J-S55021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DANIEL P. CASEY, : : Appellant : No. 3256 EDA 2013
Appeal from the Judgment of Sentence Entered September 20, 2013, In the Court of Common Pleas of Monroe County, Criminal Division, at No. CP-45-CR-0001334-2012.
BEFORE: BOWES, SHOGAN and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 24, 2014
Appellant, Daniel P. Casey, appeals from the judgment of sentence
entered after a jury convicted him of assault and related crimes charged on
two informations that were joined before trial. We affirm.
The trial court1 summarized the evidence of the assaults as follows:
In the incident filed at 1334 CR 2012, the affiant spoke to the victim who reported that [Appellant] came home after drinking and became upset when he found his property outside on the porch. Soon thereafter [Appellant] began to assault the
residence. The victim stated that [Appellant] smashed a mirror over his [own] head and hit his head on the door. [Appellant] fled when a neighbor came to help the victim.
two cases. The Honorable Margherita Patti-Worthington presided over J-S55021-14
In the incident filed at 2526 CR 2012, the affiant spoke to the victim, a subsequent paramour of [Appellant], who stated that on October 27, 2012 she was involved in a quarrel with [Appellant] after he accused her of lying. At some point [Appellant] held the victim captive in her apartment. [Appellant] assaulted the victim by striking her in the face. [Appellant] also used pressure points consciousness. The victim escaped after [Appellant] fell asleep.
Trial Court Opinion, 4/26/13, at 5.
The trial court summarized the procedural history as follows:
On August 13, 2012, in the case docketed 1334 CR 2012, the Commonwealth filed an Information charging the Appellant with Simple Assault and Harassment.
On January 22, 2013, in the case docketed 2526 CR 2012, the Commonwealth filed an Information charging the Appellant with Aggravated Assault, Attempted Aggravated Indecent Assault, Unlawful Restraint, Indecent Assault without Consent, Indecent Assault by Forcible Compulsion, False Imprisonment, Simple Assault, and Kidnapping.
That same day the Commonwealth filed a Notice of Joinder for both cases.
On January 13, 2013, the Appellant filed a Motion to Sever.
On March 14, 2013, the Commonwealth filed a Notice of Prior Bad Acts evidence.
On March 28, 2013, the Appellant filed a brief in support of his Motion to Sever. On April 4, 2013, the Commonwealth filed a brief in opposition.
On April 26, 2013, the Honorable Judge Stephen M.
Motion to Sever.
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On June 18, 2013, the Appellant filed a Motion in Limine seeking to bar introduction of certain prior bad acts.
On June 20, 2013, a jury found that the Appellant was not guilty of Aggravated Indecent Assault, but convicted the Appellant of all other charges.
On September 20, 2013, we sentenced the Appellant [to incarceration for an aggregate term of 111 to 240 months].
On September 26, 2013, the Appellant filed a [post- sentence] Motion for Reconsideration of sentence.
Reconsideration.
Trial Court Opinion, 1/17/14, at 1 2.
This appeal followed on November 26, 2013. Appellant and the trial
court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents a single question for our consideration:
Was [Appellant] prevented from having a fair trial when the Court joined his two cases when the cases were joined solely for the purpose of demonstrating a propensity toward assaultive behavior and was more prejudicial than probative?
Our standard of review is well- Whether to join or sever
on appeal absent a manifest abuse thereof, or prejudice and clear injustice
Commonwealth v. Armstrong, 74 A.3d 224, 233 (Pa.
Super. 2013) (quoting Commonwealth v. Wholaver, 989 A.2d 883, 898
(Pa. 2010)).
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In Pennsylvania, the joinder of informations is rule-based:
(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)(
separate trials of offenses or defendants, or provide other appropriate relief,
if it appears that any party may be prejudiced by offenses or defendants
Here, the Commonwealth advocated joinder on the basis of judicial
economy. Brief for Joinder, 4/4/13, at 3. Additionally, the Commonwealth
argued that evidence of each incident would be admissible in a separate trial
for the other to prove intent, a common scheme, motive, i.e., alcohol-fueled
jealousy, lack of mistake or accident, and to disprove self-defense.2 Id. at
would be prejudicial . . . to have them tried together and is offered solely to
2 Appellant attempted to persuade the jury that the victims were the initial aggressors. N.T., 6/19/13, at 205, 228; N.T., 6/20/13, at 11, 19 20, 34 35, 37 38, 41, 47 48, 74 78.
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3/28/13, at 2. Agreeing with the Commonwealth, the trial court denied
would be admissible in a separate trial to prove motive. Trial Court Opinion,
4/26/13, at 4 6.
Considering Rules 582 and 583 together, our Supreme Court set forth
the following three-part test for deciding a motion to sever:
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 [trial] court must ... determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] 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, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting
Commonwealth v. Lark, 543 A.2d 491, 496 497 (Pa. 1988)). See also
Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991) (affirming denial of
motion to sever under predecessor to Pa.R.Crim.P. 583, where evidence of
two similar rapes that occurred eighteen months apart would have been
admissible in separate trials to prove common design, evidence was easily
capable of separation by jury, and joinder of trials would not prejudice
defendant).
Upon review, we discern a commonality of roles and circumstances
attending the instant offenses and prior bad acts that supports joinder of the
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offenses. See Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991)
tments requires only that there are shared similarities
months between the two assaults, that fact does not render severance
necessary. Accord Commonwealth v. Donahue, 549 A.2d 121 (Pa. 1988)
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J-S55021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DANIEL P. CASEY, : : Appellant : No. 3256 EDA 2013
Appeal from the Judgment of Sentence Entered September 20, 2013, In the Court of Common Pleas of Monroe County, Criminal Division, at No. CP-45-CR-0001334-2012.
BEFORE: BOWES, SHOGAN and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 24, 2014
Appellant, Daniel P. Casey, appeals from the judgment of sentence
entered after a jury convicted him of assault and related crimes charged on
two informations that were joined before trial. We affirm.
The trial court1 summarized the evidence of the assaults as follows:
In the incident filed at 1334 CR 2012, the affiant spoke to the victim who reported that [Appellant] came home after drinking and became upset when he found his property outside on the porch. Soon thereafter [Appellant] began to assault the
residence. The victim stated that [Appellant] smashed a mirror over his [own] head and hit his head on the door. [Appellant] fled when a neighbor came to help the victim.
two cases. The Honorable Margherita Patti-Worthington presided over J-S55021-14
In the incident filed at 2526 CR 2012, the affiant spoke to the victim, a subsequent paramour of [Appellant], who stated that on October 27, 2012 she was involved in a quarrel with [Appellant] after he accused her of lying. At some point [Appellant] held the victim captive in her apartment. [Appellant] assaulted the victim by striking her in the face. [Appellant] also used pressure points consciousness. The victim escaped after [Appellant] fell asleep.
Trial Court Opinion, 4/26/13, at 5.
The trial court summarized the procedural history as follows:
On August 13, 2012, in the case docketed 1334 CR 2012, the Commonwealth filed an Information charging the Appellant with Simple Assault and Harassment.
On January 22, 2013, in the case docketed 2526 CR 2012, the Commonwealth filed an Information charging the Appellant with Aggravated Assault, Attempted Aggravated Indecent Assault, Unlawful Restraint, Indecent Assault without Consent, Indecent Assault by Forcible Compulsion, False Imprisonment, Simple Assault, and Kidnapping.
That same day the Commonwealth filed a Notice of Joinder for both cases.
On January 13, 2013, the Appellant filed a Motion to Sever.
On March 14, 2013, the Commonwealth filed a Notice of Prior Bad Acts evidence.
On March 28, 2013, the Appellant filed a brief in support of his Motion to Sever. On April 4, 2013, the Commonwealth filed a brief in opposition.
On April 26, 2013, the Honorable Judge Stephen M.
Motion to Sever.
-2- J-S55021-14
On June 18, 2013, the Appellant filed a Motion in Limine seeking to bar introduction of certain prior bad acts.
On June 20, 2013, a jury found that the Appellant was not guilty of Aggravated Indecent Assault, but convicted the Appellant of all other charges.
On September 20, 2013, we sentenced the Appellant [to incarceration for an aggregate term of 111 to 240 months].
On September 26, 2013, the Appellant filed a [post- sentence] Motion for Reconsideration of sentence.
Reconsideration.
Trial Court Opinion, 1/17/14, at 1 2.
This appeal followed on November 26, 2013. Appellant and the trial
court have complied with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Appellant presents a single question for our consideration:
Was [Appellant] prevented from having a fair trial when the Court joined his two cases when the cases were joined solely for the purpose of demonstrating a propensity toward assaultive behavior and was more prejudicial than probative?
Our standard of review is well- Whether to join or sever
on appeal absent a manifest abuse thereof, or prejudice and clear injustice
Commonwealth v. Armstrong, 74 A.3d 224, 233 (Pa.
Super. 2013) (quoting Commonwealth v. Wholaver, 989 A.2d 883, 898
(Pa. 2010)).
-3- J-S55021-14
In Pennsylvania, the joinder of informations is rule-based:
(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)(
separate trials of offenses or defendants, or provide other appropriate relief,
if it appears that any party may be prejudiced by offenses or defendants
Here, the Commonwealth advocated joinder on the basis of judicial
economy. Brief for Joinder, 4/4/13, at 3. Additionally, the Commonwealth
argued that evidence of each incident would be admissible in a separate trial
for the other to prove intent, a common scheme, motive, i.e., alcohol-fueled
jealousy, lack of mistake or accident, and to disprove self-defense.2 Id. at
would be prejudicial . . . to have them tried together and is offered solely to
2 Appellant attempted to persuade the jury that the victims were the initial aggressors. N.T., 6/19/13, at 205, 228; N.T., 6/20/13, at 11, 19 20, 34 35, 37 38, 41, 47 48, 74 78.
-4- J-S55021-14
3/28/13, at 2. Agreeing with the Commonwealth, the trial court denied
would be admissible in a separate trial to prove motive. Trial Court Opinion,
4/26/13, at 4 6.
Considering Rules 582 and 583 together, our Supreme Court set forth
the following three-part test for deciding a motion to sever:
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 [trial] court must ... determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] 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, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting
Commonwealth v. Lark, 543 A.2d 491, 496 497 (Pa. 1988)). See also
Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991) (affirming denial of
motion to sever under predecessor to Pa.R.Crim.P. 583, where evidence of
two similar rapes that occurred eighteen months apart would have been
admissible in separate trials to prove common design, evidence was easily
capable of separation by jury, and joinder of trials would not prejudice
defendant).
Upon review, we discern a commonality of roles and circumstances
attending the instant offenses and prior bad acts that supports joinder of the
-5- J-S55021-14
offenses. See Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991)
tments requires only that there are shared similarities
months between the two assaults, that fact does not render severance
necessary. Accord Commonwealth v. Donahue, 549 A.2d 121 (Pa. 1988)
(affirming holding in Commonwealth v. Shively, 424 A.2d 1257 (Pa.
1981), that remoteness in time between distinct offenses is factor to
consider in determining whether admission of evidence of prior crime tends
to show that same person committed both crimes).
Specifically, the record reveals that Victim I and Victim II were
girlfriends of Appellant and acquaintances. N.T., 6/19/13, at 32, 72, 78 79,
with Appellant;
Appellant. Id. at 32, 155, 11. Leading up to each assault, Appellant had
been drinking heavily and accused each victim of infidelity. Id. at 34 37,
158, 161 162. Appellant terrorized each victim by physically restraining
her, choking her, and applying pressure to her mouth or nose. Id. at 37
52, 165, 172, 177.
Prior to and during the assaults, the victims witnessed Appellant
physically injure himself; they knew him to be destructive, violent, and
suicidal. Id. at 70 72, 159 160, 162 164, 166 167, 170. Shortly before
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his assault on the first victim, Appellant slammed his head into her door
three times, knocking himself unconscious; during the assault, he broke two
his head. Id. at 166 167. During a
previous argument with the second victim, Appellant punched himself in the
face, giving himself a black eye, and he smashed a television remote over
he
72, 105. The first
victim testified that, during a previous assault, Appellant bit her on her
upper breast area, underneath her armpit. Id. at 169, 173. Similarly, the
second victim testified that, during the assault, Appellant bit her on her
thigh and on her side. Id. at 95. Both victims testified that Appellant used
pressure points on them to intimidate, inflict pain, and demand compliance.
Id. at 38 39, 41, 47, 176.
Based on the foregoing, we agree with the Commonwealth that
evidence of each assault would have been admissible in a separate trial for
the other assault to prove motive, intent, common design, lack of self-
defense, mistake or accident. Thus, we conclude that the first prong of the
test for severance was satisfied. Accord Commonwealth v. Smith, 47
A.3d 862 (Pa. Super. 2012), appeal denied, 60 A.3d 536 (Pa. 2013) (holding
that sufficient similarities existed between two alleged rapes to support
joinder where both victims were twelve years old, had close relationship to
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defendant, were assaulted where the victim was residing, reported the
assault involved vaginal sex, knew the defendant through involvement in
and
were assaulted by defendant within period of two months).
Next, we address whether the evidence of the distinct offenses was
capable of separation by the jury so there was no danger of confusion. Upon
review, we observe that, although marked similarities between the two
incidents existed, the evidence regarding each offense was easily
distinguishable insofar as each incident involved a different girlfriend,
occurred in a different place, lasted for different durations, and resulted in
different levels of assault. The evidence was, therefore, easily capable of
separation by the jury both during trial and during deliberations. Thus, we
conclude that the second prong of the test for severance was satisfied.
Accord Armstrong, 74 A.3d 228, 234 (Pa. Super. 2013) (holding that the
Lastly, we address whether the danger of prejudice to Appellant
outweighed the benefit of consolidation of the offenses at trial. We have
evidence tended to convict the appellant only by showing his propensity to
commit crimes, or because the jury was incapable of separating the
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Commonwealth v.
Lauro, 819 A.2d 100, 107 (Pa. Super. 2003) (quoting Collins, 703 A.2d at
defendant suffers when th
Id.; Lark, 543 A.2d at 499.
Our review of the record reveals no danger of prejudice. The evidence
would not tend to convict Appellant by showing his propensity to commit
crimes, but by establishing motive, intent, common design, lack of self-
defense, mistake, or accident. Moreover, the evidence was capable of
separation by the jury so there was no possibility of confusion. Collins, 703
e jury
may use the evidence of one of the crimes charged to infer a criminal
Armstrong, 74 A.3d at 234.
Accordingly, we discern no abuse of discretion by the trial court in permitting
details of the crimes that [prove] that the defendant committed one makes
it very unlikely that anyone else but the defendant committed the oth
Id. (citations omitted).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/24/2014
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