Commonwealth of Pa. v. Janda

14 A.3d 147

2011 PA Super 27

COMMONWEALTH of Pennsylvania, Appellee

v.Ronald Douglas JANDA, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 18, 2010.Filed Feb. 10, 2011.

Carol A. Marciano, Allentown, for appellant.James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.BEFORE: STEVENS, DONOHUE and MUNDY, JJ.OPINION BY DONOHUE, J.:

Appellant, Ronald Douglas Janda (“Janda”), appeals from the trial court's June 3, 2009 judgment of sentence imposing an aggregate 156 to 312 months of incarceration for convictions of four counts each of burglary and theft by unlawful taking, and nine counts of receiving stolen property. ¹ We vacate and remand for re-sentencing.

Janda's convictions resulted from a string of nine burglaries in Lehigh County from March 8 to August 8, 2007. Each of the burglaries was of a home, and the homes were located within five or six miles of one another. The trial court summarized the nine burglaries in its Pa.R.A.P.1925(a) opinion:

The first burglary was discovered on March 8, 2007, at the residence of Robert Koenig and 3420 Woodlea Road, Orefield, North Whitehall Township. Mr. Koenig testified that his residence was ransacked, and many items were taken, including a 40? LCD television, Coca–Cola memorabilia trays, four to five quarts of Mobile–1 oil, a replica Rolex pocket watch, and $175.00 in rolled quarters. Mr. Koenig testified that he does not know [Janda] and that he never gave [Janda] permission to take any items from his house.

The second burglary occurred on or between February 24th and March 10, 2007, at the home of Donald Brown at 2718 Valley Road, Orefield, South Whitehall Township. Mr. Donald Brown testified that he discovered the burglary upon returning home from a trip to visit his daughter. He noticed that nothing was disturbed in the downstairs of his house, but the upstairs was in “disarray.” The contents of all the drawers were dumped out and his mattress and box springs were overturned. Stolen from the residence was an engraved watch and a metal box with silver dollars. Mr. Donald Brown stated that he does not know [Janda] and that he did not give [Janda] permission to take any property.

The third burglary was reported on May 9, 2007, at the residence of Richard and Fay Solt, at 5786 Haasadahl Road, Orefield, Upper Macungie Township. Mr. Solt realized his house had been broken into when he returned home from work. [Janda] took a ceramic piggy bank filled with pennies, change and silver coins, and silver dollar certificates. Ms. Solt testified that she and her husband do not know [Janda] and have never given him permission to enter their property or take their possessions.

The fourth burglary was reported on May 18, 2007, by Daniel and Robbyn Eckert at 7192 Haasadahl Drive, Allentown, Upper Macungie Township. Their home was entered and Longaberger baskets, commemorative coins, a $100 bill, silver certificates, loose change, a lockbox, a Craftsman circular saw, a DieHard battery charger, and a lantern-style flashlight were taken. The Eckerts both testified that they did not know [Janda] and that they did not give him permission to take anything.

The fifth burglary was reported by Harry Brown on May 23, 2007, at 2721 Valley Road, Orefield, North Whitehall Township. Mr. Harry Brown discovered that the French doors to his basement had been kicked in and that his bedroom was “ransacked.” [Janda] took from the bedroom a metal lockbox containing documents, a penny collection, a Longaberger basket, cash and loose coins. Mr. Harry Brown testified that he does not know [Janda] and that he never gave [Janda] permission to enter his property or take his belongings. During the investigation, the police were able to collect shoeprint evidence from the doors that had been kicked in.

The sixth burglary occurred on May 23, 2007, at the home of David Brown at 2735 Valley Road, Orefield, North Whitehall Township. [Janda] entered the property and took a computer monitor, lockbox with documents, and two five-gallon gas cans filled with gas. Mr. David Brown testified that he does not know [Janda] and that he did not give him permission to enter his property or to take his items.

A seventh burglary was reported by Donna Sensinger on July 6, 2007, at 2433 Applewood Drive, Orefield, South Whitehall Township. Ms. Sensinger was house-sitting for the home owners, Glen and Lori Wotring, while they vacationed. [Janda] ransacked the living room, bedrooms, and office. [Janda] took a Toshiba satellite laptop, a pillow case, a fireproof safe, $2 bills, loose change, coin wrappers, and a five gallon gas container filled with gas. The Wotring's both testified that they do not know [Janda] and that they never gave [Janda] permission to enter their property or to take their belongings.

The eighth burglary occurred on July 19, 2007, at the residence of John and Aimee Good at 1996 Folk Drive, Fogelsville, Weisenberg Township. Mr. Good returned home around 5:00 p.m. and found his bedroom in “disarray”, with the drawers emptied and shuffled through. Their home was entered through an unlocked basement door and taken [sic] a wooden music box, loose coins, a collection of $2 bills, and $600 cash. Mr. Good testified that he does not know [Janda] and that he did not give him permission to enter his home or to take his belongings.

The ninth burglary occurred sometime between July 23, 2007 and August 8, 2007, at the residence of Hoonani Sinclair, at 3075 Grist Mill Road, Orefield, North Whitehall Township. Her home was entered through an unlocked door and taken were a lockbox that contained four collectible baseball cards, bank CD's, savings bonds, passports, and paperwork. The remainder of the home remained undisturbed. Ms. Sinclair testified that she did not know [Janda] and did not give him permission to enter her home or take her items.

Trial Court Opinion, 4/22/10, at 3–6.

Following his conviction and sentencing, Janda filed a timely post-sentence motion seeking a reduction in restitution, return of property, and challenging the discretionary aspects of his sentence. The motion for reduction of restitution and return of property was granted in part, and the remainder of Janda's post-sentence motion was denied. This timely appeal followed. Janda raises eight issues for our review:

I. Whether the cases and counts required severance, by victim, where the separate offenses did not share a high correlation of details, and there was a palpable danger the jury would improperly cumulate evidence and infer criminal disposition from this cumulation?

II. Whether evidence seized from a series of search warrants executed on the defendant's residence and storage unit should have been suppressed where the warrants lacked probable cause, relied on stale information, lacked particularity, and/or were the fruit of a prior illegal warrant in violation of the Fourth Amendment and/or Article I, Section 8?

III. Whether the best evidence rule precluded testimony about and printed images from the Wotring's digital camera card; and therefore, whether the erroneous admission of such evidence constituted prejudicial error warranting a new trial?

IV. Whether the failure to remove Juror No. 12, who thought she recognized [Janda] as someone who may have been in her apartment at the time of a theft, was prejudicial?

V. Whether the trial judge committed reversible error when he failed to grant the defense request for a missing-evidence instruction and an instruction warning the jury about improper cumulation of evidence?

VI. Whether the evidence was sufficient to establish beyond a reasonable doubt the: (a) Solt burglary and theft offenses where the evidence failed to show [Janda] was the person who committed those crimes; and (b) the Solt, Good, Koenig, Sinclair, Eckert and Donald Brown receiving stolen property offenses where the evidence failed to show [Janda] had guilty knowledge?

VII. Whether the trial judge used an incorrect prior record score and abused its discretion by fashioning an excessive and unreasonable sentence?

VIII. Whether the “deemed denial” of [Janda's] motion for return of property should be reversed where [Janda] established entitlement to lawful possession of the requested property and the Commonwealth failed to prove the property was contraband?

Janda's Brief at 4.²

In his first argument, Janda asserts that this matter should have been severed into separate trials for each victim. The record reveals that the Commonwealth filed two criminal informations against Janda. At 703–2008, the Commonwealth charged Janda with burglary, theft by unlawful taking and receiving stolen property in connection with the Wotring burglary. At 4266–2008, the Commonwealth charged Janda with burglary, theft by unlawful taking and receiving stolen property in connection with the burglaries of the Sold, Harry Brown, David Brown and Sinclair residences, and receiving stolen property in connection with the Koenig, Donald Brown, Eckert and Good residences.

On November 11, 2008, the Commonwealth filed a notice of joinder of the two informations. Janda responded with a motion to sever the prosecution into nine separate trials pertaining to each of the nine victims. The trial court denied Janda's severance motion on February 18, 2009.

The applicable Rules of Criminal Procedure provide as follows:

Rule 582. Joinder—Trial of Separate Indictments or Informations

(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). Likewise, Rule 583 provides that the trial court may order separate trials of offenses “If it appears that any party may be prejudiced by offenses [...] being tried...