Com. v. Gray, N.

J-A05041-23 & J-A05042-23

2023 PA Super 89

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NATHANIEL GRAY :

:

Appellant : No. 2288 EDA 2021

Appeal from the Order Entered October 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0006945-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NATHANIEL GRAY :

:

Appellant : No. 2331 EDA 2021

Appeal from the Judgment of Sentence Entered October 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0001404-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NATHANIEL GRAY :

:

Appellant : No. 2332 EDA 2021

Appeal from the Judgment of Sentence Entered October 19, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at CP-51-CR-0002512-2020

J-A05041-23 & J-A05042-23

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED MAY 25, 2023

Nathaniel Gray (Appellant) appeals from the judgments of sentence

imposed after a jury convicted him of two counts each of robbery, criminal

conspiracy, terroristic threats, and possession of an instrument of crime

(PIC).1 After careful review, we affirm.

Appellant’s convictions arise from three criminal informations, each

pertaining to separate robberies Appellant committed with various co-

conspirators in the same Philadelphia neighborhood. The trial court explained:

Under docket CP-51-CR:0006945-2018 [(No. 6945)], the

evidence at trial established that on July 25, 2018, complainant

Cedric Moodie [(Mr. Moodie)], was sitting alone in his vehicle on

the 6100 block of N. Franklin Street when Appellant and co-

defendant Devin Baker [(Baker)] drove up beside [Mr. Moodie].

[] Baker was operating the vehicle, in the front [] passenger [seat]

was Jasmine Askew, and the rear passenger was Appellant…. [Mr.

Moodie] previously knew [] Baker from high school. After the

vehicle pulled alongside Mr. Moodie, Appellant exited the car,

approached Mr. Moodie, and attempted to open his door. When

Mr. Moodie objected, Appellant said words to the effect of “I’ll

spray this car. I’ll kill you.” [] Baker [] pulled his car in front of

Mr. Moodie, [and] Appellant went to the trunk of the vehicle,

removed a handgun, and placed it in his waistband. Mr. Moodie

exchanged words with [] Baker, then Appellant, with a gun on his

person, came and went through [Mr.] Moodie’s pocket, demanding

money and anything else he had on his person. Appellant took

Mr. Moodie’s phone, demanded his password, and then proceeded

to transfer money to Jasmine Askew’s account through [the

electronic banking application] “CashApp.” Not satisfied with the

amount [of funds in Mr. Moodie’s account], Appellant forced Mr.

Moodie to drive to an ATM. No money could be withdrawn since

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1), 903(a), 2706(a)(1), 907(a).

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Mr. Moodie’s account had been emptied following the transfer via

the CashApp [transaction]. Next, Appellant forced Mr. Moodie to

drive to the Cedarbrook Mall[,] where Appellant and [] Baker sold

[Mr. Moodie’s] phone via a phone kiosk. Mr. Moodie was able to

flee, and he reported the robbery to the police the next morning.

Police were able to secure video surveillance from [an] ATM and

from the Mall. …

Under docket CP-51-CR-0001404-2020, [(No. 1404)], the

evidence at trial established that on July 13, 2019, complainant[]

Danish Rashid [(Mr. Rashid)] was working as a clerk at a gas

station near the intersection of Broad Street and Stenton Avenue

when Appellant and co-defendant Cameron Hayes [(Hayes)]

entered the gas station. [Video surveillance from the gas station

recorded the incident.] After a brief conversation, Appellant, []

Hayes and [Mr. Rashid] exit[ed] the store. All three return[ed]

inside and shortly thereafter[,] Appellant and [] Hayes are seen

pushing Mr. Rashid against the clerk’s booth. [] Hayes

brandishe[d] a firearm and both Appellant and [] Hayes physically

restrain[ed] Mr. Rashid as they [took] money from his person

before they left the gas station. … A search of Appellant’s

Instagram account revealed [photos of] Appellant wearing the

same shirt as worn in the robbery. …

Under docket CP-51-CR-0002512-2020 [(No. 2512)], the

evidence at trial established that on December 2, 2019, on the

6100 block of North Franklin Street, Appellant entered the home

of the complainant, Angela Horne [(Ms. Horne)], a neighbor and

friend of [Appellant’s] mother, and after a brief interaction with

[Ms. Horne], [Appellant] opened her front door and allowed two

masked men to enter. Those two men and Appellant [went]

upstairs where one of the two men produced a firearm from his

hoodie pocket (captured [by a] motion[-]activated [video]

camera) and threatened Ms. Horne. Once upstairs [and] no longer

on camera, they push[ed] [Ms. Horne] to the floor, and sa[id]

“Bitch, where’s the money!” One of the masked men then put[]

a firearm to [Ms. Horne’s] mouth. They threaten[ed] to blow her

head off. They took [Ms. Horne’s] handbag, house keys, [and]

car keys. All three men, including Appellant, fle[d] the property

before police arrival. To date, the two masked men have not been

[identified] and remain on the street. [Ms. Horne] identified

Appellant in her statement to police, to responding officers, and

on a 911 call.

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Trial Court Opinion, 5/26/22, at 2-4.

The Commonwealth charged Appellant with numerous crimes at No.

6945 (robbery of Mr. Moodie), No. 1404 (robbery of Mr. Rashid), and No. 2512

(robbery of Ms. Horne).

Prior to trial, the Commonwealth filed a motion to consolidate the three

cases based on their similarities. See Brief in Support of Motion to

Consolidate, 12/16/20, at 9 (“The Commonwealth [] notes [] the location of

the robberies – all in the 35th police district, and [two of the robberies

occurred] on the same block in the City … of Philadelphia, along with the timing

of the robberies (all within about 18[] months).”). The Commonwealth also

claimed, “a jury will be able to separate the [three cases] and consider the

allegations independently when determining a verdict upon each charge.” Id.

at 12.

On January 16, 2021, Appellant filed a response opposing the

Commonwealth’s motion to consolidate. Appellant argued the trial court

should keep [the three] cases separated because the evidence of

two gunpoint robberies, and a burglary, against different

complaining witnesses and with different codefendants[,] is not

admissible in a separate trial so that there would be no jury

confusion for [Appellant,] who is accused [at No. 6945] of crimes

that predate the two other [robberies (at Nos. 1404 and 2512)]

by approximately a year and a year and [a] half.

***

In effect, the government asks [the trial c]ourt to strip [Appellant]

of his presumption of innocence in this case by presenting the jury

[] with evidence that [Appellant] committed other, subsequent

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crimes, with different codefendants, at other locations, and

against different complaining witnesses.

Response, 1/16/21, at 4, 6 (bold omitted).

The trial court held a hearing on January 21, 2021. The Commonwealth

advocated for consolidation as follows:

[PROSECUTOR]: Now the Commonwealth’s theory for this motion

is that evidence of the other robberies would be admissible in the

cases for the other robberies[,] both direct and circumstantial

evidence[,] because it shows [Appellant’s] common [] scheme,

design, opportunity, motive, absence of mistake, consciousness

of guilt, res gestae and (unintelligible) of the facts, events and

circumstances.

THE COURT: The what?

[PROSECUTOR]: I’ll elaborate on that. So, first of all, Your Honor,

I would note the location of all these robberies. All of these

robberies occurred in the 35th Police District, which is in the

Northwest Police Division of Philadelphia.

The first and the third robberies actually [occurred] on the

same block.

***

[PROSECUTOR]: The 6100 block of North Franklin Street.

In all of these cases[, Appellant acted] with co-conspirators

to select known complainants[,] either to himself or a co-

conspirator[,] and prey[ed] on them knowing that they’ll both fear

retaliation and fear appearing in court.

So, [Mr. Moodie] was only about 22 years old when the

robbery occurred. He was known to [Appellant’s] then

codefendant, [] Baker. And that occurred in the 6100 block of

North Franklin Street.

In that case[, Appellant] and [] Baker approached [Mr.

Moodie]. [Appellant] is alleged to have been holding the gun and

threatened [Mr. Moodie]. [Appellant and Baker] forced [Mr.

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Moodie] to go to an ATM and sought to withdraw money. When

there was no money taken from [the ATM, Appellant and Baker]

were able to take [Mr. Moodie’s] phone and sell it at a Walmart.

The only video evidence really is from the ATM and the

Walmart. And you see [Appellant] and [Mr. Moodie] in the

Walmart when the phone is actually sold.

***

[PROSECUTOR]: The initial encounter occurred on the street[;]

there’s no actual video of the gunpoint robbery.

***

[PROSECUTOR]: There is some cell phone evidence. Mr. Baker’s

phone was recovered. And there are photos of [Appellant

dressed] in the clothing that he was wearing during [the] robbery

[of Mr. Moodie].

THE COURT: Okay.

[PROSECUTOR]: Now, [Appellant and Baker] both give odd

statements [in pre-trial proceedings,] as I believe [Appellant’s

counsel] pointed out in his [opposition]. Initially they identified

somebody else but [Appellant] is identified as the gunman at the

preliminary hearing.

Again, [Mr. Moodie] is very afraid because he knew … Baker.

While [Appellant was] out on bail in that case, again, in the 35th

Police District[, Appellant] and another co-defendant, [Hayes,]

whose case has been severed from [Appellant’s], committed a

gunpoint robbery of a gas station [clerk, Mr. Rashid].

***

[The Commonwealth] presented the full video of that

incident and the video clearly [shows] at least a ten or fifteen

minute[,] lengthy interaction with [Mr. Rashid]. They go outside

and talk. There’s an [] apparent relationship [between the three

men] before … Hayes[] actually pulls a gun and shoves [Mr.

Rashid].

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[Appellant] is actually physically holding [Mr. Rashid] while

this happens. [Appellant and Hayes] pull out [Mr. Rashid’s]

wallet, go[] through the wallet and take[] his money and then

flee[] the location.

Again, a firearm is not recovered because [Appellant and

Hayes were] able to get away before police respond.

Subsequent prison calls from [Hayes] discussed the robbery

and the motive being … the sale of Percocets or some other drug[-

]related motive.

But, from this discussion of the robbery it is clear that this

is not just a random selection [of victims,] but a known individual

to the people in the video.

And I would state that would be apparent to anyone

watching the video prior to [Appellant and Hayes] pulling the gun

and robbing [Mr. Rashid,] that [he] was an acquaintance.

In [Mr. Rashid’s] case[,] some Instagram [evidence] was

recovered showing [Appellant dressed] in the same outfit as [the

one he wore during] the robbery…. But, again, there is no firearm

recovered.

Again, while [Appellant was] out [o]n bail[,] now with these

two gunpoint robberies[,] the third robbery occur[ed] in …

December 2019. It [occurred approximately] six months after the

gas station … robbery in the 6100 block of North Franklin Street.

The complainant[, Ms. Horne,] is actually a good friend of

[Appellant’s] mother. … So, she is known and she knows

[Appellant]. She actually states in her [police] statement that she

was sending [Appellant] money while he was [incarcerated]. …

[Appellant] comes over to [Ms. Horne’s] door and he is

welcomed into her home. They actually embrace and have a

momentary conversation.

After that, however, [Appellant] turns and unlocks the front

door[,] allowing two masked men to enter. …

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Two masked men enter, one of whom pulls a firearm out

from his hoodie[,] and then they go upstairs where they hold [Ms.

Horne] at gunpoint and take her purse and her cell phone.

Two of the [men] that [Appellant] let into the house run one

direction. [Appellant] exits from the other direction.

[Ms. Horne] identifie[d Appellant] only by name. [Appellant

was] the only one not wearing a mask[,] because again he knew

[Ms. Horne] and he let the other two [men] into the property.

So, in all of these cases, Your Honor, [Appellant] is acting

with others. He’s holding a gun in the first case but not the second

two.

***

[PROSECUTOR]: … [I]n short[,] similar results do not usually

occur through abnormal circumstances and the reoccurrence of

similar results tends to … negate accident or inadvertence. …

So, in … the first case, [the evidence the Commonwealth]

had is video of a phone sale at Walmart…. A jury can be

presented. The wool could be pulled over [the jury’s] eyes [by

the defense,] and the[ jury] can say we don’t know what

happened. There’s no gun, [and] there’s no video of any gun. We

just see people going into a Walmart and selling a phone. We see

some video [from] an ATM but we don’t know what happened.

And then with the third case[, Appellant] is welcomed into

[Ms. Horne’s] home[,] which is an unusual scenario for a gunpoint

robbery, right? … [Appellant is] greeted by [Ms. Horne,] who

knows [Appellant]. And only then[,] after they have this pleasant

interaction[,] does [Appellant] allow in the two gunpoint

robbers[,] who … actually grab [Appellant] and yank him upstairs

and then they all flee after this robbery occurs.

So, if [Ms. Horne’s] case [was] presented alone in front of a

jury[,] then I believe [the] defense would argue that [Appellant]

was just as much incidentally there as anything else. That

[Appellant] had been welcomed in by [Ms. Horne] and it’s just

[Appellant’s] bad luck … that suddenly these two masked men

enter and rob [Ms. Horne] at gunpoint.

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So, what we have here is somebody who has used his

relationships with others to select these victims, all of whom are

afraid, all of whom are known, and knowing that they would be

vulnerable to these kind of attacks, selects them, [and] robs them.

And now[, the] defense wants to present to the jury these

cases separately … so that a jury does not see the full picture of

this conduct. … So I don’t want to put the complainants through

three separate trials and have them have to testify three times in

front of [Appellant].

I would note the same police person[nel] for all of these

cases [are involved] because of where [the three robberies] took

place. It’s the Northwest Police Division. There are multiple

detectives involved. But … many of the same police and

responding officers [are involved in the three cases] because of

the location of the cases.

Again, given the use of resources, I think it would make a

lot more sense to have those officers testify at one jury trial as

opposed to three separate jury trials.

I think that in all of these cases the jury is still going to face

the same task, right? Essentially they’re going to have to decide

what [Appellant’s] role was in these robberies and whether or not

he’s the proper person to convict.

So, it’s not going to change what the charges are in front of

[Appellant].

THE COURT: Right.

[PROSECUTOR]: Or any kind of guilt particularly with the first

[robbery,] where there is no gun on video[,] and the third

[robbery,] where [Ms. Horne] welcomes [Appellant] into the

home. The jury is going to be able to flush that out.

There are three separate dates [of the robberies]. I admit

that, but I think this shows the clear picture of [Appellant’s]

criminal conduct, his intent and the fact that this was not any kind

of accidental role. This was in fact part of his scheme to rob people

at gunpoint.

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N.T., 1/21/21, at 6-15. After Appellant’s counsel verbalized Appellant’s

argument against consolidation, id. at 16-27, the trial court granted the

Commonwealth’s request and ordered that the three cases be consolidated.

Id. at 30; see also Order, 1/21/21 (same).

The case proceeded to trial in June 2021. At No. 6945 (robbery of Mr.

Moodie), the jury found Appellant guilty of terroristic threats. However, the

jury acquitted Appellant of robbery, kidnapping, false imprisonment,

unlawful restraint, and carrying a firearm in Philadelphia.2 At No. 1404

(robbery of Mr. Rashid), the jury found Appellant guilty of robbery, conspiracy,

and PIC. At No. 2512 (robbery of Ms. Horne), the jury found Appellant guilty

of robbery, conspiracy, PIC, and terroristic threats. The trial court deferred

sentencing for the preparation of pre-sentence investigation and mental

health reports.

On October 19, 2021, the trial court sentenced Appellant to an

aggregate 26 — 52 years in prison.3 Appellant did not file post-sentence

motions. Appellant timely filed separate notices of appeal for each of the three

____________________________________________

2 See 18 Pa.C.S.A. §§ 3701(a)(1), 2901(a)(2), 2903(a), 2902(a)(1), 6108.

3 On October 20, 2021, the trial court issued an amended sentencing order

which clarified that Appellant was ineligible for boot camp or the Recidivism

Risk Reduction Incentive Program. Order, 10/20/21.

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cases.4 On January 24, 2022, this Court consolidated the appeals sua sponte.

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue for review:

Did the trial court err and/or abuse its discretion when it granted

the Commonwealth’s request to consolidate three matters

charging unrelated robberies for a single jury trial where the

evidence related to each robbery is not admissible at trials of the

other robberies as evidence of a common plan, scheme or design

— or for any other purpose?

Appellant’s Brief at 4.

We have explained that “[w]hether to join or sever offenses for trial is

within the trial court’s discretion and will not be reversed on appeal absent a

manifest abuse thereof, or prejudice and clear injustice to the defendant.”

Commonwealth v. Lively, 231 A.3d 1003, 1006 (Pa. Super. 2020) (citations

omitted). “It is the appellant’s burden to establish prejudice.”

Commonwealth v. Shackelford, ___ A.3d ___, ___, 2023 WL 2940384, at

*5 (Pa. Super. Apr. 14, 2023) (citation omitted).

“The general policy of the laws is to encourage joinder of offenses and

consolidation of indictments when judicial economy can thereby be effected,

especially when the result will be to avoid the expensive and time[-]consuming

duplication of evidence.” Commonwealth v. Johnson, 236 A.3d 1141, 1150

(Pa. Super. 2020) (en banc) (citation omitted).

____________________________________________

4 Appellant has complied with Commonwealth v. Walker, 185 A.3d 969,

971 (Pa. 2018) (requiring appellants to file separate notices of appeal from

single orders that resolve issues on more than one docket).

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Our Supreme Court has stated that while

evidence of other crimes committed by a defendant is generally

not admissible to show his criminal propensity…, such evidence is

relevant and admissible to establish the perpetrator’s identity, or

the existence of a common scheme or plan. Commonwealth v.

Bronshtein, … 691 A.2d 907, 915 (Pa. 1997); see Pa.R.E.

404(b)(2) (evidence of other crimes, wrongs, or acts may be

admitted as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident).

Commonwealth v. Keaton, 45 A.3d 1050, 1066 (Pa. 2012).

This Court has instructed:

Pennsylvania Rule[] of Criminal Procedure 582(A)(1) provides that

distinct offenses which do not arise out of the same act or

transaction may be tried together if the “evidence of each of the

offenses would be admissible in a separate trial for the other and

is capable of separation by the jury so that there is no danger of

confusion[,] or the offenses charged are based on the same act or

transaction.” Pa.R.Crim.P. 582(A)(1)(a)-(b). If the trial court

finds that the evidence is admissible and the jury can separate the

charges, the court must also consider whether consolidation would

unduly prejudice the defendant. Commonwealth v. Thomas, …

879 A.2d 246, 260 (Pa. Super. 2005).

Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018).

Pennsylvania Rule of Criminal Procedure 583 provides a “court may

order separate trials of offenses or defendants, or provide other appropriate

relief, if it appears that any party may be prejudiced by offenses or defendants

being tried together.” Pa.R.Crim.P. 583. We explained,

the “prejudice” of which Rule [583] speaks is … that which would

occur if the evidence tended to convict [the] appellant only by

showing his propensity to commit crimes, or because the jury was

incapable of separating the evidence or could not avoid

cumulating the evidence. Additionally, the admission of relevant

evidence connecting a defendant to the crimes charged is a

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natural consequence of a criminal trial, and it is not grounds for

severance by itself.

Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa. Super. 2003) (citations

and quotations omitted).

Finally:

Reading [] rules [582 and 583] together, our Supreme Court

established the following test for severance matters:

Where the defendant moves to sever offenses not based

on the same act or transaction that have been

consolidated in a single indictment or information, or

opposes joinder of separate indictments or informations,

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 will be

unduly prejudiced by the consolidation of offenses.

Commonwealth v. Ferguson, 107 A.3d 206, 210-11 (Pa. Super. 2015)

(citations and brackets omitted).

Indictments may be consolidated for trial “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.” Commonwealth

v. Janda, 14 A.3d 147, 156 (Pa. Super. 2011) (citation and footnote omitted).

In seeking consolidation of separate indictments, the

Commonwealth is required to show more than that the crimes are

of the same class. Rather, it must be shown that a high correlation

in the details of the crimes exists such that proof that the

defendant committed one makes it very unlikely that anyone else

but the defendant committed the others.

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Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991); see also

Commonwealth v. Natividad, 773 A.2d 167, 174 (Pa. 2001) (same). “To

establish similarity, several factors to be considered are the elapsed time

between the crimes, the geographical proximity of the crime scenes, and the

manner in which the crimes were committed.” Commonwealth v.

Robinson, 864 A.2d 460, 481 (Pa. 2004) (citation omitted).

Here, Appellant claims the trial court erred by consolidating the three

cases, which unduly prejudiced Appellant, and by finding that his crimes in

the three cases established a common plan, scheme or design. See

Appellant’s Brief at 22-45. Appellant asks this Court to vacate the judgments

of sentence and remand for separate new trials. Id. at 45.

According to Appellant:

Because the trial court concedes that the evidence of

[Appellant’s] multiple (alleged) robberies was not relevant to

establish his identity, it can only be admissible if it shows a

common plan, scheme or design embracing commission of

multiple crimes. Moreover, proof of one must tend to prove the

others under the rule set forth by our Supreme Court.

A review of controlling authority regarding the common plea

[sic] doctrine … discloses that the evidence of [Appellant’s] three

distinct [] crimes failed to satisfy the requirements for admission

at every trial – and thus was insufficient to permit lawful

consolidation.

Id. at 34 (quotation marks omitted); see also id. at 35-40 (Appellant relying

on Commonwealth v. Brown, 505 A.2d 295 (Pa. Super. 1986), and

Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc)

(“The Commonwealth must prove beyond a reasonable doubt that a defendant

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has committed the particular crime of which he is accused, and it may not

strip him of the presumption of innocence by proving that he has committed

other criminal acts.” (citations omitted))).

Appellant contends “it was an abuse of discretion for the trial court to

deny a defense request for separate trials where … the gunpoint robberies

occurred in a city where multiple gunpoint robberies occur each day.”

Appellant’s Brief at 44. Appellant asserts “there were striking dissimilarities”

between the three cases, and states:

The three incidents occurred over the span of more than a year

and a half. Only one victim claims to have known [Appellant]

before the incident. [Appellant] was the person alleged to hold a

gun in only one case[, No. 6945] — and was acquitted of

possessing a gun in that matter. There is no evidence that

[Appellant] committed any of the crimes with the same co-

conspirator. None of the victims knew each other. None of the

alleged robberies were committed to perpetrate, or cover up,

another of the robberies. Finally, there is no consistent unique

“signature” or modus operandi among the disparate crimes. One

robbery occurred inside a business, one occurred inside a home,

and one occurred on a public street and involved an alleged

kidnapping culminating in another county. The gender and ages

of the victims was varied as well.

Id. at 43-44 (citation omitted).

Conversely, the Commonwealth argues

there were significant similarities among the incidents to

demonstrate a common scheme or plan. None were your typical

robbery in that [Appellant] and his cohorts did not approach

strangers, order them to give money, then run away. The three

incidents all occurred in very close proximity (two on the same

block), involved [Appellant] acting with other people, in the

evening, where they used prior relationships with acquaintances

to rob them at gunpoint during unusually long interactions. In the

cases that occurred on the same block, the perpetrators used the

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victims’ phones to transfer money through an application called

CashApp.

Commonwealth Brief at 8-9 (record citations omitted); see also id. at 9

(stating “the common scheme evidence was offered to prove [Appellant’s]

intent to commit the crimes,” as opposed to the identity of the perpetrators).

According to the Commonwealth:

Based on the unusual way that [Appellant] and his cohorts robbed

local people whom they had prior relationships with from the

neighborhood, the incidents together showed a common scheme

or plan and were joined to show what [Appellant’s] true intentions

were[,] as his [trial] counsel tried to assert that [Appellant] never

intended to rob anyone.

Id. at 9-10; see also id. at 10 (citing N.T., 6/22/21, at 53, 82-83, 130-38,

157-59, and N.T., 6/23/21, at 47-49; 100-04, 109, 112-16).

Finally, the Commonwealth argues consolidation did not unduly

prejudice Appellant, and the respective evidence in the three cases “was easily

capable of separation because the crimes took place at different times, and

none of the eyewitnesses to the incidents overlapped.” Id. at 12.

In defending its decision, the trial court reasoned:

Here, the charges against Appellant constituted an ongoing

course of similar conduct[,] overlapping periods of time in the

same general locale. Moreover, the evidence concerning each

alleged victim at trial was readily separable by the jury as the

trier-of-fact, as each victim testified to the events supporting the

respective charges, and corroborated by other distinguishable

evidence, specifically, each crime was capture[d], however briefly,

on video surveillance. Additionally, Appellant was charged with

numerous offenses against each of the victims and was only

convicted of terroristic threats … as to Mr. Moodie[; Appellant] was

found not guilty of robbery[, kidnapping, false imprisonment,

unlawful restraint, and carrying a firearm in Philadelphia]. As to

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Mr. Rashid, Appellant was seen on the video with a gun and was

appropriately found guilty of robbery …, conspiracy to commit

robbery …, and [PIC]. Likewise, wherein Ms. Horne was the

complainant. Contrary to [Appellant’s] arguments, there was no

confusion on the part of the jury.

***

[The trial court did not abuse [its] discretion [in consolidating the

three cases,] and the jury could separate each offense. Appellant

was not prejudiced by the consolidation of these matters.

Trial Court Opinion, 5/26/22, at 12-13 (some capitalization altered).

The record supports the trial court’s rationale. See, e.g., Janda, 14

A.3d at 156-57 (affirming trial court’s consolidation of nine separate, similar

burglaries of residences, as the evidence in each case was relevant to prove,

inter alia, defendant’s “common scheme” of burglarizing homes, “the

burglarized homes were located within approximately a five mile to six mile

radius of one another[,]” and each home “was situated such that it was largely

obscured from view from the vantage point of the road.” (citation omitted));

Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997) (“Where a trial

concerns distinct criminal offenses that are distinguishable in time, space and

the characters involved, a jury is capable of separating the evidence.”);

accord Commonwealth v. O’Brien, 836 A.2d 966, 969-70 (Pa. Super.

2003) (holding trial court erred in denying Commonwealth’s request to

introduce at trial evidence of defendant’s prior crimes, which proved a

common scheme or plan by defendant, despite the fact that the crimes “are

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not sufficient to establish a signature for [defendant].” (emphasis in

original)).

Furthermore, Appellant’s reliance on Brown, supra, is unavailing. See

Appellant’s Brief at 35-37. Brown held that the trial court erred in

consolidating indictments due to a lack of correlation in details between the

charges. See Brown, 505 A.2d at 299-300. The Commonwealth charged

Brown with robbery and conspiracy related to his robbery of televisions from

two different residences in the suburbs of Pittsburgh. Id. at 296. Brown

committed the second robbery approximately four months after the first. Id.

Prior to trial, the defense objected to consolidation of the separate

indictments. Id. at 296, 300. This Court concluded the trial court abused its

discretion in denying Brown’s “request for separate trials where … the charges

were for offenses which were unconnected in time and similar only in that

television sets were stolen during daylight hours from ransacked dwelling

houses.” Id. at 300. We explained:

Although the offenses were of the same class, there was not that

“high correlation in the details of the crimes that proof that the

defendant committed one makes it very unlikely that anyone else

but the defendant committed the others.” Commonwealth v.

Bastone, … 396 A.2d 1327, 1329 ([Pa. Super.] 1979). The

separate crimes were not “so nearly identical in their unusual or

distinctive aspects as to bear the ‘signature’ or be the ‘handiwork’

of the same person.” Commonwealth v. Kasko, … 469 A.2d

[181,] 184-185 [(Pa. Super. 1983).]

Brown, 505 A.2d at 299-300 (citations modified). Accordingly, we vacated

Brown’s judgment of sentence and remanded for separate trials. Id. at 300.

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In this case, the Commonwealth correctly argues that Brown is

inapposite where “the common scheme evidence was offered to prove

[Appellant’s] intent to commit the crimes,” as opposed to his identity:

[T]he issue in Brown pertained to the accused’s identity. … As

discussed in Brown, a “signature crime” is necessary when the

evidence was offered to prove the defendant’s identity as the

perpetrator by excluding all others. Id. A signature crime may

be necessary where it is the sole evidence of identity, but not

where there is other evidence directly linking the accused to the

crime. Commonwealth v. Einhorn, 911 A.2d 960, 968 (Pa.

Super. 2006)[.]

Commonwealth Brief at 9 (emphasis added).

We are also unpersuaded by Appellant’s reliance on Ross, supra, in

which the defendant murdered and mutilated the victim. The trial court in

Ross permitted the Commonwealth to introduce evidence from three of the

defendant’s former paramours describing the defendant’s prior sexual and/or

physical abuse. Ross, 57 A.3d at 99-100. Unlike the instant case, the

identity of the perpetrator was at issue. Id. at 103 (holding that testimony

from the defendant’s former paramours “did not establish any particular

modus operandi or other pattern of conduct … so unusual and distinct as to

constitute a ‘signature’ identifying defendant as the victim’s killer.”

Id. (emphasis added); see also id. at 104 (finding defendant’s conduct in the

respective incidents was “profound[ly] dissimilar[].”).

This Court, in concluding the trial court erred in admitting the testimony

of defendant’s ex-paramours to prove defendant’s identity as the victim’s

killer, noted that defendant’s abusive behavior in the prior incidents was

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“triggered … by different causes” and involved different facts. Id. at 102.

Also, the defendant’s conduct with the murder victim “involved a level of

brutality far in excess of the incidents of physical and/or sexual abuse

described by” defendant’s former paramours. Id. at 103 (emphasis in

original). We also emphasized that all three of the defendant’s former

paramours had lived with the defendant and claimed domestic abuse, but the

murder of the victim, “in significant contrast, did not involve domestic abuse”

and there was no “testimony at trial [] that [defendant and the murder victim]

… had even met each other before that evening.” Id.

Based on the foregoing, we discern no manifest abuse of discretion by

the trial court in consolidating the three cases where Appellant received a fair

trial and failed to prove that he suffered undue prejudice. See Lively, supra;

Janda, supra.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/2023

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