Commonwealth v. Everett-Bey

258 A.3d 533 (Table)

COMMONWEALTH of Pennsylvania

v.James EVERETT-BEY, Appellant

No. 483 WDA 2020

Superior Court of Pennsylvania.

Filed: June 17, 2021

MEMORANDUM BY McLAUGHLIN, J.:

James Everett-Bey appeals from the judgment of sentence following his convictions for two counts each of Conspiracy and Possession with Intent to Deliver ("PWID"), and one count each of Corrupt Organizations, Dealing in Proceeds of Unlawful Activities, and Criminal Use of a Communication Facility.¹ We affirm.

A multicounty investigating grand jury returned a presentment naming Everett-Bey and two others as operators of a drug distribution conspiracy, and Everett-Bey was charged with drug-related crimes. Before trial, Everett-Bey moved for a change in venue citing "the sensationalized media treatment" of the case, a lack of ethnic diversity in Blair County, and "the current climate of out of town persons[.]" See Omnibus Pre-Trial Motions, filed 6/6/18, at ¶¶ 50, 52, 53. He also argued his trial should be severed from that of his co-defendants because he allegedly was a "bit player" and the evidence of his co-defendants' greater roles would unduly prejudice him. Id. ¶ 56-57. In an amended pretrial motion, he argued that Blair County had no jurisdiction over him "as [Everett-Bey] is not alleged to have committed any crime in Blair County." See Amendment to Omnibus Pre-Trial Motions, filed 4/9/19, at ¶ 2. He also filed a motion to suppress arguing "there was no cooperation agreement ... nor compliance with [the] Municipal Police Jurisdiction Act [MPJA]"² among the multiple counties involved in the investigation. See Defendant's Motion to Suppress, filed 7/9/19, at ¶ 4.

The trial court denied Everett-Bey's challenge to venue because "Judge Krumenacker, in his capacity as supervising Judge of the Fortieth Statewide Investigating Grand Jury, designated Blair County as the appropriate venue[.]" Order, filed 12/3/19.³ It noted that the Attorney General "has statewide jurisdiction[.]" Id. It also denied the suppression motion concluding that police agencies from different counties acted properly under the amendment of Section 8953 of the MPJA and Commonwealth v. Forsythe , 217 A.3d 273, (Pa.Super. 2019).

Everett-Bey and his co-defendants Jabu Robinson and Damon Devine proceeded to a jury trial at which the Commonwealth presented evidence that the three conspired to participate in trafficking cocaine and heroin in Philadelphia, Blair, and Cambria Counties. The testimony was that Everett-Bey participated in the conspiracy by driving Devine to transport drugs and collect money, collecting debts himself, and packaging heroin. N.T., Trial, 12/4/19, at 118, 132, 133, 136, 151, 160.

Following trial, the jury found Everett-Bey guilty of the above offenses. The trial court sentenced him to concurrent terms of two to four years' incarceration. Everett-Bey did not file a post-sentence motion. This timely appeal followed in which Everett-Bey raises the following issues:

I. Whether the trial court's order of November 21, 2019[,] erred in dismissing challenges to severance and venue in Blair Co., Pa. as Blair Co., Pa. lacked jurisdiction over Mr. Everett-Bey and the charges filed against him, as no criminal conduct occurred by Mr. Everett-Bey in Blair Co., Pa.?

II. Whether the trial court erred in dismissing objections to jurisdictional cooperation among the various police agencies involved in [Everett-Bey's] charges?

III. Whether the trial court erred in failing to grant dismissal of the charges filed against [Everett-Bey] at the close of the Commonwealth's case where no evidence was presented showing criminal conduct amounting to a conspiratorial relationship with co-defendants?

IV. Whether the two (2) to four (4) year concurrent sentences imposed by the trial court were harsh and excessive in light of [Everett-Bey's] relevant conduct?

Everett-Bey's Br. at 4 (trial court answers omitted).

Everett-Bey's first claim challenges the denial of his motion to change venue. He argues that "venue should not have been in Blair Co.," because unlike the defendant in Commonwealth v. Brookins , 10 A.3d 1251 (Pa.Super. 2010), he "was not buying or selling drugs in Blair Co., nor anywhere else, but only acted as a driver which never occurred in Blair Co." Id. at 10. The Commonwealth maintains that Everett-Bey waived this issue. See Commonwealth's Br. at 7.

We review a challenge to the denial of a change of venue for an abuse of discretion. Commonwealth v. Devries , 112 A.3d 663, 666 (Pa.Super. 2015). The venue of a case may be changed upon a motion and "when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending." Pa.R.Crim.P. 584(A).

If a defendant is charged following the return of a presentment by a multicounty investigating grand jury, the supervising judge of the grand jury chooses "the county for conducting the trial from among those counties having jurisdiction," and venue is proper in such county. 42 Pa.C.S.A. § 4551(d) ; Brookins , 10 A.3d at 1259. The defendant may nonetheless obtain a change of venue if the defendant establishes that "a fair and impartial trial" cannot take place in the county where the case is pending. Pa.R.Crim.P. 584(A) ; Brookins , 10 A.3d at 1259. Considerations for making that determination include whether trial in the original venue will cause the defendant undue expense; the location of the trial will render the defendant unable to obtain the presence of witnesses or evidence; the prosecution has engaged in forum shopping to obtain an advantage; and pre-trial publicity rendered a fair trial unlikely. Id.

In Brookins , this Court concluded that the trial court had properly rejected a change of venue even though Brookins was not alleged to have committed criminal acts in the venue. We explained that because Brookins was charged pursuant to a multicounty grant jury presentment, the fact that Brookins' acts did not occur in Montgomery County did not make venue improper there. Rather, "[t]he supervising judge of the grand jury selected Montgomery County as the site of trial for the consolidated cases based not merely upon Brookins's conduct in Philadelphia, but also concerning the activities of other sellers in the drug distribution ring of which Brookins was a part." Brookins , 10 A.3d at 1259.

Here, although Everett-Bey preserved this issue for appellate review by raising her claim in her pretrial motions, his issue lacks merit. As in Brookins , the supervising judge of the multicounty investigating grand jury designated Blair County as the venue based on the alleged acts of Everett-Bey's co-defendants in Blair County. Everett-Bey's attempt at distinguishing Brookins fails as the court did not base its decision on the nature of the defendant's acts. The trial court did not abuse its discretion in denying the motion.

Everett-Bey's challenge to the denial of severance fares no better. Whether to join or sever offenses for trial is within the trial court's discretion and will not be reversed on appeal absent a manifest abuse of discretion, or prejudice and clear injustice to the defendant. Commonwealth v. Newman , 598 A.2d 275, 277 (Pa. 1991).

Severance is proper "if it appears that any party may be prejudiced by offenses or defendants being tried together." Pa.R.Crim.P. 583. To determine whether to sever trials, the court should first consider whether the evidence of each of the offenses would be admissible in a separate trial for the other and whether such evidence is capable of separation by the jury so as to avoid danger of confusion. If the answers to these questions are in the affirmative, the court should then determine if the defendant will be unduly prejudiced by the consolidation of offenses. Commonwealth v. Collins , 703 A.2d 418, 422 (Pa. 1997).

Here, Everett-Bey makes no developed argument in support of his severance claim. He conclusorily argues that certain testimony "would not have been admissible in a trial for him alone, and such testimony prejudiced the jury against him." Everett-Bey's Br. at 10. He offers no explanation of the reasons he believes the testimony was inadmissible at a separate trial, or how it worked to his prejudice. This claim is waived.

Next, Everett-Bey claims that the cooperation of Blair County and Cambria County officers from the drug task force was not properly authorized under the MPJA. He acknowledges that pursuant to an amendment to the MPJA, in July 2019 but retroactive to June 1982, which this court upheld in Commonwealth v. Forsythe , 217 A.3d 273 (Pa.Super. 2019), his claim lacks merit. Everett-Bey's Br. at 11. He nonetheless urges us to conclude otherwise. Id. This claim is meritless. We lack the authority to overrule the decision of another panel of this Court. Commonwealth v. Beck ,78 A.3d 656, 659 (Pa. Super. 2008).

Everett-Bey also challenges the sufficiency of the evidence for the charge of conspiracy. He maintains that while the Commonwealth presented testimony about his involvement, the testimony...