Commonwealth v. Richard

150 A.3d 504

COMMONWEALTH of Pennsylvania, Appellee

v.Ryan RICHARD, Appellant

No. 2095 MDA 2015

Superior Court of Pennsylvania.

Argued September 21, 2016

Filed November 15, 2016

Steven P. Trialonas, State College, for appellant.

Michael M. Osterberg, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Ryan Richard appeals from the judgment of sentence entered in the Court of Common Pleas of Centre County on August 6, 2015, at which time he was sentenced to an aggregate term of seven (7) years' to seventeen (17) years' incarceration. Upon our review, we affirm.

The record reveals that in 1989, Appellant pled guilty to third degree murder for the death of his wife and was imprisoned. Appellant was scheduled to be released from prison on December 13, 2012; however, on that date he was arrested and charged with eight counts of Terroristic Threats and eight summary counts of Harassment.¹ The charges stemmed from two letters he had sent to his now deceased mother² wherein he threatened to kill certain individuals who had been involved in the murder case. One of the letters detailed in gruesome detail how Appellant intended to murder each person, which included a former Berks County judge, the former Berks County District Attorney, a retired state trooper, Appellant's former defense counsel, girlfriend and brother, and several others.

Appellant's brother Russell Richard discovered the letters in his mother's home following her death. The undated "hit list" letter was contained in an envelope upon which was written, "Put this with my other stuff. This is for me when I get out." Russell Richard contacted the Pennsylvania State Police who then relayed the contents of the communications to the individuals named therein. Appellant thereafter was charged with the aforementioned offenses. All of these counts were docketed at CP–14–CR–0016–2013, and Appellant was incarcerated on said charges.

On April 10, 2013, Appellant was charged with two (2) counts of Terroristic Threats which were docketed at CP–14–CR–0708–2013. Also on April 10, 2013, Appellant was charged with a single count of Intimidation of Witnesses or Victims, 18 Pa.C.S.A. § 4952(a)(3), and that count was docketed at CP–13–CR–0711–2013. These charges arose following statements Appellant made in an unmonitored telephone call to his estranged daughter Robyn Apgar from his counselor's office in the prison on April 4, 2013.³ At that time, Appellant made threatening remarks directed toward Ms. Apgar and Russell Richard and in doing so referenced his brother's testimony against him on April 2, 2013.

On November 13, 2014, a jury trial was held on the charges pertaining to all three dockets, following which Appellant was found guilty of the two counts of Terroristic threats docketed at CP–14–CR–0708–2013 and the Intimidation of Witnesses or Victims charge docketed at CP–13–CR–0711–2013. A motion for judgment of acquittal was granted as to one count of Terroristic Threats, and Appellant was found not guilty of the remaining seven counts of Terroristic Threats docketed at CP–14–CR–0016–2013. On August 6, 2015, Appellant was sentenced, and on August 14, 2015, he filed a timely post-sentence motion. After hearing argument on his motion on August 24, 2015, the trial court denied the same in its Opinion and Order of November 6, 2015.

A timely notice of appeal followed, and Appellant filed his Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) on December 29, 2015, wherein he raised seven issues. In its Opinion filed on January 8, 2016, pursuant to Pa.R.A.P. 1925(a), the trial court noted that as one of the issues Appellant raised had been decided by the motions court, that court would address it in a separate opinion. The trial court proceeded to respond to issues two through seven raised in Appellant's concise statement by relying upon its reasoning set forth in its Opinion and Order of November 6, 2015. The motion court's Opinion in Response to Matters Complained of on Appeal was filed on January 22, 2016, wherein the court relied upon its prior reasoning in its Order of August 30, 2013.

In his brief, Appellant presents the following Statement of Questions Involved:

A. Did the lower court commit and [sic] error of law by denying [Appellant's] Motion to Sever pursuant to Pa.R.Crim.P. 583, which specifically addressed the issue of whether evidence of the gruesome and explicit threats at docket 16–2013 would have been inadmissible in the trials at dockets 708/711–2013 and the offenses underlying each docket were not based on the same act or transaction?

B. Did the lower court err in determining that evidence of [Appellant's] prior murder conviction and aggravated assault conviction was admissible pursuant to Pa.R.E. 404(b) when no permissible purpose such as motive, opportunity, intent, preparation, plan, knowledge, etc. could justify the admission of such inflammatory evidence, and further the probative value of such old convictions did not outweigh the substantial potential for unfair prejudice?

C. Did the lower court committed [sic] an error of law by allowing the introduction of the highly prejudicial facts of the 26 year old murder case which confused, mislead, and inflamed the emotions of the jury, resulting in prejudice to [Appellant] and ultimately an unfair trial?

D. Did the lower court commit an error of law by denying [Appellant's] Motion for Judgment of Acquittal at the close of the Commonwealth's case in chief concerning docket CP–14–CR–16–2013[?] ¹

E. Did the lower court commit an error of law and abuse of discretion by accepting the verdict which was against the weight of the evidence and insufficient to support the convictions, resulting in a miscarriage of justice?

F. Did the lower court commit an error of law in denying [Appellant] credit for all time he has spent incarcerated prior to sentencing?

¹Although [Appellant] was ultimately acquitted of the charges associated with this docket, the denial of this motion had a prejudicial impact on [Appellant's] cases docketed at CP–14–CR–708–2013 and CP–14–CR–711–2013 for which he was convicted. The jury was asked to consider very graphic threats that very clearly fell outside the statute of limitations requiring verdicts of not guilty. This had a detrimental impact on the full and fair consideration of the remaining charges of which [Appellant] was convicted. Due to the prejudicial impact that will be further developed within this brief, it is respectfully submitted that this issue was not rendered moot by the jury finding [Appellant] not guilty.

Brief for Appellant at 1–2.

Initially, Appellant contends the trial court erred in denying his motion to sever filed pursuant to Pa.R.Crim.P. 583. Brief for Appellant at 8. Appellant maintains the three criminal complaints should have been severed into two separate trials, with the focus of one being on the charges stemming from the letters Appellant allegedly wrote and the other upon the charges that were filed following the allegedly threatening telephone call he made to his daughter from prison because it is "axiomatic that a murder conviction will prejudice the jury against [Appellant] when deliberating on the Phone Case." Id. at 11, 13.

"The decision to sever offenses is within the sound discretion of the trial court and will be reversed only for a manifest abuse of that discretion." Commonwealth v. Collins , 550 Pa. 46, 54, 703 A.2d 418, 422 (1997) (citations omitted).

The traditional justification for permissible joinder of offenses or consolidation of indictments appears to be the judicial economy which results from a single trial. The argument against joinder or consolidation is that where a defendant is tried at one trial for several offenses, several kinds of prejudice may occur: (1)[t]he defendant may be confounded in presenting defenses, as where his defense to one charge is inconsistent with his defenses to the others; (2) the jury may use the evidence of one of the offenses to infer a criminal disposition and on the basis of that inference, convict the defendant of the other offenses; and (3) the jury may cumulate the evidence of the various offenses to find guilt when, if the evidence of each offense had been considered separately, it would not so find.

Commonwealth v. Janda , 14 A.3d 147, 155 (Pa.Super. 2011) quoting Commonwealth v. Morris , 493 Pa. 164, 171, 425 A.2d 715, 718 (1981). Thus, in determining whether the trial court herein abused its discretion, we must "weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy." Id.

Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part, the following:

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)(1). In addition, Rule 583 states:

Rule 583. Severance of Offenses or Defendants

The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

Pa.R.Crim.P. 583. "Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him to a crime." Commonwealth v. Dozzo , 991 A.2d 898, 902 (Pa.Super. 2010) (citation omitted), appeal denied, 607 Pa. 709, 5 A.3d 818 (2010).

The prejudice of which Rule 583 speaks is, rather, that which would occur if the evidence tended to convict the appellant only by showing

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