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HomeMy WebLinkAboutCP-21-CR-3127-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : GARY LYNN FISHER : CP-21-CRIMINAL 3127 – 2010 : CP-21-CRIMINAL 3156 – 2010 IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., January , 2012 On July 28, 2011 a jury convicted the defendant of numerous counts of robbery and related offenses. On August 23, 2011 we sentenced him to an aggregate term of imprisonment 1 in a state correctional facility for not less than 6 nor more than 20 years. He has filed this timely appeal in which he alleges 1) the evidence was not sufficient to support several of his convictions; and 2) we erred in permitting the Commonwealth to present evidence of a robbery 2 which occurred in a neighboring county. We will address each of those issues in the opinion 3 that follows. FACTUAL BACKGROUND We will start with a recitation of the facts viewed in a light most favorable to the Commonwealth as verdict winner. The Metro Bank branch on Market Street in Lemoyne was robbed on July 15, 2010 and August 25, 2010. On September 17, 2010, the Metro Bank located 1 The sentences on the robberies premised upon 18 Pa. C.S.A. § 3701 (a) (1) (ii) were 6 to 20 years. All of those sentences as well as the sentences on the related offenses were made to run concurrent to each other. No sentences were imposed on the counts involving 18 Pa. C.S.A. § 3701 (a) (1) (iv) since those offenses merged for sentencing purposes with the more serious robbery convictions. 2 See Concise Statement of the Errors Complained of on Appeal. 3 The defendant has raised additional allegations of error involving various matters raised in his Omnibus Pretrial Motions. Those matters were ruled upon by the Honorable Albert H. Masland and will be addressed by him in a separate opinion. in the Camp Hill Shopping Center was robbed. Both locations are in Cumberland County and within a mile of each other. The police suspected that the same individual was involved in all three robberies. Their suspicions were based upon several factors. The perpetrator in each robbery was of the same 4 general description. The manner of each robbery was virtually identical. A man wearing a baseball cap would approach the counter with his head down so that the video cameras could 5 not get a clear view of his face. Without saying a word he would hand the teller a note stating 6 he had a gun and demanding money. In each case the note was written on similar white lined 7 paper. The victims in all three robberies were terrified. The teller involved in the July 15, 2010 8 incident has required counseling and still has trouble sleeping. The one involved in the August 9 25, 2010 robbery was “very scared” and is still nervous at work. Finally the last teller described 10 it as “perhaps the scariest moment in my entire life.” Photographs of the perpetrator taken from the surveillance videos were distributed to the media. The police investigated several leads without making any progress. Their big break occurred on October 19, 2010 when the defendant was arrested shortly after robbing the Metro Bank branch at the Colonial Park Mall in Dauphin County. 4 See Commonwealth Exhibits 4 and 8. 5 See Commonwealth Exhibits 4 and 8. 6 See Commonwealth Exhibits 5, 7, and 18. 7 See Commonwealth Exhibits 5, 7, and 18. 8 Transcript of Proceedings, pp. 25, 26. 9 Transcript of Proceedings, p. 43. 10 Transcript of Proceedings, p. 54. 2 The Dauphin County robbery was strikingly similar to those in Cumberland County. A man of the same general description wearing a baseball cap approached the counter with his 11 head down so that the video cameras could not get a clear view of his face. Without saying a 12 word he handed the teller a note stating that he had a gun and demanding money. The note 13 was written on the same type of white lined paper used in the other robberies. The defendant was apprehended minutes after the robbery. He had in his possession the marked 14 bills taken in that robbery. DISCUSSION Sufficiency of the Evidence A claim challenging the sufficiency of the evidence must fail if “the evidence at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all elements of the offense beyond a reasonable doubt.” Commonwealth v. Wright, 961 A.2d 119, 130 (Pa. 2008). In the instant case the defendant challenges the sufficiency of the evidence only in connection with his convictions for the robbery offenses charged under Sections 3701 (a) (ii) and (iv) of the Crimes Code, as well as his convictions for terroristic threats and possessing instruments of a crime. Defendant contends that the evidence was not sufficient to establish that he threatened 15 the tellers or put them “in fear of immediate serious bodily injury” or “in fear of bodily injury.” 11 See Commonwealth Exhibits 4, 8, and 23. 12 Transcript of Proceedings, p. 62. 13 See Commonwealth Exhibits 5, 7, 18 and 22. 14 Transcript of Proceedings, p. 163. 15 See Commonwealth Exhibits 5, 7, 18, and 22. 3 Therefore, he argues that we should have granted his motion for judgment of acquittal in 16 connection with the robbery counts based upon those sections of the Crimes Code. His contention that the notes given to the tellers did not threaten them is wholly without merit. The notes did not merely demand money, they also asserted the defendant had a gun. Furthermore, every one of the tellers was in fear of being shot if he or she did not comply with the defendant’s demand. The jury could reasonably infer that the defendant intended to cause such fear. While we may not have agreed with the Commonwealth’s zealous pursuit of the ancillary charges of terroristic threats and possessing the instruments of a crime, we were satisfied that the evidence was sufficient to support those charges. Therefore, we could not in good conscience grant the defendant’s request for judgment of acquittal in connection therewith. The defendant was charged with terroristic threats in violation of Section 2706 (a) (3) of 17 the Crimes Code. The elements of that offense are that 1) he communicated a threat and 2) it was his intention to cause terror or that he recklessly disregarded the risk that such terror would be caused. 18 Pa. C.S.A. § 2706 (a) (3). The note given to the tellers was sufficient to satisfy both elements of this offense. 16 The relevant portion of those Sections provide as follows: §3701. Robbery. (a)OFFENSE DEFINED.- (1)A person is guilty of robbery if, in the course of committing a theft, he: . . . (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; . . . (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; 17 18 Pa. C.S.A. § 2706 (a) (3). 4 Section 907 of the Crimes Code makes it illegal to “possess any instrument of crime with intent to employ it criminally.” 18 Pa. C.S.A. § 907 (a). An “instrument of crime” is defined, inter alia, as “(a)nything specially made . . . for criminal use.” 18 Pa. C.S.A. § 907 (d). The robbery notes clearly fall within that definition. Evidence of the Dauphin County Robbery Defendant’s last allegation of error involves our pretrial ruling which allowed the Commonwealth to admit evidence of the Dauphin County robbery. Generally evidence of other crimes or acts is not admissible to show action in conformity therewith. Pa. Rule of Evidence 404 (b) (1). However, such evidence may be admitted for other purposes, such as to show identity. Pa. Rule of Evidence 404 (b) (2). In the instant case the Dauphin County robbery was virtually identical to the three Cumberland County robberies. The four robberies occurred in a four month period. They all involved Metro Bank branches. In each case the perpetrator 1) wore a baseball cap; 2) walked to the teller window with his face down to avoid identification by the surveillance cameras; 3) did not say anything; and 4) handed the teller a note claiming to have a gun and demanding money. Finally in each case the note was on similar white lined paper. We were satisfied that the evidence of the Dauphin County robbery was admissible because it “established a common scheme, plan or design as well as (defendant’s) identity.” Commonwealth v. Dozzo, 991 A.2d 898 at 903 (Pa. Super 2010). We were further satisfied that the probative value of the evidence outweighed its potential for unfair prejudice. The identity of the perpetrator was the central issue at the trial 5 in this case. The evidence of the Dauphin County robbery was immensely probative of that issue. The similarities of the robberies along with the fact that the defendant was apprehended with marked bills in his possession went to the heart of the identity issue. Furthermore, we took steps to insulate the defendant from unfair prejudice by instructing the jury that it could 18 consider the evidence only for “the limited purpose” of identity. As we stated: You heard a good deal of evidence about the robbery in Dauphin County, of the Metro Bank in Dauphin County. . . The Defendant is not on trial for that robbery that occurred in Dauphin County. This evidence was presented to you for the limited purpose of tending to show the identity of the Defendant as the perpetrator of these offenses in Cumberland County. This evidence must not be considered by you in any other way other than for that purpose. You must not regard this evidence as showing that the Defendant is a person of bad character or criminal tendencies from which you 19 might be inclined to infer guilt. _________________ _____________________________ DATE Edward E. Guido, J. District Attorney Arla M. Waller, Esquire Office of the Public Defender :sld 18 Transcript of Proceedings, pp. 183. 19 Transcript of Proceedings, pp. 183, 184. 6