J-A08003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : IAN GABRIEL : : Appellant : No. 2284 EDA 2019
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
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : IAN GABRIEL : : Appellant : No. 2285 EDA 2019
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 BY PANELLA, P.J.: FILED JUNE 02, 2021
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
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A08003-21
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
-2- J-A08003-21
of sentence.1 Thereafter, Appellant timely filed two nunc pro tunc notices of
appeal.2
1 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.
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. 2 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 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 (Footnote Continued Next Page)
-3- J-A08003-21
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.
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.
-4- J-A08003-21
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;3 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).
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
3 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).
-5- J-A08003-21
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.
-6- J-A08003-21
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/2/2021
-7- Circulated 05/18/2021 11:27 AM
!•,/- I "OoO ,v§ 9 ;I--
IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0012764-2014 CP-51-CR-0010878-2014
V. FILED DEC 232.019 Office of Judicial Records: SUPERIOR COURT OF PENNSYLVANIA Appeals/PostTrial 2284 EDA 2019 IAN GABRIEL 2285 EDA 2019
OPINION
BRIGHT, J.
On July 26, 2014, Appellant was arrested and charged at CP-51-CR-0012764-2014 with
Attempted Murder, Aggravated Assault, Rape Forcible Compulsion and related charges. On the same
day, Appellant was arrested and charged at CP-51-CR-0010878-2014 with Aggravated Assault, Rape
Forcible Compulsion and related charges. On April 26, 2017, Appellant appeared before this Court and
entered aplea of Not Guilty. On May 9, 2017, ajury found Appellant Guilty of Aggravated Assault,
Robbery, Rape, Involuntary Deviate Sexual Intercourse, Conspiracy, and Sexual Assault under CP-51-
CR-0012764-2014 and Guilty of Rape, Aggravated Assault, Involuntary Deviate Sexual Intercourse, and
Sexual Assault under CP-51-CR-0010878-2014. The jury found Appellant Not Guilty of Attempted
Murder and Firearms Not To Be Carried Without License under CP-51-CR-00 12764-2014. The
remaining charges on each Bill of Information were Nolle Prossed.
There was significant delay before Appellant's sentencing because of issues related to mental
health assessments, Appellant's refusal to cooperate with court ordered psychiatric evaluations, adefense
psychiatric evaluation, comatose behavior in court, and overall competency concerns. After competency
hearings which culminated on December 20, 2018, Appellant was sentenced to alengthy term of
CP-51-CR-001067&2014 Comm. V. Gabriel, Ian
I incarceration followed by substantial probation. Opinion
1 1111111111111111111 On January 2, 2019, Appellant filed aMotion for Modification of Sentence which was denied by
Operation of Law on May 2, 2019. Appellant then filed aPost-Conviction Relief Act Petition on July 9,
2019, requesting reinstatement of his appellate rights nunc pro tunc due to Appellant's counsel not being
timely notified of the Denial of Motion for Modification of Sentence. On July 30, 2019, Appellant's
appellate rights were reinstated rnunc pro tunc. The instant appeal followed on August 10, 2019.
ISSUES
Through Appellant's 1925(b) Statement the following issues are raised:
A. Whether it was error for the Trial Court to deny Appellant's pretrial Motion to Sever
Informations.
B. Whether it was error for the Trial Court to deny Appellant's pretrial Motion to Suppress DNA
Evidence.
FACTS
Complainant E.M. testified that in the early morning hours of February 15, 2012 she vas working
as aprostitute in the area of Atlantic Avenue and Kensington Avenue in Philadelphia. N.T. 4/27/2017 at
77. iAround 12:30 am E.M. had adate with aregular client of hers named Marquese. Id. After her date
she returned to the corner of Atlantic Avenue and Kensington Avenue around 1:30 am at which point a
male pulled up in acar and flashed money at E.M. Id. at 78. E. M. got into the car to begin adiscussion
with the male about price and services and the male began to drive away. Id. at 78-79. The male drove a
few blocks and E.M. was alerted to another male, Appellant, who was in the back seat of the car,
concealed by clothing and debris. Id. Appellant put his hands around E.M.'s neck, choking her and
beginning to drag her into the back seat while the driver parked the car and removed E.M.'s pants and
boots. Id. at 79-81. Appellant tore off the rest of E.M.'s clothing and repeatedly punched her in the face.
Id. at 81-83. Appellant then pulled E.M. fully into the back seat of the car and forced her to perform oral
1 "N.T." refers to Notes of Testimony taken at the jury trial before the Honorable Gwendolyn N. Bright on April 26, 2017-May 9, 2017. The specific page to which reference is made follows the notation "N.T.".
2 sex on him while still punching her in the face. dI. at 83. The driver then came around to the back seat
from outside of the car and began vaginally raping E.M. and beating her. Id. at 84-85. Appellant and the
driver then flipped E.M. over in the back seat and the driver forced her to perform oral sex on him while
Appellant vaginally raped her. Id. at 85. E.M. testified that she was crying and pleading with her
assailants to stop, at which point Appellant began anally raping her. Id. at 86-87. The co-horts conversed
about agun while Appellant held ajacket over E.M.'s face and the driver held aweapon near her head.
Id. at 90-92. A gun was fired once in the car, whereupon Appellant opened the door, E.M. fell out and
ran. Id. at 94-95. As E.M. was running another shot was fired; she continued running and screaming for
help until she arrived at ahouse and knocked on the door, which was opened by Tara Jordan. Id. at 95;
N.T. 4/26/2017 at 48-51. Jordan, who observed anaked and crying E.M. at her door, called the police. Id.
at 51-53. E.M. received medical treatment at Episcopal Hospital, and was examined at the Philadelphia
Sexual Assault Response Center where arape kit was performed and DNA evidence collected. N.T.
5/1/2017 at 14, 108, 113.
Complainant F.C. testified that around 10:00 pm on August 28, 2012 she walked afriend to the
bus stop at Frankford Avenue and Church Street in Philadelphia. Id. at 26-28. once her friend was on the
bus, F.C. began to walk back to ahouse on Leiper Street. Id. at 29-30. F.C. testified that as she was
walking up Church Street she felt apresence behind her and moved to the side but did not look around
and then was punched in the right eye. Id. at 30-31. She then was dragged into the parking lot of afuneral
home on Church Street. dI. at 32. As F.C. was dragged she was continually punched in the face by her
assailant who kept telling her to shut up. Id. The assailant vaginally raped F.C. on the ground, and again
as she was pushed against awall while her head was banged on the concrete. Id. at 35-38. F.C.'s anus was
digitally penetrated and was threatened with anal rape. Id. at 39-42. F.C. was beaten throughout the
assault until the assailant left the scene. Id. The Complainant's face was so swollen from the face
punching that she could not see the perpetrator. Id. at 33. When the assailant left, F.C. crawled out of the
parking lot onto Church Street where apassersby rendered assistance and called the police. Id. at 44-45.
3 F.C. was taken to Temple Hospital where she stayed overnight, arape kit was prepared along with
collection of DNA evidence. N.T. 5/4/2017 at 9-11, 13, 15.
In September of 2012, the Special Victims Unit (SVU) was alerted that the DNA samples
collected from the rape kits done for Complainant E.M. and Complainant F.C. were amatch to each other.
N.T. 5/2/2017. at 132. In July of 2014 the CODIS database returned amatch of the offender's DNA
profile and the SVU was able to identify Appellant as the offender in both cases. Id. at 134. Complainant
E.M. was shown aphoto array and identified Appellant as one of her attackers. Id. at 135. An arrest
warrant was prepared and Appellant was arrested on July 26, 2014. Id. at 137.
DISCUSSION
Appellant first avers that it was improper to consolidate the charges regarding the two
Complainants. "It is well-settled that the propriety of consolidating separate indictments for trial is
ultimately within the sound discretion of the trial court and its determination in this regard will not be
disturbed unless it clearly appears the rights of the defendant were thereby prejudiced." Commonwealth v.
Stock, 345 A.2d 654, 656 (Pa. 1975); Commonwealth v. Patrick, 206 AN 295 (Pa. 1965);
Commonwealth ex rel. Bolish v. Baumiller, IS IAN 480 (Pa. 1959). Pennsylvania Rule of Criminal
Procedure 582 states, "Offenses charged in separate indictments or informations may be tried together if
the evidence of each of the, offenses would be admissible in aseparate 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)(a).
Evidence of other crimes is admissible at trial when it tends to prove motive, intent, absence of
mistake or accident or acommon scheme, plan or design which makes the commission of two or more
crimes so intertwined with each other that proving one tends to prove the other. Commonwealth v.
Peterson, 307 AN 264, 269 (Pa. 1973). In establishing acommon scheme, plan or design there is no
requirement that crimes be identical, rather similarities in victims, location, defendant's action and other
commonalities will be considered. Commonwealth v. O'Brien, 836 AN 966, 969 (Pa. Super 2003).
4 Here, the two assaults occurred within amile and ahalf of each other about six months apart in
February and August of 2012. N.T. 04/27/2017 at 7-8, N.T. 05/02/2017 at 17. Both victims were slightly
built black females in their mid-twenties. Exhibit C-16, Medical Records, Temple University Hospital,
N.T. 04/27/2017 at 94, Exhibit C-49, Medical Records, Temple University Hospital. In both instances,
Appellant took the victims by surprise, in F.C.'s case corning from behind her on the street and in E.M.'s
case by hiding behind her in the back seat of the car. N.T. 04/27/2017 at 79, N.T. 05/01/2017 at 30-31.
During both incidents Appellant repeatedly beat the victims throughout the assault. N.T. 04/27/2017 at
83, N.T. 05/01/2017 at 32. Appellant vaginally raped both victims. N.T. 04/27/2017 at 85, N.T.
05/01/2017 at 35. Appellant anally raped E.M. and attempted to anally rape F.C. N.T. 04/27/2017 at 87,
N.T. 05/01/2017 at 38-39. Appellant was vocal and verbally abusive during both attacks, threatening both
victims. N.T. 04/27/2017 at 86, N.T. 05/01/2017 at 36-37. Appellant ripped off both victims' clothing,
leaving them naked when lie fled the scene of the assault. N.T. 04/27/2017 at 81, N.T. 05/01/2017 at 34-
35. Appellant took personal items from both victims, including cell phones and purses. Exhibit C-3, E.M.
Statement to Police, N.T. 05/01/2017 at 43-44. Both assaults took place in remote locations in the early
morning hours when no other people were around. N.T. 04/27/2017 at 77-78, N.T. 05/01/2017 at 44-45.
Both victims were left alone, beaten and naked on the street. N.T. 04/27/2017 at 96, N.T. 05/01/2017 at
42.
Case law shows that similarities of victims and crimes, such as the ones here, are sufficient for
admissibility and therefore sufficient for consolidation. O'Brien supra at 970 (sexual assaults on victims
of the same race, gender and similar age to Complainant were admissible despite 14 years passing
between crimes and varying details in the commission of the assaults); Commonwealth v. Hughes, 555
A.2d 1264 (Pa. 1989) (sexual assault of avictim of similar age to Complainant was admissible because it
was also asexual assault, occurred at asimilar time of day and in asimilar location and the victim was
alone at the time of the assault); Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991) (consolidation of
two rapes cases upheld because evidence of each would be admissible in the other as acommon design
5 because, despite drastic differences in victims, the commission of the rape was similar). Here, the assaults
of E.M. and F.C. are strikingly similar in all the ways listed above. Evidence of each assault would be
admissible to prove acommon design and therefore consolidation was proper.
Further, Rule 582 requires that the evidence of each crime be of the type that is able to be
separated to avoid confusion for the jury. Pa.R.Crim.P. 582 (A)(1)(a). The jury in this trial heard five days
of testimony from April 26, 2017 through May 8, 2017. Both Complainants testified. E.M. testified on
April 27, 2017. F.C. testified on May 1, 2017. Each Complainant was examined by different doctors and
each incident was responded to by different police officers. All doctors and officers testified to the
isolated events they observed with either Complainant. There is no indication by Appellant that the
evidence was of anature that was confusing to the jury and no reason to believe the jury was unable to
separate the evidence.
Finally, the decision of the trial Court to consolidate informations should not be disturbed unless
there is aclear appearance that the rights of the defendant have been prejudiced. Stock supra at 656.
Appellant makes no claims regarding how he was prejudiced by the consolidation. Pennsylvania Rule of
Evidence 404(b) provides the standard for prejudice when introducing evidence of other crimes.
"Evidence of acrime, wrong, or other act ... in acriminal case this evidence is admissible only if the
probative value of the evidence outweighs its potential for unfair prejudice". Pa.R.E. 404(b)(3). In order
to be too prejudicial to be admissible, evidence must be so far more prejudicial than probative that its
inflammatory nature renders any probative value de minimus in comparison. Commonwealth v. Peer, 684
A.2d 1077, 1083 (Pa. Super 1996). Here, the evidence of each crime was similar in nature, such that it is
improbable that the evidence of one crime would so inflame the jury's sensibilities after already hearing
the evidence of the other. Further, there is no indication that any prejudice was suffered by Appellant.
Appellant next contends that the Trial Court erred in denying Appellant's pretrial Motion to
Suppress DNA Evidence. On July 13, 2014 Search Warrant Number 182624 was executed. The warrant
lists as items to be search for and seized: "Oral swab from Ian Gabriel DOB 02/07/91 who is incarcerated
6 at CFCF 8301 State Road." The warrant further details as aspecific description of premises and/or
persons to be searched: "Oral swab for DNA comparison from Ian Gabriel DOB 02/07/91."
Appellant relies on United States v. Davis to support his contention that his Fourth Amendment
right was violated by the collection and extraction analysis of his DNA. 690 F.3d 226 (4f'' Cir. 2012). In
Davis, the Fourth Circuit held that DNA extraction analysis is asearch in itself under the Fourth
Amendment, because there are unique privacy rights in the information that can come from the tests. Id.
at 243. The Davis Court was dealing with aDNA extraction that was the result of awarrantless search
when Davis was the victim of acrime and then was saved in CODIS until Davis himself was matched as
the perpetrator of aseparate crime. Id. Despite holding that the DNA extraction initially was an
unreasonable search, the Fourth Circuit upheld Davis' conviction and the denial of the Motion to
Suppress DNA Evidence based on the good faith exception to the exclusionary rule. dI. at 257. The
Pennsylvania Superior Court has addressed Davis and clarified its holdings. Commonwealth v. Smith,
164 A.3d 1255. The Appellant in Smith made the same contention as the Appellant here, that although his
DNA was collected pursuant to asearch warrant, the extraction analyses required aseparate warrant and
therefore was asearch in violation of the Fourth Amendment. Id. at 1257-1258. The Superior Court flatly
denied this assertion. Id. The Court in Smith held that extraction analyses of DNA for identification
purposes does not require aseparate warrant because it is not, as Smith and the Appellant here feared,
being used to reveal private medical information but instead it is used for identification. Id. at 1260.
Therefore, Appellant's claim that the Trial Court erred in Denying his Motion to Suppress DNA Evidence
is meritless.
7 CONCLUSION
Appellant's claims on direct appeal are meritless and relief should be denied.
BY THE COURT
DATE: z3l 1(A