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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AKEEM KEVIN MALIK WASHINGTON
Appellant No. 2067 MDA 2015
Appeal from the Judgment of Sentence October 30, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000152-2015
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 13, 2016
Akeem Kevin Malik Washington appeals from the judgment of sentence
of one to two years imprisonment that was imposed after he was convicted
at a nonjury trial of disorderly conduct and terroristic threats. We affirm.
We first recite the pertinent facts. On December 28, 2014, James King
was working as a doorman for a Yorgos Restaurant, Lancaster, Pennsylvania.
At 1:30 a.m., in anticipation of closing, Mr. King’s superior instructed him to
cease allowing people inside the establishment. Appellant arrived at the
restaurant with his cousin, Dustin Salsbury, and an unidentified male, and
they were denied entry. Shortly thereafter, Mr. King’s boss allowed two
females, who were his friends, inside. Appellant and his cohorts returned to
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the door and demanded to know why the two women had been permitted
entry when they had been refused service.
Appellant and his cousin started to yell obscenities, the unidentified
male spat upon Mr. King, and all three men entered the restaurant for a
short period and then left. Lancaster City Police Officers Gregory Berry and
Erik Pannone were on patrol in the area when they heard a commotion in the
parking lot of Yorgos Restaurant. They observed Mr. King signal for help
and point to the unidentified man.
Officer Berry approached the unknown person while Officer Pannone
asked for identification from Appellant and his cousin. They responded, “[F]
you, we're not giving you sh ." N.T. Bench Trial, 10/29/15, at 30. Officer
Pannone asked Appellant to remove his right hand from this pocket when
Appellant replied, “F you, n , we ain't doing sh . We are not doing
anything. Leave us alone, I'm not taking my hands out of my pockets." Id.
Officer Berry overhead Appellant’s remarks and reiterated the command to
Appellant, who retorted, “[F] you, n . I ain't doing nothing. I'm not
taking my hand out of my pocket." Id. at 32.
Officer Berry grabbed Appellant’s right wrist in order to extricate his
hand from the pocket when Appellant, who was one foot taller than the
officer, pulled back his arm and made a fist with his hand. Officer Berry
grabbed Appellant’s shirt and told him to sit down. Appellant then said, “[F]
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you, I ain't doing anything. I ain't sitting down." Id. at 33. Appellant, who
was intoxicated, began to struggle with Officer Berry.
Officer Pannone deployed his Taser, striking Appellant on the back.
Unaffected, Appellant charged at Officer Berry who employed a strike to the
neck designed to stun a person and swept Appellant’s legs out from under
his body. Appellant landed on the ground and was told that he was under
arrest. Appellant physically resisted the officers, at one point striking Officer
Pannone's right eye with his elbow. After being placed in handcuffs,
Appellant persisted in shouting obscenities at the officers.
Due to Appellant’s size and state of agitation, Sergeant Philip
Berkheiser, who had been called to assist his fellow officers, met Officers
Berry and Pannone in the police station’s garage. Officer Berkheiser
recognized Appellant from a previous arrest. He informed the other two
officers to be careful because Appellant had been arrested about ten years
beforehand for cutting the throat of his girlfriend and nearly killing her.
Officer Berkheiser testified that immediately thereafter, Appellant,
whose back was to the officer, turned his head, looked at Officer Berkheiser
in the eye, and said, "I'm going to f you up, too." Id. at. 65. The three
officers escorted Appellant to a padded holding cell in the police station.
Appellant’s outer clothing and jewelry were removed. Medical personnel
were called to check on Appellant since he had been tased. As Officer
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Berkheiser was leading them away, Appellant smirked and said to him,
"[I]t's okay because I will be out in six months anyhow." Id. at 67.
Based upon this evidence, the court found Appellant guilty of
disorderly conduct and terroristic threats, and acquitted him of resisting
arrest and public drunkenness.
Appellant presents the following issues on appeal:
I. Did the court err in denying [Appellant’s] Motion to
Dismiss Pursuant to the Compulsory Joinder Rule set forth in 18
Pa.C.S. §110, where the instant charges should have been
consolidated with the charges docketed to Information Number
862 of 2015?
II. Was the evidence presented by the Commonwealth
insufficient to sustain [Appellant’s] conviction of terroristic
threats, where the evidence did not prove beyond a reasonable
doubt that [Appellant] made a threat to commit a crime of
violence with intent to terrorize another, rather than out of
transitory anger, while [Appellant] was intoxicated and in an
agitated state?
Appellant’s brief at 4.
Appellant’s first position is that the present charges against him should
have been dismissed under the compulsory joinder rule outlined in 18
Pa.C.S. § 110, which was designed to codify the double jeopardy principles
announced by our Supreme Court in Commonwealth v. Campana, 304
A.2d 432, 441 (Pa. 1973), vacated and remanded, 414 U.S. 808 (1973),
reinstated, 314 A.2d 854 (Pa. 1974). See Commonwealth v. Laird, 988
A.2d 618, 628 (Pa. 2010) (“Pennsylvania's compulsory joinder rule . . . is
designed to protect a defendant's double-jeopardy interests where the
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Commonwealth initially declines to prosecute him for the present offense,
electing to proceed on different charges stemming from the same criminal
episode.”) Since Appellant position pertains to constitutional and statutory
issues, our standard of review is de novo. Commonwealth v. Vargas, 947
A.2d 777 (Pa.Super. 2008).
The following facts are relevant to the resolution of this issue.
Following his arrest, Appellant was remanded to the custody of Lancaster
County Prison. While incarcerated, Appellant was housed with Treymane
Jones. On December 28 and December 29, 2014, Appellant told Mr. Jones
that he wanted to kill the three officers involved in his arrest, and he
solicited Mr. Jones’ aid in luring and killing not only the three officers, but
also Sergeant Berkheiser's family. Mr. Jones alerted prison officials to
Appellant's plot, and four counts of solicitation to commit homicide were filed
against Appellant at criminal action number 862-2015. Appellant proceeded
to trial in that action first and was convicted of three counts of solicitation to
commit murder.1 He then moved to have the present charges dismissed
____________________________________________
1
The trial court indicates that Appellant agreed to allow the two criminal
actions to proceed to trial separately. Trial Court Opinion, 1/22/16, at 3. If
this fact was true, we would be inclined to find that the present issue is
waived. However, the record does not support any inference that Appellant
assented to having the trials proceed individually. The Commonwealth
instituted separate criminal actions for the solicitation offenses and these
crimes. In a document containing both trial court docket numbers, Appellant
agreed to postpone the date of trial in both matters, but there is nothing in
(Footnote Continued Next Page)
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under the compulsory joinder statute. On appeal, we consider the propriety
of the trial court’s refusal of that motion.
The compulsory joinder statute states:
Although a prosecution is for a violation of a different
provision of the statutes than a former prosecution or is based
on different facts, it is barred by such former prosecution under
the following circumstances:
(1) The former prosecution resulted in an acquittal
or in a conviction as defined in section 109 of this
title (relating to when prosecution barred by former
prosecution for the same offense) and the
subsequent prosecution is for:
_______________________
(Footnote Continued)
that document suggesting that he agreed to have the trials proceed
separately.
In his motion to dismiss under § 110 filed herein, Appellant reported
that the trials in both criminal actions were listed for the same day. When
that day arrived, “the Commonwealth indicated that, viewing the two cases
as separate, it would not file a motion to consolidate and would proceed to
trial on the matters separately.” Motion to dismiss, 8/20/6, at 2. The
solicitation trial commenced at that time. The notes of testimony from the
solicitation trial are in this record, and they contain no proof that Appellant
agreed to individual trials. In the motion to dismiss, Appellant admitted that
he did not object when the Commonwealth wanted to try the solicitation
charges first, but he did not agree with the trials proceeding at different
times. He simply stood silent. The Commonwealth does not refute this
version of what occurred and never has urged a finding of waiver regarding
Appellant’s § 110 claim.
Thus, the record indicates the following. The Commonwealth decided
to institute and try these cases separately. The fact that Appellant raised no
objection to separate trials until filing the motion to dismiss under § 110 in
this case does not equate to assent to the lack of joinder. He merely elected
not to alert the Commonwealth that he would be raising a compulsory
joinder issue in this matter after the first trial transpired.
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(i) any offense of which the defendant
could have been convicted on the first
prosecution;
(ii) any offense based on the same
conduct or arising from the same
criminal episode, if such offense was
known to the appropriate prosecuting
officer at the time of the commencement
of the first trial and occurred within the
same judicial district as the former
prosecution unless the court ordered a
separate trial of the charge of such
offense; or
(iii) the same conduct[.]
18 Pa.C.S. § 110. The compulsory joinder statute bars a subsequent
prosecution if:
(1) the former prosecution resulted in an acquittal or conviction;
(2) the current prosecution was based on the same criminal
conduct or arose from the same criminal episode; (3) the
prosecutor in the subsequent trial was aware of the charges
before the first trial; and (4) all charges [are] within the same
judicial district as the former prosecution.
Commonwealth v. Reid, 77 A.3d 579, 582 (Pa. 2013) (citation omitted).
Appellant first maintains that these charges must be dismissed under §
110(1)(i) as he could have been convicted of them in the solicitation trial.
He observes that the three officers in question all testified therein as to the
events at Yorgos Restaurant and the arrest that followed. We cannot agree
with this position since the evidence in question was not introduced in the
solicitation trial as substantive proof of Appellant’s guilt of the offenses at
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issue herein, i.e., disorderly conduct, resisting arrest, public drunkenness,
and terroristic threats.
Instead, the proof about these crimes was limited at the trial in
criminal action 152-2015 to establishing how Appellant came to know the
identity of the officers whom he threatened and his motive for wanting them
murdered. N.T. Jury Trial 862-2015, Vol. I, 8/10/15, at 49-53. Before the
three police officers testified at the solicitation trial as to the events
surrounding Appellant’s arrest, the jury was given a clear limiting
instruction. Specifically, the trial court informed the jury that the proof was
being offered for a “very, very limited purpose. It’s providing some context
within which you can evaluate the charges that are in this case.” N.T. Jury
Trial 862-2015, Vol. II, 8/11/15, at 280. The trial court told the jury quite
plainly that the crimes at issue in the present criminal action “are not
presently before you.” Id. It continued, “I want to make sure you
understand this. This is of utmost importance, and the law does not allow
you to infer guilt because of these other charges.” Id. at 281. The court
additionally stated, “You are not dealing with those [charges]. Those are not
for you to address.” Id.
Thus, the jury was told that the evidence about the events at Yorgos
Restaurant and the police station was not being admitted as substantive
proof and that the charges arising from the incidents at those locales were
not before it to decide. The officers in question offered a truncated version
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of the events at issue in this matter. Since the proof in question was not
admitted for its substantive value, Appellant could not, at the prior trial,
have been convicted of these offenses. Therefore, § 110(1)(i) is not
implicated herein.
Appellant also maintains that § 110(1)(ii) applies since his interaction
with the officers at Yorgos Restaurant and the police station were part of the
same criminal episode as his solicitation to murder the officers while he was
in jail with Mr. Jones. Commonwealth v. Hude, 458 A.2d 177 (Pa. 1983),
constitutes the seminal case in determining whether the same criminal
episode is at issue. Therein, our Supreme Court instructed the courts to
look at the temporal and logical relationship between the charges. When the
charges occur simultaneously, they are part of a single criminal episode. Id.
When the timing of the crimes, as in the present case, are interrupted, their
temporal proximity as well as their logical relationship must be examined to
decide if they are part of the same criminal episode. Id.
In ascertaining whether a number of statutory offenses are
“logically related” to one another, the court should initially
inquire as to whether there is a substantial duplication of factual,
and/or legal issues presented by the offenses. If there is
duplication, then the offenses are logically related and must be
prosecuted at one trial.
Reid, supra at 582. The Reid Court reiterated that “the determination of
whether the logical relationship prong of the test is met turns on whether
the offenses present a substantial duplication of issues of fact and law.
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Such a determination depends ultimately on how and what the
Commonwealth must prove in the subsequent prosecution.” Id. at 585
(emphasis in original).
In this case, there was a temporal break in the events. This temporal
break was significant in that Appellant committed these crimes during his
arrest and the solicitation offenses after he had been processed and placed
in jail. The charges herein occurred in a distinct location, the parking lot and
holding cell, from the solicitation, which occurred after Appellant was jailed.
Thus, there was no temporal proximity. We also conclude that the two cases
were not logically related. The offenses of terroristic threats, resisting
arrest, disorderly conduct, and public drunkenness have no common
elements with solicitation to commit murder.
Likewise, there was no substantial duplication of facts. While the
incident occurring at the restaurant and police station provided the
motivation for the solicitations to murder, the latter crimes were proven
entirely by the testimony of Mr. Jones, who had no knowledge about the
present crimes and who did not testify at trial herein. The facts supporting
the two prosecutions were distinct. We thus reject the position that the
present offenses were part of the same criminal episode as the solicitation
charges. Accord Commonwealth v. Purnell, 516 A.2d 1203 (Pa.Super.
1986) (rejecting compulsory joinder argument concerning joinder of action
instituted due to defendant’s arrest for disorderly conduct and a separate
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prosecution flowing from defendant’s assault of an officer after he arrived at
the police station).
Appellant also assails the sufficiency of the evidence supporting his
conviction for terroristic threats. We examine this question thusly:
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 the evidence and substitute our judgment for
that of the 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 actually 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. Mickel, 142 A.3d 870, 876 (Pa.Super. 2016) (citation
omitted).
We first examine the elements of terroristic threats. “A person
commits the crime of terroristic threats if,” inter alia, “the person
communicates, either directly or indirectly, a threat to commit any crime of
violence with intent to terrorize another[.]” 18 Pa.C.S. § 2706(a)(1). In the
present case, Appellant “acknowledges that a threat was made to Sergeant
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Berkheiser, but contents that this threat was made out of transitory anger,
and not with intent to terrorize.” Appellant’s brief at 34.
In our decision In re B.R., 732 A.2d 633, 638 (Pa.Super. 1999), we
observed that “statements which are ‘spur-of the moment,’ that is the
product of a heated exchange between parties made out of hysteria or anger
that do not trigger foreseeable immediate or future danger, are not to be
criminalized by 18 Pa.C.S.A. § 2706.” However, where there is no heated
argument between a defendant and his victim and the threats are
unprovoked and delivered in “a deliberate, matter of fact manner,” a
terroristic threats conviction will be upheld. Id.; see also In re J.H., 797
A.2d 260 (Pa.Super. 2002) (evidence was sufficient to support that juvenile
committed acts constituting terroristic threats when threat was not leveled
during an argument and was delivered in a calm and calculated manner).
In this case, we conclude that B.R. and J.H. apply. None of the
officers involved in this interdiction was arguing with Appellant. Instead,
over the course of a significant span of time, Appellant was hurling profanity
and racist insults at them. There is no indication that the officers engaged in
exchanges with Appellant; rather, they professionally performed their duty
to subdue Appellant after he initiated a struggle with Officer Berry.
As to the specific threats involved herein, Sergeant Berkheiser
reported the following. When Appellant arrived at the police station,
Sergeant Berkheiser immediately recognized him and told his fellow officers
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to exercise caution since Appellant had cut his girlfriend’s throat and nearly
killed her. There was no indication that Appellant was agitated or angry at
that time. Appellant’s back was turned toward Sergeant Berkheiser when
the seargant proffered his warning, and Appellant turned around, stared
directly into Sergeant Berkheiser’s eyes, and said that he was going to harm
him, as he had his girlfriend. Next, Appellant was taken into his holding cell
and examined by medical personnel. Officer Berkheiser was leading the
medical personnel from the jail when Appellant smirked and said to him,
[I]t's okay because I will be out in six months anyhow." N.T. Bench Trial,
10/29/15, at 67.
This series of events indicate that Appellant had a settled purpose to
threaten Officer Berkheiser and that he was not operating based upon
transitory anger. There was no heated exchange between Appellant and his
victim. Appellant was no longer angry and agitated, the threats were
unprovoked, and they were delivered in a calm and deliberate manner.
Hence, we find that the evidence was sufficient to support his conviction for
terroristic threats.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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