J-S66006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

AKEEM KEVIN WASHINGTON

                         Appellant                No. 2258 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-0000862-2015


BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 13, 2016


      Akeem Kevin Washington appeals from the judgment of sentence of

twenty-five and one-half years to sixty years imprisonment that was

imposed after he was convicted of three counts of solicitation to murder

three police officers. We affirm.

      The pertinent facts follow.    On December 28, 2014, Lancaster City

Police Officers Gregory Berry and Erik Pannone were on patrol when their

attention was drawn to a commotion in the parking lot of Yorgos Restaurant,

Lancaster, and they observed the doorman, James King, point to an

unidentified man and signal for aid. Officer Berry approached the unknown

male while Officer Pannone asked for identification from Appellant, who

refused that request in a profane manner. Officer Pannone then requested
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that Appellant remove his right hand from his pocket, and Appellant, again

using vulgar language, ignored that demand.               Officer Berry overheard

Appellant’s remarks and reiterated the command to Appellant to take his

hand from his pocket.        Appellant swore at Officer Berry and said that he

would not comply with that directive.

         After Officer Berry grabbed Appellant’s right wrist in order to extricate

his hand from the pocket, Appellant began to struggle with him.               Officer

Pannone deployed his taser, which did not affect Appellant.                 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 was

arrested, but continued using expletives and resisting the police.

         Due to Appellant’s size, Sergeant Philip Berkheiser had been called to

assist his fellow officers and met Officers Berry and Pannone in the police

station’s garage. Sergeant Berkheiser recognized Appellant from a previous

arrest.    He informed the other two officers to be careful as Appellant had

previously harmed his girlfriend, nearly killing her.              Appellant then

threatened the sergeant. After Appellant was placed in a holding cell at the

police    station,   he   again   made   an    intimidating   remark   to   Sergeant

Berkheiser. A separate criminal action was filed against Appellant charging

him with offenses arising from his interaction with the three police officers at

the parking lot and police station.




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       The offenses at issue in this criminal case occurred after Appellant was

processed at the police station and remanded to the Lancaster County jail.

Records from the prison established that Appellant was placed in the same

cell as inmate Treymayne Jones, who confirmed that fact at trial. The two

men had a number of conversations on December 28, 2015, and December

29, 2015. Appellant was angry about the "way he was arrested, how he was

arrested[.]". N.T. Trial, 8/10/15, at 107. Specifically, Appellant was upset

about being tasered and falling on the ground after Officer Berry swept his

feet out from under him. Id. at 117. Appellant also accused the officers of

brutality and decided to exact revenge by killing Officer Pannone, Officer

Berry, Sergeant Berkheiser, and Sergeant Berkheiser's family.

       Due to the alarming and continuing nature of Appellant’s threats

against the three officers, on December 29, 2015, Mr. Jones went to prison

authorities. He gave two executed statements to police, one on December

29, 2015 and the other one on December 31, 2015.                    Those written and

adopted     statements     by    Mr.   Jones     specifically   delineated   Appellant's

statements to Mr. Jones while they were in the cell together.1
____________________________________________


1
  At trial, Mr. Jones was unable to remember what he told police;
consequently his two statements were introduced as substantive evidence.
Appellant made no objection to the admission of these statements. Even
though he could not recall what he told police, Mr. Jones repeatedly avowed
that he would have been truthful with them. Additionally, Mr. Jones did
remember that Appellant "threatened to kill three police officers[.]      I
definitely recall that." Id. at 167.



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      On December 29, 2015, Mr. Jones approached Correctional Officer

(“CO”) Matthew Bodley and "said he had a problem and he said that what

should he do if his cell mate was trying to get him to kill a bunch of cops."

N.T., 8/11/15, at 213. CO Bodley took Mr. Jones to an interview room and

obtained the December 29, 2015 executed statement.           Lancaster County

Detective Thomas Ginder took Mr. Jones' second statement on December

31, 2015.

      Mr. Jones told CO Bodley that Appellant said the following to Mr.

Jones. Appellant had an incident with police at Yorgos Restaurant after he

was refused entry into that establishment. Appellant said he was punched,

kicked, and tased by Officers Berry and Pannone.        Id. at 239.   Appellant

then stated "that he was going to kill both officers when he got out and he

wanted [Mr. Jones] to help him."      Id.   Appellant instructed Mr. Jones to

“make an anonymous call to lure the two officers” to an isolated area and

then Appellant “would 'chop the car up,' meaning shooting it with a high-

powered automatic rifle in the streets." Id. at 240.

      Appellant also planned to kill Sergeant Berkheiser. Appellant reported

that he told "the sergeant, he was going to f            him up,” which was

consistent with Sergeant Berkheiser’s testimony.       Id. Appellant explained

that "he could wait for the sergeant to get off and follow him home and

nobody would ever know," and that "he has multiple gun charges on his




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record[.]" Id. Appellant also informed Mr. Jones that he had access to two

automatic rifles.

      Mr. Jones reported to CO Bodley that he believed that Appellant would

and was "very capable of doing it," i.e., murdering the police. Id. at 241.

Mr. Jones concluded that Appellant was not "just venting because he spoke

about [killing the three officers] multiple times during the course of two

days." Id. at 242. Appellant enlisted Mr. Jones' help in his plan because he

knew that Mr. Jones was not from Pennsylvania and "no one would even

know" Mr. Jones. Id.

      Mr. Jones' December 31, 2015 statement was similar in nature. Mr.

Jones informed Detective Ginder that, when Appellant arrived in the cell on

December 28, 2015, he was "aggressive, hostile, angry, [and] bitter"

because police had physically abused him.       Id. at 250.   Mr. Jones gave

Detective Ginder a detailed statement made to him by Appellant about the

events at Yorgos Restaurant and the police station, and Mr. Jones’s version

matched those offered by the three officers at trial.

      Mr. Jones then launched into a description about Appellant’s scheme to

kill the officers in question. Appellant had two separate plots, one involved

Officers Berry and Pannone while the other one pertained to Sergeant

Berkheiser.   Regarding Officers Berry and Pannone, Appellant planned to

have Mr. Jones place an anonymous call to the police station to "lure them

to a dark area," when Appellant would "jump out and chop their car up." Id.


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at 257. Mr. Jones also clarified to Detective Ginder that "chop their car up"

was street jargon and meant "use a high-powered rifle to shoot into their

vehicle." Id.   Appellant explained that he could get Officers Berry and

Pannone to enter an isolated area "where he knows they would be working

that time of night." Id. Appellant indicated that he would be able to lure the

officers to the desired location where he would be waiting because he was

from Lancaster and "there are only a few specific cops that work that beat at

that time of night and he has seen those officers a few different times." Id.

      Appellant’s   scheme   to   kill    Sergeant   Berkheiser   was   different.

Appellant wanted to follow "the sergeant home and shoot him in his

driveway. And if his family came out, he was going to shoot them, too." Id.

at 258. Appellant enlisted Mr. Jones’ aid in the plot to kill the sergeant. Mr.

Jones was supposed to ride in the car with Appellant so Mr. Jones could

operate as a lookout. Id. at 259. Appellant told Mr. Jones that Appellant

could access two assault rifles from his cousin and obtain two other guns

from his wife's home. Id. at 260.

      Appellant additionally felt that any charges arising from the incident at

Yorgos Restaurant would be quickly resolved in his favor.         He anticipated

conducting the two attacks one week after he was released, and asked Mr.

Jones to exchange telephone numbers with him.           Since Appellant did not

expect to be out of jail until January 9, 2016, while Mr. Jones would be

released earlier, Appellant told Mr. Jones to "stay at [Appellant’s] house until


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they were able to do this, and then [Appellant] would hook him up with

heroin to sell to get money, basically as payment for this act." Id. at 246.

Appellant believed that he would be able to avoid apprehension since he

knew Lancaster so well.

      Mr. Jones told Detective Ginder that, while they were in the cell

together, Appellant never stopped talking about the plans to kill the three

police officers.   Thus, over a two-day period, Appellant plotted his crimes

day and night.      Mr. Jones stated, "We never discussed women, never

discussed clothes, places to eat. Our conversation was just about executing

these officers." Id. at 262. Mr. Jones also reported that Appellant "is very

competent. He knew what he was saying. He understood what needed to

be done, how it needed to be done. His planning was thorough. It's crazy.

He is intelligent." Id. at 263.

      While Mr. Jones had heard other inmates threaten police, he did not

take those statements seriously, but Mr. Jones believed that Appellant was

resolute about his plot.    Appellant took pride in his calculations and "was

smiling. We talked a lot about it. He was very adamant about doing it. He

thought the plan to follow the sergeant was a smart plan." Id. at 264. Mr.

Jones came forward to police due to the credibility of Appellant's threats and

his discomfort with including Sergeant Berkheiser's family among the

proposed victims.




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      Police executed a warrant at the home of Appellant's wife and

recovered a semi-automatic handgun. They were unable to search the home

of any of Appellant's cousins since he had so many cousins in the area and

Mr. Jones had not been given the name of the cousin with the assault rifles.

      Based upon the above evidence, Appellant was convicted by a jury of

three counts of solicitation to murder in connection with the police victims

and was acquitted of solicitation to murder Sergeant Berkheiser's family. On

October 30, 2015, Appellant was sentenced to twenty-five and one-half to

sixty years in jail.   On appeal, Appellant raises these contentions for our

review:

      I. Did the trial court err in refusing to grant a mistrial after
      Detective Thomas Ginder read the portion of Commonwealth
      witness Tremayne Jones' written statement in which he claimed
      that Mr. Washington stated he "has multiple gun charges on his
      record?"

      II. Did the trial court err in permitting the testimony of Officers
      Pannone and Berry and Sergeant Berkheiser, regarding Mr.
      Washington's actions in the early morning hours of December
      29, 2014, which led to charges of disorderly conduct, terroristic
      threats, resisting arrest and public drunkenness, where the
      Commonwealth had elected not to consolidate the charges, and
      this detailed testimony and the related video were prejudicial,
      not probative, and not needed for context or "complete story,"
      since the jury was aware of the charges, and the officers
      involved, through the statements and testimony of Tremayne
      Jones?

      III. Did the trial court err in refusing to permit defense counsel
      to impeach Tremayne Jones regarding his prior drug charges
      after Mr. Jones volunteered that he had "never been arrested for
      any kind of drug, anything in my entire life?"


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Appellant's brief at 6.

      Appellant's first complaint is that he should have been granted a

mistrial after the contents of Mr. Jones' statement indicated that Appellant

had multiple gun charges.     When Mr. Jones’ statements suggested that

Appellant had pending weapons charges against him, Appellant objected and

sought a mistrial. The trial court denied the mistrial, but immediately gave

the jury a strongly-worded curative instruction: "I am directing you to

disregard the comment about multiple gun charges; and I can tell you, in

fact, he does not have any multiple gun charges on his record, so you are to

disregard that. It is not a statement that you are to consider. In fact, that

is an inaccurate statement." N.T. Trial, 8/11/15, at 242. Thus, there was an

unequivocal directive to ignore the report that Appellant had weapons

charges and a twice-repeated declaration that the statement was false.

      We have observed that a “declaration of a mistrial serves to eliminate

the negative effect wrought upon a defendant when prejudicial elements are

injected into the case or otherwise discovered at trial.” Commonwealth v.

Tucker, 143 A.3d 955, 961 (Pa.Super. 2016). Therefore, “the trial court is

vested with discretion to grant a mistrial whenever the alleged prejudicial

event may reasonably be said to deprive the defendant of a fair and

impartial trial. In making its determination, the court must discern whether

misconduct or prejudicial error actually occurred, and if so, assess the

degree of any resulting prejudice.” Id. This Court’s review of the resolution


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of a mistrial request is limited to “determining whether the court abused its

discretion.” Id. In this case, we find that any prejudice inuring to Appellant

was eradicated by the instruction in question, and the trial court did not

abuse its discretion in refusing Appellant’s request for a mistrial.2

       Appellant next complains about the fact that Officer Berry, Officer

Pannone, and Sergeant Berkheiser were permitted to testify at trial. They

delineated what transpired in the parking lot at Yorgos Restaurant and the

police station.    “It is well-established that the admissibility of evidence is

within the discretion of the trial court, and such rulings will not form the

basis for appellate relief absent an abuse of discretion.” Commonwealth v.

Hoover, 107 A.3d 723, 729 (Pa. 2014).

       Herein, proof about the events in the parking lot and the police station

was limited 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, 8/10/15, at 49-53. Before the three police officers testified

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

____________________________________________


2
  We observe that Appellant preserved his present contention by stating at
trial that he did not believe that a curative instruction would obviate the
prejudice flowing from the false report.



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case.” N.T. Jury Trial, 8/11/15, at 280. The trial court told the jurors quite

plainly that the crimes committed at the parking lot and police station “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.

      Appellant maintains herein that the testimony by the three officers was

cumulative and repetitive. He notes that the statements given by Mr. Jones

included Appellant’s rendition of the events at Yorgos Restaurant and the

police station. Appellant maintains that this proof would have been sufficient

to establish motive and how Appellant could identify his proposed victims.

However, we find that the officers’ proof was not excludable from evidence

on the ground that it was cumulative and repetitive to the contents of Mr.

Jones’ statements to police.

      The officers' description about the incident at the Yorgos Restaurant

and the police station corroborated what Mr. Jones told police.     When Mr.

Jones detailed to police what Appellant told him about the events

surrounding his arrest, it correlated, with the exception of the occurrence of

police brutality, exactly with the testimony of the officers.   Therefore, Mr.

Jones' two statements to police were rendered more credible. The testimony

of the police demonstrated that Appellant had been speaking to Mr. Jones


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about the three officers and events surrounding his arrest and that Mr. Jones

was not fabricating his story to cull police favor.     We therefore reject this

allegation of error.

      Appellant's final position is that the trial court erred in refusing to allow

him to impeach Mr. Jones with prior drug convictions. “The scope of cross

examination is a matter within the trial court's discretion and will not be

disturbed by this Court absent an abuse of that discretion. An abuse of

discretion is not a mere error in judgment but, rather, involves bias, ill will,

partiality, prejudice, manifest unreasonableness, or misapplication of law.”

Commonwealth Hoover, 16 A.3d 1148, 1150 (Pa.Super. 2011).                      The

extent to which Appellant was going to be able to impeach Mr. Jones was

examined prior to trial. The trial court ruled that Appellant could only cross-

examine the witness with prior crimen falsi and not such matters as drug

offenses.

      On appeal, Appellant suggests that Mr. Jones opened the door to the

questioning about his drug convictions because he denied having any. The

fatal flaw with this position is that the Commonwealth never initiated such

an inquiry. Rather, Appellant began to ask Mr. Jones about his drug use and

drug offenses while cross-examining that witness. During that questioning,

Mr. Jones denied having a serious drug problem with illicit drugs or being

convicted of drug-related crimes. After these denials, Appellant asked Mr.

Jones whether he was arrested for drugs in Nashville, Tennessee on April


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23, 2011, and in Texas on May 25, 2011. N.T.Trial, 8/10/15, at 146. After

the witness denied those arrests, Appellant did not offer extrinsic proof that

they occurred.    Instead, he moved on to whether he could impeach Mr.

Jones with another crime and showed the court a newspaper article about

that witness’ arrest for a prostitution-related offense.

    Furthermore, the jury was given extensive information about Mr. Jones’

criminal activities.   The jury was apprised that Mr. Jones was incarcerated

with Appellant during December 2014 on misdemeanor charges, had been

extradited while he was in jail in Texas to face those charges, and pled guilty

to two misdemeanor offenses consisting of terroristic threats and disorderly

conduct. N.T. Trial, 8/10/15, at 105, 139, 157, 159-60.             That witness

admitted that he was convicted in 2009 in California for receiving stolen

property. Mr. Jones also acknowledged that, while he had family members

who were police officers and his parents were law-abiding Christian citizens,

he had chosen a life a crime. Id. at 132. It was evident that Mr. Jones had

a significant criminal history in that he reported the following at trial: "I

chose to make the decisions that I made, you know, outside, you know, of

my family. Running the streets and breaking the law myself, those are the

decisions that I made myself.        So I was raised that way, but . . . I

participated in, you know, in criminal activities. . . . " Id. at 132.

      Regarding any prior drug matters, Appellant started this line of

questioning, and thus, could not open to the door to such cross-examination


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himself.      He mentioned arrests, which may or may not have led to

convictions.     Finally, Appellant never tried to introduce extrinsic evidence

that those arrests occurred. Under these facts, Appellant is not entitled to

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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