Com. v. Dykes, I.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2024
• Docket: 1862 EDA 2022
• Status: Unpublished

Opinion

J-S40039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISAIAH DYKES : : Appellant : No. 1862 EDA 2022

Appeal from the Judgment of Sentence Entered July 14, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006160-2019

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JUNE 25, 2024

Appellant, Isaiah Dykes, appeals from the aggregate judgment of

sentence of 20 to 40 years’ incarceration imposed by the Court of Common

Pleas of Montgomery County following his bench trial convictions of ten counts

of robbery, six counts of conspiracy to commit robbery, and one count of

carrying a firearm without a license.1 For the reasons set forth below, we

affirm.

Appellant was charged in Montgomery County with twelve counts of

robbery, seven counts of conspiracy to commit robbery, one count of carrying

a firearm without a license, and multiple counts of possession of an instrument

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), and 6106(a)(1), respectively. J-S40039-23

of crime and theft for armed robberies of commercial establishments in

Montgomery County and Philadelphia County that occurred during the period

from August 17, 2018 to September 25, 2018. Two of the robberies with

which Appellant was charged took place in Montgomery County and ten

occurred in Philadelphia. N.T. Trial, 3/21/22, at 43-44, 76-77, 84-85, 90-91,

98-99, 104-05, 108-09, 144-45, 149-50, 156, 164-65, 169, 176.

Yasin Lowman (Co-Defendant) was charged in Montgomery County with

fourteen counts of robbery, eight counts of conspiracy to commit robbery,

fourteen counts of possession of a firearm by a prohibited person, one count

carrying a firearm without a license, and multiple counts of possession of an

instrument of crime and theft for armed robberies of commercial

establishments in Montgomery County and Philadelphia during the same time

period. Four of the robberies with which Co-Defendant was charged took place

in Montgomery County and ten were in Philadelphia, and two of the

Montgomery County robberies and five of the Philadelphia robberies were the

same robberies with which Appellant was charged. N.T. Trial, 3/21/22, at 84-

85, 90-91, 98-99, 104-05, 122-23, 144-45, 149-50, 156, 160-61, 171, 173-

74, 176, 179-80, 187-88.

The prosecution of the Philadelphia robberies in Montgomery County

was pursuant to a McPhail 2 agreement by the District Attorney of Philadelphia

2 Commonwealth v. McPhail, 692 A.2d 139 (Pa. 1997).

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that Montgomery County should prosecute Appellant and Co-Defendant for

the Philadelphia robberies with which they were charged. 4/12/19 Letter. On

October 15, 2019, the Commonwealth filed a notice of joinder consolidating

this case for trial with the case against Co-Defendant. On July 21, 2021,

Appellant filed an omnibus pretrial motion asserting, inter alia, that venue was

not proper in Montgomery County for the counts involving Philadelphia

robberies and requesting that the counts arising out of the ten Philadelphia

robberies be transferred to Philadelphia County. The trial court held a hearing

on January 19, 2022 on Appellant’s venue motion and a venue motion filed by

Co-Defendant and denied both motions for change of venue on February 11,

2022. Trial Court Order, 2/11/22.

Appellant and Co-Defendant waived their right to a jury trial and a three-

day bench trial was held from March 21, 2022 to March 23, 2022. At trial, the

Commonwealth withdrew all of the possession of an instrument of crime and

theft charges against Appellant and Co-Defendant. N.T. Trial, 3/21/22, at 5-

6. In addition, the Commonwealth withdrew one of the robbery counts against

Appellant concerning a Philadelphia robbery and withdrew one robbery count

concerning a Philadelphia robbery, one conspiracy count, and one possession

of a firearm by a prohibited person count against Co-Defendant. N.T. Trial,

3/23/22, at 170; N.T. Trial, 3/21/22, at 5-6. On March 23, 2022, the trial

court found Appellant guilty of ten counts of robbery for both of the

Montgomery County robberies and eight of the Philadelphia robberies, six

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counts of conspiracy to commit robbery, and the carrying a firearm without a

license count, and acquitted him of one of the robbery counts involving a

Philadelphia robbery and one of the conspiracy counts. N.T. Trial, 3/23/22,

at 185-87, 191-93. The trial court found Co-Defendant guilty of nine counts

of robbery for the four Montgomery County robberies and five of the

Philadelphia robberies, five counts of conspiracy to commit robbery, eight

counts of possession of a firearm by a prohibited person, and the carrying a

firearm without a license count, and acquitted him of four of the robbery

counts, two of the conspiracy counts, and five of the possession of a firearm

by a prohibited person counts. Id. at 187-91, 193-94.

On June 16, 2022, the trial court imposed an aggregate sentence of 20

to 40 years’ incarceration, consisting of consecutive sentences of four to eight

years for five of the robbery counts, concurrent sentences of four to eight

years for the other five robbery counts and the conspiracy counts, and a

concurrent sentence of one to two years for carrying a firearm without a

license. N.T. Sentencing at 18-21. Appellant filed a timely motion to modify

his sentence to provide credit for time served, and on July 14, 2022, the trial

court entered an amended sentencing order modifying the commitment date

to provide credit for time served and ordering that in all other respects,

Appellant’s sentence remained unchanged. Trial Court Order, 7/14/22. This

timely appeal followed.

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Appellant presents the following single issue for our review in this

appeal:

Did the trial court err by denying the defendant[’s] challenge to venue in Montgomery County for ten Philadelphia robberies that were not a “single criminal episode” because they occurred over a two month period, each had a distinct factual basis and sometimes were done alone but other times with a partner.

Appellant’s Brief at 2 (unnecessary capitalization omitted). Where a defendant

raises a challenge to venue, the burden is on the Commonwealth to prove by

a preponderance of the evidence that venue is proper in the county where the

charges are to be tried. Commonwealth v. Gross, 101 A.3d 28, 33 (Pa.

2014); Commonwealth v. Callen, 198 A.3d 1149, 1158 (Pa. Super. 2018).

Our review of a trial court’s ruling that venue was proper is limited to

determining whether the trial court’s factual findings are supported by the

record and its conclusions of law are free of legal error. Gross, 101 A.3d at

33–34; Commonwealth v. Witmayer, 144 A.3d 939, 946 (Pa. Super. 2016).

As a general rule, venue in a criminal action properly belongs in the

place where the crime was committed. Gross, 101 A.3d at 33; Callen, 198

A.3d at 1157, 1160; Pa.R.Crim.P. 130(A). An exception to this rule exists

“[w]hen charges arising from the same criminal episode occur in more than

one judicial district,” in which case a criminal proceeding on all the charges

may be brought in any of the judicial districts in which charges arising from

the same criminal episode occurred. Pa.R.Crim.P. 130(A)(3); Callen, 198

A.3d at 1160 (quoting Pa.R.Crim.P. 130(A)(3)); Witmayer, 144 A.3d at 946

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(quoting Pa.R.Crim.P. 130(A)(3)). For venue to be proper in a single county

for offenses that occurred in different counties, it is a condition precedent that

the offenses must constitute a single criminal episode. Callen, 198 A.3d at

1160; Witmayer, 144 A.3d at 946.

Venue in Montgomery County would therefore not be proper with

respect to the charges arising out of the Philadelphia robberies unless the

Philadelphia robberies were part of the same criminal episode as at least one

of the Montgomery County robberies with which Appellant was charged.

Criminal charges arise from the same criminal episode where the crimes are

logically or temporally related and share common issues of law and fact.

Commonwealth v. Hude, 458 A.2d 177, 183 (Pa. 1983); Witmayer, 144

A.3d at 946. To ascertain

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. The mere fact that the additional statutory offenses involve additional issues of law or fact is not sufficient to create a separate criminal episode since the logical relationship test does not require “an absolute identity of factual backgrounds.”

The temporal relationship between criminal acts will be a factor which frequently determines whether the acts are “logically related.” However, the definition of a “single criminal episode” should not be limited to acts which are immediately connected in time. “Transaction” is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.

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Witmayer, 144 A.3d at 946-47 (quoting Commonwealth v. Kohler, 811

A.2d 1046 (Pa. Super. 2002)).

The mere fact that the crimes are similar and occurred within days or

weeks of each other is not sufficient by itself to make them a single criminal

episode. Commonwealth v. Reid, 77 A.3d 579, 586 (Pa. 2013) (separate

drug transactions were not same criminal episode where different evidence

was required to prove defendant’s guilt in the separate cases);

Commonwealth v. Nolan, 855 A.2d 834, 840-41 (Pa. 2004) (25 thefts of

cars from dealerships over 7-month period did not constitute the same

criminal episode); Commonwealth v. Spotz, 759 A.2d 1280, 1285-86 (Pa.

2000) (murder was not the same criminal episode as other murders

committed over a three-day killing spree where there was additional evidence

that defendant was the perpetrator that was unique to that case);

Commonwealth v. Bracalielly, 658 A.2d 755, 757-59, 761-62 (Pa. 1995)

(multiple separate drug transactions over a period of weeks did not constitute

the same criminal episode where the evidence on which defendant’s guilt was

based included different witnesses in the different cases).

Where, however, the proof of the defendant’s guilt with respect to

separate similar or temporally connected crimes is based on the credibility of

the same evidence or on evidence that is substantially duplicative and

intertwined, the crimes are logically related and arise from the same criminal

episode. Hude, 458 A.2d at 178, 181-83 (drug transactions on 20 different

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days over a 4-month period were same criminal episode where defendant’s

guilt depended on the credibility of the same witness); Witmayer, 144 A.3d

at 943, 946-47 (venue proper for charges of sex crimes in another county

because they were same criminal episode as crimes in the county against

same victim during a multi-year period where charges for crimes in both

counties were based on the victim’s testimony); Commonwealth v. Hunter,

768 A.2d 1136, 1139-41 (Pa. Super. 2001) (venue proper for corrupt

organizations charge even though corrupt organizations crime was committed

in different county because it arose out of the same criminal episode as murder

in county in which case was prosecuted where activities in the crimes “were

all entwined”).

Here, the robberies with which Appellant was charged were all

committed in a similar fashion at small commercial establishments in the same

general geographic area over a less than two-month period. N.T. Trial,

3/21/22, at 43-44, 76-77, 84-85, 90-91, 98-99, 104-05, 108-09, 144-45,

149-51, 156, 164-66, 168-69, 176. Moreover, proof of Appellant’s guilt with

respect to the Philadelphia robberies depended on the same evidence that

proved that he committed the Montgomery County robberies. While the

robberies in Philadelphia occurred at different commercial establishments than

the Montgomery County robberies and the victims in the Philadelphia

robberies were different from the Montgomery County victims, the facts

concerning the robberies, most of which were captured in video recordings,

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were largely undisputed, and none of the victims identified Appellant, Co-

Defendant, or any other person as the perpetrator. Instead, Appellant’s

identity as a perpetrator of the robberies was based on evidence common to

robberies in both counties.

The evidence that Appellant committed one of the Montgomery County

robberies and six of the Philadelphia robberies was a statement given by

Appellant to the FBI in which he admitted committing those seven robberies

and identified himself as the person in photographs from the video recordings

of those robberies. Trial Court Opinion at 4-7, 13; N.T. Trial, 3/22/22, at 53,

56-59; Commonwealth Exs. 22-23, 25-29; N.T. Trial, 3/23/22, at 157-58.

The other evidence identifying Appellant as a perpetrator of the robberies was

expert testimony that his DNA and Co-Defendant’s DNA were found on a

baseball cap and revolver that were discarded in an unsuccessful September

7, 2018 Montgomery County robbery that Co-Defendant committed. N.T.

Trial, 3/21/22, at 122-25, 130-43; N.T. Trial, 3/22/22, at 32-38. With respect

to the robberies that Appellant did not admit committing, proof that he was a

perpetrator consisted of comparison of the admissions and robberies admitted

in Appellant’s statement and the items on which Appellant’s DNA was found

with the video recordings of those other robberies. N.T. Trial, 3/21/22, at 43-

45, 49-51, 70, 86, 90-93, 98-102, 124; N.T. Trial, 3/23/22, at 167-68, 175-

82.

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Because the robberies were similar crimes committed relatively close in

time and in the same area and the Commonwealth’s proof that Appellant

committed the robberies depended on evidence common to both the

Montgomery County and Philadelphia robberies, the Philadelphia robberies

arose from the same criminal episode as the Montgomery County robberies.

Hude, 458 A.2d at 182-83; Witmayer, 144 A.3d at 946-47. The trial court

therefore did not err in finding that the Commonwealth satisfied its burden to

prove that venue was proper in Montgomery County for the charges arising

out of the Philadelphia robberies. Pa.R.Crim.P. 130(A)(3); Witmayer, 144

A.3d at 946-47.

Judgment of sentence affirmed.

Date: 6/25/2024

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