Opinion
356 WDA 2021 J-S03020-22
04-08-2022
COMMONWEALTH OF PENNSYLVANIA v. CHARLES EDWARD BIBBS, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 8, 2020 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000633-2020
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J. [*]
MEMORANDUM
SULLIVAN, J.
Charles Edward Bibbs, Jr., appeals from the judgment of sentence imposed following his convictions for persons not to possess firearms and firearms not to be carried without a license. We affirm.
The factual and procedural history of this appeal is as follows. In October 2019, Bibbs and a co-conspirator, Douglas House, allegedly burglarized a home and took, among other items, a gun. In December 2019, House identified Bibbs to police as one of the burglars, and police obtained a warrant for Bibbs's arrest for the burglary. On January 2, 2020, Sergeant Steven DeLuca of the Erie Police Department stopped Bibbs in a car and arrested him on the burglary warrant. During a search pursuant to arrest, Sergeant DeLuca recovered the gun stolen in the burglary case from Bibbs.
The Commonwealth separately charged Bibbs at docket 556 of 2020 for the October 2019 burglary ("the burglary case"), and at docket 633 of 2020 with persons not to possess firearms, firearms not to be carried without a license, and receiving stolen property ("RSP") for possessing the gun on January 2, 2020 ("the firearms case"). In an apparent attempt to preempt the possible consolidation of the cases, Bibbs filed a "Motion to Sever" as part of his omnibus pretrial motions docketed in both cases. Omnibus Pretrial Motion, 7/20/20, at 2 (unpaginated). The Honorable David Ridge ("Judge Ridge"), the judge assigned to the burglary case, presided over the omnibus pre-trial motion. Judge Ridge ordered that the burglary and firearms cases be tried separately, having concluded that the cases lacked sufficient commonality or similarity. Judge Ridge expressly declined to rule on whether the evidence from the burglary case, in particular, House's statements implicating Bibbs in the burglary and the taking of the gun, would be admissible at trial of the firearms case. See Order, 9/15/20; N.T. Omnibus Pretrial Motion Hearing, 8/13/20, at 47.
The Commonwealth did not provide written notice of its intent to try the cases together as it would have been required to do under Pa.R.Crim.P. 582(B)(1), had it sought consolidation, which it never did.
We note that Judge Ridge was the motions judge for both the burglary case and the firearms case. The Commonwealth subsequently obtained continuances of the burglary case, while proceeding on the firearms case. For reasons not apparent in the record, the Honorable John Mead was assigned the firearms case following Judge Ridge's order that the burglary and firearms cases remain separate.
Trial counsel then filed a motion in limine in the firearms case to preclude the admission of any evidence from the burglary case, including House's testimony, claiming that such evidence would permit the Commonwealth to convict Bibbs in the firearms case based on Pa.R.E. 404(b) prior bad acts evidence. Motion in Limine, 10/7/20, at ¶¶ 7-8. The Honorable John Mead ("Judge Mead"), the trial judge assigned to the firearms case, denied the motion in limine. See N.T. Motion in Limine Hearing, 10/13/20, at 3-4.
At Bibbs's jury trial in the firearms case, House testified that he noticed a gun in a drawer, told Bibbs about the gun, and then turned his back. House continued, "[F]rom there . . . I don't know where the gun goes." House also testified that he later saw Bibbs with the gun. N.T., 10/14/20, at 47-48. Sergeant DeLuca testified that he recovered the gun when he arrested Bibbs on January 2, 2020.
Bibbs called several witnesses and testified on his own behalf. In relevant part, Bibbs testified that he found the gun outside of his girlfriend's apartment building on the morning of January 2, 2020, and that he was on his way to turn it over to the police when Sergeant DeLuca stopped him. Id. at 219-20. Bibbs also testified that he was not in Pennsylvania at the time of the burglary. Id. at 215-26.
The jury found Bibbs guilty of persons not to possess firearms and firearms not to be carried without a license, but it deadlocked on the RSP charge. On December 8, 2020, the trial court sentenced Bibbs to an aggregate prison term of nine to eighteen years. Judge Ridge and Judge Mead granted the Commonwealth's respective motions for orders of nolle prosequi of all charges in the burglary case, and the RSP charge in the firearms case.
Trial counsel filed a motion to withdraw on December 15, 2020. That same day, the trial court granted the motion and granted Bibbs an additional thirty days to file post-sentence motions. On January 11, 2021, Bibbs filed pro se post-sentence motions. The trial court entered an order denying Bibbs's pro se post-sentence motions, and Bibbs, having retained present counsel, appealed. Bibbs and the trial court complied with Pa.R.A.P. 1925.
We emphasize that when Bibbs filed his pro se post-sentence motions, he was not represented by counsel. Therefore, his post-sentence motions did not violate the rules against hybrid representation. See Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013) (noting that defendant has no right to hybrid representation either at trial or on appeal and cannot demand that the trial court address his pro se motions on the merits when he is counseled).
Bibbs's pro se post-sentence motions and his subsequent counseled notice of appeal were facially untimely. See Pa.R.A.P. 903(c)(3); Pa.R.Crim.P. 720(A). However, the trial court extended the time for Bibbs to file post-sentence motions, and nothing in the record establishes that the trial court apprised Bibbs of his post-sentence and appellate rights. Therefore, we will not quash this appeal on the grounds of untimeliness. See Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) (noting that the failure to advise a defendant of his post-sentence and appellate rights constitutes a court breakdown excusing the untimely filing of an appeal).
Bibbs raises the following issues for our review:
1. Did the trial court err when it denied [Bibbs's] pre-trial Motion in Limine, thereby allowing the Commonwealth to introduce evidence of other criminal allegations which were previously severed by another judge, as this ruling violated the law of the case doctrine and the coordinate jurisdiction rule?
2. Did the trial court err when it permitted the Commonwealth to introduce evidence that [Bibbs] was part of a burglary and conspiracy, which amounted to evidence of prior bad acts . . ., and was highly prejudicial to the appellant and outweighed any probative value?
3. Did the trial court . . . err when it deprived [Bibbs] of a formal arraignment, and/or adopted COVID-19 protocols that deprived him of a formal arraignment, in contravention of state and federal procedural and substantive due process, in violation of Article 1, Sections 1, 9, and 11 of the Pennsylvania Constitution, and the Fifth and Fourteenth Amendments of the U.S. Constitution?
The Commonwealth has not filed a brief in this appeal.
Bibbs first claims Judge Mead's denial of the motion in limine filed in the firearms case violated the coordinate jurisdiction rule.
Because Bibbs's claim raises a question of law, our standard and scope of review is de novo and plenary. See Commonwealth v. Viglione, 842 A.2d 454, 464 (Pa. Super. 2004) (en banc); Commonwealth v. Lancit, 139 A.3d 204, 206 (Pa. Super. 2016). The coordinate jurisdiction rule is part of the law of the case doctrine and prohibits a court involved in the later phases of a litigated matter from reopening questions decided by another judge of the same court in earlier phases of the matter. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995); see also Lancit, 139 A.3d at 207. The coordinate jurisdiction rule applies to the resolution of legal questions. Id. The coordinate jurisdiction rule focuses on the procedural posture and legal standards where the judges made their respective rulings. See Riccio v. Am. Republic Ins. Co., 705 A.2d 422, 425 (Pa. 1997). Our Supreme Court "has long recognized that under the coordinate jurisdiction rule, judges of coordinate jurisdiction sitting in the same case should not overrule each other's decisions." Id. (internal citation omitted; emphasis added).
Bibbs argues that when Judge Ridge ordered separate trials for the burglary and the firearms cases, he thereby determined that the evidence from the burglary case was inadmissible in the firearms case. Bibbs claims that by admitting, at the firearms case, evidence that he was involved in the burglary, Judge Mead violated the coordinate jurisdiction rule and improperly overruled Judge Ridge's order.
Bibbs misunderstands the coordinate jurisdiction rule in arguing its application here. As noted above, Bibbs filed an omnibus pretrial motion in both cases asking Judge Ridge to prevent consolidation of the burglary and firearms cases. Judge Ridge agreed with Bibbs's claim that the two cases lacked sufficient commonality or similarity and ordered separate trials. See Order, 9/15/20. However, Judge Ridge specifically declined to rule on any prospective evidentiary issues, stating that he would not consider "sua sponte motions in limine" because only the motion for separate trials was before him. N.T. Omnibus Pretrial Motion Hearing, 8/13/20, at 46-47. Judge Ridge thus did not rule on the admissibility of the burglary evidence in the firearms case.
Bibbs subsequently filed a motion in limine before Judge Mead, the trial judge in the firearms case, to preclude evidence from the burglary case at the firearms trial. Because Judge Ridge had never ruled on a motion in limine, Judge Mead's ruling on Bibbs's motion in limine could not have triggered the application of the coordinate jurisdiction rule. Even if Judge Ridge had opined on the admissibility of the evidence at the firearms case (which he did not), the coordinate jurisdiction rule would not be implicated because Judge Ridge decided the motion for separate trials, not the admission of evidence at those trials. Cf. Riccio, 705 A.2d at 425.
In sum, Judge Ridge's rulings and order clearly established that they were limited to the separate trials of the cases. Judge Ridge expressly refused to rule on the admissibility, at the firearms trial, of evidence of Bibbs's participation, or taking the gun, in the burglary case. The record therefore defeats Bibbs's assertion that Judge Ridge decided the admissibility of evidence from the burglary case at the firearms case, and that Judge Mead re-decided that issue in violation of the coordinate jurisdiction rule. The coordinate jurisdiction rule has no application here where the challenged prior ruling was from a different case (and in a different procedure posture). For these reasons, Bibbs's first issue merits no relief.
Bibbs next claims that Judge Mead abused his discretion in denying Bibbs's pretrial motion in limine to exclude, under Pa.R.E. 404(b), all evidence that he participated in the burglary and stole the gun, which the Commonwealth had offered as evidence of Bibbs's knowledge that the gun was stolen, an element of RSP. He claims that "given the lack of substantial evidence of [his] involvement in [the burglary case] and the severe nature of the conduct [in that case], the potential for prejudice [was] extremely high." Bibbs's Brief at 48.
It is well settled that the "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super. 2015) (en banc) (internal citation and quotation marks omitted); see also Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (noting that an appellate court applies an evidentiary abuse of discretion standard when reviewing the denial of a motion in limine). "Accordingly, a ruling admitting evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (internal citations and quotation marks omitted).
Rule 404(b) prohibits evidence of a defendant's prior bad acts "to prove a person's character" or demonstrate "that on a particular occasion the person acted in accordance with the character." Pa.R.E. 404(b)(1). However, prior bad acts evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E. 404(b)(2). "In a criminal case, this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Id. "Unfair prejudice means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Tyson, 119 A.3d at 360 (internal citation and quotation marks omitted). However, a trial court "is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged." See Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (internal citations and quotation marks omitted).
The trial court explained that evidence from the burglary case was probative to establish that Bibbs knew or should have known that the gun was stolen, which is directly relevant to the RSP charge. See N.T. Motion in Limine Hearing, 10/13/20, at 3. The trial court further stated that the probative value of the evidence implicating Bibbs in the burglary outweighed its prejudicial effect. See id. at 3-4.
We note at the outset that despite the admission of this allegedly unfairly prejudicial evidence, the jury could not reach a verdict on RSP, and that the Commonwealth subsequently sought an order of nolle prosequi on that charge. In any event, we discern no abuse of discretion in the trial court's ruling. In the firearms case, the Commonwealth charged Bibbs with RSP, which required the Commonwealth to prove that Bibbs received the gun "knowing that it ha[d] been stolen, or believing that it has probably been stolen." 18 Pa.C.S.A. § 3925(a). Thus, the evidence that Bibbs participated in the burglary was probative of a material fact in this case, i.e., his knowledge that the pistol was stolen. See Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa. Super. 2010) (noting that "[a] person 'knows' that goods are stolen if he is 'aware' of that fact" (citing 18 Pa.C.S.A. § 302(b)(2)(i)). Further, we agree with the trial court that the probative value of this evidence outweighed its prejudicial effect. See Dillon, 925 A.2d at 141. For these reasons, we discern no merit to Bibbs's claim that the trial court abused its discretion when admitting evidence of the burglary pursuant to Rule 404(b) at the trial in the firearms case. See Tyson, 119 A.3d at 357.
In his final issue, Bibbs argues that the failure to hold a formal arraignment in the firearms case violated his due process rights.
"A question regarding whether a due process violation occurred is a question of law for which the standard of review is de novo and the scope of review is plenary." Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017) (internal citation and quotation marks omitted).
[T]he purpose and necessity of an arraignment is to fix the identity of the accused, to inform him of the nature of the charges against him and to give him the opportunity of informing the court of his plea thereto. Due process of law does not require that any technical form of procedure be followed so long as the identity of the accused is definite, sufficient notice of the charges is given, and ample opportunity to plead afforded.Commonwealth v. Leland, 204 A.3d 461, 465-66 (Pa. Super. 2019) (citation omitted); see also Pa.R.Crim.P. 571. In Leland, this Court reviewed United States and Pennsylvania Supreme Court decisions and distilled the following principle: "when a defendant does not formally plead guilty to a charge but still actively defends against the charge, his actions are tantamount to a not-guilty plea." Leland, 204 A.3d at 468. The Court further noted that the absence of a formal arraignment is a "technical" defect that requires prejudice to merit relief. Id. at 466-67.
Bibbs argues that neither Judge Ridge nor Judge Mead took steps to ensure he was apprised of the charges against him before trial. Bibbs acknowledges the technical nature of the defect here but claims he suffered prejudice in combination with the other errors that occurred in this case. Bibbs's Brief at 55. Bibbs's assertions of prejudice lack any support in the record. Although the record does not contain a transcript of a formal arraignment, or waiver thereof, there was ample indication that Bibbs was aware of the nature of the charges against him in the firearms case. The record in this case also contains an amended information that the Commonwealth filed in October 2020. The reverse side of the amended criminal information bears Bibbs's and trial counsel's signatures underneath preprinted statements that Bibbs had been arraigned and entered pleas of not guilty. Furthermore, as noted above, Bibbs extensively litigated the separation of the burglary and the firearms cases as well as the admissibility of evidence about the burglary under Rule 404(b). Bibbs also proceeded to trial and actively defended himself. For these reasons, even if the trial court failed to hold a formal arraignment, Bibbs has failed to establish any prejudice meriting a new trial. See Leland, 204 A.3d at 466-68. Accordingly, Bibbs's final issue fails.
Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.