J. S38005/14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DWAYNE ISAACS,                            :         No. 2750 EDA 2012
                                          :
                          Appellant       :


         Appeal from the Judgment of Sentence, August 10, 2012,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0002568-2009


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED AUGUST 27, 2014

     Dwayne Isaacs appeals from the judgment of sentence of August 10,

2012, following his conviction of robbery, criminal conspiracy, rape,



restraint, and false imprisonment.      On appeal, appellant challenges the

sufficiency of the evidence and also raises a merger issue.     After careful

review, we affirm.

     The victim, R.S., testified that the night of November 25, 2008, she

was working as a bartender at a bar on Lansdowne Avenue in the City of

Philadelphia. (Notes of testimony, 5/29/12 at 8.) Appellant and his friend

                                 Id. at 9.)1   R.S. remembered them because


1

last name or where he lived. (Id. at 54, 67.)
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they looked young, and she asked them for identification. (Id. at 10.) R.S.

testified that they both produced identification

throughout the evening. (Id.)

        R.S. left the bar around 2:00 a.m. on November 26, 2008. (Id.) She

had called a taxi, which was waiting for her down the street. (Id.) As she

walked towards the taxicab, appellant stepped out in front of her from an

                                                           Id. at 11.) R.S.



accomplice, Reece, approached from behind. (Id.

you know what t                                                         Id.)

Reece then indicated that R.S. should turn around and start walking in the

opposite direction. (Id.)

        R.S. complied, fearful that Reece had the gun pointed at her back.

(Id. at 14.) Appellant walked in front of her and Reece walked behind her.

(Id.)     After walking several blocks, they led R.S. into an abandoned

apartment. (Id. at 16.) R.S. testified there were lights on, but it appeared

to be abandoned. (Id. at 16-17.) When they got inside, Reece demanded

money. (Id. at 17.) R.S. gave him the $90 she had in wages and tips from

working that night. (Id.) Reece stuffed the money into his pocket and then

demanded that R.S. perform oral sex on him. (Id. at 18.)

        Reece forced R.S. down onto her knees and she began to perform oral

sex on him.    (Id. at 18-



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clothes off.    (Id.)   While R.S. continued to perform oral sex on Reece,

appellant penetrated R.S. vaginally from behind. (Id. at 20.) R.S. testified

that Reece continued to keep the gun pointed at her head.           (Id. at 21.)

Reece and appellant then switched positions; appellant placed his penis in

                                                             Id. at 22-23.) R.S.

testified that they had a camera and were taking photographs; Reece told

                                               Id. at 23.)

        Eventually, Reece told R.S. to get into the bathtub. (Id.) He took her

identification and asked her if the address was correct; R.S. confirmed that it

was. (Id.) Reece warned her that she better never go to the police. (Id.)

Then, Reece again demanded oral sex. (Id.) Reece was unable to ejaculate

and complained that R.S. was doing it wrong. (Id. at 23-24.) Reece stated



and cocked it. (Id.

(Id.)

        Both Reece and appellant told R.S. that she better never go to the

                                                              Id.) Finally, they

left the apartment and R.S. called 911 on her cell phone which was in her

jacket. (Id. at 25.) However, R.S. was not familiar with the neighborhood

and had no idea where she was or what street she was on. (Id. at 27.) At

that point, R.S. heard noises and ended the call and hid her phone. (Id.)




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Reece and appellant re-entered the apartment and again told R.S. that she

better not leave or tell anyone. (Id.)

      After they left a second time, R.S. redialed 911.    (Id.)    She heard

Reece and appellant banging on the front door to the apartment and

demanding to be let back in; apparently, they had locked themselves out.

(Id. at 27-28.)   R.S. jumped out of the tub, ran into the kitchen, and

jumped out the window. (Id. at 28.) R.S. kept running until she found the

bar where she worked. (Id.) The bar owner lived upstairs and called the

police. (Id.

                                                             ellant.   (Id. at

29.) R.S. was also treated at the hospital where a rape kit was performed.

(Id. at 30.) Police recovered a used condom from the scene which tested

                                             Id. at 51.)

      Appellant testified in his own defense.   Appellant admitted having

sexual intercourse with R.S. that night but claimed that it was consensual.

(Id. at 56.) According to appellant, R.S. agreed to have sex with them for

money. Appellant claimed that R.S. was angry because after the encounter,

Reece took the money back. (Id. at 56-57.)

      Following a waiver trial before the Honorable Donna M. Woelpper,

appellant was found guilty of the above offenses.      On August 10, 2012,

appellant   appeared   for   sentencing.   Appellant   received    consecutive




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was run concurrently.     Appellant also received consecutive sentences of

2

imprisonment charges. After hearing the testimony of Barbara Ziv, M.D., of

the Sexual Offenders Assessment Board, the trial court also found appellant



      Post-sentence motions were denied, and this timely appeal followed.

Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the

trial court has filed an opinion.2 Appellant has raised the following issues for



            1.    Whether appellant is entitled to an arrest of
                  judgment with regard to his conviction for
                  criminal conspiracy -- robbery since the
                  Commonwealth failed to sustain its burden of
                  proving the elements of the crime charged
                  beyond a reasonable doubt?

            2.    Whether appellant is entitled to an arrest of
                  judgment with regard to his conviction for
                  robbery where the Commonwealth failed to
                  prove beyond a reasonable doubt that the
                  appellant was guilty?

            3.    Whether appellant was illegally sentenced for
                  the crime of false imprisonment where false

2
  Initially, appellant failed to file a Rule 1925(b) statement, and the trial
court filed an opinion finding waiver. (Trial court opinion, 2/6/13 at 1-3.)

remanded for appointment of substitute counsel. New counsel filed a
Rule 1925(b) statement, and the trial court filed a supplemental
Rule 1925(a) opinion.


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                  imprisonment and unlawful restrain [sic]
                  merged for the purposes of sentencing as false
                  imprisonment was a lesser included offense of
                  unlawful restraint[?]

Appell

      In his first issue on appeal, appellant argues that he was entitled to

arrest of judgment on the charge of criminal conspiracy.         According to

appellant, Reece robbed the victim on his own and appellant did not share

his criminal intent t

                                              -8.)

                  In reviewing a refusal to arrest
                  judgment, we must consider whether the
                  evidence was sufficient to uphold the
                  verdict of the [jury]. We must accept all
                  the     evidence   and     all   reasonable
                  inferences which may be drawn from
                  that evidence upon which the fact finder
                  could have based its verdict.         If the
                  evidence viewed in the light m[o]st
                  favorable to the verdict winner is not
                  sufficient to establish guilty [sic] beyond
                  a reasonable doubt of the crime charged,
                  then the motion should have been
                  granted.

            Commonwealth v. McFadden, 377 Pa.Super. 454,
            547 A.2d 774, 775 (1988). Further, our standard of
            review for sufficiency of the evidence claims is well
            settled:

                  In reviewing the sufficiency of the
                  evidence, we view all the evidence
                  admitted at trial in the light most
                  favorable to the Commonwealth, as
                  verdict winner, to see whether there is
                  sufficient evidence to enable [the
                  factfinder] to find every element of the


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                crime beyond a reasonable doubt. This
                standard is equally applicable to cases
                where the evidence is circumstantial
                rather than direct so long as the
                combination of the evidence links the
                accused to the crime beyond a
                reasonable doubt. Although a conviction

                suspicion  or    conjecture,     the
                Commonwealth need not establish guilt


          Commonwealth v. Coon, 695 A.2d 794, 797
          (Pa.Super.1997) (citations omitted).       Moreover,
          when reviewing the sufficiency of the evidence, this
          Court may not substitute its judgment for that of the
          fact-finder; if the record contains support for the
          convictions     they    may    not  be     disturbed.
          Commonwealth v. Marks, 704 A.2d 1095, 1098
          (Pa.Super.1997)      (citing   Commonwealth        v.
          Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213
          (1986)).

Commonwealth v. McFadden, 850 A.2d 1290, 1292-1293 (Pa.Super.

2004).

     Criminal conspiracy is defined by the Crimes Code as follows:

          (a)   Definition of conspiracy.--A person is guilty
                of conspiracy with another person or persons
                to commit a crime if with the intent of
                promoting or facilitating its commission he:

                (1)   agrees with such other person or
                      persons that they or one or more
                      of them will engage in conduct
                      which constitutes such crime or an
                      attempt or solicitation to commit
                      such crime; or

                (2)   agrees to aid such other person or
                      persons   in   the   planning   or
                      commission of such crime or of an


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                         attempt or solicitation to commit
                         such crime.

18 Pa.C.S.A. §                                                          mit a

crime unless an overt act in pursuant of such conspiracy is alleged and



18 Pa.C.S.A. § 903(e). Evidence of an agreement between co-conspirators

may be inferentially established by showing the relation, conduct, or

circumstances of the parties. Commonwealth v. Lawson, 650 A.2d 876

(Pa.Super. 1994), appeal denied, 655 A.2d 985 (Pa. 1995).

             The general rule of law pertaining to the culpability
             of conspirators is that each individual member of the
             conspiracy is criminally responsible for the acts of his
             co-conspirators committed in furtherance of the
             conspiracy. The co-conspirator rule assigns legal
             culpability equally to all members of the conspiracy.
             All co-conspirators are responsible for actions
             undertaken in furtherance of the conspiracy
             regardless of their individual knowledge of such
             actions and regardless of which member of the
             conspiracy undertook the action.

Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.Super. 2001),

appeal denied, 803 A.2d 733 (Pa. 2002), quoting Commonwealth v.

Hannibal, 753 A.2d 1265, 1274 (Pa. 2000).

        Appellant states that he was convicted of criminal conspiracy to

commit robbery. Actually, the information set forth the criminal objective of

count

indicates that appellant was convicted of criminal conspiracy generally, not

limited to robbery.


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      Appellant argues that he was merely standing nearby while Reece

robbed the victim.    However, as stated above, where the Commonwealth

proves the existence of a conspiracy, appellant is liable for the actions of his

co-conspirator in furtherance of the conspiracy, regardless of his individual

knowledge of such actions. Galindes, supra.

      Here

conviction of criminal conspiracy.     Appellant and Reece clearly acted in

concert where they waylaid the victim as she was walking to her taxicab.

Appellant walked in front and Reece walked behind as they escorted the

victim at gunpoint to the abandoned apartment. Appellant and Reece both

forced the victim to have sexual intercourse with them. Reece encouraged



warned the vic

      In his second issue on appeal, appellant makes a similar argument,

contending that he could not be convicted of robbery where he was merely

present while Reece robbed the victim. Again, it

person who was not the principal actor may nonetheless be liable for the

                                                Commonwealth v. King, 990

A.2d 1172, 1178 (Pa.Super. 2010), appeal denied, 53 A.3d 50 (Pa. 2012)

(citatio                     -conspirator is liable for the actions of the others

                                                                             Id.

We find the robbery of R.S. was not outside the scope of the conspiracy.



                                     -9-
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                                         a mere onlooker and lacked shared

criminal intent is belied by the record.        Appellant could be found guilty of

robbery as a co-conspirator.

     Finally, appellant argues that his sentences for unlawful restraint and

false imprisonment should have merged.             Appellant is correct that false

imprisonment    is     a   lesser   included    offense   of   unlawful   restraint.

Commonwealth v. Belgrave, 391 A.2d 662, 666 (Pa.Super. 1978).



separate criminal acts. Therefore, the offenses did not merge.

           Initially, we note that merger is a nonwaivable
           challenge to the legality of the sentence.
           Commonwealth v. Robinson, 931 A.2d 15, 24
           (Pa.Super.2007). The issue is a pure question of
           law, allowing for plenary review. Id.

           The merger statute states that:

                     No crimes shall merge for sentencing
                     purposes unless the crimes arise from a
                     single criminal act and all of the
                     statutory elements of one offense are
                     included in the statutory elements of the
                     other offense. Where crimes merge for
                     sentencing purposes, the court may
                     sentence the defendant only on the
                     higher graded offense.

           42 Pa.C.S. § 9765.

Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa.Super. 2012), appeal

denied                                                             d that where a




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defendant commits multiple distinct criminal acts, concepts of merger do not

        Id. at 911-912, quoting Robinson, 931 A.2d at 24.

              When considering whether there is a single criminal
              act or multiple criminal acts, the question is not

                        Robinson] (quoting Commonwealth v.
              Wesley, 860 A.2d 585, 592 (Pa.Super.2004)). This

              acts beyond that which is necessary to establish the
              bare elements of the additional crime, then the actor
              will be guilty of multiple crimes which do not merge
                                               Commonwealth v.
              Belsar, 544 Pa. 346, 676 A.2d 632, 634 (1996)
              (quoting Commonwealth v. Weakland, 521 Pa.
              353, 555 A.2d 1228, 1233 (1989)).

Id. at 912.

      The unlawful restraint and false imprisonment statutes provide, in

relevant part, as follows:

              § 2902. Unlawful restraint

              (a)   Offense defined.-- Except as provided under
                    subsection (b) or (c), a person commits a
                    misdemeanor of the first degree if he
                    knowingly:

                    (1)   restrains another unlawfully in
                          circumstances exposing him to risk
                          of serious bodily injury;

                          or

                    (2)   holds another in a condition of
                          involuntary servitude.

18 Pa.C.S.A. § 2902(a).

              § 2903. False imprisonment



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            (a)   Offense defined.--Except as provided under
                  subsection (b) or (c), a person commits a
                  misdemeanor of the second degree if he
                  knowingly restrains another unlawfully so as to
                  interfere substantially with his liberty.

18 Pa.C.S.A. § 2903(a).

      Appellant and his co-conspirator, Reece, committed unlawful restraint

when they forced the victim to walk to the abandoned apartment at

gunpoint. Once inside the apartment, they continued to unlawfully restrain

the victim while they forced her to perform sexual acts. The victim testified

that while she was performing oral sex on Reece, he kept the gun pointed

towards her head. (Notes of testimony, 5/29/12 at 21.) This exposed the

victim to risk of serious bodily injury. In addition, she was being held in a

condition of involuntary servitude.   See Commonwealth v. Wells, 460



dimension -- any involuntary servitude, from brief to prolonged, may

represent unlawful restraint).

      After they robbed and raped the victim, they ordered her to get into

the bathtub and stay there.      (Notes of testimony, 5/29/12 at 23.)     The

victim testified that they instructed her to count to a specific number before

getting out. (Id. at 26.) The victim remained in the bathtub after they left

the apartment. (Id. at 26-27.) Appellant and Reece repeatedly threatened

the victim and warned her not to contact authorities. (Id. at 23-27.)




                                    - 12 -
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      Directing the victim to get into the bathtub was a distinct criminal act

and constituted the crime of false imprisonment. Still brandishing a firearm,



address, appellant and his co-conspirator told the victim to remain in the

bathtub for a specific period of time. This s

of knowingly restraining another unlawfully so as to interfere substantially

with her liberty. Because appellant committed separate and distinct criminal

acts, unlawful restraint and false imprisonment did not merge for sentencing



See Pettersen

discount for these crimes simply because he managed to accomplish all the

acts within a relatively

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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