Commonwealth v. Grillo

917 A.2d 343, 2007 Pa. Super. 35, 2007 Pa. Super. LEXIS 175

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2007
• Status: Published

Opinions

OPINION BY

KLEIN, J.:

¶ 1 Richard M. Grillo appeals from his judgment of sentence for attempted burglary, receiving stolen property (RSP) and related charges. On August 9, 2003, Grillo was caught near the door to a house with fresh pry marks on the door. A retired police sergeant’s badge and a camera were also found in Grillo’s sport utility vehicle (SUV) at the time of his arrest for the burglary. The badge and camera were items stolen in earlier, separate burglaries in April and May 2003.

¶ 2 The essence of Grillo’s claim on appeal is that the trial court improperly denied his motion to sever¹ the attempted burglary charge from the RSP charge; instead, the court conducted a joint trial for both crimes. Under the language of Pa.R.Crim.P. 563 (Joinder of Offense in Information) and Pa.R.Crim.P. 582 (Join-der — Trial of Separate Indictments or In-formations) these separate crimes do not meet the criterion for joinder. Therefore, we are constrained to vacate and remand for separate trials.

¶3 The language of Pa.R.Crim.P. 563 and 582 is identical, in part, and states that more than one offense may be charged in the same information and/or tried together if:

(1) 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

(2) the offenses charged are based on the same act or transaction.

Pa.R.Crim.P. 563(A); 582(A).

¶ 4 While there is no “danger of confusion” regarding the evidence of each crime under subsection (1), the evidence of the stolen badge and camera would not be admissible in the trial for attempted burglary. The Commonwealth’s claim that the badge might be used if Grillo was caught is far-fetched and would not make the items upon which the RSP charge is based admissible in the burglary case.

¶ 5 Therefore, to sustain joinder, the Commonwealth must establish that the offenses are based on “the same act or transaction.” Pa.R.Crim.P. 563(A)(2); Pa. R.Crim.P. 582(A)(2). The Commonwealth contends that because RSP is a continuing crime, having the stolen badge and camera in the SUV and attempting to break into a house are part of “the same act or transaction.”

¶ 6 We conclude that this argument runs counter to both the plain language of the Rules and case law interpreting similar language in 18 Pa.C.S.A. § 110, which discusses when prosecutions are barred by former prosecutions for the same offense.

¶7 Black’s Law Dictionary defines an act² as “[sjomething done or performed,” and a transaction³ as “[t]he Act or an instance of conducting business or other dealings.” Here two things were done or performed — possession of stolen items found in the SUV and attempting to break into a house. Assume for a moment that there was no burglary but instead Grillo was playing basketball. Would anyone say that playing basketball and having stolen the items in the SUV are the same act or transaction? Suppose the stolen property was found in Grillo’s house. Would anyone consider that part of the same act or transaction as the attempted burglary? Likewise, breaking into a house and having proceeds of other, unrelated burglaries in your SUV are separate and distinct occurrences.

¶ 8 While there is little case law dealing with permissive joinder, there are cases dealing with similar language under section 110 (When prosecution is barred by former prosecution for different offense). Section 110 bars retrial for “any offense based on the same conduct or arising from the same criminal episode.” 18 Pa.C.S.A. § 110. That is similar to the “based on the same act or transaction” language found in Rules 563 and 582.

¶ 9 We adopt the reasoning from our Court’s decision, Commonwealth v. Lane, 442 Pa.Super. 169, 658 A.2d 1353, 1355 (1995). In Lane, the Court considered several factors in determining whether there was a single episode:

1. the temporal sequence of events;

2. the logical relationship between the acts; and

B. whether they share common issues of law and fact.

Here, while the camera and badge were in the SUV at the same time as the burglary was being attempted, the burglaries from which the camera and badge were the proceeds had occurred months prior. Therefore, the RSP well may have been a continuing crime for many days, while the attempted burglary was at a specific time far removed from the other burglaries.

¶ 10 There does not seem to be any relationship between the RSP and the attempted burglary, except that it may be used to show that if Grillo had proceeds from two burglaries, he is a bad person and more likely to try to commit another burglary. This is precisely why evidence of another crime is considered too prejudicial to be admissible. Evidence of other crimes is generally prohibited by Pa.R.E. 404(b), which provides that such evidence can only be admitted when the probative value outweighs the potential for prejudice. It can be admitted under Pa.R.E. 404(b)(2), but only if it is used to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absences of mistake or accident. None of those circumstances is present in the instant case.

¶ 11 There are no real common issues of fact between the RSP and the attempted burglary. The victims are different and the evidence is different. The burglary would be tried without any reference to the stolen items found in the SUV. The RSP, if tried separately, would be tried without any reference as to why the police were looking in the SUV. Therefore, there is no need to bring the facts of one crime into the trial of the other. The issues of fact are not common.

¶ 12 This Court has previously considered whether something that is a continuous crime makes it part of the same act as another crime and rejected that concept. In Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984), while executing a search warrant of a car looking for stolen motor oil and tools, the police found drugs and drug paraphernalia. This Court concluded that the offenses of theft by receiving stolen property and possession of drugs had, at best, a marginal temporal relationship, and that they did not arise from the same criminal episode merely because evidence relevant to both was found during the search. The Stewart court stated:

In theory, therefore, it may be said that because both offenses were continuing, they occupied the same time frame at the moment when police searched appellant’s automobile and found not only stolen property but controlled substances as well. In actuality, however, the temporal relationship between the two offenses is less than clear. The crime of theft by receiving stolen motor oil and mechanic’s tools had its genesis in an unlawful taking which occurred during the early evening of August 16, 1980. There is no basis in the evidence here presented for finding that appellant’s possession of controlled substances commenced at the time of the theft or at the time when appellant came into possession of the stolen property.

Id. at 164. In the instant case, one act is possessing stolen property in an SUV, while the other is an attempted burglary at someone’s house. These events are even less related than those in Stewart.

¶ 13 Therefore, we find that the trial court abused its discretion when it denied Grillo’s motion to sever the RSP charge from attempted burglary charges. Pres-bury, supra. Grillo is entitled to new, separate trials for the two separate offenses.

¶ 14 Judgment of sentence vacated; case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 15 FORD ELLIOTT, P. J., MUSMANNO and BENDER, JJ., join; TODD, J., concurs in the result. ¶ 16 ORIE MELVIN, J., files a Dissenting Opinion, in which STEVENS, LALLY-GREEN and BOWES, JJ., join.

1 . It is well settled that a motion for severance is addressed to the sound discretion of the trial court, and that the decision reached by the trial court will not be disturbed absent a showing of manifest abuse of discretion. Commonwealth v. Presbury, 445 Pa.Super. , 665 A.2d 825, 827-28 (1995) (citing Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 936 (1992)).

2 . Black’s Law Dictionary 26 (8th ed.2004).

3 . Black’s Law Dictionary 1535 (8th ed.2004).