HomeMy WebLinkAboutCP-21-CR-0000835-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1-A) ROBBERY
: (1-B) ROBBERY
v. : (2) [DELETED]
: (3) THEFT BY UNLAWFUL TAK.
: (4-A) SIMPLE ASSAULT
: (4-B) SIMPLE ASSAULT
: (5-A) TERRORISTIC THREATS
: (5-B) TERRORISTIC THREATS
ERIK ANTHONY :
PETERSON :
OTN: K844909-2 : CP-21-CR-0835-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November 9, 2010.
In this criminal case, Defendant was found guilty following a jury trial of
two counts of robbery under Section 3701(a)(1)(ii) of the Crimes Code, each a
felony of the first degree, one count of theft by unlawful taking or disposition, a
felony of the third degree, two counts of simple assault, each a misdemeanor of the
second degree, and two counts of terroristic threats, each a misdemeanor of the
1
first degree. He was sentenced under the “three-strikes law” to an aggregate
period of imprisonment in a state correctional institution of not less than 25 years
2
nor more than 50 years; in imposing the sentence, the court declined the
3
Commonwealth’s request to make the sentence consecutive to sentences
aggregating 36 to 72 years which had recently been imposed upon Defendant in
4
other counties in two other robbery cases.
1
Verdicts, April 22, 2010; see Order of Court, April 22, 2010.
2
Order of Court, August 3, 2010.
3
See N.T. 4, Sentencing, August 3, 2010.
4
See Presentence Investigation Report, at 4; N.T. 2, Sentencing, August 3, 2010.
5
Defendant has filed a direct appeal from the judgment of sentence. While
not challenging the sufficiency or weight of the evidence, Defendant does raise
three other appellate issues in a statement of errors complained of on appeal:
1. The court erred in admitting evidence of robberies in York and
Perry Counties in the Cumberland County case as evidence of a common
scheme or plan.
2. The court erred in permitting the Commonwealth to admit the
testimony of the Perry County District Attorney that the Defendant was
convicted by a jury in Perry County of the Perry County robbery.
3. The court erred in determining that the Defendant’s conviction
under 18 U.S.C. 2113(a) counted as a violent felony for purposes of
sentencing the Defendant pursuant to the third strike provisions to a
6
mandatory 25 to 50 years in prison.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an armed robbery at a small retail establishment in
Hampden Township, Cumberland County, Pennsylvania, known as the Aldi Food
7
Market, on December 5, 2008, Defendant was charged with two counts of
8
robbery and various related offenses.
Prior to trial, the Commonwealth filed a motion pursuant to Pennsylvania
Rule of Evidence 404(b) to permit the introduction at trial of two convictions of
9
Defendant for robberies of an allegedly similar nature. At a hearing on the
motion, Defendant’s counsel conceded that the proffered evidence would qualify
for admissibility under Rule 404(b)(2), reading as follows:
5
Defendant’s Notice of Appeal, filed September 2, 2010.
6
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed September 20,
2010.
7
Notes of Testimony, 18, 28-38, Trial, April 21-22, 2010 (hereinafter N.T. __, Trial, Apr. 21-22,
2010).
8
See Information, filed April 13, 2009. Pursuant to a motion of the Commonwealth, two of the
original charges (unlawful restraint) were withdrawn prior to trial. Order of Court, April 19, 2010.
9
Commonwealth’s Motion in Limine, filed January 26, 2010.
2
Evidence of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
10
knowledge, identity or absence of mistake or accident.
However, she argued that the probative value of the proffered evidence did
not outweigh its potential for prejudice and that, as a consequence, the evidence
11
should be excluded. When questioned by the court as to whether she was willing
to concede that the Commonwealth’s identification of Defendant as the perpetrator
of the Cumberland County robbery was correct, Defendant’s counsel said that she
12
was not.
The temporal, geographical and physical aspects of the Cumberland County
offense and the two other offenses of which Defendant was convicted were
strikingly similar, as was the modus operandi of the perpetrator and the description
13
given of him. Each robbery was committed in December, 2008, they occurred
1415
within a few miles of each other and of Defendant’s residence, and each was
1617
committed in a small retail store. In each case, the perpetrator acted alone,
1819
disguised his face with brown makeup, appeared at the store at closing time,
2021
wore dark clothing which included a black hoodie, wore gloves, brought with
10
Pa. R.E. 404(b)(2).
11
Notes of Testimony, 3, 5, 8, Hearing on Commonwealth’s Motion in Limine, March 2, 2010.
(hereinafter N.T. ___, Hearing, March 2, 2010).
12
N.T. 5, Hearing, March 2, 2010.
13
N.T. 12-13, Hearing, March 2, 2010; N.T. 18, 19, 22, 84, 109, 151-52, 182, 148, 223, 262, 266-
68, 294, Trial, Apr. 21-22, 2010.
14
See N.T. 19, 220, 227, 229, Trial, Apr. 21-22, 2010.
15
N.T. 151, 267, Trial, Apr. 21-22, 2010.
16
N.T. 19, 151, 267, Trial, Apr. 21-22, 2010.
17
See N.T. 55, 86, 212, Trial, Apr. 21-22, 2010.
18
N.T. 57, 68, 193, 206, 275, 299, 310, Trial, Apr. 21-22, 2010.
19
N.T. 22, 28, 48, 86, 152, 267, 269, Trial, Apr. 21-22, 2010.
20
N.T. 57, 76, 164, 189, 193, 206, 275, 286, 299, 308, 310, Trial, Apr. 21-22, 2010.
21
N.T. 57, 77, 164, 189, 193, 361, Trial, Apr. 21-22, 2010.
3
222324
him silver duct tape and a backpack, displayed a black pistol, imprisoned the
25
store’s two employees in a back room, incapacitated the employees by forcing
one to duct tape the other, duct taping the remaining employee himself, and
2627
leaving them face down on the floor, threatened to “kill” them, and stole
28
money before leaving the store. In each case, the perpetrator was described
29
similarly in terms of height, weight and gender, and in each case the two victims
30
identified Defendant as the perpetrator.
As of the time of trial in the Cumberland County case, Defendant had pled
31
guilty and been sentenced in one of the other cases and been found guilty by a
32
jury and sentenced in the other. Defendant had not made an inculpatory
33
statement as to the Cumberland County charges, and his defense was based upon
34
a challenge to the Commonwealth’s identification of him as the perpetrator.
22
N.T. 29, 33, 166, 205, 209, 244, 265, 279, 286, Trial, Apr. 21-22, 2010.
23
N.T. 164, 166, 193, 204-05, 208, 235, 268, 275, 279, Trial, Apr. 21-22, 2010.
24
N.T. 29, 31, 33, 37, 87, 90-91, 154, 163, 199-200, 270, 275, 280, Trial, Apr. 21-22, 2010.
25
N.T. 29, 85, 87, 153, 155, 202, 273, 297, Trial, Apr. 21-22, 2010.
26
N.T. 29, 33-34, 35, 57, 87, 155-56, 166-67, 171, 188, 202, 205, 244, 264, 271, 273, 278, 279,
282, 297, Trial, Apr. 21-22, 2010.
27
N.T. 37, 53, 88-89, 93, 97, 169-70, 202-03, 207-271-72, 273, 283, 295, Trial, Apr. 21-22, 2010.
28
N.T. 29-30, 34, 155, 169-170, 190, 202, 204, 273, 284, Trial, Apr. 21-22, 2010.
29
N.T. 90, 182, 186, 225, 245, 287, Trial, Apr. 21-22, 2010.
30
N.T. 38, 90, 105, 160, 174, 199, 212, 265, 270, 296, 308, 311, 331, Trial, Apr. 21-22, 2010.
31
Presentence Investigation Report, at 5; N.T. 395, Trial, Apr. 21-22, 2010; Commonwealth’s
Exhibit 68, admitted at Trial, Apr. 21-22, 2010 (hereinafter Com.’s Ex. ___); Defendant’s
Response to Commonwealth’s Motion in Limine, ¶2, filed February 12, 2010.
32
N.T. 14, Hearing, Mar. 22, 2010; N.T. 421, Trial, Apr. 21-22, 2010; Presentence Investigation
Report, at 5; Defendant’s Response to Commonwealth’s Motion in Limine, ¶1, filed Feb. 12,
2010. This case was on appeal for a reason not of record in this case, but Defendant’s counsel did
not wish the jury to be apprised of this fact. N.T. 426, Trial, Apr. 21-22, 2010.
33
See generally, N.T., Hearing, Mar. 22, 2010, Commonwealth’s Motion in Limine, ¶¶8-10;
Defendant’s Response to Commonwealth’s Motion in Limine, ¶¶8-10.
34
See N.T. 3, Hearing, Mar. 22, 2010.
4
Given the nature of the defense in this case and the cogency of the other-
crimes evidence as it related to the disputed identity of the Cumberland County
perpetrator, the court was unable to agree with Defendant’s counsel that the
probative value of the proffered evidence did not outweigh its potential for unfair
prejudice. Accordingly, the Commonwealth’s motion to permit the introduction of
35
this evidence was granted. The jury was cautioned more than once at trial as to
36
the limited purpose of such evidence.
At the trial, Defendant’s counsel objected to the Commonwealth’s
introduction of evidence of a conviction of Defendant on the similar crime as to
37
which he was found guilty following a jury trial. The record in this regard reads
as follows:
MS. HOLLINGER: I am requesting an offer of proof of this witness.
MS. PECK: Getting the certified conviction from Perry
the
County, specifically who he is, here’s the certified conviction. Was
Defendant convicted on this date of robbery? Is that the Defendant in the
courtroom?
MS. HOLLINGER: I would renew my objection to this testimony
being admitted at all. I don’t believe that it is relevant to show the requirements
under 404-B. I don’t believe that a conviction is evidence of the crimes for the
purpose of showing opportunity, motive, intent, scheme plan identity.
THE COURT: Your objection is a conviction is not admissible?
MS. HOLLINGER: That’s correct.
THE COURT: On the issue of prior bad acts?
MS. HOLLINGER: That’s correct, under 404-B of the rules of
evidence.
38
THE COURT: All right. The objection is noted, but overruled.
35
Order of Court, In Re: Commonwealth’s Motion in Limine, March 2, 2010. The Order states,
“The Commonwealth’s Motion in Limine To Admit Evidence of Defendant’s Past Convictions
for Robbery is granted to the extent that it will be permitted to introduce at trial in its case-in-
chief evidence tending to show that Defendant was the perpetrator of the other offenses referred
to in the Commonealth’s motion.”
36
See N.T. 424, 426, 450, Trial, Apr. 21-22, 2010.
37
N.T. 421-23, Trial, Apr. 21-22, 2010; Com.’s Ex. 69.
38
N.T. 421-22, Trial, Apr. 21-22, 2010.
5
At the request of Defendant’s counsel, the court gave the following
cautionary instruction immediately following the testimony of the
Commonwealth’s witness:
THE COURT: . . . Ladies and gentlemen, again, as I instructed
you before, when evidence of another offense allegedly committed by the
Defendant was presented, that evidence is admitted for a very limited purpose.
Ordinarily evidence of another crime is not admissible against a defendant.
However, one of the recognized exceptions to this rule is to establish the identity
of the perpetrator when two crimes are so similar that logically the same person
has committed both acts.
Thus, evidence of other crimes is admissible
when it tends to prove a common scheme plan or design embracing the
commission of two or more crimes so related to each other that proof of one
tends to establish the identity of the person charged with commission of the
crime on trial.
That is the very limited purpose for which this
evidence is admissible, and I will instruct you in a little more detail on my final
39
charge on that point. . . .
* * * *
. . . [T]he mere fact that this evidence has been
admitted by me in this case does not constitute any opinion by me or any
instruction to you that, in fact, this other alleged offense does tend to show that
the Defendant committed the crime in question in this case. That is entirely for
your decision. You have to evaluate the evidence. The mere fact that evidence is
admitted does not mean that you have to believe it or draw a certain conclusion
from it. Is that clarification satisfactory to counsel?
MS. PECK: Yes, Your Honor.
40
MS. HOLLINGER: Yes, Your Honor.
Based upon the Commonwealth’s evidence at trial that Defendant had
subjected two employees of the Aldi Food Market in Hampden Township,
Cumberland County, Pennsylvania, to a robbery at gunpoint on Friday, December
5, 2008, at which the victims were threatened with death and at which $4,235.52
was stolen, the jury found Defendant guilty of (a) two counts of robbery under
Section 3701(a)(1)(ii) of the Crimes Code, which requires that the victim be
threatened, or put in fear of, immediate serious bodily injury, each graded a felony
39
N.T. 424-25, Trial, Apr. 21-22, 2010.
40
N.T. 426, Trial, Apr. 21-22, 2010.
6
41
of the first degree, (b) one count of theft by unlawful taking or disposition, a
42
felony of the third degree based upon the amount involved, (c) two counts of
simple assault, in the form involving an attempt to put the victim in fear of
imminent serious bodily injury by physical menace, each graded a misdemeanor of
43
the second degree, and (d) two counts of terroristic threats, each graded a
44
misdemeanor of the first degree. The Commonwealth filed notice of the
purported applicability of the three-strikes mandatory sentencing provision
45
contained in 42 Pa. C.S. §9714, reading in pertinent part as follows:
Where [a person who is convicted of a crime of violence] had at the time
of the commission of the current offense previously been convicted of two or
more such crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25 years of total
46
confinement . . . .
Prior to the imposition of sentence, evidence was received by the court on the
issue of the applicability of this provision.
The Commonwealth’s position that Defendant, as of the time of the current
incident, had been convicted of two or more prior “crimes of violence” for
purposes of the three-strikes law was supported by evidence of a felony-one
aggravated assault for which Defendant was sentenced by the Court of Common
47
Pleas of Carbon County, Pennsylvania, in 1991 and a bank robbery for which
Defendant was sentenced by the United States District Court for the Middle
48
District of Pennsylvania in 1996. With respect to the prior state conviction,
41
Verdicts, April 22, 2010; see Order of Court, April 22, 2010.
42
Verdicts, April 22, 2010; see Order of Court, April 22, 2010.
43
Verdicts, April 22, 2010; see Order of Court, April 22, 2010.
44
Verdicts, April 22, 2010; see Order of Court, April 22, 2010.
45
Commonwealth’s Notice of Mandatory Sentence, filed May 13, 2009.
46
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(a)(2).
47
N.T. 3, Hearing, July 6, 2010; Commonwealth’s Exhibit 1, Hearing, July 6, 2010.
48
N.T. 3-4, Hearing, July 6, 2010; Commonwealth’s Exhibits 2-4, Hearing, July 6, 2010.
7
Defendant’s counsel conceded that it qualified as a prior crime of violence for
49
purposes of the three-strikes law.
With respect to the federal matter, Defendant’s counsel took the position
50
that a crime of violence was not involved for purposes of the three-strikes law.
51
The federal statute which Defendant pled guilty to violating read as follows:
Whoever, by force and violence, or by intimidation, takes, attempts to take, from
the person or presence of another, or obtains or attempts to obtain by extortion
any property or money or any other thing of value belonging to, or in the care,
custody, control, management or possession of, any bank, credit union, or any
savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and
loan association, or any building used in whole or in part as a bank, credit union,
or as a savings and loan association, with intent to commit in such bank, credit
union, or in such savings and loan association, or building, or part thereof, so
used, any felony affecting such bank, credit union or such savings and loan
association and in violation of any statute of the United States, or any larceny—
Shall be fined under this title or imprisoned not more than twenty years, or
52
both.
The evidence with regard to this issue included a certified record from the
United States District Court for the Middle District of Pennsylvania, indicating
that Defendant had pled guilty to a robbery that occurred at a financial institution
known as Members First Federal Credit Union on November 29, 1995, and to a
robbery that occurred at a financial institution known as Mellon Bank on
December 13, 1995, both in violation of the aforesaid federal statute, and had been
sentenced on July 12, 1996, to concurrent maximum terms of imprisonment in a
53
federal prison of ten years. The facts of the Mellon Bank incident were recounted
in a federal presentence investigation report as follows:
49
N.T. 5, Hearing, July 6, 2010.
50
N.T. 5, Hearing, July 6, 2010.
51
18 U.S.C. 2113(a); Com.’s Ex. 2, admitted at Hearing, July 6, 2010.
52
Commonwealth’s Exhibits 2-3, Hearing, July 6, 2010.
53
Commonwealth’s Exhibit 1, Hearing, July 6, 2010.
8
1. On January 2, 1996, a two-count indictment was filed charging the
defendant, Erik Anthony Peterson, with two counts of bank robbery on
November 29, 1995, and December 13, 1995, in violation of 18 U.S.C. §2113(a).
2. On March 19, 1996, the defendant pled guilty to both counts pursuant
to a plea agreement whereby the Government will recommend a three-level
reduction for acceptance of responsibility, if warranted. . . .
3. On November 29, 1995, Mellon Bank, 218 Second Street, Highspire,
Pennsylvania, was robbed by the defendant.
4. Mr. Peterson entered the bank wearing a knit ski cap, sunglasses and a
tan trench coat. He was also wearing brown makeup on his face and talking on a
cellular telephone. After waiting briefly in line, the defendant approached teller
Charlotte Enders, and handed her a MAC machine envelope while asking her
“the MAC machine does not take foreign deposits?” The teller looked at the
envelope noting it was empty at which time Mr. Peterson slipped a note across
the counter which stated, “put all the money in this bag, I have a gun, this is not a
joke”. The defendant then passed a grocery-type bag stating, “give me 100’s and
give me 50’s”. The teller replied that she did not have any and the defendant said,
“yes you do, give me 20’s”. Ms. Enders took the bag and put some money from
her drawer into it, including bait money. She then went to the teller’s vault and
began spinning the dial and at this point, the defendant retrieved his note and
envelope while remarking on the telephone, “she’s looking around”. Mr.
Peterson then turned and fled on foot out the same door he entered.
5. The total amount of money taken in this robbery was $928. Nothing
54
has been recovered.
At the sentencing proceeding, the court found itself in agreement with the
Commonwealth’s position that a mandatory three-strikes sentence was applicable
55
to the robbery counts in the present case, as had the Court of Common Pleas of
Perry County, Pennsylvania, with respect to a previously-sentenced robbery case
56
against Defendant in that county. Defendant was thus sentenced herein to
undergo concurrent periods of not less than 25 nor more than 50 years in a state
correctional institution, said sentences to also run concurrently with other
57
sentences being served by Defendant. The remaining offenses of which
54
Commonwealth’s Exhibit 4, Hearing, July 6, 2010.
55
N.T. 5, Sentencing Proceeding, August 3, 2010.
56
Presentence Investigation Report, at 5.
57
Order of Court, August 3, 2010.
9
Defendant was found guilty were deemed to have merged with the robbery counts
58
for purposes of sentencing.
Defendant’s notice of appeal from the judgment of sentence was filed on
59
September 2, 2010.
DISCUSSION
Admissibility of evidence of other crimes. As noted previously, under
Pennsylvania Rule of Evidence 404(b)(2),
[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident.
Evidence otherwise admissible under this rule, however, is to be excluded in the
absence of a showing that the probative value of the evidence outweighs its
potential for prejudice. Pa. R.E. 404(b)(3); see also Pa. R.E. 403 (exclusion of
relevant evidence on grounds of unfair prejudice).
In this context, the Pennsylvania Supreme Court has stated the following:
Evidence of prior crimes is generally inadmissible due to the prejudicial
effect such evidence has on a jury. . . . However, one of the recognized
exceptions to this rule is to establish the identity of the perpetrator when the
crimes are so similar that logically the same person has committed both acts. . . .
Evidence of other crimes is admissible when it tends to prove a common
scheme, plan or design embracing the commission of two or more crimes so
related to each other that proof of one tends to prove the others or to establish the
identity of the person charged with the commission of the crime on trial, -- in
other words where there is such a logical connection between the crimes that
proof of one will naturally tend to show that the accused is the person who
committed the other. . . .
[E]vidence of other crimes is said to be admissible . . . [t]o prove other
like crimes by the accused so nearly identical in method as to earmark them as
the handiwork of the accused. Here much more is demanded than the mere
repeated commission of crimes of the same class, such as repeated burglaries or
thefts. The device used must be so unusual and distinctive as to be like a
signature. . . .
To establish similarity, several factors to be considered are the elapsed
time between the crimes, the geographical proximity of the crime scenes, and the
60
manner in which the crimes were committed. . . .
58
Order of Court, August 3, 2010.
59
Defendant’s Notice of Appeal, filed September 2, 2010.
10
Thus, in Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994), the
Pennsylvania Supreme Court approved a trial court’s admission of evidence of a
defendant’s conviction of a robbery and other offenses that had occurred eight
years prior to the commission of the criminal conduct at issue therein, but involved
several similarities, described by the court as follows:
. . . In both cases the intruder gained non-forcible entry, ostensibly by
ringing the doorbell. Both victims were neighbors of the appellant and had only
recently been introduced to him. Both were attacked while alone in their third
floor bedrooms in apartment buildings where appellant resided on the first floor.
The victims, both of whom were black, female, and relatively young, had their
underclothing or nightclothes pulled from them. Both were then physically
restrained and attacked with knives obtained from their own apartments. The
assailant repeatedly stabbed both victims until death (or, in the [earlier] attack,
apparent death) occurred. Mrs. Hands was stabbed more than fifty times, and the
victim of the previous attack was stabbed eight times. In each case the apartment
was ransacked, yet the only valuables taken were small items from the bedroom,
i.e., coins, watches, etc. In each case, the perpetrator cleaned the borrowed knife
and left it at the scene of the crime. . . . [H]ere both crimes contain uniquely
similar attributes sufficient to allow the prior conviction into evidence.
The trial court carefully instructed the jury as to the limited purpose, to
wit, identification of the perpetrator, for which evidence of the prior crime could
61
be considered.
In the present case, where Defendant’s trial strategy was to challenge the
strength of the Commonwealth’s evidence as it related to the identification of
Defendant as the perpetrator of the charged criminal conduct, and where the
Commonwealth’s evidence did not include an admission by Defendant, his
apprehension at the scene of the crime, or his unchallenged physical possession of
proceeds of the crime, the court was not able to agree with Defendant’s counsel
that the probative value of the evidence of his commission of two strikingly
similar crimes under the circumstances described above was outweighed by its
unfair prejudicial effect.
Conviction as proof of other crime. Where evidence of another crime is
admissible under the rule referred to above, it is common for such evidence to
60
Commonwealth v. Rush, 538 Pa. 104, 112-13, 646 A.2d 557, 561 (1994) (citations omitted).
61
Commonwealth v. Rush, 538 Pa. 104, 113-14, 646 A.2d 557, 561 (1994).
11
consist, at least in part, of the defendant’s conviction of the same. Thus, in
Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994), the Pennsylvania
Supreme Court declined to hold that the trial court’s “admission of testimony
regarding appellant’s prior conviction for robbery, burglary, aggravated assault
and attempted rape” was error. Id. at 112, 646 A.2d at 560 (emphasis added). And
in Commonwealth v. Wattley, 2005 PA Super. 272, 880 A.2d 682, the
Pennsylvania Superior Court declined to hold that the admission at trial of
evidence relating to a Texas crime, including a certified record showing a
conviction of the same, in the context of Rule 404(b)(2) evidence, was error.
In this regard, the rule would seem to be similar to that involving
impeachment of a witness through evidence of the commission of a prior crimen
falsi. See, e.g., Commonwealth v. Connolly, 217 Pa. Super. 201, 269 A.2d 390,
(1970) (noting that such evidence is normally presented in the form of a certified
record of conviction).
For this reason, the court did not sustain Defendant’s aforesaid objection to
the Commonwealth’s introduction of proof of Defendant’s conviction of another
robbery, in conjunction with other evidence as to its circumstances.
Applicability of three-strikes law. As previously noted, Section 9714(a)(2)
of the Judicial Code provides as follows:
Where [a person who is convicted of a crime of violence] had at the time
of the commission of the current offense previously been convicted of two or
more such crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25 years of total
62
confinement . . . .
63
In such a case, the maximum sentence is to be 50 years.
A “crime of violence” is defined as
murder of the third degree, voluntary manslaughter, aggravated assault as defined
in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape,
involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual
assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related
62
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(a)(2).
63
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(a.1).
12
offenses), kidnapping, burglary of a structure adapted for overnight
accommodation in which at the time of the offense any person is present, robbery
as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or
robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal
solicitation to commit murder or any of the offenses listed above, or an
equivalent crime under the laws of this Commonwealth in effect at the time of
64
the commission of that offense or an equivalent crime in another jurisdiction.
The burden of proof with respect to the existence of such predicate offenses
65
under the three-strikes law is upon the Commonwealth, and the standard of proof
66
is preponderance of the evidence.
The forms of robbery under Pennsylvania law which constitute crimes of
violence for purposes of the above definition are described as follows in Section
3701(a)(1) of the Crimes Code:
A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury; [or]
(iii) commits or threatens immediately to commit any
67
felony of the first or second degree; . . .
As noted previously, the federal robbery statute, which Defendant was
convicted of violating under the circumstances above-described, describes the
federal offense as follows:
Whoever, by force and violence, or by intimidation, takes, or attempts to take,
from the person or presence of another, or obtains or attempts to obtain by
extortion any property or money or any other thing of value belonging to, or in
the care, custody, control, management, or possession of, any bank, credit union,
or any savings and bank association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and
loan association, or any building used in whole or in part as a bank, credit union,
or as a savings and loan association, with intent to commit in such bank, credit
union, or in such savings and loan association, or building, or part thereof, so
used, any felony affecting such bank, credit union, or such savings and loan
association and in violation of any statute of the United States, or any larceny,--
64
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(g) (emphasis added).
65
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(d).
66
Act of March 8, 1982, P.L. 169, §3, as amended, 42 Pa. C.S. §9714(d).
67
Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3701(a)(1)(i)-(iii).
13
Shall be fined under this title or imprisoned nor more than twenty years, or both.
18 U.S.C. § 2113(a).
When determining whether another jurisdiction’s offense is an equivalent
of a Pennsylvania offense for purposes of the three-strikes law, the sentencing
court must compare (1) the elements of the crimes, (2) the conduct prohibited by
the statutes, and (3) the underlying public policies behind the statutes.
Commonwealth v. Ward, 2004 PA Super. 332, 856 A.2d 1273. To qualify as an
equivalent crime, the offense committed in the other jurisdiction does not have to
mirror identically the Pennsylvania offense, but the two crimes must be
substantially equivalent. Id.
In Commonwealth v. Taylor, 2003 PA Super. 307, 831 A.2d 661, the
Pennsylvania Superior Court rejected a defendant’s contention that the offense
described in Section 2113(a) of the federal legislation, involving a taking or
attempted taking of money from a financial institution by force and violence, or by
intimidation, was not equivalent to the Pennsylvania offense of robbery as
described in Section 3701(a)(1)(ii) of the Crimes Code, for purposes of the three-
strikes law. Given the language of the federal statute and the circumstances of
Defendant’s federal offense, the court was unable to agree with Defendant’s
counsel that the Commonwealth had not met its burden of showing, by a
preponderance of the evidence, that Defendant’s federal conviction for bank
robbery under the circumstances described above did not qualify as a prior
conviction of a crime of violence for purposes of the Pennsylvania three-strikes
law.
For the foregoing reasons, it is believed that the judgment of sentence from
which Defendant has appealed was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
14
Matthew Smith, Esq.
Chief Deputy District Attorney
Linda S. Hollinger, Esq.
Deputy Public Defender
15