J. A21041/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOSEPH F. MIELUCHOWSKI, : No. 945 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence, September 20, 2017,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0004906-2015

BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2020

Joseph F. Mieluchowski appeals from the September 20, 2017 judgment 

of sentence entered by the Court of Common Pleas of Montgomery County 

following his conviction of 15 counts of robbery (threat of immediate serious 

bodily injury), five counts of robbery (demand money from financial 

institution), five counts of possessing instruments of crime, and one count 

each of kidnapping, conspiracy to commit robbery (threat of immediate 

serious bodily injury), and conspiracy to commit robbery (demand money 

from financial institution).

1

 After careful review, we vacate the judgment of 

sentence and remand for further proceedings consistent with this 

memorandum.

 

1 18 Pa.C.S.A. §§ 3701(a)(ii) and (vi), 907(b), 2901(a)(2), and 903(a), 

respectively.
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The trial court set forth the following factual and procedural history:

Between November 18, 2009, and February 5, 2012, 

appellant and co-defendant/co-conspirator, 

Robert Wisler, (“Wisler”) conspired to commit, and 

appellant did commit, five (5) distinct bank heists 

throughout the counties of Montgomery, Lancaster, 

and Westmoreland within the Commonwealth of 

Pennsylvania.[Footnote 2] Throughout his spree of 

“takeover-style” bank robberies, appellant employed 

a consistent modus operandi—an outfitted and 

disguised appellant loudly declared to the numerous 

bank hostages that he was conducting a bank robbery 

while brandishing a handgun, intentionally putting 

them in fear of immediate, serious bodily injury; and 

approached multiple bank tellers, demanding there be 

“no dye packs” with the cash that he stashed in a bag 

which he brought with him.

[Footnote 2:] The five (5) Pennsylvania 

robberies throughout 2009 and 2012 were 

as follows:

1. PNC Bank, North Huntingdon, 

Westmoreland County, PA, 

11/18/09.

2. Citizens Bank, 48 Skippack 

Pike, Ambler, Whitpain

Township, Montgomery 

County, PA, 5/12/10.

3. Royal Bank, 600 York Road, 

Jenkintown, Montgomery 

County, PA, 6/26/10.

4. Susquehanna Bank, Gap, 

Lancaster County, PA, 

5/27/11.

5. Citizens Bank, 48 Skippack 

Pike, Ambler, Whitpain 

Township, Montgomery 

County, PA 2/5/12.
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In or around April of 2014, during the midst of the 

Pennsylvania State Police (“PSP”) Department’s 

investigation into the Pennsylvania robberies, the 

Delaware State Police (“DSP”) contacted the PSP and 

exchanged information and evidence, including DNA 

evidence, collected in their own investigation of 

seven (7) similar-style robberies in Delaware that 

occurred during the same time period and within close 

geographical proximity to those five (5) that occurred 

in Pennsylvania. Said exchange assisted the PSP in 

identifying appellant, and charging him on or about 

June 4, 2015, with numerous criminal counts relating 

to bank robbery within Pennsylvania, and ultimately 

served as part of the Commonwealth’s evidence at 

trial proving appellant’s identity as the perpetrator of 

the robberies and his continuing course of conduct 

during which the robberies took place.

Specifically, the evidence obtained during the DSP’s 

investigation into the seven (7) Delaware bank heists 

revealed to the Commonwealth appellant’s identity, 

given the consistent modus operandi employed by 

him in carrying out the Delaware and Pennsylvania 

robberies; most notably, the “takeover-style” of the 

robberies, whereby appellant went into the banks, 

“loudly declare[d] there [wa]s a bank robbery, 

display[ed] a weapon, approache[d] multiple tellers, 

g[ot] cash from top and bottom drawers, and [. . .] 

t[ook] over the bank [. . .]”; in other words, 

“everyone in the bank[s] kn[ew] that a robbery [wa]s 

occurring, customers and employees.” The DSP also 

collected a mustache disguise from one of the scenes 

of crime, as well as a ballcap, which the PSP were able 

to test later and determine that appellant’s DNA could 

not be excluded as the source of the DNA profiles 

found on this evidence. The exchange of evidence 

between the two (2) states’ police departments 

further allowed the PSP to map the various cross-state 

robberies, illustrating the close proximity of the 

robberies to appellant’s Pennsylvania home, as well 

as, the location of the robberies on main 

thoroughfares connecting the two (2) states. 

Moreover, the PSP used evidence of appellant’s work 
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history, in part collected from an anonymous tip to the 

DSP, to further develop appellant’s motive for the 

robberies, such that appellant’s income fell due to lack 

of work around the same time in 2009 when the 

robberies began occurring. The PSP also used 

physical evidence collected by the DSP, i.e., 

appellant’s fake mustache and ballcap, to test and 

compare with a buccal (cheek) swab sample of 

appellant’s DNA.

The cross-state sharing of information between the 

police departments assisted the PSP in criminally 

charging appellant on June 4, 2015, with the various 

criminal charges relating to the robberies in 

Pennsylvania.

Trial court opinion, 5/3/19 at 1-3 (extraneous capitalization, footnote 1, and 

citations to the record omitted; brackets in original).

A jury convicted appellant of the aforementioned crimes on December 7, 

2016. On May 5, 2017, the trial court sentenced appellant to an aggregate 

term of 29-58 years’ imprisonment, to be followed by seven years’ probation. 

Appellant filed a post-sentence motion on May 12, 2017, which the trial court 

denied in part and granted in part on August 15, 2017.2 The trial court 

subsequently re-sentenced appellant on September 20, 2017, to an aggregate 

term of 31-62 years’ imprisonment, to be followed by 10 years’ probation.

Appellant filed a notice of appeal on October 5, 2017. The trial court 

ordered appellant to file a concise statement of errors complained of on appeal 

 

2 The trial court vacated appellant’s convictions on five counts of 

robbery-threat of immediate serious bodily injury and two counts of 

robbery-demand money from financial institution, as the statute of limitations 

expired. See 42 Pa.C.S.A. § 5552(b)(1).
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pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court 

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).

This court dismissed appellant’s appeal on June 15, 2018, for failure to 

file a brief. On January 28, 2019, appellant filed a counseled petition pursuant 

to the Post Conviction Relief Act,

3

in which he sought reinstatement of his 

direct appellate rights nunc pro tunc. The trial court granted appellant’s 

petition on March 1, 2019. Appellant subsequently filed a timely notice of 

appeal on March 22, 2019. The trial court did not order appellant to file 

another concise statement of errors complained of on appeal, nor did it file 

another Rule 1925(a) opinion.

Appellant raises the following issues on appeal:

[1.] Did the trial court err by allowing the 

Commonwealth to present evidence obtained 

during the investigation of seven bank robberies 

that [appellant] allegedly committed in the state 

of Delaware as evidence of his “identity” as the 

perpetrator of the five Pennsylvania bank 

robberies for which [appellant] was being tried?

[2.] Is the trial court’s sentence, which has two 

conspiracy charges running consecutively, 

illegal when those conspiracy charges are 

predicated on the identical conspiracy?

Appellant’s brief at 2.4

 

3 42 Pa.C.S.A. §§ 9541-9546.

4 For ease of discussion, we have re-ordered appellant’s issues.
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In his first issue, appellant contends that the trial court erred when it 

permitted the Commonwealth to present evidence of seven bank robberies 

occurring in the State of Delaware. (Appellant’s brief at 11.) Specifically, 

appellant argues that the robberies that occurred in Delaware were not 

sufficiently similar to the robberies for which appellant was charged in 

Pennsylvania. (Id. at 13.) Appellant further avers that evidence of the 

Delaware robberies was unfairly prejudicial in that the prejudice outweighed 

any probative value that the evidence had. (Id. at 14.)

When reviewing a trial court’s admission of evidence, we are subject to 

the following standard:

“The admission of evidence is solely within the 

discretion of the trial court, and a trial court’s 

evidentiary rulings will be reversed on appeal only 

upon an abuse of discretion.” Commonwealth v. 

Reid, [] 99 A.3d 470, 493 ([Pa.] 2014). An abuse of 

discretion will not be found based on a mere error of 

judgment, but rather occurs where the court has 

reached a conclusion that overrides or misapplies the 

law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will. Commonwealth v. Davido, [] 106 

A.3d 611, 645 ([Pa.] 2014).

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied, 

137 S.Ct. 92 (2016).

The particular Pennsylvania Rule of Evidence 

governing the admission of “prior bad acts” is 

Pa.R.E. 404(b) which provides, in relevant part:

(b) Other crimes, wrongs, or acts.

. . . .
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(2) Evidence of other crimes, 

wrongs, or acts may be 

admitted for other purposes, 

such as proof of motive, 

opportunity, intent, 

preparation, plan, knowledge, 

identity or absence of mistake 

or accident.

(3) Evidence of other crimes, 

wrongs, or acts proffered 

under subsection (b)(2) of 

this rule may be admitted in a 

criminal case only upon a 

showing that the probative 

value of the evidence 

outweighs its potential for 

prejudice.

Pa.R.E. 404(b)(1)-(3). Under this rule, the admission 

of prior “bad acts” is inadmissible for the sole purpose 

of proving the defendant has a bad character, or a 

“criminal propensity.” Commonwealth v. Powell, []

956 A.2d 406, 419 ([Pa.] 2008). Nevertheless, this 

rule permits the admissibility of such evidence for 

other relevant purposes such as:

showing the defendant’s motive in 

committing the crime on trial, the absence 

of mistake or accident, a common scheme 

or design, . . . to establish identity [,][or] 

where the acts were part of a chain or 

sequence of events that formed the 

history of the case and were part of its 

natural development.

Id. However, admission for these purposes is 

allowable only whenever the probative value of the 

evidence exceeds its potential for prejudice. 

Pa.R.E. 404(b)(3).
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Commonwealth v. Briggs, 12 A.3d 291, 336-337 (Pa. 2011), cert. denied, 

565 U.S. 889 (2011). Our supreme court further noted that “[w]hen the trial 

court admits evidence of a defendant’s other bad acts, ‘the defendant is 

entitled to a jury instruction that the evidence is admissible only for a limited 

purpose.’” Commonwealth v. Crispell, 193 A.3d 919, 937 (Pa. 2018), 

quoting Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).

The Commonwealth avers that the prior bad acts evidence admitted by 

the trial court establishes appellant’s identity. (Commonwealth’s brief at 

20-21.) The record reflects that a fake mustache was recovered from the 

scene of one of the Delaware bank robberies and was sent off for DNA testing. 

(Notes of testimony, 12/6/16 at 191-194.) Detective Grassi testified that,

initially, there were no results returned, as a suspect had not yet been 

identified. (Id. at 193-194.) As noted by the trial court, the Pennsylvania 

State Police subsequently tested the DNA sample taken in Delaware and, after 

comparing the Delaware sample with a buccal sample of appellant’s DNA, 

“ultimately determined [a]ppellant’s DNA sample could not be excluded as a 

source of the DNA profiles” taken in Delaware. (Trial court opinion, 5/3/19 

at 20.) Further, the trial court noted that, “[t]he limited security footage 

collected from the various banks [in Pennsylvania and Delaware] consistently 

showed the assailant was a white, stocky male approximately six (6)-feet tall.” 

(Id., citing notes of testimony, 12/6/16 at 179-203). 
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Appellant further argues that the prejudice of the prior bad acts evidence

admitted by the trial court outweighed its probative value and had the effect 

of “rous[ing] the jury to overmastering hostility[.]” (Appellant’s brief at 14 

(citations omitted).) Specifically, appellant contends that “[e]vidence of prior 

criminal activity . . . is probably only equaled by a confession in its prejudicial 

impact upon a jury.” (Id. at 15, quoting Commonwealth v. Spruill, 391 

A.2d 1048, 1050 (Pa. 1978).)

Here, the record reflects that the trial court provided the following 

instruction to the jury before the Commonwealth began its direct examination 

of Detective Grassi:

Ladies and gentlemen of the jury, before I have the 

Commonwealth begin their questioning, I do want to 

instruct you – I asked you questions about this during 

voir dire – but that this witness – what I anticipate 

much of this witness’ testimony will be related to 

robberies that occurred in the State of Delaware.

I wanted to remind you that this evidence is being 

presented as circumstantial evidence of identification 

and perhaps evidence of motive. The fact that the 

defendant was investigated or even arrested for any 

crimes in Delaware cannot be used against him in this 

matter for anything other than to show identification 

in the Pennsylvania cases, if you find that to be 

relevant after hearing all of the evidence, or for 

motive. You cannot use the fact that he was arrested 

or charged with anything in the State of Delaware as 

evidence of guilt in the cases here in Pennsylvania.

Notes of testimony, 12/6/16 at 155-156.
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Later during the trial, the trial court again reminded the jury during the 

Commonwealth’s direct examination of Mr. Wisler that evidence of prior bad 

acts could not be used as evidence of his guilt in the instant charges: 

Ladies and gentlemen, as there has been a reference 

to beginning testimony about a Delaware robbery, I 

will just again remind you that the Delaware robberies 

are being introduced into evidence as to help with 

your determination regarding identification and 

motive. The fact that the defendant has been charged 

with or was considered for any robberies in Delaware 

cannot be used against him to find him guilty in the 

Pennsylvania cases.

Id. at 299-300.

Finally, during its charge to the jury, the trial court again reminded the 

jury of the limits of the prior bad acts evidence:

As I have instructed you many times during this trial 

and I will repeat at this time, you heard evidence that 

[appellant] has been accused of robberies in the State 

of Delaware in addition to those in this case. The 

evidence presented regarding those robberies has 

been provided to you for a limited purpose: That is to 

show circumstantial evidence of the identification 

and/or to prove evidence of motive. You may consider 

this evidence insofar as that it aids your determination

of the identification of the person who committed the 

five Pennsylvania robberies which are before you or 

for your consideration of motive. The fact that 

[appellant] was investigated or accused of other bank 

robberies in the State of Delaware for which the 

charges are not before you shall not be used in 

determining [appellant’s] guilty in the matters that 

are before you today.

Notes of testimony, 12/7/16 at 518-519.
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It is well settled that juries are presumed to follow the trial court’s

instructions. Commonwealth v. Aikens, 168 A.3d 137, 143 (Pa. 2017), 

citing Commonwealth v. Bullock, 913 A.2d 207, 218 (Pa. 2006), 

cert. denied sub nom. Bullock v. Pennsylvania, 550 U.S. 941 (2007). 

Based on our review of the record, we find that the trial court did not 

abuse its discretion when it permitted the Commonwealth to introduce 

evidence of robberies in which appellant allegedly participated in the State of 

Delaware. Indeed, as noted in detail supra, the Commonwealth 

demonstrated that the prior bad acts evidence established appellant’s identity

pursuant to Rule 404(b). Because the trial court instructed the jury 

three times that the evidence of appellant’s alleged involvement in the 

Delaware bank robberies could not be used in determining appellant’s guilt 

with regard to the Pennsylvania bank robberies at issue here, we hold that the 

probative value of the evidence presented by the Commonwealth exceeds its 

potential for prejudice. Pa.R.E. 404(b)(3); Briggs, 12 A.3d at 336-337; 

Aikens, 168 A.3d at 143. Accordingly, appellant’s first issue is without merit.

In his second issue, appellant contends that the trial court imposed an 

illegal sentence when it imposed two consecutive sentences for

two convictions of conspiracy to commit robbery. (Appellant’s brief at 11.) 

The Commonwealth does not oppose remanding the case for the purposes of 

resentencing. (Commonwealth’s brief at 25.)
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Preliminarily, we note that appellant failed to include this issue in his 

Rule 1925(b) concise statement of errors complained of on appeal. Generally, 

such a failure would result in waiver of the issue on appeal. Commonwealth 

v. Smith, 210 A.3d 1050, 1059 (Pa.Super. 2019), appeal denied, 218 A.3d 

1199 (Pa. 2019), citing Pa.R.A.P. 1925(b)(4)(ii). Challenges to the legality of 

sentence, however, are non-waivable and may be raised at any time, so long 

as the reviewing court has jurisdiction. Commonwealth v. Wood, 208 A.3d 

131, 136 n.9 (Pa.Super. 2019) (en banc). Accordingly, we shall proceed to 

review appellant’s second issue on the merits.

“A challenge to the legality of sentence is a question of law; our standard 

of review is de novo and our scope of review is plenary.” Commonwealth 

v. Alston, 212 A.3d 526, 528 (Pa.Super. 2019), citing Commonwealth v. 

Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014), appeal denied, 121 A.3d 

494 (Pa. 2015).

Section 903 of the Crimes Code provides that “[i]f a person conspires to 

commit a number of crimes, he is guilty of only one conspiracy so long as such 

multiple crimes are the object of the same agreement or continuous 

conspiratorial relationship.” 18 Pa.C.S.A. § 903(c). In Commonwealth v. 

Lore, 487 A.2d 841, 855 (Pa.Super. 1984), this court held that in cases where 

a defendant is convicted of multiple counts of conspiracy, he or she may only 

be sentenced on one count if “there were multiple criminal objectives of a 
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continuous conspiratorial relationship and each [criminal objective] was a 

component of the larger common design.”

Here, appellant was charged and convicted of one count each of 

conspiracy to commit robbery (threat of immediate serious bodily injury) and 

conspiracy to commit robbery (demand money from a financial institution). 

The trial court sentenced appellant to consecutive sentences of 5-10 years’ 

imprisonment for appellant’s convictions of conspiracy to commit robbery

(threat of immediate serious injury) and conspiracy to commit robbery

(demand money from financial institution). (Notes of testimony, 9/20/17 

at 5.)

Based on our review of the record, we find that appellant participated in 

one continuous conspiratorial relationship. Indeed, appellant’s co-conspirator, 

Mr. Wisler, testified that there was one agreement that covered the series of 

bank robberies committed by appellant. (Notes of testimony, 12/6/16 at 296, 

355, 359-360.) Further, the trial court referenced a single conspiracy in its 

preliminary comments prior to imposing its sentence. (Notes of testimony, 

9/20/17 at 3.) Accordingly, we find that appellant engaged in a single 

conspiracy to commit multiple crimes; therefore, he should have been 

sentenced for only one count of conspiracy. See Lore, 487 A.2d at 855. 

Because our decision upsets the overall sentencing scheme of the trial court, 

as our action affects the length of appellant’s aggregate sentence, we remand 

for resentencing, while affirming appellant’s convictions. See 
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Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006), appeal 

denied, 946 A.2d 687 (Pa. 2008), citing Commonwealth v. Williams, 871 

A.2d 254, 266-267 (Pa.Super. 2005) (requiring remand for trial court to 

restructure its sentence in cases where appellate disposition upsets trial 

court’s overall sentencing scheme).

On February 18, 2020, appellant filed an application for substitution of 

appointed counsel. We deny appellant’s application without prejudicing 

appellant from seeking relief with the trial court.

Judgment of sentence vacated. Convictions affirmed. Remanded for 

resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/20