SEVERANCE OF “FORMER CONVICT NOT TO POSSESS FIREARM” CHARGE PROPER; PROCEEDING TO TRIAL ON THAT CHARGE FIRST, FOLLOWED BY REMAINING CHARGES BEFORE THE SAME JURY IS NOT
The PA Superior Court recently decided the case of Commonwealth v. James Edmund Brown, No. 1161 WDA 2017 (May 4, 2018), holding that, although it was proper for the trial court to grant Brown’s Motion to Sever a Former Convict Not to Possess a Firearm offense from the remaining offenses of Theft, Receiving Stolen Property, and Possession of a Firearm Without a Permit, it was not proper for the trial court to allow the Commonwealth to try the Former Convict Not to Possess a Firearm offense first, before the same jury that thereafter heard the trial of the remaining charges.
Brown was charged with the above four charges and, after the trial court severed the Former Convict Not to Possess a Firearm charge from the remaining charges of Theft, Receiving Stolen Property, and Possession of a Firearm Without a Permit, the Commonwealth chose to present the Former Convict Not to Possess a Firearm charge which required the Commonwealth to prove that Brown had previously been convicted of certain offense that prohibited him from possessing a firearm.
Upon obtaining a conviction of the Former Convict Not to Possess a Firearm charge, the Commonwealth then presented its case on the remaining charges … to the same jury. In doing so, it could clearly not remove the prejudice created by the introduction of Brown’s prior convictions from the minds of the jurors who should not have been able to consider his prior convictions when determining his guilt on those remaining charges. The jury – armed with the knowledge of Brown’s prior convictions – returned a verdict of guilty on the three remaining offenses as well. Brown appealed to the Superior Court.
In holding that the trial court committed error, the Superior Court explained that “it is axiomatic that a charge of [Former Convict Not to Possess a Firearm] requires evidence that the defendant was previously convicted of a crime.” However, in this case, Brown was also charged with three other charges that did not require evidence of a prior conviction. Accordingly, “it is a reasonable conclusion that evidence of previous convictions could result in prejudice against [Brown] in a jury’s consideration of the three charges not requiring evidence of prior convictions.” In fact, as noted by the Superior Court, it was for this reason that Brown sought severance of the Former Convict Not to Possess a Firearm violation from the other charges in the first place.
The Superior Court agreed that the trial court properly granted Brown’s petition to sever count three from the other three charges. However, it also concluded that it was improper for the trial court to give the Commonwealth discretion with regard to the order in which to proceed with prosecution of those charges. And, when the Commonwealth chose to first proceed with prosecution of the Former Convict Not to Possess a Firearm offense and thereafter prosecute the remaining charges before the same jury,” it resulted in prejudice to Brown. The information about Brown’s prior convictions, when considering the other three charges, was unnecessary, and indeed, prejudicial.