Com. v. Hobel, S. ( 2022 )

J-S07042-22
2022 PA Super 86COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN A. HOBEL :
:
Appellant : No. 822 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2019
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000202-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN AARON HOBEL :
:
Appellant : No. 823 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2019
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000196-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN AARON HOBEL :
:
Appellant : No. 824 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2019
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000195-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
J-S07042-22
v. :
:
:
SHAWN AARON HOBEL :
:
Appellant : No. 825 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2019
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0001008-2017
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: MAY 10, 2022
In these consolidated appeals, Shawn Aaron Hobel (Hobel) appeals from
the judgment of sentence of 20 to 40 years imposed by the Court of Common
Pleas of Lawrence County (trial court) after a jury convicted him of robbing
three convenience stores and various offenses related to a high-speed chase
with the police. On appeal, he raises four challenges. First, he challenges the
denial of his suppression motion in which he alleged that the extraterritorial
actions of the police in the chase violated the Municipal Police Jurisdiction Act
(MPJA), 42 Pa.C.S. §§ 8951-8954. Second, he challenges the joinder of his
cases for trial. Third, he challenges the sufficiency of the evidence for the
robberies because none of the clerks identified him at trial. Finally, he
challenges the weight of the evidence for his convictions. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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I.
Over a 40-hour period in December 2016, a man wearing a gray hoodie
and a black mask robbed three convenience stores in Lawrence County with
what looked like a black handgun. None of the clerks could identify the robber
but the clerk in the last robbery saw the robber get into a dark-colored sedan.
As a result, New Castle Police put out a “be on the lookout” (BOLO) to area
police departments for the sedan. A few hours later, Officer Michael Lynch
(Officer Lynch) of the Shenango Township Police was patrolling when he saw
a sedan matching the BOLO. While following the sedan into neighboring
Slippery Rock Township, Officer Lynch saw another car parked in the woods;
at the time, Hobel was in the car doing drugs with his friend, Elissa Heemer
(Heemer). When he saw Officer Lynch turn around, Hobel fled. After going
through a stop sign, Hobel sped away swerving across the road. Officer Lynch
activated his emergency lights but Hobel would not pull over as he led police
on a high-speed chase spanning multiple municipalities and police
departments. The chase eventually ended when Corporal James Hoyland
(Corporal Hoyland) of the New Castle Police blocked off Hobel’s car. With no
escape possible, Hobel held a gun to Heemer’s head and threatened to kill
her. When Hobel disregarded several warnings, Corporal Hoyland shot him
six times, following which he was taken to a hospital and survived.
At the scene, Heemer told police that Hobel admitted to her in the car
that he had committed several robberies. The police then obtained a search
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warrant for Hobel’s car and found several items connecting him to the
robberies: a gray hoodie; a black airsoft gun; black masks; and a pack of
cigarettes of the same brand asked for by the robber during one of the
robberies. In the meantime, police also recovered Hobel’s shoes because they
resembled those worn by the robber.
Police filed four complaints against Hobel—three for the robberies and
one for the chase. Before trial, Hobel moved to suppress the items recovered,
arguing both Officer Lynch and Corporal Hoyland acted extraterritorially in
violation of the MPJA. After two hearings, the trial court denied suppression
and, upon the Commonwealth’s motion, joined the four cases for trial.
Hobel was tried by a jury. In the robbery cases, the jury found him
guilty of robbery, theft and receiving stolen property.1 In the other case, the
jury found him guilty of terroristic threats, unlawful restraint, reckless
endangerment (four counts) and fleeing or attempting to elude police.2
Because Hobel had a prior robbery conviction, the Commonwealth sought the
mandatory minimum 10-year sentence for the robbery convictions. See 42
Pa.C.S. § 9714(a)(1). The trial court imposed consecutive sentences of 10 to
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1 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a) and 3925(a). The cases were
docketed at Lawrence County Docket Numbers 195-2017 (824 WDA 2021),
202-2017 (822 WDA 2021) and 1008-2017 (825 WDA 2021).
218 Pa.C.S. §§ 2706(a)(1), 2902(a)(1), 2705 and 75 Pa.C.S. § 3733(a). The
case was docketed at Lawrence County Docket Number 196-2017 (823 WDA
2021).
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20 years for two of the robberies and concurrent sentences on all remaining
charges. Hobel filed post-sentence motions raising, among other claims,
sufficiency and weight of the evidence claims. When those motions were
denied, he filed a timely appeal that was later dismissed for failure to file a
brief. After Hobel’s direct appeal rights were reinstated on collateral review,
he filed these direct appeals, which we consolidated sua sponte.
II. Suppression
A. Factual Background
Hobel first argues that the trial court erred in denying his suppression
motion based on the alleged MPJA violations.3 The trial court gave a detailed
summary of the evidence at the suppression hearing.
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3 Our standard of review for a challenge to the denial of a suppression motion
is limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, we are bound
by these findings and may reverse only if the court’s legal
conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to our plenary
review.
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The chase occurred on the night of December 12, 2016,
progressing into the morning. (Omnibus Pretrial Hearing,
November 28, 2017, p. 5). Shenango Township Police Officer
[Lynch] had received information on a series of robberies in the
area of Shenango. Id. at 5-6. The 911 Call Center put out a brief
description of a vehicle which was possibly involved, describing a
brown or dark-in-color four-door sedan. Id. at 6-7. The 911 Call
Center dispatch was by the Shenango Township Police
Department as well as the New Castle Police Department. Id. at
7. Based on this information, Officer Lynch began looking for the
vehicle. Id. At one point during this search, Officer Lynch was
near the border of Shenango Township and Slippery Rock
Township sitting in the parking lot of a church on the corner of
Route 388 and Center Church Road. Id. at 32. Center Church
Road runs East-West. It crosses Route 388, running North-South,
which constitutes the dividing line between Shenango Township in
the West and Slippery Rock Township on the eastern side of 388.
Id. at 30-31. This area constituted part of Officer Lynch’s routine
patrol area. Id. at 44-45. As Officer Lynch was sitting in the
church parking lot, he observed a black sedan travelling in
Shenango Township heading East on Center Church Road toward
Slippery Rock Township. Id. at 32. Officer Lynch left his position
at the church parking lot, crossed over 388 and began to follow
the black sedan. Id. at 33.
While Officer Lynch was following the black sedan, he
noticed another sedan pulled off the road inside a wooded area on
Center Church Road. Id. at 8. The wooded area appeared to
Officer Lynch to be an abandoned utility pull-off which was once
used but now was overgrown. Id. at 10. Officer Lynch noted this
was not a location where he would expect a vehicle to be typically
sitting. Id. Officer Lynch passed the second vehicle’s location by
about 100 yards and turned around in the next driveway. Id. It
was Officer Lynch’s intent at this point to inspect this second
vehicle. Id. at 35. The second vehicle turned on its lights and
headed toward Route 388 as soon as Officer Lynch turned around.
____________________________________________
Commonwealth v. Martin, 253 A.3d 1225, 1227–28 (Pa. Super. 2021)
(citation omitted). Our scope of review of a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. See
Commonwealth v. Bumbarger, 231 A.3d 10, 15 (Pa. Super. 2020), appeal
denied, 239 A.3d 20 (Pa. 2020).
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Id. Officer Lynch followed the vehicle returning to Route 388, at
which point the vehicle accelerated away from Officer Lynch. Id.
at 9. The vehicle proceeded through the stop sign at the
intersection of Route 388 and Center Church Road. Id. The
vehicle did not stop and turned north onto Route 388. Id. Officer
Lynch activated his emergency lights and sirens at this point. Id.
at 9, 35-36. Route 388 constituted a rough border of Shenango
and Slippery Rock Townships, with some parts of 388 entirely in
Shenango, some parts entirely in Slippery Rock, and in some parts
388 runs exactly along the border of the two.
Officer Lynch was able to call into the 911 Call Center and
call in the registration of the pursued vehicle. Id. The dispatch
center radioed back and identified the owner of the vehicle as
[Hobel]. Id. at 10-11. Another Shenango Township Police Officer
communicated to Officer Lynch that [Hobel] was a possible
suspect of robberies being investigated. Id. at 10. Officer Lynch
pursued the vehicle to New Butler Road/422, at which point the
vehicle made a right turn through a red light and headed toward
Interstate 79. Id. at 11. Officer Lynch radioed his dispatch to
notify the Pennsylvania State Police the chase was passing into
Slippery Rock Township, which they covered. Id. at 12.
Speeds during the chase on 422 ranged from 20 miles per
hour to 120 miles per hour. Id. at 12-13. Weather conditions
were slightly wet and slippery, it having rained prior to the chase
but not during. Id. at 15. The chase continued on 422 eventually
leaving Slippery Rock Township until [Hobel] turned onto
Interstate 79 South. Id. at 13. It was at this time the
Pennsylvania State Police were able to join in the chase. Id. On
1-79 South, [Hobel] would swerve as if he was going to take an
exit and then swerve back to continue on 1-79. Id. [Hobel] exited
1-79 at the Evans City/Zelienople exit in Butler County. Id. at
13-14. He proceeded onto Route 19 toward Zelienople, at which
point Officer Lynch saw there was no traffic in their path. Id. at
14. The chase continued towards Portersville. Id.
Officer Lynch continued to call out the position of the chase,
and although other departments were checking in, the pursuing
vehicles were solely Officer Lynch and the State Police. Id. at 15.
The departments which checked in were New Wilmington, Union
Township, Hickory Township, and New Castle. Id. The chase
proceeded on Route 19 through Portersville until [Hobel] turned
left onto Route 488. Id. at 16. [Hobel] turned onto another road,
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which Officer Lynch was not able to identify. Id. The chase was
headed back toward Center Church Road at this point, where it
began. Id. The chase passed through the intersection of 388 and
Center Church Road, but this time [Hobel] headed toward Route
65, continuing on Center Church Road. Id. at 17. When [Hobel]
reached Route 65 he took a right turn and headed toward New
Castle. Id.
The chase approached New Castle. Officer Lynch saw a
marked New Castle Police Department cruiser (later learning this
cruiser to be Officer Hoyland’s)[4] facing the opposite direction on
Route 65. Id. The cruiser had its emergency lights and siren on.
Id. at 17-18. [Hobel] braked hard, put the vehicle in reverse, and
made a left turn onto the Route 422 bypass headed towards Union
Township. Id. at 18. [Hobel] slowed to 20-25 miles per hour on
this segment and continued to brake hard at random intervals.
Id. It appeared to Officer Lynch [that Hobel] was attempting to
cause Officer Lynch to hit the [Hobel’s] vehicle. Id.
The Court now turns to Corporal Hoyland’s perspective.
Corporal Hoyland began his shift on December 12, 2016, at
8:00 P.M. Id. at 49. At the beginning of the events, Corporal
Hoyland was stationary in his vehicle at the New Castle Police
Station. Id. at 50. Corporal Hoyland began to listen to the radio
traffic of the county police departments, and he noted they were
in the middle of a chase. Id. Corporal Hoyland drove towards the
city line with Shenango Township, noting the chase appeared to
be heading back towards New Castle, and further noting the
neighboring jurisdictions tended to help each other. Id. at 50, 59.
Corporal Hoyland informed his supervisor he was heading to the
city line in case the chase proceeded into New Castle’s jurisdiction.
Id. Initially, Corporal Hoyland was waiting in Cascade Park on the
border of Shenango Township and New Castle. Id. at 58, 62.
After determining this was not a good vantage point from which
to monitor the traffic approaching the city along this route,
Corporal Hoyland moved to a parking lot in Shenango Township
between two gas stations. Id. at 64. Corporal Hoyland waited at
this location for around 30 minutes. Id. at 62.
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4In its pretrial opinion, the trial court referred to Corporal Hoyland as Officer
Hoyland. We have substituted his correct title.
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Corporal Hoyland was able to see Officer Lynch’s lights
approaching his position at which point he pulled into the roadway
on Route 65 so they could see him. Id. at 51. Corporal Hoyland
could see the chase stopped and turned onto the 422 Bypass. Id.
Corporal Hoyland then joined the pursuit of [Hobel]. Id. at 51-
52. Corporal Hoyland remained in radio contact with his
supervisor during this period, relaying information regarding the
chase. Id. at 54.
The chase at this point consists of [Hobel] and his passenger
(later identified as [Heemer]), Officer Lynch, and the NCPD vehicle
operated by Corporal Hoyland. Id. at 18-19. [Hobel] continued
to drive on the 422 Bypass past the Moravia Street exit headed
toward Interstate 376 and Union Township. Id. at 19. [Hobel]
passed the merger lane to head on I-376 South, but when he got
to the merge point where I-376 traffic was entering the 422
Bypass, [Hobel] braked hard, and made a U-Turn to head the
wrong direction up the ramp, against the flow of traffic. Id.
Corporal Hoyland pulled his NCPD cruiser ahead of [Hobel’s]
vehicle around the right side; at the same time Officer Lynch
pulled in behind and together they were able to box in [Hobel].
Id. at 19-20.
Corporal Hoyland and Officer Lynch exited their vehicles and
they approached [Hobel’s] vehicle. Id. at 20. Corporal Hoyland
exited the driver’s side of his vehicle, which was closest to
[Hobel’s] vehicle. Id. at 54. As soon as Corporal Hoyland got to
the front of [Hobel’s] vehicle he saw [Hobel] holding what
appeared to be a handgun to the head of [Heemer]. Id.
Ultimately, the ‘handgun’ turned out to be a replica Airsoft pistol,
which was nearly indistinguishable from a real firearm. [Hobel]
was saying or yelling something at the time, but Corporal Hoyland
could not hear [Hobel]. Id. at 55. Officer Hoyland drew his
weapon in response to the actions of [Hobel] and commanded
[Hobel] to drop his gun. Id. When he did not, Corporal Hoyland
shot [Hobel]. Id.
[Hobel] dropped the gun and Corporal Hoyland holstered his
pistol. Id. at 56. Corporal Hoyland approached the passenger
side of the vehicle and Officer Lynch approached the driver side.
Id. at 21. Officer Lynch removed [Hobel] from the vehicle and
Corporal Hoyland sequestered [Heemer]. Id. at 21, 56.
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Pretrial Opinion and Order (PTO), 7/11/18, at 3-8.
B. MPJA
The MPJA defines the primary territorial jurisdiction of municipal police
officers as “[t]he geographical area within the territorial limits of a municipality
or any lawful combination of municipalities which employs a municipal police
officer.” 42 Pa.C.S.A. § 8951. “The MPJA is intended to promote public safety
while maintaining police accountability to local authority; it is not intended to
erect impenetrable jurisdictional walls benefiting only criminals hidden in their
shadows.” Commonwealth v. Lehman, 870 A.2d 818, 820 (Pa. 2005)
(emphasis, brackets, internal quotation marks and citations omitted). To that
end, “Section 8953 [of the MPJA] authorizes arrests, execution of search
warrants and other official police conduct outside of an officer’s primary
jurisdiction in six specific circumstances.” Commonwealth v. O'Shea, 567
A.2d 1023, 1029 (Pa. 1989). Those six specific circumstances are as follows:
(1) Where the officer is acting pursuant to an order issued by a
court of record or an order issued by a district magistrate whose
magisterial district is located within the judicial district wherein
the officer’s primary jurisdiction is situated, or where the officer is
otherwise acting pursuant to the requirements of the Pennsylvania
Rules of Criminal Procedure, except that the service of an arrest
or search warrant shall require the consent of the chief law
enforcement officer, or a person authorized by him to give
consent, of the organized law enforcement agency which regularly
provides primary police services in the municipality wherein the
warrant is to be served.
(2) Where the officer is in hot pursuit of any person for any offense
which was committed, or which he has probable cause to believe
was committed, within his primary jurisdiction and for which
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offense the officer continues in fresh pursuit of the person after
the commission of the offense.
(3) Where the officer:
(i) has been requested to aid or assist a Federal, State or
local law enforcement officer or park police officer;
(ii) has probable cause to believe that a Federal, State or
local law enforcement officer or park police officer is in need of aid
or assistance; or
(iii) has been requested to participate in a Federal, State or
local task force and participation has been approved by the police
department of the municipality which employs the officer.
(4) Where the officer has obtained the prior consent of the chief
law enforcement officer, or a person authorized by him to give
consent, of the organized law enforcement agency which provides
primary police services to a political subdivision which is beyond
that officer’s primary jurisdiction to enter the other jurisdiction for
the purpose of conducting official duties which arise from official
matters within his primary jurisdiction.
(5) Where the officer is on official business and views an offense,
or has probable cause to believe that an offense has been
committed, and makes a reasonable effort to identify himself as a
police officer and which offense is a felony, misdemeanor, breach
of the peace or other act which presents an immediate clear and
present danger to persons or property.
(6) Where the officer views an offense which is a felony, or has
probable cause to believe that an offense which is a felony has
been committed, and makes a reasonable effort to identify himself
as a police officer.
42 Pa.C.S. § 8953(a)(1)-(6).
Yet when a police officer’s extraterritorial actions do not fall within one
of these exceptions, suppression is not automatically appropriate. See
O’Shea, supra at 1029. As this Court has explained:
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Two conflicting positions have arisen in this Court on the question
as to whether a violation of the MPJA entitles an aggrieved party
to suppression under the exclusionary rule. In Commonwealth
v. Bradley, 724 A.2d 351 (Pa. Super. 1999) (en banc), this Court
noted the exclusionary rule applies to any evidence gathered
subsequent to an MPJA violation even if the officer acts in good
faith or the police officer’s actions would have been lawful if
performed within the proper jurisdictional limits.
In Commonwealth v. Chernosky, 874 A.2d 123 (Pa. Super.
2005) (en banc), appeal denied[,] ... 902 A.2d 1238 ([Pa.
]2006), this Court implicitly rejected the absolutist approach
espoused in Bradley in favor of the case-by-case approach
approved of by our Supreme Court in [O’Shea]. The factors to
be considered in applying this case-by-case approach consist of
all the circumstances of the case including the intrusiveness of the
police conduct, the extent of deviation from the letter and spirit of
the [MPJA], and the prejudice to the accused. [See] Chernosky,
supra at 130. The Chernosky Court further noted that the spirit,
or purpose of, the MPJA is to proscribe investigatory,
extraterritorial forays used to acquire additional evidence where
probable cause does not yet exist.
Chernosky unquestionably sets forth the proper standard this
Court is to employ in determining whether the exclusionary rule
should act to suppress evidence obtained pursuant to an MPJA
violation. Chernosky relies on an approach approved by our
Supreme Court, is more recent than the decision rendered in
Bradley, and sets forth a standard which allows this
Commonwealth’s courts to tailor a remedy in situations where
police intentionally have overstepped their boundaries while still
affording our courts the flexibility to deny suppression when police
have acted to uphold the rule of law in good faith but are in
technical violation of the MPJA.
Commonwealth v. Henry, 943 A.2d 967, 971-72 (Pa. Super. 2008)
(quotation marks and most citations omitted).5
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5In Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019) (plurality), our
Supreme Court addressed the continued validity of the O’Shea test. Three
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C. Officer Lynch
Hobel first argues that none of the MPJA exceptions apply to Officer
Lynch’s investigative foray into Slippery Rock Township, which is covered by
the state police. At suppression, the trial court agreed with Hobel that none
of the exceptions applied to Officer Lynch’s actions, focusing its discussion on
the lack of applicability of the “hot pursuit” exception under § 8953(a)(2).
See PTO 11-12. Even so, the trial court ultimately found that suppression
was an inappropriate remedy under these circumstances, citing Henry and
O’Shea. See PTO at 12-15. The trial court, however, revisited the issue in
it Rule 1925(a) opinion and concluded that Officer Lynch’s actions fell under
the “official business” exception set forth at 42 Pa.C.S. § 8953(a)(5). Citing
our Supreme Court’s decision in Commonwealth v. Pratti, 608 A.2d 488(Pa. 1992), the trial court gave this analysis:
…Officer Lynch was on official business in his jurisdiction when he
was parked at the church as it was part of his routine patrol and
while he was searching for a vehicle matching the description in
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justices were unwilling to condone its continued application for avoiding
suppression of MPJA violations. Id. at 1049-51 (Opinion of the Court)
(Donohue, J., joined by Todd and Wecht, JJ). In contrast, three justices would
have declined addressing the continued validity of the test because it was not
raised. Id. at 1052-53 (Saylor, C.J., concurring and dissenting, joined by
Baer and Dougherty, JJ). Finally, Justice Mundy supported the continued
application of the three-factor test. Id. at 1057 (Mundy, J., dissenting). Thus,
after Hlubin, the O’Shea test remains good law. See Commonwealth v.
Ramsey, 896 WDA 2020, 2021 WL 5314460, at *6 (Pa. Super. Nov. 16, 2021)
(applying O’Shea to find suppression would be an inappropriate remedy
where the police actions did not deviate from the “letter and spirit” of the
MPJA) (unpublished memorandum).
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the BOLO. In doing so, he observed a vehicle similar to the
description provided and he began to follow it, which led him to
briefly leave his jurisdiction. At that time, he observed [Hobel’s]
vehicle parked in a location where vehicles typically do not park.
He turned around to investigate the anomaly when [Hobel] drove
away. Officer Lynch then observed him fail to stop at a stop sign
and drive in an erratic manner, which created a potential danger
to other drivers as he was crossing over into the other lane of
traffic. This situation is strikingly similar to the facts addressed
by the Pratti Court as both police officers observe a vehicle being
driven in a dangerous manner and they were outside of their
primary jurisdictions. The Pennsylvania Courts and laws of this
Commonwealth have never required police officers to ignore
potentially dangerous behavior just because they briefly left their
jurisdictional boundaries while still on official business. Hence,
Officer Lynch had the authority to effectuate a traffic stop, much
like the Millvale police officer in Pratti, pursuant to 42 Pa.C.S.A.
§ 8953(a)(5).
TCO at 18 (footnote omitted).
In Pratti, an on-duty police officer with the Millvale Borough Police
crossed into Shaler Township and turned around in a service station parking
lot as was his routine practice. While turning around, the officer heard a loud
noise. After hearing the noise, the officer drove further into Shaler Township
to investigate and found a stop sign lying in the road with a vehicle ahead of
him. Upon seeing the car swerve across the centerline, the officer stopped
the car and observed that the driver was intoxicated, following which he
summoned the Shaler Police. The driver later claimed the MPJA did not permit
his detention by the out-of-jurisdiction officer. Our Supreme Court disagreed,
finding that the officer was on “official business” under § 8953(a)(5):
[W]e conclude, based upon the facts presented in the instant
matter, that [the officer] was on “official business” as he traveled
toward his routine turnaround in Shaler Township. When he heard
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what he believed to be an automobile accident, he had an
affirmative duty to proceed and investigate in order to make
himself available to render assistance if need be. The fact that
the occurrence was outside of his jurisdiction does not vitiate his
duty to assist if needed; nor does it alter the fact that he continued
to be on “official business.”
Pratti, 608 A.2d at 490.
The Supreme Court came to a similar conclusion the year before in
Commonwealth v. Merchant, 595 A.2d 1135 (Pa. 1991). There, two Etna
Borough police officers were driving in a marked car through Aspinwall
Borough as part of their usual routine to reach a limited access highway
through Etna. While in Aspinwall, the officers saw the defendant driving in “a
very erratic manner crossing the double yellow lines; in fact, almost hitting a
vehicle coming in the opposite direction head on.” Id. at 1135. As a result,
the officers pulled over the driver and contacted the Aspinwall Police. Our
Supreme Court found that the officers were on “official business” under
§ 8953(a)(5) when they detained the driver, finding that the officers were on
“official business” because “they were on duty travelling their usual route as
part of their routine responsibilities.” Id. at 1139.
Our Supreme Court later revisited the exception in Lehman. There, a
private citizen stopped a New Wilmington police officer and told him there was
a car parked three-quarters of a mile away with its driver slumped over. The
officer drove down the road and found the car parked in what turned out to
be Wilmington Township, as the driver was slumped over the seat and smelling
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of alcohol. The officer radioed the state police and had the driver perform
field sobriety tests. State police later showed up and arrested the driver.
The driver filed a motion to suppress based on the police officer
detaining him outside the officer’s jurisdiction. Our Supreme Court found that
the officer’s actions were permissible under § 8953(a)(5). See Lehman,
supra at 819-20. Relevant here, after reviewing Merchant and Pratti, the
Supreme Court set forth this rule:
[S]ection 8953(a)(5) of the MPJA authorizes an extrajurisdictional
detention where the detaining officer is on-duty, outside his
or her jurisdiction for a routine or customary reason
including responding to an exigent circumstance, develops
probable cause to believe an offense has been committed, and
limits out-of-jurisdiction activities to maintaining the status quo,
including detaining the suspect, until officers from the appropriate
jurisdiction arrive.
Id. at 821 (emphasis added).
Applying this rule, the Court stated:
Excluding the evidence in this case would not advance any of the
purposes the MPJA was designed to serve. The legislative intent
behind the MPJA-to enable municipal police officers to protect all
of the public while maintaining their accountability to local
authority-is promoted by allowing [the officer] to take the
reasonable steps he did here. The “official duties” of a police
officer at times extend outside the home jurisdiction’s political
boundaries, and appropriate responses to exigencies must be
allowed, as the statute acknowledges. Authorizing expedient but
limited responses is only common sense; they save lives and
property without infringement on anyone’s rights.
Id.
A year after Lehman, the Supreme Court limited the applicability of the
exception in Martin v. Commonwealth, Dep’t of Transp., Bureau of
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Driver Licensing, 905 A.2d 438 (Pa. 2006). In Martin, a police officer was
on routine patrol in his jurisdiction when he saw someone driving at what he
suspected was a high rate of speed. The officer followed behind while clocking
the driver’s speed with his speedometer. The officer then followed the driver
into a neighboring jurisdiction and saw her make a wide turn. After pulling
her over, the officer detected signs of intoxication and arrested the driver.
The Supreme Court granted allocatur to consider “[w]hether a municipal police
officer has authority under the [MPJA] to conduct an extraterritorial arrest of
a motorist … where the officer has no grounds for arrest or probable cause in
the officer’s own jurisdiction but grounds for arrest arise after the officer
leaves his jurisdiction in pursuit of the motorist.” Id. at 437-38.
Holding that municipal officers lack such authority, the Court held the
officer was not on “official business” when he followed the driver into the
neighboring jurisdiction. The Court noted that the officer’s entry into the other
jurisdiction was not for official business “separate and apart” from his pursuit
of the driver to determine whether she was speeding. Id. at 447. As the
Court explained, the officer was not in the neighboring jurisdiction “on other
official business when he noticed [the driver], nor was he there as part of his
routine patrol—for example, a routine, brief entry to allow him to turn around
to re-enter his primary jurisdiction—or for any other purpose.” Id. at 447-48
(footnote omitted). Instead, the officer entered the other jurisdiction “only to
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investigate his suspicion that [the motorist] was speeding.” Id. at 448. Thus,
the officer’s actions were not authorized under § 8953(a)(5). Id.6
After review, we find this case is closer to Pratti, Merchant and
Lehman than it is to Martin. At the suppression hearing, the Commonwealth
asked Officer Lynch about his entry into Slippery Rocky Township and whether
it was part of his routine patrol.
Q Officer, this area that you talked about where you saw the
vehicle sitting, you described it … that it goes back and forth
between Shenango and some other jurisdictions. Is that correct?
A Yes, 388 and it’s shared in and out through the entire way
through Slippery Rock and Shenango.
Q You are not required to drive around areas that are Slippery
Rock?
A No.
Q And remain only in your area?
A No.
Q So it’s not unusual, if you’re patrolling, that you’re going
past this church, I think you described it, and onto Church Road?
____________________________________________
6 After Martin, this Court has had little opportunity to address the “official
business” exception under § 8953(a)(5) in the factual scenario involved here.
See Commonwealth v. Bergamasco, 197 A.3d 805, 811 (Pa. Super. 2018)
(“official business” exception did not apply when police officer was driving back
to jurisdiction after a DUI blood draw and the defendant’s failure to yield did
not pose an immediate clear and present danger); Commonwealth v.
Borovichka, 18 A.3d 1242, 1249-50 (Pa. Super. 2011) (no MPJA violation
where police officer heard call of driver passed out in McDonald’s drive-thru a
quarter mile beyond his primary jurisdiction); Henry, 943 A.2d at 971 (finding
technical MPJA violation where arresting officer followed driver into
neighboring jurisdiction after viewing only a traffic code violation).
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A No.
Q You would continue; that would be a regular routine patrol?
A Correct.
Q And as part of your regular routine patrol, if you saw a
vehicle on a gravel road in an abandoned area, you’re not going
to call the state police, you would respond?
A Correct.
Q Do you have a formal or informal agreement with the
townships around you?
A No.
Q Do you routinely assist each other in these areas?
A Yes.
Q Do you routinely call out to each other and monitor each
other’s traffic?
A Yes.
Q At any point in time, do you specifically ask for help or is
this your normal course of routine patrol?
A It’s our normal course of routine patrol.
N.T., 11/28/17, at 44-45.
We agree with the trial court that Officer Lynch was on “official business”
when he entered Slippery Rock Township. Officer Lynch was on duty and in a
police cruiser when he crossed into another jurisdiction that was part of his
“normal course of routine patrol” to follow behind a dark-colored sedan
matching the BOLO when he noticed Hobel parked in an abandoned utility
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road. The critical part is that the Commonwealth adduced evidence that
Officer Lynch saw Hobel’s car in an area near his jurisdiction’s border that is
part of his routine patrol; if it had not been part of his routine patrol, then this
matter would be more like that in Martin where the police officer crosses into
a neighboring jurisdiction that is not part of his routine patrol. Even still, as
set forth by our Supreme Court in Lehman, a police officer may act where
that officer “is on-duty, outside his or her jurisdiction for a routine or
customary reason.” Lehman, 870 A.2d at 821. Thus, because Officer Lynch
followed the dark-colored sedan on a routine part of his routine patrol, he was
on “official business” even after he crossed into Slippery Rock Township.
We also agree with the trial court that Officer Lynch, while on “official
business,” viewed an offense “which presents an immediate clear and present
danger to persons or property.” At the suppression hearing, Officer Lynch
described what he saw after driving past Hobel’s car:
I went up past the vehicle, maybe 75, a hundred yards, turned
around in the next driveway up, and as soon as I turned around,
the vehicle that was up in the woods turned on the lights,
immediately backed out. At that time, I backed out and I was
able to get behind the vehicle. The vehicle immediately
accelerated, and there’s a stop sign at Center Church Road and
388; come out, blew through the stop sign; come out on 388,
almost sideways and immediately began to accelerate, which
would be north down 388 towards New Butler Road.
N.T., 11/28/17, at 8-9.
Officer Lynch did not put on his emergency lights for the stop sign
violation and, instead, waited until he saw Hobel swerve across the road.
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…I was behind the vehicle north on 388. The vehicle was all over
the road, crossing into [the] oncoming traffic lane, back and forth.
That’s when I initiated my emergency lights and siren to initiate a
traffic stop at that time.
Id. at 9. He reiterated the same on cross-examination when asked why he
did not pull over Hobel after observing the traffic code violation.
Q …Why didn’t you flick your lights at that point in time when
you are saying that you observed a traffic violation?
A I didn’t pull out onto – I just didn’t do it. I pulled out on
388, and at that time when the vehicle began to swerve back and
forth is when I activated my lights.
Id. at 36.
Like Hobel in this case, the defendant in Merchant drove in an erratic
manner and crossed the double yellow line. See Merchant, 595 A.2d at 1135.
After finding that the officers were on “official business” when they were
outside their jurisdiction, the Merchant Court found that “probable cause was
established that an offense had been committed which offense [was] a felony,
misdemeanor, breach of the peace or other act which present[ed] an
immediate clear and present danger to persons or property.” Id. at 1139
(quotation marks omitted).
Rather than try to stop Hobel after he failed to stop at the stop sign,
Officer Lynch waited until he saw that Hobel posed a clear and present danger
because of his dangerous driving. Under these circumstances, Officer Lynch’s
actions were permissible under § 8953(a)(5). See Commonwealth v.
Morris, 829 A.2d 690, 696-97 (Pa. Super. 2003) (finding § 8953(a)(5) applied
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when police officer proceeded through another jurisdiction on his way to his
primary jurisdiction for a suspected DUI and saw the motorist driving in an
erratic manner); see also Stein v. Dep’t of Transp., Bureau of Driver
Licensing, 857 A.2d 719, 726-27 (Pa. Cmwlth. 2004) (officer had authority
under § 8953(a)(5) to pull over motorist because officer observed motorist
driving erratically and had probable cause to suspect DUI).
Even if Officer Lynch’s actions technically violated the MPJA, suppression
would not be appropriate. “In noting the public safety purpose of the MPJA,
our Supreme Court has held that a technical violation of MPJA does not always
warrant suppression of evidence. Rather, when determining whether
suppression is the appropriate remedy, a court should consider the totality of
the circumstances of the case.” Commonwealth v. Borovichka, 18 A.3d
1242, 1249 (Pa. Super. 2011) (citation omitted). “The factors to be
considered in applying this case-by-case approach consist of all the
circumstances of the case including the intrusiveness of the police conduct,
the extent of deviation from the letter and spirit of the [MPJA], and the
prejudice to the accused.” Commonwealth v. Bergamasco, 197 A.3d 805,
812 (Pa. Super. 2018) (citation and quotation marks omitted).
As noted, the trial court found suppression was inappropriate after
considering all the facts.
…[F]irst, this police conduct was not significantly intrusive. Officer
Lynch did not exercise any police authority outside his
jurisdictional limits except perhaps to implicitly intimidate [Hobel]
into fleeing. The testimony presented to the Court indicated
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Officer Lynch was approximately 100 yards away from [Hobel’s]
vehicle when [Hobel] initiated his flight, and additionally Officer
Lynch had not made any indication of initiating a traffic stop at
this point. [Hobel’s] reaction to the presence of Officer Lynch,
without any action on Officer Lynch’s part, cannot be treated as
extraterritorial intrusive police conduct.
Second, Officer Lynch’s actions did not deviate significantly
from the spirit of the MPJA. The circumstances which led Officer
Lynch into Slippery Rock legitimately began in his home
jurisdiction. Officer Lynch followed a car, in good faith, originating
from Shenango, based on information indicating the vehicle fit the
description of a suspected vehicle used in a robbery across the
border to Slippery Rock Township. There is no evidence Officer
Lynch had any level of suspicion of the coming events or that
[Hobel] was located in Slippery Rock Township. Officer Lynch
discontinued his following of the first vehicle and decided to
inspect a strangely parked vehicle. The MPJA is not designed to
dissuade this sort of inspection. While no party argues the
inspection was based on community caretaking, if the Court were
to suppress the evidence, then circumstances like this might occur
again, but instead of overlooking a criminal suspect, officers might
follow this Court’s guidance and overlook a vehicle in distress.
This prospective officer may call in the sighting rather than
stopping, and may delay needed assistance. This disincentive
must be taken into account.
The third factor is whether the search prejudices [Hobel] in
that the search would not have occurred without the
extraterritorial actions. This factor weighs in favor of [Hobel].
There is no evidence this search was inevitable, and [Hobel] may
have gone for a longer period without discovery had Officer Lynch
not been present outside his primary jurisdiction.
Taken together, Officer Lynch’s good faith in crossing the
border, the fact he did not exercise any actual police power to
cause [Hobel] to flee, and the relative proximity of the location of
the interaction to Officer Lynch’s primary jurisdiction lead the
Court to find, while a technical violation of the MPJA occurred, the
circumstances before the Court do not warrant suppression based
on Officer Lynch’s actions.
PTO at 14-15.
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We find this analysis persuasive. In short, Officer Lynch was on duty in
his cruiser and received a BOLO for a car involved in a robbery in a neighboring
jurisdiction with which his jurisdiction shares a 911 call center. He then saw
a car matching that description while on duty and followed it into a neighboring
jurisdiction. As Officer Lynch explained, that road is part of his routine patrol
in monitoring traffic because it goes “back and forth” between Shenango and
Slippery Rock Townships. When Officer Lynch merely turned around to
investigate Hobel’s car parked in the woods, Hobel immediately backed out of
the abandoned road, drove through a stop sign and then accelerated away
while swerving and back and forth across the road. Under these
circumstances, suppression would not be an appropriate remedy under the
MPJA, the legislative intent of which is to advance public safety and not shield
criminal behavior. See Borovichka, supra at 1250 (holding even if officer
technically violated MPJA in assisting in unconscious driver just over his
jurisdiction’s border, suppression would not be warranted where it would “run
afoul of the legislative intent behind the MPJA, which is to promote public
safety, not to hinder law enforcement and shield criminal behavior.”).
D. Corporal Hoyland
Hobel next challenges Corporal Hoyland’s extrajurisdictional actions in
joining the chase even though there was never a request for assistance from
Officer Lynch. At suppression, the trial court held that Corporal Hoyland’s
actions were permissible under § 8953(a)(3) because he had probable cause
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to believe that Officer Lynch needed aid or assistance. See PTO at 16-17.
Furthermore, like it did with Officer Lynch, the trial court determined that
suppression would be inappropriate even if Corporal Hoyland technically
violated the MPJA. Id. at 17-19.
Under § 8953(a)(3), police may act outside their jurisdiction where the
officer:
(i) has been requested to aid or assist a Federal, State or local law
enforcement officer or park police officer;
(ii) has probable cause to believe that a Federal, State or local law
enforcement officer or park police officer is in need of aid or
assistance; or
(iii) has been requested to participate in a Federal, State or local
task force and participation has been approved by the police
department of the municipality which employs the officer.
42 Pa.C.S. § 8953(a)(3).7
Because there was no request for assistance, only § 8953(a)(3)(ii) can
permit Corporal Hoyland’s actions. Thus, he needed probable cause to believe
____________________________________________
7 At the time of suppression, § 8953(a)(3) permitted extraterritorial police
action where “the officer has been requested to aid or assist any local, State
or Federal law enforcement officer or park police officer or otherwise has
probable cause to believe that the other officer is in need of aid or assistance.”
In July 2019, the Legislature amended § 8953(a)(3) to its current version.
See 2019, July 2, P.L. 375, No. 58, § 1.1, imd. effective. This amendment
applies retroactively to police conduct on or after June 15, 1982. See
Commonwealth v. Forsythe, 217 A.3d 273, 279 (Pa. Super. 2019)
(applying amended version of § 8953(a)(3) to a drug task force roving patrol
conducted in June 2015).
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that Officer Lynch needed help or assistance. While Officer Lynch did not
request assistance, he continued to give updates about the chase.
Q …Are you still calling out what’s happening, what you’re
seeing?
A Yes, continued to call out our direction of travel. There
[were] other agencies that were monitoring, asking where the
location was, where we were at, but at that time, it was still only
myself, state police and the officer I was working with.
Q Do you know what other departments were calling in or
checking in?
A Yeah. It was New Wilmington, Union Township, Hickory
Township and New Castle Police Department.
N.T., 11/28/17, at 15.
As Officer Lynch continued to call out, Corporal Hoyland monitored the
chase’s progress in case Hobel entered New Castle.
…When I turned the scan on, I noted that they were in the middle
of a pursuit, so as I was listening, because this went on for an
extended time, I could tell that they were starting to possibly
come back towards the city, and we always help each other out,
neighboring jurisdictions, so I went towards the city line with
Shenango Township and I informed my supervisor that I was
going there in case they came into our jurisdiction from that area
to assist, and I waited there until the pursuit did come towards
me.
Id. at 50.
Based on these circumstances, the trial court concluded that:
…Corporal Hoyland reasonably could have concluded Officer Lynch
was in need of assistance due to Officer Lynch’s radio call outs,
the extended nature of the chase up to that point, as well as the
typical cooperation of these police departments. There was ‘fair
probability’ Officer Lynch required assistance….
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PTO at 16-17.
We find no error in this analysis under these circumstances where a
high-speed chase crossed multiple jurisdictions and the lead officer continued
to call out his position but never requested assistance. To conclude otherwise
would run afoul of the legislative intent of the MPJA, which we liberally
construe to give effect to its purposes. See Commonwealth v. Peters, 965
A.2d 222, 274-75 (Pa. 2009). Among these purposes, the MPJA is intended
to “promote public safety while maintaining police accountability to local
authority; it is not intended to erect ‘impenetrable jurisdictional walls
benefit[ing] only criminals hidden in their shadows.’ ” Lehman, supra at 820
(quoting Merchant, supra at 1139). Corporal Hoyland monitored the chase
and positioned himself to intercept it if it entered his jurisdiction. While the
chase came near his position but veered off, he still had probable cause to
believe Officer Lynch needed assistance in concluding the chase as it had
continued to wear on. We, thus, find that the trial court properly concluded
that Corporal Hoyland’s actions were authorized under § 8953(a)(3)(ii).
Moreover, we find suppression would not be warranted even if Corporal
Hoyland technically violated the MPJA. In its pretrial opinion, the trial court
applied the three-factor O’Shea test and found the first and third factors
weighed against suppression while the second was in Hobel’s favor:
First, the police conduct in this case was not significantly
intrusive. Corporal Hoyland did not intercept the chase very far
outside his jurisdiction. The path of the chase was also proceeding
along the 422 Bypass, which proceeds through [New Castle Police]
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jurisdiction. The next exit off of the 422 Bypass in the direction
of travel was in Taylor Township, which was jurisdictionally
covered by the NCPD. (Omnibus Pretrial Hearing, November 28,
2017 p. 67). As long as the chase proceeded in that direction and
did not stop, it inevitably would have passed through [New Castle
Police] jurisdiction. The chase did in fact proceed through
Corporal Hoyland’s jurisdiction along this route.
The second factor weighs in favor of [Hobel]. Corporal
Hoyland’s action of joining in the chase which started outside of
his jurisdiction, while not intrusive, moderately deviates from the
letter and spirit of the [MPJA]. The MPJA is designed to create a
somewhat permeable membrane replacing the hard walls of
borders such that good faith police conduct is not punished. It is
also designed to foster cooperation among departments. Corporal
Hoyland took up position just outside of his jurisdiction when the
chase was possibly going to pass near to his jurisdiction. While
the chase eventually did pass through his jurisdiction, he joined
the chase before it did so. Corporal Hoyland testified he waited
at the border of Shenango Township and New Castle for
approximately 30 minutes before he got involved in the pursuit.
The chase was proceeding before this time as well. In
circumstances like this, following the spirit of the MPJA would
require Corporal Hoyland or some other appropriate individual at
the [New Castle Police] to contact Shenango Township Police
Department to receive permission to join in the pursuit should it
approach the New Castle border. No evidence was presented to
the Court this action was taken.
Third, with regard to Corporal Hoyland, the accused suffered
little to no prejudice from the MPJA violation. Corporal Hoyland
was not the first or sole pursuer. Officer Lynch was also following
the Defendant’s vehicle when Corporal Hoyland joined and Officer
Lynch was communicating with several other police departments
who were monitoring the status of the pursuit. The Court cannot
presume [Hobel] would have escaped this dragnet.
PTO at 17-19.
As this thoughtful analysis highlights, while Corporal Hoyland did not
ask for approval to the chase, his late entry as it passed near his jurisdiction
was not significantly intrusive and did not prejudice Hobel as he led Officer
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Lynch and the other officers on a harrowing chase. Under such circumstances,
even if there had been a technical violation MPJA, suppression would be
inappropriate, and to conclude otherwise would be a result not contemplated
by the MPJA and its legislative intent.
To sum it up, Corporal Hoyland’s actions were authorized under
§ 8953(a)(3)(ii). Further, even if those actions were not authorized,
suppression would be inappropriate under O’Shea. Thus, Hobel’s suppression
challenge fails.
III. Joinder
Hobel next argues that the trial court erred in joining his four cases for
trial. He contends that the jury could not separate the evidence in the three
robbery cases, as none of the clerks that testified about the robberies could
identify him. He then highlights certain discrepancies between the clerks’
descriptions of the robber and asserts that this shows that the robberies were
committed by different perpetrators. As a result, he believes, the robberies
were not sufficiently similar enough to warrant the trial court joining them for
trial.
“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) (citation omitted). “Whether to join or sever offenses for
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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. Knoble, 188 A.3d 1199, 1205 (Pa. Super.
2018) (citation omitted).
Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part:
(1) Offenses charged in separate indictments or informations may
be tried together if:
(a) 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
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1).
Pennsylvania Rule of Criminal Procedure 583 provides:
The 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. “Under Rule 583, the prejudice the defendant suffers due
to the joinder must be greater than the general prejudice any defendant
suffers when the Commonwealth’s evidence links him to a crime.”
Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010).
The prejudice of which Rule 583 speaks is, rather, 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
natural consequence of a criminal trial, and it is not grounds for
severance by itself.
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Id. (citation omitted).
Reading Rules 582 and 583 together, our Supreme Court has
established this three-part test concerning joinder and severance:
[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. Collins, 703 A.2d 418, 422 (Pa. 1997) (citation omitted).
“Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1). Nevertheless:
Evidence of other crimes is admissible to demonstrate (1) motive;
(2) intent; (3) absence of mistake or accident; (4) a common
scheme, plan or design embracing the commission of two or more
crimes so related to each other that proof of one tends to prove
the others; or (5) the identity of the person charged with the
commission of the crime on trial. Additionally, evidence of other
crimes may be admitted where such evidence is part of the history
of the case and forms part of the natural development of the facts.
Collins, supra at 422-23; see also Pa.R.E. 404(b)(2).
With these standards in mind, the trial court gave a concise summation
of its reasoning in joining Hobel’s four cases:
The current cases, which were consolidated for trial, consist
of three robberies and a vehicle pursuit with the first robbery
having occurred at Market 24 convenience store on December 11,
2016, and the final robbery occurred at the Main Street Market on
December 12, 2016. These events culminated with a high-speed
vehicle pursuit in the early morning hours of December 13, 2016.
In all three of the robberies, [Hobel] was wearing a gray hooded
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sweatshirt, blue jeans, blue tennis shoes with lime green trim and
a black mask to obscure his face. He then pointed what appeared
to be a black handgun at the store clerks. [Hobel] then would
receive the money retrieved by the store clerks and exit the
facility. The robberies were committed in similar manners and
[Hobel] used what appeared to be the same weapon to effectuate
the robberies. Evidence of each robbery would have been
admissible in separate trials for the other as the Commonwealth
could have presented them to establish modus operandi. That
evidence would demonstrate a specific pattern or practice of
criminal activity to prove they were perpetrated by the same
person.
Moreover, evidence of the vehicle pursuit was admissible in
the trial concerning the robberies as evidence of the robberies
were discovered after the pursuit when [Hobel’s] vehicle was
searched. In this instance, it would have been extremely difficult
to separate the robberies and the vehicle pursuit into separate
trials. In addition, the facts presented at trial were not confusing
or complex to an extent it caused confusion amongst the jury in
distinguishing the episodes of criminality….
TCO at 20-21.
We discern no abuse of discretion in this analysis. This matter involved
three convenience store robberies that were temporally and geographically
linked: the robberies were committed over a compressed 40-hour period of
each other within a few miles of each other in the same county. Additionally,
each robbery was captured on video which showed that the robber was a white
male wearing a gray hoodie with a black hoodie underneath, wore a black
mask and brandished what looked like a black semiautomatic handgun.
Moreover, as the trial court noted, similar items were found in Hobel’s car
after the car chase. On top of that, Hobel told Heemer that he could not pull
over because he had committed robberies and had things in the car connecting
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him to the robberies. See N.T., 9/25/ 19, at 10-11. Accordingly, Hobel’s
joinder challenge fails. See Dozzo, supra at 903-04 (no abuse of discretion
where trial court joined seven robbery cases in which the robberies took place
within a one-month period; all occurred at or near train stations late in the
evening or at night; and the perpetrator possessed a gun or boasted he
possessed one).
IV. Sufficiency of the Evidence
Hobel next challenges the sufficiency of the evidence in his robbery
cases, arguing the Commonwealth presented insufficient evidence because
none of the three clerks could identify him at trial as the robber. Hobel
believes that this lack of identification trumps the Commonwealth’s
circumstantial evidence recovered after the chase that he committed the
robberies. To this end, he highlights various discrepancies between the clerks’
descriptions of the robbery and argues that these discrepancies, when coupled
with the lack of any identification or forensic evidence linking him to the
robberies, show that the Commonwealth failed to present sufficient evidence
to convict him in the three robbery cases.8
____________________________________________
8 Our standard of review for sufficiency challenges is well-established:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
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The Commonwealth’s evidence for the first robbery was as follows. On
December 11, 2016, at around 3:45 a.m., Officer Joshua Covert of the New
Castle Police was dispatched for a robbery that just occurred at a mini mart
located at 719 East Washington Street in New Castle. See N.T., 9/24/19, at
32-33. Upon arriving, Officer Covert spoke to the clerk. Id. at 33. The clerk
described the robber as a “thin white male, about six foot tall, wearing a gray
hoodie, blue jeans and he had a black – what appeared a black and white
bandana-style mask covering his face.” Id. At trial, the Commonwealth
showed video of the robbery. Id. at 34-38. The footage shows the robber
walk in the store with what looks like a black semiautomatic handgun and
demand money from the clerk’s cash register. The robber can be seen wearing
____________________________________________
the evidence and substitute our judgment for a fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence received must be considered.
Finally, the trier of fact, while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Williams, 255 A.3d 565, 578-79 (Pa. Super. 2021)
(citation omitted).
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a gray hoodie with a black hoodie underneath and blue jeans, as well as shoes
with, as Office Covert described at trial, “bright coloring.” Id. at 40.
The second robbery was committed around 11:00 p.m. on December
11, 2016. Around that time, Officer Richard List of the Ellwood City Police
received a call for a robbery at the Uni-Mart located at 600 Beaver Avenue in
Ellwood City. Id. at 59. When he arrived, Officer List spoke to the clerk, who
described the robber as a “white, tall, slender male wearing a gray hoodie with
a zip front with like a black hoodie and a black mask underneath and the only
thing that was showing was his eyes.” Id. at 60. Video of the robbery shows
the robber entering the store and holding what looks like a black
semiautomatic handgun while wearing a gray zip-up hoodie with a black
hoodie underneath and a black mask. Id. at 64-65. After the clerk gives the
money, the robber asks for five packs of cigarettes, which the clerk testified
were Newport 100s. Id. at 65, 80.
The third and final robbery happened around 7:00 p.m. on December
12, 2016. At that time, Officer Robert Newtown of the New Castle Police was
dispatched to the Main Street Market located at 309 Center Avenue in West
Pittsburgh, which is covered by New Castle Police. Id. at 94, 103. At the
store, the clerks described the robber as a “white male wearing a mask with
a dark in colored shirt,” with a black semiautomatic handgun. Id. at 95. Like
the other robberies, the Commonwealth showed video of the robbery. Id. at
96. In the video, the robber is wearing a gray hoodie with a black hoodie
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underneath, blue jeans, a black mask and bluish shoes with bright shoelaces
and trim, which the clerk described at trial as “bright-colored.” Id. at 106.
The robber pulls out what looks like a black semiautomatic handgun and
directs the clerks to give him money out of the cash register. After getting
the money, the robber runs out as the clerk follows him out of the store.
Turning to the police chase in the early morning hours of December 13,
2016, the Commonwealth called Heemer as a witness. She testified that just
before the chase she and Hobel were in his car doing drugs. See N.T.,
9/25/19, at 9. When she got out of the car, Hobel pulled her back in and said
he just saw a cop drive by and that they were looking for his car. Id. Hobel
then admitted to her that for “the last couple weeks, he had been robbing
places for alcohol, drugs, cigarettes and gas.” Id. at 10. He told her that the
cigarettes and money he had in the car had come from robbing gas stations.
Id. at 60. Then, after the chase began, Hobel started screaming at her that
he could not pull over because “there was stuff in the car and he would get
caught” and that “they had him on camera.” Id. at 10-11.
The Commonwealth also admitted evidence of the clothing and items
discovered in Hobel’s car after the chase. These included, among other things,
a gray-hooded sweatshirt, another gray zip-up hooded sweatshirt, a black
hooded sweatshirt, a black airsoft handgun, a pullover mask, a ski mask and
a pack of Newport 100s. Id. at 124-132. The Commonwealth also admitted
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evidence about the clothing recovered from Hobel at the hospital after he was
shot. This included Hobel’s blue shoes with neon-green laces. Id. at 135.
Viewing this evidence in the light most favorable to the Commonwealth
as the verdict winner, we find there was sufficient evidence to convict Hobel
of the three robberies. Hobel’s challenge essentially concedes all the material
elements of the offenses except for identity. While admittedly none of the
clerks could identify him as the robber at trial, the Commonwealth presented
sufficient evidence to prove (1) that the same man committed the three
robberies, and (2) that Hobel was that man.
First, after viewing the video surveillance of the three robberies, the jury
could conclude that the same man committed each offense. Besides the
offenses being committed close in time and location, each video depicts the
robber wearing the same clothes: a gray-hooded sweatshirt with a black-
hooded sweatshirt underneath, blue jeans and a black mask. Likewise, in
each case, the robber brandishes what looks like a black semiautomatic
handgun in his right hand during the robberies. Based on these similarities,
it was well within the jury’s province to conclude that the same person
committed all three robberies rather than, as Hobel suggests, multiple
perpetrators.
Second, the Commonwealth presented more than ample evidence to
establish that Hobel was, in fact, the man that committed the three robberies.
The robber’s clothing, masks and handgun matched the clothing, masks and
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black airsoft handgun found in Hobel’s car. Moreover, in the backseat of
Hobel’s car, the police found a box of Newport 100s—the same brand of
cigarette that the robber requested in the second robbery. Additionally, in
two of the robberies, the robber was wearing distinctive blue shoes with bright
laces and trim that would resemble those recovered from Hobel after the
chase. While any one of these facts could be construed as innocuous in
isolation, the jury was free to consider them together in concluding that they
were the same clothing and items possessed by the robber seen in the video
surveillance. This conclusion was strengthened by Heemer’s testimony that
Hobel admitted that the items in his car were from robberies and that was
why he was fleeing from the police. For all these reasons, Hobel’s sufficiency
challenge fails.
V. Weight of the Evidence
In his final issue, Hobel alleges that the trial court erred in denying his
post-sentence motion for new trial based on the jury’s verdicts being against
the weight of the evidence.9 In so doing, Hobel essentially rehashes his
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9 As this Court has explained:
[A]ppellate review of a weight claim is a review of the trial court’s
exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying
question of whether the verdict is against the weight of the
evidence.
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sufficiency argument by emphasizing that none of the clerks identified him at
trial as being the man who robbed the convenience stores. He also assails the
credibility of Heemer’s testimony, noting that there were several
inconsistencies between her testimony at trial and a statement that she gave
to the police after the chase. Finally, he contends that the items discovered
in his car (clothing, black airsoft gun, masks, cigarettes) are common items
that had other explanations for being there rather than necessarily being used
in the robberies.
After review, we find no abuse of discretion by the trial court in denying
Hobel’s weight of the evidence challenge. As recounted in our discussion of
the sufficiency of the evidence, the Commonwealth presented ample evidence
that the three robberies were committed by the same perpetrator, including
____________________________________________
Because the trial judge has had the opportunity to hear and
see the evidence presented, an appellate court will give the
gravest consideration to the findings and reasons advanced
by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Furthermore, in order for a defendant to prevail on a challenge to
the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the
court.
Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super. 2021)
(internal citations, quotations, and brackets omitted).
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video surveillance showing that the robber wore the same clothing for each
offense. The Commonwealth then presented ample evidence proving that
Hobel was, in fact, the perpetrator even though none of the clerks could
identify him in court because he wore a mask during the robberies. The
Commonwealth accomplished through Heemer’s testimony about what Hobel
admitted to her during his flight from the police, as well as the items recovered
in his car after the chase, which included similar clothing to the robber, a black
airsoft gun, masks and cigarettes of the same brand asked for during one of
the robberies. Again, as we emphasized above, while none of these pieces of
evidence in isolation would establish the case, the jury was free to consider
them together in finding that Hobel committed the robberies. Accordingly, we
hold that Hobel’s weight of the evidence challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/10/2022
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