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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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