Com. v. Alvarado, A. ( 2020 )

J-A17007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX ALVARADO :
:
Appellant : No. 1226 EDA 2019
Appeal from the Judgment of Sentence Entered April 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009806-2017,
CP-51-CR-0010400-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX ALVARADO :
:
Appellant : No. 1227 EDA 2019
Appeal from the Judgment of Sentence Entered April 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009806-2017,
CP-51-CR-0010400-2017
BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 8, 2020
Alex Alvarado appeals from his April 8, 2019 judgment of sentence
entered after a jury convicted him of numerous offenses in connection with
the theft of a motorized scooter and Appellant’s subsequent flight from
Philadelphia County to elude law enforcement. We affirm.
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We glean the following facts from the memorandum opinion authored
by the Honorable Timika Lane pursuant to Pa.R.A.P. 1925(a):1
[T]he Complainant, Yan Chen (“Ms. Chen”), owned a 2009
Yamaha C3 XF 50 CC motorized scooter. On August 31, 2017,
[Ms. Chen’s] husband parked the scooter overnight at [the]
Cornwell Heights train station in Bucks County. The next day, Ms.
Chen went to the train station to retrieve the scooter but
discovered that the vehicle was stolen. That same day,
September 1, 2017, she reported the theft to police.
Ms. Chen’s scooter was recovered on October 11, 2017,
after Officer Sergio Diggs (“Officer Diggs”) and Officer Michael
Minor (“Officer Minor”) observed [Appellant] riding the vehicle on
the 600 block of Rising Sun Ave. in Philadelphia. Around 10:30
p.m., the officers observed [Appellant] from a marked police car
and noticed that the scooter did not have a license plate or vehicle
tag. The officers activated their overhead lights and sirens and
directed [Appellant] to pull over. Instead of complying with the
order, [Appellant] accelerated the vehicle and attempted to evade
the officers.
At some point, [Appellant] jumped off of the scooter and
tried to flee the officers on foot. Officer Diggs exited the officers’
car and ran after [Appellant], while Officer Minor continued his
pursuit from the vehicle. While [Appellant] was running, he pulled
a black and silver gun from his waistband and tossed it between
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1 In this case, two separate jurists have submitted opinions pursuant to
Pa.R.A.P. 1925(a)(1) (“If the case appealed involves a ruling issued by a judge
who was not the judge entering the order giving rise to the notice of appeal,
the judge entering the order giving rise to the notice of appeal may request
that the judge who made the earlier ruling provide an opinion to be filed in
accordance with the standards above to explain the reasons for that ruling.”).
Instantly, Judge Timika Lane heard the Commonwealth’s motion to
consolidate Appellant’s charges for trial, which forms part of the basis of the
instant appeal, and has filed a discussion limited to that issue. See Judge
Lane’s Rule 1925(a) Opinion, 12/12/19, at 1-10. The remainder of Appellant’s
issues were addressed in a separate opinion by Judge Mia Roberts Perez, who
presided over Appellant’s trial. See Judge Perez’s Opinion, 12/6/19, at 1-7.
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the curb and the tire of a parked car. Eventually, the officers
managed to catch and arrest [Appellant].
Once [Appellant] was handcuffed, the officers retrieved the
discarded firearm and motor-scooter. The officers checked the
scooter’s VIN number and realized that it was recorded as a stolen
vehicle in the Bureau of Motor Vehicles database. The officers also
searched the Pennsylvania Crime Information Center and the
National Crime Information Center and discovered that
[Appellant] did not have a license to carry a firearm Based on
these facts, [Appellants] was charged with theft, receiving stolen
property, unauthorized use of a vehicle, and several [violations of
the Uniform Firearms Act (“VUFA”)], under docket CP-51-CR-
0009806-2017.
When [Appellant] was seated in the back of the police car
and before the officers formally processed his arrest, he started
to complain of shortness of breath and told officers that he was
recently hospitalized for a heart condition. Accordingly,
[Appellant] was transported to Temple Episcopal Hospital shortly
after midnight. Later that morning, around 6:50 a.m., [Appellant]
was transferred to Temple Hospital for additional care. While
[Appellant] was treated at Temple Hospital, he remained in police
custody. Officer Robert Glasson (“Officer Glasson”)[,] and his
partner handcuffed [Appellant] to his hospital bed and guarded
his room.
At some point the officers uncuffed [Appellant] so he could
appropriately position himself to use a bedpan. Officer Glasson
and [Appellant’s] nurse stepped into the hallway to give him
privacy. After about ten minutes, the nurse reentered
[Appellant’]s room and realized he was gone. Officers reviewed
the hospital’s security footage and discovered that [Appellant] fled
the hospital. [Appellant] was returned to police custody on
October 26, 2017, after being apprehended in Carbon County,
Pennsylvania. Based on these additional facts, [Appellant] was
also charged with escape, under docket CP-51-CR-00100400-
2017.
Judge Lane’s Rule 1925(a) Opinion, 12/12/19, at 2-3 (internal citations and
quotation marks omitted).
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On September 19, 2018, the Commonwealth filed a motion for
consolidation and joinder of Appellant’s charges for trial pursuant to
Pa.R.Crim.P. 582(A)(1). Appellant opposed the Commonwealth’s application,
arguing that consolidation of the charges was inappropriate because the
underlying incidents were “not a part of a single criminal episode,” and that
joinder would prejudice his ability to defend himself. See Appellant’s Answer,
12/26/18, at ¶¶ 2-6. On September 28, 2018, Judge Lane granted the
Commonwealth’s application and the two dockets were joined for trial.
Appellant’s consolidated case proceeded to a jury trial before the
Honorable Mia Roberts Perez. A number of motions in limine were presented
during the course of the trial by both Appellant and the Commonwealth. Of
particular note, the Commonwealth made an oral motion to preclude Appellant
from adducing testimony from Officer Minor concerning a prior excessive force
incident. See N.T. Trial, 1/30/19, at 128-29. Specifically, defense counsel
advised the Commonwealth and the trial court that she intended to elicit
testimony from Officer Minor concerning an incident in 2016, wherein the
officer was found to have violated the Philadelphia Police Department’s deadly
force policy by a Police Board of Inquiry (“PBI”). Id. at 129-32.
As of the trial, there was an open criminal case related to these
allegations. Id. at 130. The trial court permitted defense counsel to impeach
Officer Minor’s credibility with this information, but limited the scope of
permissible questions, emphasizing that it would not allow defense counsel to
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“get into any of the details of this underlying case.” Id. at 136-38. Appellant’s
counsel acquiesced to this limitation, and offered no objection. Id. at 137
(“[T]hat’s fine, Judge.”). Consistent with this limitation, defense counsel
cross-examined Officer Minor regarding his violation of the Philadelphia Police
Department’s deadly force policy in 2016. Id. at 175. Officer Minor also
confirmed that he would be subjected to harsher penalties if he accrued
additional violations of the department’s use-of-force policies. Id. at 175-76.
On January 31, 2019, Appellant was found guilty of the above-
referenced offenses and was sentenced to an aggregate term of eight to
sixteen years of incarceration. Appellant filed timely notices of appeal at each
of the above-referenced docket numbers.2/3 Appellant, Judge Timika Lane,
and Judge Mia Roberts Perez have all timely complied with their obligations
pursuant to Pa.R.A.P. 1925.
Appellant has raised the following issues for our consideration:
1. Did not the trial court deprive [A]ppellant of his constitutional
right to cross-examine the arresting officers about the potential
civil and criminal penalties facing one of the officers due to his
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2 On June 10, 2020, this Court issued a rule to show cause upon Appellant as
to why the appeals should not be quashed pursuant to Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018) (“[T]he proper practice under
[Pa.R.A.P. 341(a)] is to file separate appeals from an order that resolves
issues arising on more than one docket. The failure to do so requires the
appellate court to quash the appeal.”). Our review of the certified record
indicates that Appellant properly filed separate notices of appeal at both of the
above-captioned docket numbers. As such, quashal is not appropriate.
3 On June 13, 2019, Appellant filed an application for consolidation pursuant
to Pa.R.A.P. 513. On August 5, 2019, we granted the application.
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misconduct in a prior case, as that would have revealed their
motive to testify in [A]ppellant’s case?
2. Did the lower court err by consolidating two cases for a single
trial, one charging possession of a firearm and stolen scooter, and
the other charging escape from a hospital, where the cases
involved distinct witnesses and evidence, where the evidence of
each case would not have been admissible at a separate trial of
the other, and where consolidation prejudiced [A]ppellant?
Appellant’s brief at 3 (issues reordered).
Appellant’s first issue concerns the trial court’s ruling that granted in
part the Commonwealth’s motion in limine to restrict the scope of Appellant’s
cross-examination of Officer Minor. See Appellant’s brief at 20-21 (“[T]he
trial court permitted defense counsel to cross-examine Officer Minor about the
prior finding by Internal Affairs and about the increased department sanctions
he could face . . . . However, the trial court erroneously barred counsel from
questioning the officer about the ongoing criminal investigation.”).
“When reviewing a ruling on a motion in limine, we apply an evidentiary
abuse of discretion standard of review.” Commonwealth v. Orie, 88 A.3d
983, 1022 (Pa.Super. 2014) (internal citation omitted). “A trial court’s ruling
regarding the admissibility of evidence will not be disturbed unless the ruling
reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support as to be clearly erroneous.” Id. (internal citations and
quotation marks omitted).
Our review of the certified record reveals that Appellant’s trial counsel
freely consented to the limiting instruction, proceeded with a successful cross-
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examination of Officer Minor within the parameters set by the trial court, and
offered no objection when the limitation was enforced. See N.T. Trial,
1/30/19, at 137, 175-76. In relevant part, Appellant never challenged the
trial court’s ruling prohibiting him from adducing testimony concerning the
ongoing criminal investigation concerning Officer Minor. As such, this claim is
waived. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”); see also
Commonwealth v. Rosser, 135 A.3d 1077, 1086 (Pa.Super. 2016) (holding
that defendant waived claim that the trial court’s limiting of cross-examination
violated his confrontation rights by failing to lodge an objection).
Appellant’s second issue concerns Judge Lane’s consolidation of
Appellant’s case for trial pursuant to the Pennsylvania Rules of Criminal
Procedure. Specifically, Appellant’s argument asserts that: (1) the
Commonwealth failed to satisfy the applicable standards for joinder pursuant
to Pa.R.Crim.P. 582(A)(1); and (2) consolidation of Appellant’s charges was
prejudicial pursuant to Pa.R.Crim.P. 583. See Appellant’s brief at 12-18.
The decision of “[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. Knoble, 188 A.3d 1199, 1205 (Pa.Super. 2018). “An
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
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manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the record itself.” Commonwealth v. Anitdormi, 84 A.3d 736,
749-50 (Pa.Super. 2014) (internal citations and quotation marks omitted).
“As a general policy, joint trials are encouraged when judicial economy will be
promoted by avoiding the expensive and time-consuming duplication of
evidence.” Commonwealth v. Jones, 668 A.2d 491, 501 (Pa. 1995).
Rule 582(A)(1) provides as follows with respect to the consolidation of
separately charged criminal offenses for trial:
Offenses charged in separate indictments or informations may be
tried together if:
(a) the evidence 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). Concomitantly, Rule 583 provides that “[t]he court
may order separate trials of offenses . . . if it appears that any party may be
prejudiced by offenses . . . being tried together.” Pa.R.Crim.P. 583. Thus, if
the trial court concludes that joinder under Rule 582(A)(1) is appropriate, “the
court must also consider whether consolidation would unduly prejudice the
defendant.” Knoble, supra at 1205.
Appellant argues that consolidation of his charges was inappropriate
under both subsections of Rule 582(A)(1), and that joinder was also prejudicial
to him under Rule 583. See Appellant’s brief at 12-18. We disagree.
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In her Rule 1925(a) opinion, Judge Lane has authored a thorough and
cogent analysis of the applicability of Rule 582 and the lack of prejudice under
Rule 583, including detailed discussions of relevant Pennsylvania case law and
precise citations to the certified record applying that law to the particulars of
Appellant’s case. See Judge Lane’s Rule 1925(b) Opinion, 12/12/19, at 4-10.
Overall, we discern no abuse of discretion or error of law in Judge Lane’s well-
reasoned analysis. As such, we adopt that reasoning and affirm upon the
basis of Judge Lane’s September 12, 2019 opinion. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2020
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