Opinion
J-S38038-17 No. 3644 EDA 2016
08-21-2017
COMMONWEALTH OF PENNSYLVANIA Appellant v. DAVID HASSAN ALI HAYWOOD
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 16, 2016 in the Court of Common Pleas of Monroe County Criminal Division at No(s):CP-45-CR-0000876-2016 BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
The Commonwealth appeals from the order entered in the Monroe County Court of Common Pleas denying the motion for joinder and consolidation with Commonwealth v. David Hassan Ali Haywood , 3645 EDA 2016. The order further provided that the Commonwealth would not be permitted to introduce Appellee, David Hassan Ali Haywood's, prior convictions in its case in chief. The court deferred ruling on the remainder of the Commonwealth's Pa.R.Evid. 404(b) motion regarding other acts evidence until the time of trial. We affirm.
We note that the motion for joinder pursuant to Pa.R.Crim.P. 582 was filed in Haywood , 3645 EDA 2016, which is also before this panel on appeal. The Commonwealth has filed virtually identical briefs in each case. The trial court filed one Pa.R.A.P. 1925(a) opinion for both cases.
The trial court summarized the facts and procedural posture of this case as follows:
On April 4, 2016, while out on bail in case No. 115, [Appellee] was again arrested and charged with possessory drug offenses, as well as other crimes. This second set of charges stemmed from a domestic altercation that occurred between [Appellee] and his girlfriend, Shanice Armstrong-Woods.
Specifically, at approximately 4:30 p.m., officers from the Pocono Township Police Department were dispatched to the residence in response to a 911 call. A thirteen-year old boy reported that his mother and her boyfriend, [Appellee], were involved in a verbal argument which eventually turned physical. The boy also told emergency dispatchers that [Appellee] possessed a knife.
Upon arrival, officers observed [Appellee] exiting the residence. They made contact with [Appellee], and noticed that he was bleeding from his head. Upon speaking with [Appellee], the affiant immediately noticed an intense odor of marijuana emanating from his person. [Appellee] was then patted down, handcuffed, and advised that he was being detained until the scene could be secured. When asked what had happened, [Appellee] told police he had fallen and hit his head. [Appellee] added that he was trying to get away from his girlfriend and denied that a physical altercation had occurred.
Police then entered the residence in order to ensure the safety of the occupants. Upon entry, police detected a strong odor of marijuana. After ensuring everyone's safety, police questioned [Appellee's] girlfriend about the smell. She informed police that [Appellee] had smoked marijuana inside the home earlier in the day. She also provided details regarding the nature of the incident. She related that the couple had had a verbal argument over finances. She said that as [Appellee] attempted to leave, she had taken his car keys. As the argument escalated, her son briefly picked up a kitchen knife and then put it down to call 911. She said that [Appellee] then picked up the knife and demanded his keys.
An ambulance arrived to treat [Appellee's] head injury. Prior to allowing [Appellee] to enter the ambulance, police conducted a second pat down of [Appellee's] person. This time police discovered a small bag of marijuana in [Appellee's] pocket. Based on this finding and the odor in the residence, police applied for and received a search warrant for the residence as well as vehicles located on the property. The search yielded small amounts of marijuana and cocaine, drug paraphernalia, and approximately 750 bags of suspected heroin. The substances were subsequently tested and confirmed.
As a result, [Appellee] was charged with PWID-Heroin, Possession of Heroin, Possession of Cocaine, Possession of a Small Amount of Marijuana, two counts of Possession of Drug Paraphernalia, Terroristic Threats, Simple Assault, and Harassment.
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In June of 2016, several relevant submissions were filed or served. On June 21, 2016, [Appellee] filed in case No. 876 an omnibus motion seeking suppression of evidence. At or around the same time, the Commonwealth served on [Appellee] notices pursuant to Pa.R.E. 404(b) of its intent to introduce at trial "other acts" evidence consisting of "prior bad acts" perpetuated by [Appellant]. Specifically, the Commonwealth provided notice of its intent to introduce in each of these cases: (a) [Appellee's] acts and conduct and the crimes charged in the other case ("Cross-
Case Evidence"); and (b) [Appellee's] seven prior convictions in New Jersey for possession or possession with the intent to deliver drugs ("Prior PWID Evidence"). Thereafter, on June 27, 2016, the Commonwealth filed a motion to join these cases for trial.R.R. at 22a-25a (footnote omitted).
For the parties' convenience, we refer to the reproduced record where applicable.
On October 27, 2016, a hearing was held on Appellee's "objection to the Commonwealth's 404(b) notice in both cases." Id. at 217a.
[The Commonwealth:] And I would point out first, if we could look at it from a 404(b) standpoint, the first offense involved—excuse me. The first case involved a traffic stop where [Appellee] was then found to be in possession of 210 bags of heroin as well as some marijuana, and he was driving under the influence of marijuana. At that point, Your Honor, he had asserted that it was—the 200 bags were personal use. Then we—that was in November of 2015.
Then in early April of 2016, the facts giving rise to the case at 876 Criminal 2016, Pocono Township officers responded to [Appellee's] address for a domestic related call. At that time, [Appellee] was exiting the residence, was believed to be impaired. There was an odor of marijuana. When he was searched as part of his detention, when the officers were responding to the domestic, he was found to be in possession of a small amount of marijuana. There was then a search warrant executed upon the residence, and there was 700 bags of heroin located inside of the residence. And I would also note that both in the search of the vehicle as well as the search of the house a large sum of money was also recovered from each.
So if the cases were separated, Your Honor, the Commonwealth would be seeking to use evidence of the other offense as 404(b) notice in order to establish, most
importantly, intent. These are possession with intent to deliver offenses.Id. at 223a-25a, 227a.
[Appellee], to my understanding, he's always asserted that these packets of heroin have been for personal use and not related to any sort of transaction in illegal narcotics.
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And so we would seek to use the evidence of one as 404(b) evidence in the other.
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With regard to the other [7 PWID] offenses, Your Honor, the Commonwealth is not seeking to introduce those, obviously, as a propensity to commit crimes; but it goes first in rebuttal to [Appellee's] assertion that this is personal use and also to his intent, which is an element of the offense of PWID, that he, in fact, was possessing this heroin with intent to deliver it.
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[Defense counsel]: Your Honor, the seven prior PWIDs, you have to—we have to view this in a practical manner. The jury is going to hear that, and they are going to say, Well, there is absolutely no way he doesn't have a propensity to deal in heroin. That is the way it's going to be done. So it comes with a very high risk of unfair prejudice. And I don't think that we can simply presume in such circumstances that a [c]ourt instruction is going to ironclad steel their minds about making that inference.
Id. at 226a-27a.
Appellee had seven prior convictions in New Jersey for PWID. See id. at 57a-58a.
The court entered the following order:
AND NOW, this 15th day of November, 2016, it appearing that the Order dated November 1, 2016, inadvertently omitted a portion of the Court's ruling and contained an incorrect docket number in the caption, the Order dated November 1, 2016 is VACATED and replaced with the following:Id. at 30a. This timely appeal followed. The Commonwealth filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial court filed a responsive opinion.
After hearing, it is ORDERED that the Commonwealth's motion for joinder and consolidation of these cases is DENIED.
The Commonwealth will not be permitted to introduce [Appellee's] prior convictions in its case in chief.
The remainder of the Commonwealth's motion regarding other acts evidence will be decided at time of trial.
We note that
[S]ection 5505 of the Judicial Code provides that "a court . . . may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed." 42 Pa.C.S.A. § 5505. However, this thirty day limit only applies to the modification of final orders; interlocutory orders can be modified beyond the thirty-day time frame.
The Commonwealth raises the following issues for our review:
Whether the lower court erred in failing to rule on the Commonwealth's evidence of other acts evidence identified as the Cross-Case Evidence as provided in the Commonwealth's Pa.R.Evid. 404(b) Notice and allowing for modification of the admissibility of such evidence during trial by the trial judge, contrary to Pa.R.Crim.P. 580?Appellant's Brief at 5.
Whether the lower court abused its discretion in denying the Commonwealth's Motion to Join pursuant to Pa.R.Crim.P. 582(A) the Instant Matter with Commonwealth v. David Haywood , an issue properly before this Court, based upon the erroneous denial of the admission of the Pa.R.Evid. 404(b) evidence?
Whether the lower court abused its discretion in denying the admission at trial of all the Commonwealth's proffered Pa.R.Evid. 404(b) evidence, including the Prior PWI[D] Evidence and Cross-Case Evidence as provided in the Commonwealth's 404(b) notice?
For ease of disposition, we have reordered the Commonwealth's issues.
As a prefatory matter, we consider whether the trial court's deferred ruling on the other acts evidence identified as the "Cross-Case Evidence" is appealable. In the case sub judice, the trial court found the issue was unappealable pursuant to Pa.R.A.P. 311(d). See R.R. at 32a. We agree.
Rule 311 provides, in pertinent part, as follows:
(d) Commonwealth appeals in criminal cases.—In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.Pa.R.A.P. 311(d). Pursuant to Pa.R.A.P. 904, "[w]hen the Commonwealth takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall include a certification by counsel that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 904(e).
When the Commonwealth appealed the November 3rd order they filed a statement in compliance with Pa.R.A.P. 311(d) stating as follows:
The undersigned hereby certifies that the Court Order dated November 1, 2016, denying the Commonwealth's Motion for Joinder and denying the Commonwealth's 404(b) evidence as it related to [Appellee's] prior convictions for possession with intent to deliver, will substantially handicap the prosecution of [Appellee] in the above-captioned case.Notice of Appeal, 11/18/16 (emphasis added).
Under [Section 311(d)], the Commonwealth may appeal if it certifies the interlocutory order will terminate or substantially handicap the prosecution . . . . Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay. Failure to include the certification renders the questioned order unappealable.Commonwealth v. Brister , 16 A.3d 530, 533-34 (Pa. Super. 2011) (citations and quotation marks omitted).
In the case sub judice, the Commonwealth's Rule 311(d) certification did not refer to the deferred ruling on the Cross-Case evidence. Therefore, the issue is unappealable. See Brister , 16 A.3d at 533-34.
Next, the Commonwealth contends the trial court abused its discretion in denying the motion to join. The motion for joinder pursuant to Pa.R.Crim.P. 582 was not filed in the instant case. Furthermore, as the trial court opined, an order denying a motion for joinder is unappealable under Rule 311(d). See R.R. at 31a. In Commonwealth v. Woodard , 136 A.3d 1003 (Pa. Super. 2016), appeal denied, 158 A.3d 1242 (Pa. 2016), this Court opined:
an order denying joinder, like an order granting severance, is interlocutory and thus not appealable. Here, the Commonwealth is free to seek conviction on all counts, against each defendant, in . . . separate trials. Therefore, denial of the motion for joinder does not terminate or substantially handicap the prosecution and is not appealable under Rule 311(d). To expand Rule 311(d) to encompass such interlocutory review would be to disturb the orderly process of litigation. Strict application of the Rule assures that trials will go forward as scheduled.Id. at 1007 (citations and quotation marks omitted).
Lastly, the Commonwealth contends the trial court abused its discretion in denying the admission of its proffered Rule 404(b) evidence. See Commonwealth's Notice of Prior Bad Acts, R.R. at 59a-61a. The Commonwealth argues that "all of [its] proffered Rule 404(b) evidence is admissible as it is offered to support intent, common scheme, and/or knowledge of drug trafficking and the lower court's decision to deny the admission of the prior PWI[D] evidence and cross-case evidence is an abuse of discretion." Commonwealth's Brief at 16. The Commonwealth contends "the evidence proffered by [it] in this case has a proper purpose as permitted by Rule 404(b) and as the Commonwealth has demonstrated a need for this evidence and shown that the probative value of the evidence outweighs any prejudicial effect (including use of a cautionary instruction), the evidence should be permitted at trial." Id. at 23-24.
We note that the Commonwealth's Rule 311(d) statement does not raise the issue of the cross-case evidence. See Brister , 16 A.3d at 533-34. --------
Our review is governed by the following principles:
Evidence is admissible if it is relevant—that is, if it tends to establish a material fact, makes a fact at issue more or less probable, or supports a reasonable inference supporting a material fact—and its probative value outweighs the likelihood of unfair prejudice. Admissibility of evidence is within the sound discretion of the trial court and we will not disturb an evidentiary ruling absent an abuse of that discretion. Moreover, evidence of prior bad acts, while generally not admissible to prove bad character or criminal propensity, is admissible when proffered for some other relevant purpose so long as the probative value outweighs the prejudicial effect. Commonwealth v. Morris , [ ] 425 A.2d 715, 720 ([Pa.] 1981) (law does not allow use of evidence which tends solely to prove accused has criminal disposition). Such evidence may be admitted to show motive, identity, lack of accident or common plan or scheme. Commonwealth v. Briggs , [ ] 12 A.3d 291, 337 ([Pa.] 2011) (Rule 404(b)(2) permits other acts evidence to prove motive, lack of accident, common plan or scheme and identity). In order for other crimes evidence to be admissible, its probative value must outweigh its potential for unfair prejudice against the defendant, Pa.R.E. 404 (b)(2), and a comparison of the crimes proffered must show a logical connection between them and the crime currently charged.Commonwealth v. Hicks , 156 A.3d 1114, 1125 (Pa. 2017) (some citations and quotation marks omitted).
After careful consideration of the record, the parties' briefs, and the well-reasoned decision of the Honorable Jonathan Mark, we affirm on the basis of the trial court's decision. See Trial Ct. Op., 1/24/17, at 17-27 (holding the prejudicial effect of admitting the seven prior PWID convictions during the Commonwealth's case in chief would outweigh its probative value). Accordingly, having discerned no error of law or abuse of discretion, we affirm the order. See Hicks , 156 A.3d at 1125.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/21/2017
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Commonwealth v. James , 12 A.3d 388, 391 (Pa. Super. 2010), rev'd on other grounds, 69 A.3d 180 (Pa. 2013) (some citations omitted). In the instant case, the trial court modified the interlocutory order within thirty days.