Commonwealth v. Colon

846 A.2d 747, 2004 Pa. Super. 88, 2004 Pa. Super. LEXIS 311
CourtSuperior Court of Pennsylvania
DecidedMarch 30, 2004
StatusPublished
Cited by38 cases

This text of 846 A.2d 747 (Commonwealth v. Colon) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Colon, 846 A.2d 747, 2004 Pa. Super. 88, 2004 Pa. Super. LEXIS 311 (Pa. Ct. App. 2004).

Opinion

OPINION BY

OLSZEWSKI, J.:

¶ 1 Franklin Colon, appellant, has brought this appeal from his judgment of sentence following a jury verdict of guilty on charges of robbery, conspiracy to commit robbery, and second-degree murder. The trial judge summarized the facts of this case as follows:

[Franklin Colon and Joey Gonzales], along with another confederate, Eliut Betancourt, were in search of money on the evening of October 29, 2001, and hatched a plan. Armed with a handgun that had been passed among the three of them, they set out to find an easy victim from whom they could steal. Driving Betancourt’s Honda Accord around the streets of Allentown in search of prey, they found no one suitable for the contemplated crime. They proceeded to the Lehigh Valley Mall ... just outside of the City of Allentown. While Colon waited in the car, Gonzalez accompanied [750]*750Betancourt as they observed patrons and waited for the opportunity to strike. Tragically for her, Carol D’Odoardo had gone to the mall that night to buy a present. As she exited Macy’s department store, Gonzalez and Betancourt followed. A struggle ensued when the perpetrators accosted Ms. D’Odoardo as she tried to enter her car. Two shots were fired, hitting Ms. D’Odoardo in the leg and face. Gonzalez and Betancourt ran back to their car and, with the assistance of Colon at the wheel, fled the scene. Meanwhile, Ms. D’Odoardo managed to stumble back toward the entrance of the mall to seek help. She did not make it. She collapsed and died in the mall parking lot.
Unfortunately for the defendants, two key witnesses emerged. One, an employee of Macy’s, happened to notice the Honda Accord in the parking lot. His attention was drawn to the vehicle because it was in a place usually reserved for employee parking. Sensing that something might be awry, he wrote down the license number and, after arriving home, relayed the data back to his employer. Police obtained this information in the immediate aftermath of the shooting. They traced the plate to a woman who turned out to be Betanc-ourt’s girlfriend. Betancourt eventually turned himself in and confessed to the crime, leading police to Gonzalez and Colon.
The other witness happened to be in a car parked at the curb near the place where Colon and Gonzalez smoked cigarettes and stalked potential victims. The witness was waiting for his mother to pick up a purchase at Macy’s. Looking out the rear of his vehicle, he observed two men, fitting Gonzalez’s and Betancourt’s descriptions, following a woman as she walked away from the mall toward the parking lot. Although he did not see the struggle and subsequent killing, he did recall hearing two “pops” immediately after observing them.
As events played out at trial, the evidence presented by these witnesses proved to be merely corroborative. Each defendant gave a full statement to police. In those statements, the defendants offered evidence from which a jury could easily conclude that each had agreed to commit a robbery and were, at the very least, accomplices in the crime in which Ms. D’Odoardo was killed.

Trial Court Opinion 5/16/2008, at 3-5. Colon and Gonzalez were convicted in a joint trial after Gonzalez’s guilty plea was aborted. Colon raises the following issues for our review.

A. Did the lower court err by failing to sever the trials of the two co-defendants either pre-trial or after the aborted guilty plea of the co-defendant, Gonzalez?
B. Did the trial court err by admitting the redacted confession of the co-defendant, Gonzalez, during the joint trial?
C. Did the trial court err by failing to permit the use of the co-defendant’s statement given during an aborted guilty plea from use at trial, which statements exculpated Colon?
D. Did the lower court err by failing to suppress the statements and confessions of Colon?
E. Did the lower court err by permitting the admission of testimony regarding the use of the murder weapon, a handgun, by the untried additional co-defendant in a robbery committed several weeks before the homicide?

Appellant’s brief at 4-5. We take appellant’s issues out of order for ease in setting [751]*751forth our rationale affirming the lower court’s rulings.

¶2 In his second issue, appellant argues that the redacted statement of co-defendant Gonzalez was prejudicial to appellant and should not have been admitted into evidence. Additionally, it is alleged that admission of Gonzalez’s statement when Gonzalez did not testify at trial violated appellant’s right to confront his accuser. Gonzalez had provided police with a 94-page statement regarding the events leading up to the shooting of Ms. D’Odoardo.

¶ 3 In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the U.S. Supreme Court held that a defendant’s Sixth Amendment right to confrontation is violated when a statement of a non-testifying co-defendant that clearly implicates the defendant is entered into evidence. As a result, courts have struggled with the issue of redacting from the non-testifying co-defendant’s statement any wording that readily identifies the defendant who is contesting admission of the statement. In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the court held the statement of a co-defendant admissible because all reference to the complaining defendant had been redacted. The fact that the jury may have connected the complaining defendant with the statement by way of other evidence was not error. Finally, in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the court considered a statement of a co-defendant which replaced the defendant’s name with the word “deleted.” The court held that replacing the defendant’s identity with the word “deleted,” or with a “symbol or other obvious indication of alternation,” Id. at 192, 118 S.Ct. 1151, was not sufficient to take the statement outside the scope of Bruton.

¶ 4 In 1977, the Pennsylvania Supreme Court held that admission of a properly redacted statement does not violate a defendant’s right to confrontation. “If a confession can be edited so that it retains its narrative integrity and yet in no way refers to defendant, then use of it does not violate the principles of Bruton.” Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859, 860 (1977). The court emphasized that a determination of the quality of the redactions must be made on a case-by-case basis with discretion in the trial judge. “[Wjhen it is not clear that a confession can be redacted without prejudice to the defendant, the confession should be excluded.” Id. at 861.

¶ 5 More recently our Supreme Court considered the question of whether one can substitute a pronoun for defendant’s identity rather than using the word “deleted” or using a symbol. In Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845

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Bluebook (online)
846 A.2d 747, 2004 Pa. Super. 88, 2004 Pa. Super. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-colon-pasuperct-2004.