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Home My WebLink AboutCP-21-CR-0003127-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-3127-2010 GARY LYNN FISHER : CP-21-CR-3156-2010 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., January 18, 2012:-- Gary Lynn Fisher (Defendant) was convicted of robbery and related charges at a jury trial held before the Honorable Edward E. Guido on July 26, 27, and 28, 2011. Defendant’s appeal is based, inter alia, on the omnibus pretrial motion, in which we denied both his motion to suppress and his motion to sever after a hearing on July 25, 2011. Specifically, Defendant contends as follows: 1. The pretrial court erred in denying Mr. Fisher’s Omnibus Pre-trial Motion. a. The evidence seized from Mr. Fisher’s residence should have been suppressed. i. There was not sufficient probable cause for the issuance of a search warrant. ii. When the search warrant was executed, the police exceeded the authority of the search warrant. b. The 3 robbery cases, at the above-captioned docket numbers, should have been severed for trial. Allowing the 3 robberies to be tried together confused the jury and showed a propensity for Mr. 1 Fisher to commit crimes thereby prejudicing him. I. Statement of Facts At the conclusion of the pretrial hearing, and pursuant to Pa.R.Crim.P. 2 581(I), this court entered findings of fact and conclusions of law. Because the Concise statement of the Errors Complained of on Appeal. 1 In re: Omnibus pretrial motion, July 25, 2011, Notes of Testimony (N.T.) at 37- 2 39. CP-21-CR-3127-2010 CP-21-CR-3256-2010 separate opinion of the trial court will address the factual issues presented at trial, we will summarize the most salient facts with respect to the suppression and severance issues: 1. The Defendant was charged with two robberies at a Metro Bank location in Lemoyne, Cumberland County, which occurred on July 15, 2010 and August 25, 2010, respectively, and one robbery at a Metro Bank in Camp Hill, Cumberland County on September 17, 2010. 2. Surveillance photos of the Camp Hill robbery depicted a white male 3 wearing a bluish pullover jacket and baseball cap. 3. The perpetrator of the Camp Hill robbery handed a plastic bag and a 4 note to the teller which stated “I have a gun, put money in bag.” 4. The perpetrator of the August 25, 2010 robbery in Lemoyne passed a 5 demand note which stated “I have a gun, put money in bag.” 5. The demand note used in the July 15, 2010 bank robbery in Lemoyne 6 stated “I have a gun, give me your bills.” 6. On October 19, 2010, a robbery occurred at a Metro Bank in Lower Paxton Township, Dauphin County which is approximately ten miles N.T. 11. 3 N.T. 13. 4 N.T. 14. 5 N.T. 21. 6 -2- CP-21-CR-3127-2010 CP-21-CR-3256-2010 7 from the three robberies in Cumberland County. 7. The demand note used by the perpetrator in the Dauphin County 8 robbery stated, “I have a gun, give me your bills.” 9 8. All of the aforesaid notes were written on lined paper. 9. The Defendant was arrested following the robbery in Dauphin County 10 after he entered a cab near the Metro Bank location. 10. Using the various surveillance images from the September 17, 2010 robbery, Deputy Chief of Police Douglas Hockenberry after observing the perpetrator of the Dauphin County robbery, was able to identify that individual as the perpetrator of the Camp Hill robbery. 11. The search warrant obtained by Deputy Chief Hockenberry sought items of clothing worn in the Cumberland County robberies and lined 11 paper used for the respective demand notes. 12. Upon execution of the search warrant, Deputy Chief Hockenberry retrieved the following items from the Defendant’s one-room apartment: a. A green Top Flight notebook with lined paper. b. A note stating “I have a gun, give me money” found in an envelope in a dresser drawer. N.T. at 19 and 20. 7 N.T. 22. 8 N.T. 22. 9 N.T. 16. 10 N.T. 18 and 19. 11 -3- CP-21-CR-3127-2010 CP-21-CR-3256-2010 c. A note that was torn up and thrown in a plastic trash bag that when pieced together read “I have a gun, put money in bag.” 12 d. A pair of black Safe Trax size nine wide shoes. 13. The envelope in which the demand note was found was unsealed and addressed to the Defendant, having been sent from the Pennsylvania Department of Labor and Industry. II. Discussion A. Suppression of Evidence The Defendant’s first claim is that there was insufficient probable cause for the issuance of a search warrant. The affidavit of probable cause attached to the search warrant set forth in detail the similarities of the three bank robberies in Cumberland County and the fourth robbery in Dauphin County. Those similarities involved the targeted bank, the description of the perpetrator’s size and clothing and the use of similar notes, all of which were on lined paper. Based on these facts and following the Defendant’s apprehension after the fourth robbery in Dauphin County, it is an understatement to say that there was sufficient probable cause for the issuance of a search warrant. Failing to request such a warrant would have constituted investigatory malfeasance. Similarly, Defendant’s contention that the police exceed the scope is frivolous at best. In accordance with our Superior Court’s holding in Commonwealth v. Fleck, 471 A.2d 547 (Pa. Super. 1984), the officers were well within the scope or authority of the search warrant by opening the clothes dresser and looking inside the envelope. Because the warrant focused on N.T. 22 and 23. 12 -4- CP-21-CR-3127-2010 CP-21-CR-3256-2010 clothes and paper looking in a clothes dresser was a given. However, even if the officers were not looking for clothes, the fact is that paper can be secreted in almost any location. Therefore, upon finding an envelope in a dresser drawer, opening the unsealed envelope to determine if there was lined paper inside was as natural as spring following winter. In short, none of the Defendant’s constitutional rights were offended by either the issuance or the execution of the search warrant. B. Severance The Supreme Court has established the following test for severance matters: Where the defendant moves to sever offenses not based on the same act or transaction … the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant 13 will be unduly prejudices by the consolidation of the offenses. In determining that the evidence of each of these offenses would be admissible in a separate trial, we found, pursuant to Pa.R.E. 404(b)(1), that there was not only a common scheme, plan or design embracing the three Cumberland County robberies, but the evidence was also necessary to demonstrate the identity of the Defendant which respect to those crimes. Furthermore, the crimes were logically connected, all having occurred at Metro Banks in close proximity to each other. Thus, the various offenses constituted a Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (quoting 13 Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988)). -5- CP-21-CR-3127-2010 CP-21-CR-3256-2010 history of the case. The introduction of evidence of all three robberies was necessary to demonstrate the natural development of the facts. Although the robberies were logically connected, the connection was not one that would cause confusion for the jurors with respect to separating the evidence. The robberies in Cumberland County occurred in July, August and September 2010 at two different Metro Bank locations and were sufficiently distinguishable in time and space that a jury could easily separate the evidence, without danger of confusion. Finally, with respect to whether the Defendant was unduly prejudice by the consolidation of these cases, we determined that the trial court would be able to instruct the jury to consider each case separately and caution them not to use evidence of other crimes as proof of the Defendant’s bad character. To be sure, permitting the introduction of any evidence against an accused can be deemed to be prejudicial; however, we concluded that the probative value of the evidence in this case far outweighed any potential for unfair prejudice. III. Conclusion Based on the foregoing this court respectfully submits that the Superior Court should affirm its denial of Defendant’s motion to suppress and sever. By the Court, Albert H. Masland, J. -6- CP-21-CR-3127-2010 CP-21-CR-3256-2010 Matthew P. Smith, Esquire Assistant District Attorney Arla Waller, Esquire For Defendant :saa -7-