Opinion
2284 EDA 2019 2285 EDA 2019
06-02-2021
COMMONWEALTH OF PENNSYLVANIA v. IAN GABRIEL Appellant COMMONWEALTH OF PENNSYLVANIA v. IAN GABRIEL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 20, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010878-2014, CP-51-CR-0012764-2014
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. [*]
MEMORANDUM
PANELLA, P.J.
Ian Gabriel appeals nunc pro tunc from the judgments of sentence after a consolidated jury trial. Appellant was found guilty of aggravated assault, robbery, rape, involuntary deviate sexual intercourse, conspiracy to commit rape, and sexual assault under CP-51-CR-0012764-2014 and aggravated assault, rape, involuntary deviate sexual intercourse, and sexual assault under CP-51-CR-0010878-2014. On appeal, Appellant contends the trial court erred in denying his pretrial motion to sever informations and motion to suppress DNA evidence. As we agree with the trial court that his claims are without merit, we affirm on the basis of the trial court opinion.
In its opinion, the trial court fully and correctly set forth the relevant facts of this case. See Trial Court Opinion, 12/23/2019, at 2-4. Therefore, we have no reason to restate them at length here. We note briefly that after it was discovered that DNA samples collected from the rape kits of two different victims matched each other, Appellant was identified as the offender in both cases.
Appellant filed a motion for modification of sentence which was denied by operation of law. Appellant then sought and was granted post-conviction relief by having his direct appeal rights restored nunc pro tunc, based on trial counsel not being timely notified of the denial of the motion for modification of sentence. Thereafter, Appellant timely filed two nunc pro tunc notices of appeal.
When a post-sentence motion is denied by operation of law, the clerk of courts is directed to enter an order on behalf of the court and "furnish a copy of the order … to … the defendant(s) and defense counsel...." Pa.R.Crim.P. 720(B)(3)(a). Our review of the record shows the clerk of courts failed to enter an order reflecting that Appellant's post-sentence motion was denied by operation of law, and failed to notify Appellant's counsel of the denial. The PCRA court found there was a breakdown in the system. See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (holding where the clerk of courts does not follow the rules of criminal procedure, such constitutes a breakdown in the lower court's processes). This "breakdown" was remedied by the PCRA court restoring Appellant's appeal rights. Therefore, we proceed to Appellant's substantive issues. On April 24, 2020, this Court issued rules to show cause why Appellant's appeals should not be quashed as interlocutory, finding there was no indication on the docket that Appellant's post-sentence motion had been ruled upon. After Appellant filed a response, the issue was referred to the merits panel for consideration. We decline to quash the appeal, finding this matter was already addressed by the PCRA court when it restored Appellant's appeal rights nunc pro tunc.
In light of our en banc decision in Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc), we decline to quash Appellant's appeals. In Johnson, we "observe[d] that [Pa.R.A.P.] 341 and Walker make no mention of case numbers on a notice of appeal." Id. at 1148. Specifically, the en banc panel opined that where an appellant files a separate notice of appeal at each trial court docket, "[t]he fact that the notices [of appeal] contained [more than one trial court docket number] is of no consequence." Id. The Johnson Court explicitly overruled the majority decision of a three-judge-panel in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) that held a notice of appeal was permitted to contain only one docket number. See Johnson, 236 A.3d at 1148. Because Appellant filed separate notices of appeal at each docket, as evidenced by separate time stamps, he has complied with Walker. Because Appellant included both trial court docket numbers on each notice of appeal, this Court issued rules to show cause why his appeals should not be quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant filed a response under each docket, stating he was aware separate notices needed to be filed, and therefore he filed separate notices under each docket but included both docket numbers due to the consolidated nature of the cases, and for purposes of judicial economy. In consideration of Appellant's response, our Court referred the Walker issue to the merits panel.
In his first issue, Appellant contends it was error for the trial court to deny his pretrial motion to sever informations pursuant to Pa.R.Crim.P. 582. See Appellant's Brief, at 17. Specifically, Appellant argues it was improper to consolidate the charges in a single trial, because evidence of either case was not admissible in the other, where (1) there was no shared motive, intent or common scheme of design between the cases, (2) the cases were not sufficiently similar, and (3) consolidation resulted in extreme prejudice against Appellant. See id.
The Pennsylvania Supreme Court has held that:
[w]hether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant. Consolidation of separate offenses in a single trial is proper if the evidence of each of them would be admissible in a separate trial for the others and is capable of separation by the jury so that there is no danger of confusion. Evidence of distinct crimes is inadmissible solely to demonstrate a defendant's criminal tendencies. Such evidence is admissible, however, to show a common plan, scheme or design embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. This will be true when there are shared similarities in the details of each crime.Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006) (citations omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that Appellant's first issue merits no relief. The trial court opinion properly addresses Appellant's claim, and we adopt it as our own. See Trial Court Opinion, 12/23/2019, at 4-6 (concluding consolidation was proper because there were sufficient similarities between the two underlying assaults so that evidence of each assault would be admissible in the other case to prove a common design; concluding there was no proof of jury confusion, stating there was no reason to believe the jury was unable to separate the evidence due to the length of the trial and the fact that different doctors and officers testified to the separate incidents; and concluding Appellant failed to prove he was prejudiced by consolidation).
We note a majority of Appellant's argument centers on the differences he finds between the two cases. His argument misinterprets the law in this regard, as the separate indictments do not need to be identical, but rather the trial court simply needs to find, in its discretion, that the circumstances had sufficient similarities to warrant consolidation. See e.g. Commonwealth v. Dozzo, 991 A.2d 898 (Pa. Super. 2010) (finding sufficient similarities between multiple robbery cases to warrant consolidation even where two of the robberies were committed with the assistance of a second individual because the evidence established a common scheme).
In Appellant's second issue, he contends it was error for the trial court to deny his pretrial motion to suppress DNA evidence. Specifically, Appellant argues the Commonwealth was required to obtain a warrant to extract, analyze and profile his DNA as mandated by Article I, §8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution.
In reviewing the denial of a suppression motion, we must determine whether the record supports the trial court's factual findings and whether the legal conclusions drawn from those facts are correct. See Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our standard of review is highly deferential to the suppression court's factual findings and credibility determinations, we afford no deference to the court's legal conclusions, and review such conclusions de novo. See Commonwealth v. Hughes, 836 A.2d 893, 898 (Pa. 2003).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that Appellant's second issue merits no relief. The trial court opinion properly addresses Appellant's claims, and we adopt it as our own. See Trial Court Opinion, 12/23/2019, at 6-8 (concluding this Court has previously rejected the same argument in Commonwealth v. Smith, 164 A.3d 1255, 1260 (Pa. Super. 2017), in which we held that extraction analysis of DNA for identification purposes does not require a separate warrant because it is not being used to reveal private medical information).
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.