Commonwealth v. Ferguson

J-A29031-14

2015 PA Super 1

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL DUANE FERGUSON, :
:
Appellant : No. 67 WDA 2014

Appeal from the Judgment of Sentence Entered November 4, 2013,
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000874-2012

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL DUANE FERGUSON, :
:
Appellant : No. 68 WDA 2014

Appeal from the Judgment of Sentence Entered November 4, 2013,
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000761-2012

BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED JANUARY 05, 2015

Michael Duane Ferguson (Appellant) appeals from the judgment of

sentence entered on November 4, 2013,1 following his convictions for, inter

1
Appellant purports to appeal from the order denying his post-sentence
motions and reaffirming his sentence. We have corrected the caption to
reflect that Appellant’s appeal properly lies from the judgment of sentence
entered on November 4, 2013, not the order denying his post-sentence

* Retired Senior Judge assigned to the Superior Court.
J-A29031-14

alia, three counts each of robbery, criminal conspiracy to commit robbery,

terroristic threats, persons not to possess firearms, and one count of simple

assault. Upon review, we affirm Appellant’s convictions, vacate his

judgment of sentence, and remand for resentencing.

Appellant was charged with several offenses in criminal informations

filed at three separate dockets. At docket CP-20-CR-0000761-2012 (761-

2012), the Commonwealth charged Appellant with numerous crimes in

connection with the armed robberies of three Crawford County bars, which

occurred in July 2012. At docket CP-20-CR-0000757-2012 (757-2012),

which is not at issue in this appeal, the Commonwealth charged Appellant

with multiple offenses relating to Appellant’s possession of a sawed-off

shotgun subsequently seized by police. At docket CP-20-CR-0000874-2012

(874-2012), the Commonwealth charged Appellant with simple assault and

harassment as a result of an altercation between Appellant and Harry Boyer

(Boyer), a co-conspirator in the robberies, which occurred on August 28,

2012, at the Crawford County Correctional Facility.

On July 24, 2013, the Commonwealth filed a motion to join all three

informations for trial. It appears that the trial court held argument on the

motion, wherein the Commonwealth presented “informal” information that,

inter alia, suggested that at the time of the altercation between Appellant

and Boyer, Appellant made statements loud enough for a correctional officer

motions. Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super.
2003) (en banc).

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and Boyer to hear that Appellant had previously warned Boyer that he would

kill Boyer if Boyer snitched on Appellant. Trial Court Memorandum and

Order, 8/21/2013, at 2, 4. Following argument, the trial court issued a

memorandum and order ruling that the offenses listed at dockets 761-2012

and 874-2012 be joined for trial, but that the charges at docket 757-2012

be handled in a separate proceeding.

A jury trial commenced at dockets 761-2012 and 874-2012 on

September 9, 2013. Following trial, the jury convicted Appellant on all

counts. On November 4, 2013, the trial court sentenced Appellant at both

dockets to an aggregate 35 to 73 years’ incarceration, with credit for time

served. Appellant timely filed post-sentence motions, which the trial court

denied on January 3, 2014. Appellant then appealed to this Court.2

Appellant presents the following issues for our consideration:

1. Did the [t]rial [c]ourt err in joining for trial the charge of
simple assault with the robbery and related offenses?

2. Did the jury fully and adequately deliberate the facts of the
cases or the law as it would apply to [A]ppellant’s cases?

3. Were the verdicts against the weight of the evidence?

Appellant’s Brief at 5.

In his first issue, Appellant argues that joinder was improper because

it resulted in prejudice to him, as evidence of each case would not have been

2
Appellant appealed at both docket numbers. By order dated April 25, 2014,
this Court issued an order sua sponte consolidating the appeals.

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admissible in the other, and the robberies and simple assault were not part

of the same act or transaction.

“Whether [] 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.” Commonwealth v. Robinson, 864 A.2d 460,

481 (Pa. 2004) (quoting Commonwealth v. Newman, 598 A.2d 275, 277

(Pa. 1991)). Furthermore, “Appellant bears the burden of establishing such

prejudice.” Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278,

1282 (Pa. Super. 2004) (en banc).

The Pennsylvania Rules of Criminal Procedure govern the joinder and

severance of offenses as follows:

Joinder--Trial of Separate Indictments or Informations

(A) Standards

(1) Offenses charged in separate indictments or
informations may be tried together if:

(a) the 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; or

(b) the offenses charged are based on
the same act or transaction.

Pa.R.Crim.P. 582(A)(1).

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Severance of Offenses or Defendants

The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears that
any party may be prejudiced by offenses or defendants being
tried together.

Pa.R.Crim.P. 583. Under Rule 583, the 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. Lauro, 819 A.2d 100, 107 (Pa. Super. 2003).

[T]he “prejudice” of which Rule [583] speaks is not simply
prejudice in the sense that appellant will be linked to the crimes
for which he is being prosecuted, for that sort of prejudice is
ostensibly the purpose of all Commonwealth evidence. The
prejudice of which Rule [583] speaks is, rather, that which would
occur if the evidence tended to convict [the] appellant only by
showing his propensity to commit crimes, or because the jury
was incapable of separating the evidence or could not avoid
cumulating the evidence.

Id. (emphasis in original) (quoting Commonwealth v. Collins, 703 A.2d

418, 423 (Pa. 1997)). Moreover, “the admission of relevant evidence

connecting a defendant to the crimes charged is a natural consequence of a

criminal trial, and it is not grounds for severance by itself.” Id. (quoting

Collins, 703 A.2d at 423).

Reading these rules together, our Supreme Court established the

following test for severance matters:

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

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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.

Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 543 A.2d 491,

496–97 (Pa. 1988)).

Pursuant to this test, we must first determine whether the trial court

abused its discretion in holding that evidence of each of the offenses would

be admissible in a separate trial for the other. In making this determination,

we are mindful that “[e]vidence of crimes other than the one in question is

not admissible solely to show the defendant’s bad character or propensity to

commit crime.” Id.; see Pa.R.E. 404(b)(1) (providing that “[e]vidence of a

crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance

with the character”). Nevertheless, “[t]his 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); see Melendez–Rodriguez, 856 A.2d at 1283 (explaining that

evidence of other crimes is admissible to show, inter alia, motive, intent,

absence of mistake or accident, common scheme or plan, and identity). “In

order for evidence of prior bad acts to be admissible as evidence of motive,

the prior bad acts ‘must give sufficient ground to believe that the crime

currently being considered grew out of or was in any way caused by the

prior set of facts and circumstances.’” Melendez–Rodriguez, 856 A.2d at

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1283 (quoting Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002)).

“Additionally, evidence of other crimes may be admitted where such

evidence is part of the history of the case and forms part of the natural

development of the facts.” Lauro, 819 A.2d at 107 (quoting Collins, 703

A.2d at 423).

Upon review, we agree with the trial court that evidence of each of the

offenses would be admissible in a separate trial for the other. As stated

previously, Appellant and Boyer were co-conspirators in a string of robberies

occurring in July 2012. In August 2012, Appellant assaulted Boyer at the

Crawford County Correctional Facility. Testimony at trial indicated that

Appellant made statements to Boyer during the course of the assault that

connected the assault with the prior robberies. Specifically, Boyer testified

that Appellant stated, “I told you I was going to effing kill you,” and that the

altercation was over Boyer giving a statement to police. N.T., 9/11/2013, at

4-5. Two corrections officers, Sally Jean Bullis and Joshua James Lintz, also

testified that during the course of the altercation, Appellant stated, “Why did

you say that[?] Why did you do that[?]” and “I told you I would get you.”

Id. at 31, 37. Thus, evidence relating to the robbery charges would be

admissible to establish Appellant’s motive for assaulting Boyer. Conversely,

evidence of the assault would be admissible in a trial for the robbery charges

to establish the existence of a conspiracy between Appellant and Boyer.

Further, all of the evidence formed part of the “natural development” of the

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facts and history of this case. See Lauro, 819 A.2d at 107 (quoting

Collins, 703 A.2d at 423).

Moreover, Appellant fails to establish that the jury was incapable of

separating the crimes to avoid confusion. Our Supreme Court has held that

“[w]here a trial concerns distinct criminal offenses that are distinguishable in

time, space and the characters involved, a jury is capable of separating the

evidence.” Collins, 703 A.2d at 423. Here, the set of robberies and the

assault occurred weeks apart in different locations and involved different

victims. Thus, there was no risk of confusing the jury. See id.

Finally, we conclude that Appellant was not unduly prejudiced by the

trial court’s decision to allow the jury to hear evidence of the separate, yet

interrelated, crimes. Here, Appellant committed a series of robberies with

Boyer as a co-conspirator and later assaulted Boyer at the Crawford County

Corrections Facility. As was said in Lark, “[This was a] series of crimes

committed by the [appellant] which were all related. He created the

sequence of events and cannot fairly now demand that the ... matters be

severed and tried in separate trials.” Lark, 543 A.2d at 500. Consequently,

the trial court did not abuse its discretion in consolidating the informations in

this case.

In his second issue, Appellant argues that he is entitled to a new trial

on the ground that the jury deliberations were inadequate, as it only took

the jury approximately one hour and six minutes to render a verdict on 43

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separate counts. Appellant failed to cite any legal authority to the trial court

to support such a claim, and he cites only one case to this Court, which is

inapposite.3 Moreover, although the jury was to determine Appellant’s guilt

or innocence on 43 separate counts, many of those counts were related as

they pertained to each of the three separate robberies. Thus, we agree with

the trial court that Appellant “was not denied a fair trial simply because the

jury did not need to debate at length over the guilt or innocence of

[Appellant] with regard to the various charges.” Trial Court Opinion,

1/3/2014, at 4.

In his third issue, Appellant challenges the weight of the evidence to

support his convictions relating to the robberies. In this regard, Appellant

challenges the credibility of Boyer’s testimony, as well as the eyewitnesses’

identifications of Appellant as the individual who had committed the

robberies. Appellant also contends that certain DNA evidence recovered by

3
In his appellate brief, Appellant cites Johnson v. Frazier, 787 A.2d 433
(Pa. Super. 2001). In that case, a jury in a civil action for damages initially
reached a verdict in one hour, but a poll of the jury revealed that only six
jurors, one short of the required seven, supported the verdict. Id. at 434.
After deliberating for an additional seven minutes, the jury returned with the
same verdict, this time supported by seven jurors. Id. On appeal, this
Court saw “no basis for upsetting the verdict because of the length of
deliberations,” explaining that this was not a situation in which the jury
deliberated for a total of seven minutes. Id. at 436. This Court explained
that “[g]iven the hour of prior deliberation and the manifest expression that
further deliberation would help, we cannot say seven more minutes is so
insufficient as to warrant a new trial.” Id. Likewise, we cannot say here
that the jury’s deliberations were so insufficient as to warrant a new trial
simply based on their length.

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police did not match Appellant’s DNA. Moreover, Appellant argues that none

of the items seized from Appellant’s residence was identified as being worn

in the robbery, and that certain other items linked to the robberies were

never found. Finally, Appellant argues that the duffel bag recovered by

police contained a hair not belonging to Appellant and that no evidence

proved that a shotgun recovered by police was the one fired during the

robbery of one of the bars.

Our standard of review is well-settled:

The weight given to trial evidence is a choice for the factfinder. If
the factfinder returns a guilty verdict, and if a criminal defendant
then files a motion for a new trial on the basis that the verdict
was against the weight of the evidence, a trial court is not to
grant relief unless the verdict is so contrary to the evidence as to
shock one’s sense of justice.

When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
not that decision is the one we might have made in the first
instance.

Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.

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Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (quoting

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007)).

Regarding Appellant’s challenges to Boyer’s testimony and the

eyewitness identifications, we note that the jury is “free to believe all, part,

or none of the evidence and to determine the credibility of the witnesses.”

Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003).

Moreover, the trial court considered the above arguments and determined

that none led it to conclude that the verdicts were so contrary to the

evidence as to shock one’s sense of justice. Trial Court Opinion, 1/3/2014,

at 5. Upon review, we discern no abuse of discretion in the trial court’s

determination.

As a final matter, although Appellant has not raised any issues

regarding the legality of his sentence with this Court, it is apparent that

Appellant’s sentence implicates the United States Supreme Court’s decision

in Alleyne v. United States, 133 S.Ct. 2151 (2013).4 Specifically, the trial

court imposed a sentence of 6 to 12 years’ incarceration for each of

Appellant’s robbery convictions and a sentence of 5 to 10 years’

incarceration for each of Appellant’s criminal conspiracy to commit robbery

4
See Commonwealth v. Hurst, 532 A.2d 865, 869 n.2 (Pa. Super. 1987)
(providing that “illegality of sentence is not waivable and may be raised by
this Court sua sponte”).

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convictions.5 These sentences were the result of the mandatory minimum

sentences found in 42 Pa.C.S. § 9712. That section provides, in relevant

part, as follows:

(a) Mandatory sentence.--Except as provided under section
9716 (relating to two or more mandatory minimum sentences
applicable), any person who is convicted in any court of this
Commonwealth of a crime of violence as defined in section
9714(g) (relating to sentences for second and subsequent
offenses), shall, if the person visibly possessed a firearm or a
replica of a firearm, whether or not the firearm or replica was
loaded or functional, that placed the victim in reasonable fear of
death or serious bodily injury, during the commission of the
offense, be sentenced to a minimum sentence of at least five
years of total confinement notwithstanding any other provision
of this title or other statute to the contrary. Such persons shall
not be eligible for parole, probation, work release or furlough.

(b) Proof at sentencing.--Provisions of this section shall not
be an element of the crime and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is applicable.

(c) Authority of court in sentencing.--There shall be no
authority in any court to impose on an offender to which this
section is applicable any lesser sentence than provided for in
subsection (a) or to place such offender on probation or to
suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than that
provided in this section. Sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing shall not supersede
the mandatory sentences provided in this section.

5
The sentences for the robbery convictions were to run consecutive with
each other, and the sentences for the criminal conspiracy convictions were
to run concurrent with the three robbery convictions.

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42 Pa.C.S. § 9712(a)-(c).

In Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en

banc), this Court noted the effect of Alleyne on mandatory minimum

sentencing statutes in Pennsylvania:

According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant’s sentence based on a preponderance of the evidence
standard.
Watley, 81 A.3d at 117 (footnote omitted).6

Notably, notwithstanding its observations regarding the

constitutionality of Pennsylvania’s mandatory minimum sentencing statutes

outlined above, the Watley Court upheld the mandatory minimum sentence

in that case, which the trial court imposed pursuant to 42 Pa.C.S. § 9712.1.

Watley, 81 A.3d at 121. The Court did so on the ground that “the factual

predicates for determining the mandatory minimum were proven to a jury

beyond a reasonable doubt.” Id.

Here, the trial court similarly explained that “any impact that Alleyne

may have had on this case was addressed appropriately,” as the fact that

Appellant visibly possessed a firearm that placed the victim in reasonable

fear or death or serious bodily injury was submitted to and determined by
6
Among those mandatory minimum sentencing statutes listed in Watley is
42 Pa.C.S. § 9712(c). See id. at 117 n.4.

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the jury for the criminal conspiracy to commit robbery and robbery

convictions. Trial Court Opinion, 1/3/2014, at 6; see Verdict Slip,

9/12/2013, at 1. Based on this Court’s recent decisions in Commonwealth

v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), and Commonwealth

v. Valentine, __ A.3d __, 2014 WL 4942256 (Pa. Super. filed October 3,

2014), we disagree.

In Valentine, this Court aptly discussed the Newman decision as

follows:

In Newman, we reviewed the constitutionality of 42 Pa.C.S.A.
§ 9712.1, which enhances the minimum sentence where a
firearm is found on a drug dealer, an accomplice, or in the
vicinity of the contraband. …

[***]

We explained in Newman that under Alleyne, the factual
predicates for imposition of the § 9712.1 mandatory minimum
sentence (i.e., that the firearm was found on a drug dealer, an
accomplice or in the vicinity of the contraband) “must be pleaded
in the indictment, and must be found by the jury beyond a
reasonable doubt before the defendant may be subjected to an
increase in the minimum sentence.” Concluding that the factual
predicates for imposition of the mandatory minimum sentence
had not been presented to a jury, we vacated the judgment of
sentence.

Notably in Newman, we declined the Commonwealth’s proposed
remedy that we remand for a sentencing jury to determine
beyond a reasonable doubt whether the Commonwealth had
proven the factual predicates for § 9712.1. We explained:

[T]he Commonwealth’s assertion assumes that Subsection
(a) of Section 9712.1, which sets the predicate for the
mandatory minimum sentence, survives constitutional
muster, and that only Subsection (c), which directs that
the trial court shall determine the predicate of Subsection

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(a) by a preponderance of the evidence, fails. In other
words, the Commonwealth is contending that we may
sever and retain those parts of Section 9712.1 that are not
constitutionally infirm.... We respectfully disagree.

[***]

We find that Subsections (a) and (c) of Section 9712.1 are
essentially and inseparably connected. Following Alleyne,
Subsection (a) must be regarded as the elements of the
aggravated crime of possessing a firearm while trafficking
drugs. If Subsection (a) is the predicate arm of Section
9712.1, then Subsection (c) is the “enforcement” arm.
Without Subsection (c), there is no mechanism in place to
determine whether the predicate of Subsection (a) has
been met.

The Commonwealth’s suggestion that we remand for a
sentencing jury would require this court to manufacture
whole cloth a replacement enforcement mechanism for
Section 9712.1; in other words, the Commonwealth is
asking us to legislate. We recognize that in the prosecution
of capital cases in Pennsylvania, there is a similar,
bifurcated process where the jury first determines guilt in
the trial proceeding (the guilt phase) and then weighs
aggravating and mitigating factors in the sentencing
proceeding (the penalty phase). However, this mechanism
was created by the General Assembly and is enshrined in
our statutes at 42 Pa.C.S.A. § 9711. We find that it is
manifestly the province of the General Assembly to
determine what new procedures must be created in order
to impose mandatory minimum sentences in Pennsylvania
following Alleyne. We cannot do so.

Valentine, 2014 WL 4942256, at *6-*8 (citations omitted) (quoting

Newman, 99 A.3d at 98, 101-02). Thus, in Newman, this Court vacated

and remanded for resentencing without consideration of the mandatory

minimum sentences provided in section 9712.1. Newman, 99 A.3d at 103.

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In Valentine, this Court addressed whether the trial court’s imposition

of mandatory minimum sentences pursuant to 42 Pa.C.S. §§ 9712 and 9713

was unlawful. Importantly,

the trial court permitted the jury, on the verdict slip, to
determine beyond a reasonable doubt whether Appellant
possessed a firearm that placed the victim in fear of immediate
serious bodily injury in the course of committing a theft for
purposes of the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred in whole or
in part at or near public transportation, for purposes of the
mandatory minimum sentencing provisions of 42 Pa.C.S.A.
§ 9713(a). The jury responded “yes” to both questions.

Valentine, 2014 WL 4942256, at *8. Nevertheless, we observed in

Valentine that

[i]n presenting those questions to the jury, however, we
conclude, in accordance with Newman, that the trial court
performed an impermissible legislative function by creating a
new procedure in an effort to impose the mandatory minimum
sentences in compliance with Alleyne.

The trial court erroneously presupposed that only Subsections
(c) of both 9712 and 9713 (which permit a trial judge to
enhance the sentence based on a preponderance of the evidence
standard) were unconstitutional under Alleyne, and that
Subsections (a) of 9712 and 9713 survived constitutional
muster. By asking the jury to determine whether the factual
prerequisites set forth in § 9712(a) and § 9713(a) had been
met, the trial court effectively determined that the
unconstitutional provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds that the
unconstitutional provisions of § 9712(c) and § 9713(c) are not
severable but “essentially and inseparably connected” and that
the statutes are therefore unconstitutional as a whole.

Moreover, Newman makes clear that “it is manifestly the
province of the General Assembly to determine what new
procedures must be created in order to impose mandatory
minimum sentences in Pennsylvania following Alleyne.”

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Therefore, the trial court lacked the authority to allow the jury to
determine the factual predicates of §§ 9712 and 9713.
Id. (citations omitted) (quoting Newman, 99 A.3d at 101-02).

Based on the foregoing, we likewise vacate Appellant’s sentence and

remand for resentencing without consideration of the mandatory minimum

sentences provided in section 9712.

Convictions affirmed. Judgment of sentence vacated. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/05/2015

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