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HomeMy WebLinkAbout96-0572 CriminalCOMMONWEALTH Vo NIGEL DEWS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0572 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this~(~day of August, 1996, upon consideration of Defendant's post-sentence motion in the above-captioned matter, and for the reasons stated in the accompanying opinion, the motion is DENIED. Travis N. Gery, Esq. Assistant District Attorney Gregory B. Abeln, Esq. 37 East Pomfret Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, :rc COMMONWEALTH Ve NIGEL DEWS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0572 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In this criminal case, Defendant and a co-defendant were found guilty following a jury trial on May 16 and 17, 1996, of robbery and conspiracy to commit robbery.~ On June 25, 1996, the court sentenced Defendant to the mandatory minimum term of not less than five years nor more than ten years in a state correctional institution for the robbery, and a concurrent term of not less than one year nor more than two years on the conspiracy charge.2 For disposition at this time is a post-sentence motion of Defendant for a new trial, based upon an allegedly erroneous evidentiary ruling. The ruling in question sustained an objection to certain testimony proffered by Defendant in support of a duress defense. For ~he reasons stated in this opinion, Defendant's post- sentence motion will be denied. ~ See Order of Court, May 17, 1996. 2 Order of Court, June 25, 1996. Defendant received credit on the sentences from March 18, 1996. Id. NO. 96-0572 CRIMINAL TERM STATEMENT OF FACTS On Wednesday, January 10, 1996, an attendant at a gasoline station in Carlisle, Cumberland County, Pennsylvania, was robbed. Several gunshots were fired in his direction as the getaway car departed. Defendant and a co-defendant were subsequently charged by Carlisle police in connection with the incident. At trial, Defendant conceded that he had been at the scene of the robbery and had driven the co-defendant away; he maintained that he had been unaware that his friend was armed or that he intended to commit a robbery, and attributed any participation on his part in the getaway process to fear of his friend's reaction to a lack of cooperation. The co-defendant did not testify at trial. During Defendant's testimony at trial, he implicated the co- defendant in the robbery. He also said that sometime after the robbery the co-defendant had threatened him with harm for "snitching." Defendant's counsel attempted to ask him about another incident - Q Did anything unusual happen to you yesterday? -- and an objection was interposed by the co-defendant's attorney. At sidebar, Defendant's counsel made an offer of proof with respect to the question: MR. FAIRLIE: He [Defendant] told me that Ed [the co-defendant] went after him in lockup yesterday. I asked Barry [a deputy sheriff] 2 NO. 96-0572 CRIMINAL TERM to have the [deputy] sheriff who was there testify, as well. And that sheriff is unavailable, so he's the only one we have to testify to the fact that Ed was serious about these threats and actually acted on them yesterday. The following discussion ensued among the court, Defendant's counsel (Mr. Fairlie), the co-defendant's counsel (Ms. Waller) and the prosecuting attorney (Mr. Gery): THE COURT: What relevance does this have to whether your client is guilty or not? MR. FAIRLIE: theory. Relevance to the duress MS. WALLER: The robbery has already been committed. MR. FAIRLIE: It shows he did have something to fear from Ed, that Ed would act on these threats, the duress theory. MS. WALLER: I would argue that it doesn't, because the robbery has already been completed at this point. The duress theory goes to what kind of strain he was put under to be a forced participant in the robbery. THE COURT: response? Mr. Gery, do you have a MR. GERY: I agree with Ms. Waller. It's ~too remote. Frankly, it's not surprising. I mean, as of yesterday, after Mr. Fairlie's opening yesterday, Defendant Dilligard knew what Defendant Dews' theory of the case was. And if there was a confrontation, that's probably what sparked it. It's way too remote to tie in to the robbery. That happened five months ago. MS. WALLER: I think, if he's saying it goes to his duress defense, that it clearly doesn't, because that goes to threats that NO. 96-0572 CRIMINAL TERM were used at the time to make him a participant. THE COURT: Your client didn't know at the time of the alleged robbery, when he was supposedly under duress, that the Co-defendant would threaten him yesterday. MR. FAIRLIE: He didn't know that. I think it goes to show that these threats were real, that he did have something to fear from Ed. The fact that Ed would go after him in lockup downstairs, with sheriffs all around, shows that there was a very real fear that he had of this man. That's important. THE COURT: The objection is sustained. In his post-sentence motion, Defendant contends that this ruling was erroneous, and that the error was of sufficient magnitude to warrant a new trial. DISCUSSION As a general rule, the admission or exclusion of evidence rests within the sound discretion of the trial court. Commonwealth v. Miller, 268 Pa. Super. 123, 133, 407 A.2d 860, 866 (1979). In this case, several factors have led the court to conclude that its exclusion of the proffered testimony was a permissible exercise of this discretionary function. First, a proper ruling upon the admissibility of evidence often involves a balancing of considerations of probative value and unfair prejudice. See generally Commonwealth v. Scarfo, 416 Pa. Super. 329, 611A.2d 242 (1992); Commonwealth v. Nolen, 390 Pa. Super. 346, 568 A.2d 686 (1989). In this case, the probative value NO. 96-0572 CRIMINAL TERM of an incident occurring during trial more than four months after a robbery on the issue of whether the Defendant was acting under duress when he drove the getaway car was marginal at best, and the prejudicial effect upon the co-defendant of an accusation that he committed another violent crime would have been substantial. As the Pennsylvania Supreme Court has observed, evidence of other crimes on the part of an accused "is so highly prejudicial in its effect upon [al jury as to be equalled only by an actual confession in its impact upon the deliberative process." Commonwealth v. Bryant, 515 Pa. 473, 476, 530 A.2d 83, 85 (1987).3 Second, the exclusion of evidence of a merely cumulative nature is generally permissible. Packel & Poulin, Pennsylvania Evidence §403,,.at 128 (1987). In the present case, Defendant testified that he had felt intimated by the co-defendant at the time of the criminal incident, and that the co-defendant on a later occasion had threatened him with harm for "snitching." An additional incident of aggressive behavior on the part of the co- defendant during trial was not only of little practical significance due to its remoteness in time and the probability a 3 "In some cases, ... evidence is admissible against one party, but will be excluded because it is inadmissible against another party. The risk that leads to exclusion is that the jury will not limit the evidence to its proper role and will use it as evidence against the party as to which it is inadmissible, unfairly prejudicing that party." Packel & Poulin, Pennsylvania Evidence S403 (1995 Supp.). NO. 96-0572 CRIMINAL TERM more contemporaneous motivating cumulative in nature. Finally, the Pennsylvania Commonwealth v. Smith, 490 Pa. factor, but also was merely Supreme Court's decision in 380, 416 A.2d 986 (1980), is contrary to the position advanced by Defendant. In Smith, the Court held that testimony as to a threat by an accomplice, about twelve months after a crime occurred, was properly excluded by the trial court when proffered to demonstrate the accomplice's violent or coercive character and thus to corroborate a defense of duress. Id. at 386, 416 A.2d at 988-89. In so holding, the Supreme Court noted that such testimony did not qualify for admission either on the basis of a conviction of crime or as reputation evidence. Id. The same was true for the testimony excluded in the present case. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 26th day of August, 1996, upon consideration of Defendant's post-sentence motion in the above-captioned matter, and for the reasons stated in the accompanying opinion, the motion is DENIED. .. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. NO. 96-0572 CRIMINAL TERM Travis N. Gery, Esq. Assistant District Attorney Gregory B. Abeln, Esq. 37 East Pomfret Street Carlisle, PA 17013 Attorney for Defendant : rc