J-S67040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARION BROWN, JR.
Appellant No. 104 EDA 2016
Appeal from the Judgment of Sentence December 2, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003049-2015
CP-09-CR-0003054-2015
CP-09-CR-0003322-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 29, 2016
Appellant Marion Brown appeals from the judgments of sentence
entered by the Court of Common Pleas of Bucks County after the Honorable
Diane E. Gibbons convicted him of three counts of felony retail theft, two
counts of criminal conspiracy to commit retail theft, one count of simple
assault, and one count of disorderly conduct.1 On appeal, Appellant claims
the trial court erred in consolidating his three retail theft cases for trial.
After careful review, we affirm.
____________________________________________
1
18 Pa.C.S. §§ 3929(a)(1), 903(c), 2701(a)(1), and 5503(a)(1),
respectively.
*Former Justice specially assigned to the Superior Court.
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The trial court aptly summarized the factual background of the three
cases as follows:
Information Number 3322/2015 [Rockhill Drive Home
Depot]
On Saturday, November 8, 2014, at approximately 8:15
p.m., [Appellant] and his co-conspirators, Antonio Ray Hunt,
Leroy Jameel Brown, and Derrick Timothy Vann, Jr., went to a
Home Depot located in Bensalem, Bucks County, (“Rockhill Drive
Home Depot”); all four males were wearing backpacks when
they arrived. The group then filled shopping carts with
merchandise, proceeded to the back of the store, transferred
merchandise from the shopping carts to their backpacks, and
then ran out of the store, passing all points of sale without
payment. Three saw blades worth $199.00 each, four saw
blades worth $165.00 each, a door lock worth $119.00, two
keypad levers worth $119.00 each, two door lock touchscreens
worth $199.00 each and a door lock keypad worth $109.00 were
removed from the store. The total value of the merchandise was
$2,419.00.
Information Number 3054/2015 [Bristol Pike Home
Depot]
On that same date, at approximately 8:55 p.m., four men
were observed stealing similar high end merchandise at the
Home Depot located at 1336 Bristol Pike, Bensalem, Bucks
County (“Bristol Pike Home Depot”). All four males were
wearing backpacks; they took shopping carts and began
selecting high-end merchandise. The men then took the
shopping carts to the back of the store and transferred
merchandise from the shopping cart to their backpacks. They
then passed all points of sale without payment and were stopped
just outside the store in the parking lot. After being stopped,
one of those men, later identified as [Appellant], assaulted loss
prevention officer Kevin Dupell and fled the area. The other
three participants, Antonio Ray Hunt, Leroy Jameel Brown, and
Derrick Timothy Vann, Jr. were apprehended at or near the
scene. The merchandise removed from the store was valued at
$1,568.92.
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Information Number 3049/2015 [Bristol Pike Home
Depot]
On Saturday, April 11, 2015, another retail theft occurred
at the Bristol Pike Home Depot, the site of the second retail theft
in November of 2014. During this retail theft, an individual, later
identified as [Appellant], selected numerous drills, compact
drivers, and touchscreen thermostats, placed them into a cart,
and ran out of the store with the stolen merchandise without
paying for the items. The total value of the property taken was
$1,314.96. After he left the store with the merchandise,
[Appellant] was stopped by loss prevention officer Kevin Dupell,
the same loss prevention officer whom [Appellant] had assaulted
during the November retail theft at the Bristol Pike Home Depot.
[Appellant] fled the scene before police arrived. Mr. Dupell
identified [Appellant] as the individual who had assaulted him
and fled the scene following the retail theft at the Bristol Pike
Home Depot in November 2014 and as the individual who
committed the retail theft at the Bristol Pike Home Depot in April
of 2015. Based on surveillance footage, he also identified
[Appellant] as one of the individuals involved in the retail theft
that occurred at the Rockhill Drive Home Depot.
Trial Court Opinion, 4/20/16, at 2-3 (footnotes omitted).
After Appellant was charged with the aforementioned offenses, the
trial court consolidated all three informations for trial. Appellant waived his
right to a jury trial and stipulated to the prosecution’s evidence. On
December 2, 2015, the trial court convicted Appellant of all the charges and
sentenced him to an aggregate term of 3½ to 7 years imprisonment. On
December 30, 2015, Appellant filed a notice of appeal.
Appellant’s sole claim on appeal is that the trial court erred in
consolidating his three cases for trial. We review a trial court’s decision to
consolidate offenses for trial under an abuse of discretion standard.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa.Super. 2005). This
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Court has summarized the principles guiding a trial court’s decision to
consolidate criminal informations as follows:
Offenses charged in separate informations may be tried together
if they are “based on the same act or transaction” or if “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.” Pa.R.Crim.P[].
582(A)(1). The court has discretion to order separate trials if “it
appears that any party may be prejudiced” by consolidating the
charges. Pa.R.Crim.P[]. 583.
Our Supreme Court has established a three[-]part test,
incorporating these two rules, for deciding the issue of joinder
versus severance of offenses from different informations. The
court must determine
whether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
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, whether the defendant
will be unduly prejudiced by the consolidation of offenses.
Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497
(1988)[.]
Thomas, 879 A.2d at 260. While evidence of a defendant’s criminal
behavior is not admissible to show a defendant's propensity to commit
crimes, such evidence may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident so long as the probative value of the
evidence outweighs its prejudicial effect. Pa.R.E. 404(b).
Our review of the record supports the trial court’s conclusion that
consolidation of Appellant’s three criminal informations was appropriate
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under the circumstances. Here, there is overwhelming evidence that
Appellant and his three co-conspirators agreed to work together to commit
the first two instances of retail theft at two Home Depot stores in Bucks
County on the evening of November 8, 2014. As part of an ongoing
conspiracy, the men committed retail theft in at two different locations of the
same home improvement superstore on the same evening within a forty
minute timespan. The four men executed the same plan in each incident,
entering each store together wearing backpacks, choosing expensive
merchandise off the store shelves to place in their shopping carts, taking the
items to the back of the store, hiding the items in their backpacks, and
fleeing the store together.
We agree with the trial court that evidence of each retail theft would
be admissible in a separate trial for the others to prove Appellant’s identity
as the perpetrator based on the similarity of the crimes committed and the
circumstances under which Appellant was identified in each retail theft.
Appellant committed the third retail theft just five months after the first two
instances of retail theft, executing each crime in a similar fashion. On the
third instance of theft, Appellant returned to the Bristol Pike Home Depot,
where he had committed his second retail theft. Security Officer Kevin
Dupell personally witnessed Appellant’s involvement in the second and third
thefts at the Bristol Pike Home Depot, was assaulted by Appellant during the
second theft, and identified Appellant from the video surveillance footage
from the first theft at the Rockhill Drive Home Depot.
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Moreover, Appellant cannot establish that he was prejudiced by the
trial court's consolidation of the charges. To demonstrate prejudice,
Appellant was required to show that he was convicted because the jury
believed he had a propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid cumulating the
evidence. Thomas, supra. Here, Appellant waived his right to a jury trial
and was convicted following a bench trial before Judge Gibbons. We can
presume the trial court was capable of separating the evidence when
considering each criminal charge. See Commonwealth v. O'Brien, 836
A.2d 966, 972 (Pa.Super. 2003) (explaining that a trial held before a judge
rather than a jury “minimizes if not eliminates the potential for prejudice”).
Accordingly, we conclude that the trial court properly exercised its
discretion in consolidating Appellant’s retail cases for trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2016
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