Opinion
J-S21026-16 No. 3154 EDA 2014
05-04-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JESSE SMOOT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 20, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005867-2013, CP-09-CR-0005868-2013, CP-09-CR-0005869-2013, CP-09-CR-0005875-2013, CP-09-CR-0005876-2013, CP-09-CR-0005879-2013, CP-09-CR-0005882-2013, CP-09-CR-0005883-2013 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Jesse Smoot appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County. After our review, we rely on the comprehensive opinion authored by the Honorable Wallace H. Bateman, Jr. to affirm the judgment of sentence.
A jury convicted Smoot of ten counts of robbery, ten counts of theft by unlawful taking, eight counts of conspiracy and five counts of terroristic threats. The charges stemmed from a string of armed robberies at local businesses in North Wales and Horsham, Montgomery County, and Langhorne, Fairless Hills, Yardley, New Britain and Middletown Township, Bucks County.
18 Pa.C.S. § 3701(a)(1)(ii), (iv).
The trial court granted the Commonwealth's motion for consolidation.
Following trial, the court sentenced Smoot to twenty-eight (28) to seventy (70) years' incarceration, following by fifty-five (55) years' probation. Smoot filed a post-sentence motion, which the sentencing court denied. This appeal followed.
On appeal, Smoot raises six issues for our review:
1. The trial court abused its discretion in denying the Appellant's pretrial motion for continuance where the court permitted new counsel to enter [his appearance] on behalf of Appellant to represent him at trial, but allowed new counsel less than twenty (20) days to be ready to try a case involving ten different armed robberies, and where on the day of trial, defense counsel candidly advised the trial court that he was not prepared to properly litigate the Appellant's claim and defend him at trial?
2. The Appellant was denied a fair trial where the Commonwealth hid the fact, until Appellant's sentencing, despite having been asked prior to trial, that it had negotiated a sentence with Commonwealth witness John Ferraro, in return for his testimony, at trial, thereby allowing its principal Commonwealth witness to testify falsely at the Appellant's trial, in violation of federal and state law, adopted by the Courts, in Brady v. Maryland , 373 U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194 (1963), and the Court should arrest the verdicts and judgment of sentence, and discharge the
Appellant. See Commonwealth v. Jay. C. Smith , 532 Pa. 177, 615 A.2d 321 (1992); Commonwealth v. Simons , 514 Pa. 10, 16, 522 A.2d 537, 540 (1987); Oregon v. Kennedy , 456 U.S. 667, 102 S. Ct. 2083, 72 L.Ed. 2d 416 (1982).
3. The trial court abused its discretion and committed errors of law in not granting Appellant's motion to sever the ten robbery cases where the evidence admissible in some cases was not admissible in the others and where the victims were different and the dates of the robberies were different.
4. The trial court abused its discretion and committed errors of law in denying Appellant's motion for mistrial, where the trial court allowed and the Appellant objected to Commonwealth's introduction of prior bad acts, allegedly committed by the Appellant, thereby unduly prejudicing the Appellant and denying him a fair trial.
5. The trial court erred in not granting Appellant's motion for mistrial, where the Commonwealth introduced alleged voice identification evidence at trial, tough Commonwealth witness Cameron Ralston, where the voice identifier was not able to identify the Appellant's voice and the court allowed Detective Andrew Amoroso to identify the Appellant's voice as that of the robber, even though the Detective was not present at or during the robbery in question.
6. Appellant was sentenced to an aggregate sentence of twenty-eight (28) to seventy (70) years['] incarceration, in a state correctional institution, followed by fifty-five (55) years [of probation] for his February 7, 2014 convictions of ten (10) counts of Robbery, ten (10) counts of Theft by Unlawful Taking, eight (8) counts of Criminal Conspiracy, and five (5) counts of Terroristic Threats, by Bucks County Court of Common Pleas Judge, the Honorable Wallace H. Bateman, for crimes that the Appellant did not commit and where the
evidence presented by the Commonwealth was insufficient to sustain the verdicts, therefore Appellant's sentence was excessive, harsh and unlawful.Appellant's Brief, at 7-8.
Smoot filed a "Motion for an Order Directing the Clerk of Courts of Bucks County to Certify the Sentencing Transcript of March 11, 2014, in Commonwealth v. John Ferraro, Docketed at CP-09-0005863-2013, as Part of the Appellate Record." We deny this motion. Although the transcript has been included in the Reproduced Record, it is unnecessary to our review and disposition of the issue.
Smoot has abandoned the sufficiency of the evidence claims in the Argument section of his appellate brief. See Pa.R.A.P. 2119.
Smoot first argues that his new counsel had only twenty days to prepare for trial. Smoot hired a new attorney, his third, shortly before the start of trial, and after the court had already granted two continuances at Smoot's request. Smoot claims his third attorney advised the court on the day of trial that he was not prepared to defend Smoot at trial. However, the court noted that the changes in counsel resulted in various delays, and that after granting the second continuance, the court informed Smoot it would grant no further continuances. The trial court determined that Smoot's change of counsel served to "clog the machine of justice." See Trial Court Opinion, 3/27/15, at 74. Under the circumstances, we agree, and we find no abuse of discretion. See Commonwealth v. Boxley , 948 A.2d 742, 746 (Pa. 2008); see also Commonwealth v. Brown , 505 A.2d 295, 298 (Pa. Super. 1986).
Smoot also claims the Commonwealth committed prosecutorial misconduct by failing to disclose a negotiated sentence with co-conspirator John Ferraro, the getaway driver in six of the robberies, in violation of Brady v. Maryland , 373 U.S. 83 (1963). Smoot claims the Commonwealth "hid" the fact of a negotiated sentence, "thereby allowing its principal . . . witness to testify falsely at [his] trial[.]" Appellant's Brief, at 16. Smoot's argument relies on the prosecutor's misstatement at Smoot's sentencing hearing. There, the prosecutor inadvertently referred to Ferraro's plea as negotiated. See N.T. Sentencing, 6/20/14, at 133. Thereafter, at the October 15, 2014 hearing on post-trial motions, the prosecutor stated: "[W]ith regards to Mr. Ferraro, there were no negotiations on or off the record." N.T. Post-Trial Motions, 10/15/14, at 71. Referring to a January 21, 2014 letter from the Bucks County District Attorney's Office to Clinton Johnson, Esquire, Smoot's defense counsel, attached as Exhibit A of the Commonwealth's sentencing memorandum, the prosecutor stated:
Number 2 of that same letter states: On January 6th, 2014, John Ferraro pled guilty before the Honorable Judge Wallace Bateman, and his sentencing was deferred. Mr. Ferraro has no agreement with the Commonwealth regarding his cooperation, nor has he entered into any negotiations with the Commonwealth. This is absolutely 100 percent accurate. At Mr. Smoot's sentencing, and those are the pages I believe that have been provided by Mr. Johnson, I mistakenly said that both defendants were negotiations. That was wrong. And as soon as I realized that was wrong, I called Mr. Johnson on phone, and I told Mr. Johnson on the phone that that was wrong. I then, Your Honor, followed up with a letter, an e-mail. . . . That I misstated that both were negotiated. Exhibit C, Your Honor, in the reconsideration memo that I've made part of the record, is an e-mail from myself to Mr. Johnson that states: I noticed in your motion for post-sentence relief that you allege that I've committed [a] Brady violation. One of the allegations that you
made is based on a supposed deal between the Commonwealth and Mr. Ferraro. You allege that I withheld the negotiation until the time of sentencing. I believe this is based on a misstatement that was made at Mr. Smoot's sentencing. I then go on: Please find a copy of the transcript from Mr. Ferraro's sentencing to support that there was no such deal. In fact, if you look to Page 36, you will note that I had asked the Court for a sentence higher than that which was handed down. . . . Mr. Johnson absolutely had the information that Mr. Ferraro pled guilty. He absolutely had the information that it was an open guilty plea. . . . Mr. Johnson was given an opportunity to review all of the evidence, all of the materials, all of the discovery in this case, and that was consistent with my open-file policy.N.T. Post-Trial Motions, 10/15/14, at 71-79. We agree with the court's reasoning that this information did not meet the three-part Brady test - the prosecutor did not suppress evidence; the evidence was not helpful to Smoot; and Smoot was not prejudiced. See Trial Court Opinion, 3/27/15, at 80-81.
Number 1 referred to co-conspirator Bruce Epp, who Smoot used as a getaway driver when Ferraro was not available.
Next, Smoot claims that the trial court abused its discretion in denying his motion to sever the ten robbery cases where the evidence admissible in some cases was not admissible in the others, and where the victims were different and the dates of the robberies were different. We find no abuse of discretion. Commonwealth v. Jones , 610 A.2d 931, 936 (Pa. 1992). In the trial of one robbery, evidence of the other nine was admissible as a common scheme. The Commonwealth satisfied the three-part test set forth in Commonwealth v. Lark , 543 A.2d 491, (Pa. 1988) (evidence of each offense admissible in separate trial for others; such evidence is capable of separation by jury to avoid danger of confusion and, if answers to these inquiries are affirmative, whether defendant will be unduly prejudiced by consolidation of offenses).
In his fourth issue, Smoot claims that the trial court erred in denying his motion for a mistrial, where the trial court allowed and Smoot objected to the Commonwealth's introduction of prior bad acts, in particular, prior drug use. Evidence of prior bad acts is not admissible to show propensity, but is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident . . . [and] is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2). Here, the Commonwealth introduced evidence that Smoot used the money he obtained from the robberies to purchase Percocet. The evidence was admissible, therefore, to prove motive, as well as to "complete the story of [the] crime." See Lark , supra at 497. We find no error or abuse of discretion. See Trial Court Opinion, 3/27/15, at 68-71.
Next, Smoot claims that the trial court erred in denying his motion for a mistrial where the Commonwealth introduced voice identification evidence at trial. The trial court properly allowed the jury to weigh the witness' testimony that the voice he heard from Smoot in the courthouse was the same voice of the robber. We find no error. See Commonwealth v. Jones , 954 A.2d 1194, 1997 (Pa. Super. 2008) (witness may testify as to defendant's identity from voice alone; weight to be accorded such identification testimony is for trier of fact). See also Trial Court Opinion, 3/27/15, at 57-60.
Finally, Smoot argues his sentence was excessive. Smoot acknowledges that a challenge to the discretionary aspects of sentence is considered a petition for permission to appeal and not an appeal as of right. See Appellant's Brief, at 33. He also acknowledges the requirement of a Pa.R.A.P. 2119(f) statement presenting a substantial question as to the appropriateness of the sentence. Id. at 33-34. However, he fails to present a separate Rule 2119(f) Statement in his brief. See Pa.R.A.P. 2119(f). While this does not automatically waive his claim on appeal, "we may not reach the merits of claims where the Commonwealth has object[ed] to the omission of the statement." Commonwealth v. Farmer , 758 A.2d 173, 182 (Pa. Super. 2000) (citation omitted). See also Commonwealth v. Hudson , 820 A.2d 720 (Pa. Super. 2003). Here, the Commonwealth has noted its objection to the omission of the Rule 2119(f) statement, see Commonwealth's Brief, at 49, and, accordingly, we find that Smoot has waived his challenge to the discretionary aspects of his sentence.
We have reviewed Judge Bateman's well-reasoned opinion, which comprehensively analyzes Smoot's claims on appeal, and therefore, we adopt his Pa.R.A.P. 1925(a) opinion. We direct the parties to attach a copy of Judge Bateman's opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/4/2016
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