less than half a mile from

Smith. Ruffing had fallen asleep on her couch, and was woken by her dog

barking at around 5 a.m. Ruffing initially thought the figure she saw in her

dining room was her husband, until he did not respond to her queries. The

man grabbed some coats and threw them toward the dog before fleeing

through the back door, which had been unlocked that evening. Ruffing did not

report anything missing.

     Finally, on December 17, 2017, Josephine and Monica Lash reported

their home had been burglarized. When she woke up at 5 a.m. for work,

Josephine noticed the window on her front porch was open. She saw her purse

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was missing, along with Monica’s purse and the keys to their Subaru Forester.

Josephine also observed a few drops of blood on the curtain covering the open

window where the burglar entered. Josephine’s card had been used twice

before 5 a.m. that morning, at the nearby Turkey Hill and Wawa convenience

stores. Monica’s card was used three times, from 4 a.m. until 5:30 a.m., at

the Wawa, Sunoco, and Turkey Hill stores.

      Several of the convenience stores were able to provide investigators

with footage of the suspect who used the stolen cards there. Stills taken from

the videos showed the same older, white male in each of the locations. The

cars taken from the O’Boyle and Lash residences were also visible in several

of the photos. Detectives circulated these photos to a countywide law

enforcement network. Shortly thereafter, an officer from a local department

identified the individual in the photos as Appellant.

      Appellant was arrested and charged with four counts each of burglary,

criminal trespass, receiving stolen property, and identity theft, as well as nine

counts of access device fraud, five counts of loitering and prowling at

nighttime, and two counts of theft by unlawful taking. He filed a motion for

severance of the charges pertaining to each criminal incident; after a hearing,

the court denied the motion.

      Appellant proceeded to a jury trial. At the close of trial, Appellant moved

for judgment of acquittal on all counts. The court determined the

Commonwealth had charged Appellant under a number of incorrect provisions,

including burglary charges that required proof of threat to commit bodily

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injury. The court granted the motion as to all of the burglary and access device

fraud counts, as well as the charges pertaining to the break-in at Stephanie

Ruffing’s home. Thus, the jury proceeded to deliberations on four counts of

receiving stolen property and identity theft, three counts of criminal trespass

and loitering and prowling at nighttime, and two counts of theft by unlawful

taking.1 The jury found Appellant guilty of all counts.

       The court ordered a pre-sentence investigation. At sentencing, the court

imposed an aggregate sentence of sixteen and one-half to forty years’

incarceration. Appellant filed a motion to modify sentence, which was denied.

Appellant then timely filed a notice of appeal, and complied with the dictates

of Pa.R.A.P. 1925(b). This appeal is now properly before us.

       Appellant raises a single issue on appeal, arguing that the trial court

erred in denying his motion for severance. Appellant contends that none of

the burglaries would have been admissible in separate trials, because they did

not share a common plan or scheme. Instead, Appellant asserts that the only

similarities shared are those common to most burglaries. Appellant concludes

this Court must reverse his convictions and remand for a new trial. We

disagree.

       “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



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1 18 Pa.C.S.A. §§ 3925(a); 4120(a); 3503(a)(1)(i); 5506; and 3921(a),
respectively.

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discretion.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1282

(Pa. Super. 2004) (en banc) (ellipses in original; citation omitted).

      Pennsylvania Rule of Criminal Procedure 582 allows offenses charged in

separate indictments or informations to be tried together, so long as “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)(a). If it appears joinder will prejudice a

party, the court may order separate trials of offenses. See Pa.R.Crim.P. 583.

However, “it is assumed that offenses charged in the same information will be

tried together, unless the court orders separate trials.” Commonwealth v.

Cole, 167 A.3d 49, 56 (Pa. Super. 2017) (citation omitted).

      Where the defendant moves to sever offenses not based on the
      same act or transaction that have been consolidated in a single
      indictment or information, or opposes joinder of separate
      indictments or informations, the court must therefore determine:
      [1] whether the evidence of each of the offenses would be
      admissible in a separate trial for the other; [2] 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, [3] whether the defendant will be unduly prejudiced
      by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (brackets in

original, citation omitted).

      While evidence of a previous crime is not admissible simply to prove a

person’s character in a criminal trial, the evidence may be admitted for

another purpose, such as to prove motive, opportunity, intent, preparation,

plan, knowledge, or identity. See Pa.R.E. 404(b)(1)-(2). In admitting the


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evidence, the court must determine whether its probative value outweighs its

potential for unfair prejudice. See Pa.R.E. 404(b)(2). When considering

admissibility on the basis of a common scheme between crimes, the trial court

should note the elapsed time between the crimes, geographical proximity of

the crime scenes, and manner in which the crimes were committed. See

Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010).

      We note that, “where a trial concerns distinct criminal offenses that are

distinguishable in time, space and the characters involved, a jury is capable is

separating the evidence.” Id., at 903 (citation omitted). Further, in order to

necessitate severance of the charges, any “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.”

Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015) (citation

omitted).

      Here, there were many similarities between the burglary offenses

charged against Appellant in the single, 32-count criminal information. The

robberies occurred within a three-week span. See N.T. Trial, 10/22/18, at

105, 111, 122, 130. The victims all lived within a two-mile radius of Appellant’s

home. See N.T. Trial, 10/23/18, at 197.

      The burglar broke into each of the houses by using an unlocked back

door or window. N.T. Trial, 10/22/18, at 109, 112, 125, 142. The burglar

waited until late at night, while the victims were asleep, to break in. See N.T.

Trial, 10/23/18, at 172. Police testified that these nighttime break-ins were

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not “normal burglaries” for the area, which saw most of its home invasions

during daylight hours while the owners were out. Id., at 163.

      Once inside, the burglar took wallets and purses, with a specific interest

in the victims’ credit cards. He also took vehicles from two of the victims,

which were later found abandoned. See id., at 196. The victims’ credit cards

were used at local convenience stores, including Turkey Hill, Wawa, and

Sunoco, and the thief only charged purchases of $20.00 or less. See

Commonwealth’s Exhibits 1-4. The evidence demonstrates the burglaries were

close in time and location, and committed in a similar manner.

      Further, evidence from each burglary was relevant to establish

Appellant’s identity as the perpetrator. Several of the convenience stores

provided surveillance footage of Appellant using the stolen cards and driving

the stolen vehicles. See Commonwealth’s Exhibits 5-25. The blood on the

curtains at the Lash home was tested and found to belong to Appellant. See

N.T. Trial, 10/23/18, at 292. Finally, items taken from Appellant’s home

pursuant to a search warrant were matched to items Appellant was wearing

in the various surveillance footage by which he was identified. N.T. Trial,

10/23/18, 255-258. Thus, we find the evidence was properly admissible.

      The record also confirms the jury was capable of separating the evidence

of each crime. The jury verdict sheet specified which counts pertained to each

victim, and described the items alleged to have been stolen. We do not find a

high risk of confusion among the jury likely under such circumstances.




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      Finally, Appellant was not unfairly prejudiced by the trial court’s denial

of his motion for severance. As the trial court aptly summarized:

      Appellant committed a series of early morning home invasions in
      Spring Township during the month of December, 2017.
      Surveillance cameras then captured footage of him using the
      victims’ stolen credit cards at several convenience stores. Allowing
      the jury to hear evidence connecting [] Appellant to the home
      invasions and establishing his identity did not constitute undue
      prejudice.

Trial Court Opinion, filed 3/8/19, at 5-6.

      We agree. As such, we find Appellant is due no relief on this issue, and

accordingly affirm his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019




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