Com. v. Carroll, R.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2021
• Docket: 1137 MDA 2020
• Status: Unpublished

Opinion

J-A16039-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RODNEY CARROLL : : Appellant : No. 1137 MDA 2020

Appeal from the Judgment of Sentence Entered August 3, 2020 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0004294-2018

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 06, 2021

Appellant Rodney Carroll appeals from the judgment of sentence

entered by the Court of Common Pleas of Luzerne County after a jury

convicted Appellant of two counts each of robbery, simple assault, unlawful

restraint, recklessly endangering another person, terroristic threats, and one

count of theft by unlawful taking. Appellant argues that the trial court abused

its discretion in allowing the Commonwealth to admit his recorded confession

to a subsequent robbery that he committed in Philadelphia County. We affirm.

Appellant was charged with the aforementioned offenses in connection

with the March 30, 2018 robbery of a Curry Donuts store on South

Pennsylvania Avenue in Wilkes-Barre, Luzerne County, Pennsylvania.

Appellant proceeded to a jury trial which commenced on January 7, 2020.

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* Former Justice specially assigned to the Superior Court. J-A16039-21

At trial, the following factual background was developed: in the early

evening hours of March 30, 2018, at approximately 7:10 p.m., a tall African-

American male wearing an Irish cap entered the Curry Donuts shop, armed

with a firearm. Notes of Testimony (N.T.), 1/7/2020 – 1/9/2020, at 38-39.

The man brandished the firearm and pointed it at the two employees, Brandon

Gawelko and Athena Rittenhouse. N.T. at 39, 57-58. Rittenhouse described

the male as a tall black man in his 40s, estimated his height to be “close to

six foot,” and indicated that the weapon was a “very large gun” that was black

and possibly resembled an assault rifle. N.T. at 38-40. Gawelko described

the male as a tall black man in his late 30s or early 40s with a black rifle and

estimated the robber’s height to be 5’9 or 5’10. N.T. at 56-57.

The male directed Gawelko to lay down on the floor and stated, “[d]on’t

move, homeboy” while pointing the weapon at him. N.T. at 60. Rittenhouse,

frightened by the encounter, pleaded with the male not to hurt them and

indicated that she had a one-year-old son. N.T. at 39. The male told

Rittenhouse if she cooperated, no one would be hurt. N.T. at 40.

Thereafter, the male instructed Rittenhouse to get him money out of the

cash registers, her purse, and Gawelko’s pockets, urging her to hurry or

“homeboy is going to get it.” N.T. at 43. The male then forced Rittenhouse

and Gawelko into a storage room, made them lay on the floor, and told them

to stare at the floor. N.T. at 44, 60. When Rittenhouse heard a car leave,

she got up and immediately called 9-1-1. N.T. at 45, 62. The police arrived

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shortly thereafter and accessed surveillance camera footage from the Curry

Donuts and the neighboring beer distributor store. N.T. at 46, 77-78.

Detective Matthew Stash of the Wilkes-Barre Police Department was

assigned to the case and reviewed the evidence obtained by the responding

officers. N.T. at 102. Detective Stash captured a still image of the robber

from the surveillance video and received information that the robber fled in a

silver Ford Fusion with New Jersey license plates. N.T. at 105-106. Detective

Stash uploaded this information on the Pennsylvania State Police Intelligence

Network, in which law enforcement share information about pending

investigations. N.T. at 105.

On April 6, 2018, Philadelphia Police Detective Dennis Rosenbaum

contacted Detective Stash and informed him that they had arrested a male for

a similar robbery of a Pizza Hut in Philadelphia that involved a silver Ford

Fusion with a New Jersey license plate and an assault type rifle replica. The

male, Appellant, matched the description that was previously sent out to law

enforcement. N.T. at 106-107. Moreover, Detective Rosenbaum noted that

Appellant had previously resided in Wilkes-Barre. N.T. at 106.

After receiving this information, Detective Stash placed Appellant’s

picture in a photo array containing eight individuals. N.T. at 106. When

Detective Stash presented the array to Gawelko and Rittenhouse, Gawelko

immediately identified Appellant as the robber of the Curry Donuts. N.T. at

62-63, 106. Rittenhouse was unable to identify anyone in the photo array.

N.T. at 48.

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As a result, Detective Stash traveled to Philadelphia, where Appellant

was being held in custody by the Philadelphia Police Department. N.T. at 109.

Detective Stash interviewed Appellant after providing his Miranda rights.

N.T. at 110. Appellant admitted to renting a silver Ford Fusion using an app

on his phone and indicated that he was the only one who drove the car. N.T.

at 111. When asked about the robbery of the Curry Donuts store in Wilkes-

Barre, Appellant denied being involved and indicated that he had not been in

Wilkes-Barre for a very long time. N.T. at 112. Detective Stash photographed

the rifle replica found in Appellant’s possession when he was arrested by the

Philadelphia police. N.T. at 111. Gawelko subsequently identified the weapon

captured in this photo as the rifle involved in the robbery. N.T. 62-64.

The Philadelphia police detectives also provided Detective Stash a video

recording of Appellant’s confession to robbing the Pizza Hut in Philadelphia on

April 5, 2018. N.T. at 112. In the video, Appellant admitted to robbing the

Pizza Hut with a rifle replica as he had lost two jobs and was behind on multiple

bills, including his rent. N.T. at 115. While Appellant brandished his weapon

during the robbery, he emphasized that he assured the people inside that no

one would get hurt if they complied with his directions. N.T. at 116. Appellant

indicated that he picked the Pizza Hut because he believed it was not busy

and did not have a lot of people inside. N.T. at 122. Appellant indicated that

he “didn’t want nobody to try nothing … I didn’t want to even get to that

point.” N.T. at 122.

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Appellant indicated that when he saw an officer standing at the door of

the Pizza Hut, Appellant ran out of the back door and threw the gun in some

bushes. N.T. at 116-17, 121. Appellant indicated that he had previously

rented a silver Ford Fusion with New Jersey license plates from the FlexDrive

internet application and parked it outside the restaurant. N.T. at 120.

At trial, the prosecution presented that testimony of Frank Daccardi, an

employee of ARI Fleet Management, a company that tracks rental vehicles

through GPS. N.T. at 82-86. Daccardi was able to access and retrieve location

information on the rental car that Appellant had admitted driving to the

robbery of the Pizza Hut in Philadelphia.

Daccardi indicated that the GPS tracking records placed the silver Ford

Fusion that was rented to Appellant from FlexDrive in Philadelphia on the

morning of March 30, 2018. N.T. at 88-91. Thereafter, the vehicle arrived at

7:14 p.m. at 178 South Pennsylvania Avenue in Wilkes-Barre, where Curry

Donuts is located. N.T. at 93. At 7:23 p.m., the vehicle left the Wilkes-Barre

location and traveled to the Pennsylvania Turnpike Northeast Extension and

to two different locations in Philadelphia. N.T. at 93-95.

Appellant, who chose to testify in his own defense, admitted at trial that

he had rented a silver Ford Fusion from FlexDrive during the time period in

question. N.T. at 152. In addition, Appellant conceded that he had robbed

the Pizza Hut in Philadelphia. N.T. at 150. However, Appellant denied

committing the robbery of the Curry Donuts in Wilkes-Barre and claimed he

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had been on a date with his girlfriend in which they went skating and to the

movies. N.T. at 150.

Appellant agreed that the GPS location data showed that the car he had

rented had traveled to Wilkes-Barre on the night of March 30, 2018, but

Appellant asserted that he had not driven the car there and did not rob the

Curry Donuts store. N.T. at 152. Appellant indicated that he was between

6’3 and 6’4 in height. N.T. at 151.

At the conclusion of the trial, on January 9, 2020, the jury convicted

Appellant of all of the aforementioned offenses. On August 3, 2020, the trial

court imposed an aggregate sentence of twenty-two to forty-four years’

imprisonment. Appellant did not file a post-sentence motion.

On September 2, 2020, Appellant filed a timely notice of appeal and

subsequently complied with the trial court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises one issue for our review on appeal:

Did the trial court err and abuse its discretion in allowing the Commonwealth to admit and play the recorded statement of the Appellant involving the alleged commission of a robbery in Philadelphia as a prior wrong or bad act, under Pa.R.E. 404[](b)(2), where, even if relevant, the probative value did not outweigh its potential for being unfairly prejudicial to the Appellant and depriving him of his federal and state constitutional right to a fair trial?

Appellant’s Brief, at 2.

Our standard of review is well-established:

“The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting

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prejudice, constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189 L.Ed.2d 824 (2014).

The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal denied, 624 Pa. 672, 85 A.3d 482 (2014).

Commonwealth v. Hudson-Greenly, 247 A.3d 21, 24 (Pa.Super. 2021).

In reviewing Appellant’s challenge to the trial court’s discretion in

allowing the prosecution to admit a recording of his confession to another

robbery, we are mindful of the following principles:

The general threshold for admissibility of evidence is relevance. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence to determining the action. Pa.R.E. 401. All relevant evidence is admissible, subject to certain exceptions. Pa.R.E. 402. Relevant to this claim, evidence of another crime, wrong, or other act is not admissible to prove a person's character or to show that, on a particular occasion, the person acted in accordance with that character. Pa.R.E. 404(b)(1). However, such evidence may be admissible to prove

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that

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proof of one will naturally tend to show that the accused is the person who committed the other.

Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988) (citation omitted). Our Supreme Court “has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell ‘the complete story.’” Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657, 665 (2014) (citations omitted).

Nevertheless, “this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.” Lark, 518 Pa. 290, 543 A.2d at 497. “Unfair prejudice” means a tendency to suggest a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially. Pa.R.E. 403, comment. Thus, the admission of the evidence “becomes problematic only when its prejudicial effect creates a danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial.” Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 496–98 (2009) (quotation marks and quotation omitted).

Commonwealth v. Gad, 190 A.3d 600, 603 (Pa.Super. 2018).

We initially note that Appellant concedes that the evidence of his

recorded confession to the robbery of the Philadelphia Pizza Hut meets the

relevance requirements of Rule 404(b). Appellant does not challenge the trial

court’s decision to accept the Commonwealth’s assertion that the facts of the

Pizza Hut robbery were substantially similar to the facts of Curry Donuts

robbery to render Appellant’s confession to the Pizza Hut robbery admissible

under Rule 404(b) to show Appellant’s modus operandi (M.O.), common plan,

and identity as the robber of the Curry Donuts.

Appellant limits his argument to contend that, even if relevant,

Appellant’s confession to the Pizza Hut robbery should have been excluded as

the probative value of the evidence was outweighed by the potential for

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causing unfair prejudice. Appellant specifically cites to Commonwealth v.

Saez, 225 A.3d 169, 180 (Pa.Super. 2019), in which this Court has held that

in assuring that the probative value is not outweighed by his potential for

unfair prejudice, the trial court must:

balance the potential prejudicial impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth's need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations.

Id. at 180 (quoting Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa.

Super. 2015)).

Specifically, Appellant argues that the trial court did not adequately

balance the potential for unfair prejudice with the factors set forth in Saez.

First, while acknowledging that there were similarities between the robberies

at issue in this case, Appellant argues that the similarities were common to all

robberies and the commonalities were not so specific to show Appellant had a

“signature” plan. Appellant’s Brief, at 15. Second, Appellant argues that the

trial court did not evaluate whether the prosecution had a need to present his

confession. Appellant contends that, as the Commonwealth had other

evidence tying Appellant to the Curry Donuts robbery,

the admission of the Philadelphia confession was unnecessary to the Commonwealth’s case and could serve only one purpose, to raise the inference that the Appellant, because he admitted to what the Commonwealth asserted was a similar crime, possessed the character and propensities of acting in accordance with those of a robber and, therefore, committed the Wilkes-Barre robbery at Curry Donuts.

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Appellant’s Brief, at 16-17. Lastly, Appellant asserts that the trial court’s

limiting instruction could not ameliorate the unfair prejudice caused by the

admission of the recording of Appellant’s confession to another robbery.

However, while the admission of the Appellant’s confession to the Pizza

Hut robbery was harmful to the defense, we agree with the trial court’s

determination that Appellant did not show that unfair prejudice resulted such

that the probative value of the evidence was outweighed by its potential for

unfair prejudice. Tyson, 119 A.3d at 360 (quoting Commonwealth v.

Dillon, 592 Pa. 351, 366, 925 A.2d 131, 141 (2007) (“[e]vidence will not be

prohibited merely because it is harmful to the defendant”)).

We reject Appellant’s suggestion that the two robberies did not have a

high degree of similarity beyond shared commonalities between typical

robberies. In this case, the robberies, which occurred just five days apart,

were committed with the use of a replica AR-15 style rifle and the same silver

Ford Fusion with a New Jersey license plate. Both the weapon and the vehicle

were found at the scene of the Pizza Hut robbery where Appellant was taken

into custody. Clearly, the facts of the Pizza Hut robbery had probative value

to show Appellant’s modus operandi, common plan, and his identity as the

robber of the Curry Donuts.

In addition, we are not persuaded by Appellant’s assertion that his

confession was absolutely unnecessary to the Commonwealth’s case and only

served to convince the jury of his bad character. While Appellant admittedly

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confessed to the Pizza Hut robbery in Philadelphia, he adamantly denied at

trial that he was the individual who robbed the Curry Donuts in Wilkes-Barre.

Appellant’s confession to the Pizza Hut robbery described in detail how

he selected his robbery target. Appellant chose the Pizza Hut as it was a

business where there were few customers, such that he would be able to take

control easily and eliminate the potential for a conflict. Similarly, in this case,

the robbery of the Curry Donuts occurred at approximately 7 p.m., an evening

hour at which a donut shop does not typically contain a large amount of

customers and only contained two employees on the night of the robbery.

Appellant’s confession also corroborated the accounts of the

eyewitnesses to the Curry Donuts robbery when Appellant attacked the

reliability of their testimony. Appellant emphasized to the Philadelphia police

officers that he assured the individuals inside the Pizza Hut that he would not

harm them. Gawelko and Rittenhouse testified that the robber of the Curry

Donuts assured them that they would not be harmed if they complied with his

instructions.

Lastly, any prejudicial impact of the admission of Appellant’s confession

to the Pizza Hut robbery was minimized by the trial court’s cautionary

instruction that was given immediately after the confession was admitted.

See Pa.R.E. 404(b) cmt.; Hairston, 624 Pa. at 160, 84 A.3d at 666 (clarifying

that a cautionary jury instruction may ameliorate the prejudicial effect of the

proffered evidence [under Rule 404(b)]”).

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The trial court informed the jury about the limited purpose of

considering this evidence and to clarify that the jury was not permitted to

treat the evidence as proof of Appellant’s bad character. N.T. at 124. “Jurors

are presumed to follow the trial court's instructions.” Hairston, 624 Pa. at

160, 84 A.3d at 666.

Moreover, we emphasize that “[i]n balancing the probative value of the

evidence against its prejudicial impact, this Court has opined that a trial court

is not required to sanitize the trial to eliminate all unpleasant facts from the

jury's consideration.” Saez, 225 A.3d at 180–81 (quoting Commonwealth

v. Golphin, 161 A.3d 1009, 1022 (Pa.Super. 2017) (internal quotation marks

omitted).

Accordingly, we conclude that the trial court did not abuse its discretion

in allowing the admission of Appellant’s confession to the Pizza Hut robbery in

Philadelphia in his prosecution for the robbery in this case.

Judgment of sentence affirmed.

Judge McCaffery join the memorandum.

Judge Kunselman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/06/2021

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