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HomeMy WebLinkAboutCP-21-CR-1226-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DALE TREGO CP-21-CRIMINAL 1226 - 2005 CP-21-CRIMINAL 1227 - 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., July , 2006 The defendant was charged at the above terms and numbers with various offenses arising out of a series of armed robberies committed in October and November of 2003. The defendant was alleged to have acted alone in one of the robberies involving a Kwik- Fill convenience store. 1 There were three others involving branches ofPNC and Orrstown banks as well as a Citgo convenience store. In those robberies he was charged as having been the get away driver for, and accomplice of, the gunman Michael Shields.2 By agreement of the parties the Kwik Fill robbery was tried separately and all other charges were tried together. The Kwik Fill robbery was tried in September of2005. We declared a mistrial when it became clear that the jury was unable to reach a verdict. The remaining charges were tried before a jury from January 30 through February 3, 2006. The jury convicted the defendant of all charges in connection with those three robberies. 1 This robbery is charged as one of the counts at 1227 CRIMINAL 2005. 2 These robberies, and the related crimes, are charged at both 1226 CRIMINAL 2005 and 1227 CRIMINAL 2005. CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 On March 8, 2006 we imposed an aggregate sentence of 7 - 15 years in a state correctional institution? The defendant has filed this timely appeal. He has raised numerous issues which may be summarized as follows: 1) we erred in not granting his motion to dismiss under Rule 600; 2) we should have suppressed the eyewitness testimony of Tammy Raffensberger; 3) we should have granted his request for recusal; 4) we erred in not allowing the jury to know that the codefendant testified only after he invoked the Fifth Amendment and was granted immunity; 5) the testimony of the victims of the various bank robberies should have been excluded because it was more prejudicial than probative; 6) there was insufficient evidence to sustain his conviction in connection with the Citgo and PNC robberies; 7) the mandatory sentence in connection with the Citgo robbery was not supported by sufficient evidence that he knew his accomplice would use a weapon; and 8) all of the mandatory sentences were improperly imposed because we failed to allow the jury to decide whether the defendant knew his accomplice would be using a weapon. 4 We will discuss each of those issues in the opinion that follows. Rule 600 Motion Defendant filed a motion to dismiss the charges arising from the Citgo, PNC and Orrstown Bank robberies pursuant to Pennsylvania Rule of Criminal Procedure 600. We 3 At 1226 CRIMINAL 2005 the Commonwealth did not give notice of mandatory sentencing, even though a firearm was involved. We imposed a standard range sentence of 2 - 5 years. At 1227 CRIMINAL 2005 the defendant was subject to a mandatory 5 year minimum sentence in connection with each of the two robberies. We imposed an aggregate sentence of 5-10 years, running all sentences concurrent with each other but consecutive to the sentence at 1226 CRIMINAL 2005. 4 See "Concise Statement of Matters Complained of on Appeal". 2 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 held a hearing on the motion on October 28,2005.5 We will summarize the facts as we found them to be. The codefendant Michael Shields was arrested in connection with the Orrstown Bank robbery on November 12, 2003. He gave a statement to the police in which he implicated himself as the gunman in all three robberies. In his statement he also indicated that the robberies were planned and carried out in concert with the defendant who acted as the get away driver. Based upon the statement ofMr. Shields the defendant was arrested on that same day. The defendant's preliminary hearing was scheduled for November 26,2003. He waived the hearing and the charges were bound over to the next term of court. He was arraigned on January 7,2004. Trial was scheduled for February 24,2004. The case was continued to the term of court scheduled to commence on April 19, 2004. On May 7,2004 the Commonwealth sought permission to nolle pros the charges against the defendant because it had insufficient evidence to proceed. The request indicated that prosecution of the defendant would not be resumed until "after the conclusion of the cases against Mr. Shields". 6 Without the testimony of the codefendant, the Commonwealth did not have enough evidence to proceed with the prosecution of the defendant. Until the codefendant was convicted, the Commonwealth had no guarantee that he would not invoke his 5TH Amendment right not to testify. When plea negotiations with Mr. Shields stalled, the Commonwealth elected to nolle pros the case against the defendant and focus its efforts 5 See Transcript of Proceedings, October 28,2005. 6 See Commonwealth Exhibit 14, Rule 600 Proceedings, October 28,2005. 3 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 upon convicting Mr. Shields.7 We granted permission and the nolle pros was entered on May 11, 2004. Mr. Shields entered a guilty plea in connection with all three robberies on June 22,2004. On August 18,2004 Mr. Shields testified under oath before an investigating grand jury. On November 4, 2004 the defendant was rearrested in connection with the Orrstown and Citgo robberies.8 On February 2,2005 he was rearrested on the PNC robbery.9 On April 5, 2005 Mr. Shields was sentenced on all charges. The defendant was arraigned on July 25,2005. He filed an untimely omnibus pretrial motion on September 2, 2005.10 Pursuant to his motion, we severed the K wik Fill robbery from the remaining charges. He was tried on the Kwik Fill charges in September, 2005. He was scheduled to be tried on the remaining charges on October 31, 2005. The Rule 600 motion to dismiss was filed in connection with those on October 18, 2005.11 Defendant argued that more than 365 days had elapsed since he was first arrested in November of2003. The Commonwealth argued that less than 365 days had elapsed since the charges were refiled. Based upon our reading of Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802 (Pa. 2005) we determined that the Commonwealth was entitled to have the Rule 600 time frame computed from the date the charges were refiled. Specifically, we were satisfied that the Commonwealth's "withdrawal and refiling of 7 It was not until Mr. Shields' willingness to cooperate became doubtful that the Commonwealth sought to dismiss the charges against the defendant. Mr. Shields actually attempted to invoke the 5TH Amendment when called to testify in the trial of these matters. However, since he had already been convicted and sentenced, the 5TH Amendment could not be invoked. It was only after he was threatened with contempt that he agreed to testify. 8 These charges were filed at 1227 CRIMINAL 2005. 9 This charge was filed at 1226 CRIMINAL 2005. 10 The motion was filed shortly before trials were scheduled to commence. 11 Although the case was scheduled to be tried on October 31, 2005, defendant asked that it be postponed to the January 2006 term if his Rule 600 motion was not granted. 4 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 charges (was) necessitated by factors beyond its control", i.e., the inability to compel the testimony ofMr. Shields. See Meadius, 870 A.2d at 806.12 Further, we were satisfied that the Commonwealth had acted with the "requisite level of diligence" after the first filing.13 The preliminary hearing and arraignment were expeditiously held. The defendant was scheduled for the first available trial term after his arraignment. While trial was continued once at the request of the Commonwealth, the case was nolle prosed as soon as it became apparent that Mr. Shield's might not be as cooperative as initially contemplated. Suppression of Eyewitness Testimony of Tammy Raffensberger. Defendant contends that we erred in failing to suppress the eyewitness testimony of Tammy Raffensberger because it was tainted. We note that Ms. Raffensberger was the victim in the Kwik Fill robbery, a crime for which the defendant has neither been convicted nor sentenced. In any event, we heard the testimony of Trooper Manetta as to the procedure he used to conduct the photo line-up. We also had the opportunity to see the photo array used. We found the trooper's testimony to have been credible. We were satisfied that there was nothing improper in the procedure or photographs used. Request for Recusal Immediately prior to trial defense counsel requested that we recuse ourselves from presiding over the proceedings. The basis for the request was two fold: 1) this judge's brother is a sergeant in the Carlisle Police Department whose detectives filed the 12 Actually we found the facts of this case to be very similar to those of Commonwealth v. Whiting, 509 Pa. 20, 500 A.2d 806, (1985) cited with approval by the Meadius Court, 13 See Commonwealth v. Meadius, 870 A.2d at 807. 5 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 charges in connection with the PNC robbery; and; 2) a Commonwealth witness (Nathan Wolf) is the law partner and husband of our family lawyer. Before ruling on the request for recusal, we determined that Sergeant Guido was not going to be a witness at trial. We also made sure that the representation of our family's interests by Mr. Wolfs firm would not somehow be interjected into the proceedings. Having resolved those issues, we ruled as follows: THE COURT: Does anybody intend to elicit from Mr. Wolf that his wife represents a corporation in which this Court has an interest? MR. KEATING: I had not planned on doing that. I didn't even know that. THE COURT: Is that relevant to these proceedings, at all, Mr. Rominger? MR. ROMINGER: I don't know if it' s relevant. It's just the appearance that you may not want to impute bad legal judgment or rule things against essentially your own counsel. THE COURT: Trust me. He is not my counsel. His wife is my counsel. And it will not in any way affect my ability to preside over this case. MR. ROMINGER: The only other thing I want to point out, Your Honor, is that it is cumulative with the interest you have with the Carlisle Police Department. THE COURT: I have no interest with the Carlisle Police. My brother is not being called as a witness in this case. I have no interest with the Carlisle Police. My brother has been a police officer with the Carlisle Police for 27 years. I have been practicing law in this Commonwealth and sitting on this bench for 30 odd years. I have handled cased as a defense counsel against the Carlisle Police. I've handled hundreds of cases as a judge involving the Carlisle Police. If my brother was a witness and under oath, I would agree that I would recuse myself. The fact that he works for the Carlisle Police is not basis for recusal. 14 14 Trial Transcript, pp. 12, 13. 6 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 Canon 3 of the Code of judicial Conduct "prescribes standards by which judges should exercise their discretion in ruling upon questions ofrecusal." Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1174 (1999). There was no allegation that we had a personal bias or prejudice against a party. See Canon 3 C (1) (a). Nor was there any suggestion that one of the other factors in Canon 3C was present. 15 Therefore, we denied the request. Co-defendant's Attempted Assertion of the 5TH Amendment Defense counsel alleges that we erred in our ruling that the "jury could not learn that Mr. Shields. . . had invoked his Fifth Amendment and. . . only testified under the threat of extreme penalty after a grant of immunity." 16 Counsel has either misunderstood or misstated both what occurred at trial and our ruling in connection therewith. In the first instance, the codefendant never invoked the Fifth Amendment. While he made an uncounseled attempt to do so, his court appointed public defender made it clear that he had no basis to assert the Fifth Amendment. As his public defender explained to the Court: I understand what the subject nature of the charges are. I have explained to him that ifhe's testifying about anything relating to the robbery charges, he has already pled guilty and been sentenced, and it's my understanding that that Fifth Amendment privilege is now subsided and 17 over. 15 In his concise statement, defense counsel points out that we recused ourselves from the prior sentencing of Mr. Shields because ofMr. Wolfs representation. This was brought to our attention at the end of the trial. We had no recollection of the matter. While there was no requirement under Canon 3C that would disqualify us from sentencing Mr. Shields, we felt it to be proper under the circumstances. See Trial Transcript, Vol 3, pp. 7, 8. Contrary to counsel's assertion, there is a vast difference between presiding over a jury trial in which our personal counsel's partner is a witness, and sentencing a felon represented by him. 16 "Concise Statement of Matters Complained of on Appeal", paragraph 4. 17 Trial Transcript, Volume 2, p. 163. 7 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 However, because he was appointed in the middle of the trial we granted the public defender's request for a recess so that he could review the transcript ofMr. Shields' grand jury testimony and further consult with his client to determine if there was a valid basis for an assertion of the Fifth Amendment. IS The next morning another public defender advised us that there was no such basis. 19 Furthermore, there was no grant of immunity as defendant's counsel asserts. Since there was no assertion of the Fifth Amendment, a grant of immunity was not necessary. Finally, we did not rule that defense counsel was prohibited from cross-examining the defendant with regard to his reluctance to testify. Nor did we limit his ability to explore the threatened sanctions for his refusal to testify. We simply ruled that defense counsel could not cross examine the codefendant with regard to an assertion of the Fifth Amendment that did not take place. The following exchange illustrates our ruling: MR. ROMINGER: He invoked his Fifth Amendment. We would like to raise that on cross-examination with the jury. THE COURT: He did not invoke his Fifth Amendment. You are forbidden from raising that with the jury. If you do, you may very well been sanctioned. MR. ROMINGER: I understand, Judge. I'm trying to put it on the record. Now, listen. I have a couple of cases I want to tell you about. I'm going to give a case to Mr. Keating, and I'm going to give the same cases to the Court - - THE COURT: Are you saying he invoked the Fifth Amendment in these proceedings or in some prior proceedings? MR. ROMINGER: In this proceeding. THE COURT: He did not invoke the Fifth Amendment in this proceeding. 18 See Trial Transcript, Volume 2, pp. 163, 164. 19 See Trial Transcript, Volume 3, p. 4. 8 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 MR. ROMINGER: He took the stand yesterday and invoked the Fifth Amendment, Judge. It's on the record. And you should overrule me, but I need to put this on the record. THE COURT: Well, if! should overrule you, you've preserved the record. That's good enough. If!' m wrong, I'm wrong. He did not invoke the Fifth. I don't need to see the cases if the cases deal with somebody invoking the Fifth. This man did not. His counsel told me he had no Fifth Amendment privilege to invoke. MR. ROMINGER: But he invoked it yesterday - - THE COURT: We have covered that issue. What is your next issue, Mr. Rominger? That issue is preserved sir. 20 Defense counsel never attempted, and we never ruled upon his ability, to cross examine Mr. Shields about his reluctance to testify. Defense counsel actually began questioning Mr. Shields regarding his reluctance to testify: Q. Has anybody threatened you in regards to your testimony today? A. Would you repeat that? Q. Has anybody threatened you in regards to your testimony today? A. I don't know how to answer that one. Q. Well, we'll come back to that?l While defense counsel never came back to the subj ect, the Commonwealth did so on redirect: Q. Prior to testifying, you were made aware that if you didn't testify when directed you could be held in contempt, is that true? A. Correct. Q. Is that why you were saying that you didn't know how to answer him? A. Correct. 22 20 See Trial Transcript, Volume 3, pp. 6, 7. We note that we threatened sanctions against defense counsel only because of his reluctance to accept our rulings in the past as well as his proclivity to continue arguing even after our decisions were made. 21 See Trial Transcript, Volume III, p. 40. 22 Trial Transcript, Volume III, pp. 60, 61. 9 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 Testimony of the Victims Defense counsel indicated his willingness to stipulate that Mr. Shields committed the robberies at issue.23 He alleges on appeal that we erred in allowing "victim testimony of the various bank robberies, which was timely objected to, as it was more prejudicial than probative,,24 In the first instance we note that defense counsel did not object on the basis that the testimony was prejudicial. His only objection was as to the probative value of the evidence. He made no mention of its prejudicial effect. In fact the purpose of the objection appeared to be his concern for the welfare of the victims rather than any prejudice to his client. The following exchange illustrates our point and explains the reason for our ruling: MR. ROMINGER: Your Honor, the defense will stipulate that the piece of evidence is the weapon in question. I see no need to put this young lady through this spectacle. THE COURT: Approach. (The following discussion occurred at sidebar:) THE COURT: He's got the right to prove the crime, Mr. Rominger. Don't do that again. Approach the bench when you want to make another motion from now on. MR. ROMINGER: The defense will say on the record that we conceded on our opening that we agreed Michael Shields robbed these places. Putting this woman on the stand and showing her a gun has no probative value. I won't be a party to putting her through this when it has no probative value. MR. KEATING: It's clearly a probative value to the robbery. THE COURT: I agree. 23 See Trial Transcript, Volume 1, p. 32. 24 "Concise Statement of Matters Complained of on Appeal, paragraph 5. 10 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 (emphasis added)2s Furthermore, even if he had objected on the basis that the evidence was "more prejudicial than probative," the result would have been the same. At the outset we note that the standard is not whether the evidence is more prejudicial than probative but "whether its probative value is outweighed by the danger of unfair prejudice." See Pa. Rule of Evidence 403 (emphasis added). Using this standard, it is ridiculous to even suggest that allowing the victim of a crime to testify creates the danger of unfair prejudice. Sufficiency of the Evidence Defendant has challenged the sufficiency of the evidence in connection with the PNC and Citgo robberies. He argues that those convictions are based solely upon the testimony ofMr. Shields and cannot be sustained. The standard of review on a sufficiency of the evidence claim is whether all of the evidence together with the reasonable inferences to be drawn therefrom when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to enable the fact finder to conclude that all the elements of the offense, including defendant's involvement, were established beyond a reasonable doubt. Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923 (1999). The testimony ofMr. Shields was part of the evidence. He testified that he and the defendant planned and carried out all three robberies. The jury obviously believed him. That evidence, standing alone, is sufficient to sustain the convictions. 25 Trial Transcript, Volume 1, pp. 39,40. 11 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 Imposition of Mandatory Sentence in Connection with Citgo Robbery Defendant's counsel alleges that there was insufficient evidence to prove that defendant knew his accomplice possessed a weapon at the time of the Citgo robbery. We disagree. The evidence showed that before they robbed the PNC Bank on October 27, 2003 this defendant purchased the gun that was used in all three robberies.26 In fact he and Mr. Shields agreed that he would purchase a pellet gun to make sure that nobody got hurt. 27 On the morning of the Citgo robbery the defendant drove to Mr. Shields' apartment at approximately 1 :00 a.m. Mr. Shields got into the car carrying a mask and the gun.28 Defendant drove to Citgo, parked in the rear of the store and waited for Mr. Shields as he went to commit the robbery using the gun and mask. 29 At the time of sentencing, defendant's counsel asked that we disregard Mr. Shields' testimony and conclude that the defendant was unaware that a gun was used. However, we found Mr. Shield's testimony to have been credible. Therefore, we imposed the mandatory minimum sentence required by law. Failure to Submit the Issue of Weapon Possession to the Jury. Defense counsel now contends that the jury should have been asked to decide whether the defendant knew his accomplice possessed a weapon during the commission of the robberies.30 This issue is frivolous. 26 Trial Transcript, Volume III, p. 13. 27 Trial Transcript, Volume III, p. 14. 28 Trial Transcript, Volume III, pp. 20-22. 29 Trial Transcript, Volume III, pp. 23, 24. 30 See Concise Statement of Matters Complained of on Appeal, paragraph 8. 12 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 In the first instance, the law is very clear. The applicability of a mandatory minimum sentence for use of a firearm is to be determined by the judge at the time of sentencing. (42 Pa. C.S.A. S 9712) Furthermore, defense counsel accurately stated that law during the sentencing proceedings: I believe that the Court at sentencing has to determine by a preponderance of the evidence that a weapon was used in the commission of the crime and that as an accomplice or a conspirator that my client would have knowledge that that weapon would be used?l Despite the foregoing statement of defense counsel, he now contends that we erred in not submitting the issue to the jury. This contention is incredible. Furthermore, we could find no place in the record where this issue was ever raised prior to its inclusion in the "Concise Statement of Matters Complained of on Appeal." In fact, after we instructed the jury on the applicable law, we asked counsel whether they had any additions or corrections to our charge. Both counsel indicated that they were satisfied . h h h . 32 WIt t e c arge as gIven. DATE Edward E. Guido, J. District Attorney Karl Rominger, Esquire F or the Defendant :sld 31 Transcript of Sentencing Proceedings, p. 3. 32 Trial Transcript, Volume IV, p. 197. 13 CP-21-CRIMINAL 1226 - 2005 - CP-21-CRIMINAL 1227 - 2005 14