Com. v. Washington, L.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2023
• Docket: 658 MDA 2022
• Status: Unpublished

Opinion

J-A13009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAMAR A. WASHINGTON : : Appellant : No. 658 MDA 2022

Appeal from the Judgment of Sentence Entered October 1, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000548-2019

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 25, 2023

Lamar A. Washington appeals nunc pro tunc from the aggregate

judgment of sentence of twenty-one to forty-two years of incarceration

followed by five years of probation, which was imposed after a jury convicted

him of rape, involuntary deviate sexual intercourse, aggravated assault,

burglary, and terroristic threats. We affirm.

The trial court offered the following summary of the facts underlying the

above-referenced criminal docket (“2014 case”):

On June 15, 2014, Liana Whitmer (hereinafter “Ms. Whitmer”) went to bed in her bedroom in her first-floor apartment . . . [in] Harrisburg, Pennsylvania, when she was awoken by what she thought was a bad dream, but was unfortunately reality – someone punching her in the face. When she woke up, someone was on top of her. In her own words: “I remember pain, lots of pain, and I asked him please don’t kill me at one point. And when he went to strangle me the last time, I knew I wasn’t going to ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A13009-23

wake up and I wasn’t going to see my kid again. But then I woke up.”

Ms. Whitmer . . . did not recognize the perpetrator and described him as a black male with a t-shirt pulled over his head. She was beaten countless times, ripped out of her bed and drug through her house into the kitchen. If she tried to fight back or when she regained consciousness, he would strangle her until she was unconscious again. She was vaginally and anally raped numerous times. She remembers him saying “What’s the matter, baby, don’t you like black guys?” and told her to “lock her fucking doors[.]” . . . At one point, he threatened to kill her.

Trial Court Opinion, 2/17/22, at 4 (cleaned up). At around 4:00 a.m. on the

morning of the 16th, Ms. Whitmer sought help from her upstairs neighbor.

Ms. Whitmer suffered four vaginal tears, one anal tear, two fractures to her

jaw, a closed-head injury, kidney contusions, and abdominal wall contusions.

As a result of these injuries, she had to undergo facial reconstruction surgery.

Upon investigation, it was determined that the assailant entered her

apartment through a window. Latent fingerprints recovered from the window

were of insufficient quality for comparison, but investigators processed a shoe

print on the front windowsill. Seminal fluid obtained from the hallway near

the kitchen and from vaginal swabs taken during the rape kit examination of

Ms. Whitmer were sent to a DNA lab for further analysis. However, no suspect

was identified at that time.

Two years later, on June 15, 2016, Montikka Gaston was asleep in her

first-floor apartment in Harrisburg (“2016 case”). The window behind the

head of her bed was open, but the window screen remained in place. Her

three-year-old daughter was also in bed with her. In the middle of the night,

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Ms. Gaston awoke to someone manipulating her exposed breast. She then

saw the offending hand retreat over her head and back out of the window. At

that point, she realized the window screen had been moved such that the

window was completely open to the outside. She attempted to call the police

on her cell phone, which she kept above her pillow, but it was missing. She

was nonetheless ultimately able to report the burglary. Responding officers

obtained two fingerprints from the window suitable for analysis and

comparison.

Thereafter, Appellant was identified as a suspect in both the 2014 case

and the 2016 case. Specifically, it was determined that both prints in the

2016 case were a match to Appellant. Then, upon obtaining a buccal swab

DNA sample from Appellant, it was determined that the vaginal swabs in the

2014 case contained DNA from both Appellant and Ms. Whitmer, and the

seminal fluid found in the hallway was a match to Appellant.

Based upon the foregoing, the Commonwealth charged Appellant at two

criminal informations. The 2014 case, i.e., the case sub judice, pertained to

the June 2014 attack on Ms. Whitmer, in which he was charged as indicated

hereinabove. In the 2016 case, the Commonwealth charged Appellant with

burglary, indecent assault, and theft by unlawful taking based upon the June

2016 incident involving Ms. Gaston. Subsequently, the Commonwealth

provided notice of its intent to join the two cases for trial. In response,

Appellant filed a motion to sever. Following a hearing, the court denied

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Appellant’s motion, concluding that: (1) “evidence of each of the offenses

would be admissible in a separate trial for the other” pursuant to Pa.R.E.

404(b);1 (2) the evidence was amenable to separation by the jury so as to

avoid confusion; and (3) Appellant would not be unduly prejudiced. See

Order, 10/17/19.

Appellant proceeded to a joint jury trial. He was found guilty as charged

in the 2014 case, but the jury deadlocked on the charges in the 2016 case.

Thereafter, Appellant was sentenced as indicated above. After being granted

several extensions to file a post-sentence motion, Appellant instead filed an

untimely appeal. This Court discontinued the appeal at Appellant’s request,

and he thereafter sought reinstatement of his direct appeal rights nunc pro

tunc, which the trial court granted. The instant appeal followed. Appellant

complied with Pa.R.A.P. 1925(b), and the trial court relied on the Rule 1925(a)

opinion submitted in the discontinued appeal. Appellant raises a single

question for our consideration: “Did the trial court err in denying [Appellant]’s

motion to sever?” Appellant’s brief at 6.

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1 Specifically, the court reasoned that it would be admissible to prove absence

of mistake. See Order, 10/17/19. The court later clarified that it believed the evidence was also admissible to prove identity and a common plan, scheme, or design. See Trial Court Opinion, 2/17/22, at 15. Regardless of the reason stated by the trial court, this Court may affirm on any basis. See Commonwealth v. Rowe, 293 A.3d 733, 739 (Pa.Super. 2023) (“We can affirm the court’s decision if there is any basis to support it, even if we rely on different grounds to affirm.”).

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We begin with an overview of the relevant legal principles. Joinder and

severance are governed by the Rules of Criminal Procedure. Rule 582 provides

that “[o]ffenses charged in separate indictments or informations may be tried

together if. . . the evidence of each of the offenses would be admissible in a

separate trial for the other and is capable of separation by the jury so that

there is no danger of confusion[.]” Pa.R.Crim.P. 582(a)(1). We have held

that “where a trial concerns distinct criminal offenses that are distinguishable

in time, space and the characters involved, a jury is capable of separating the

evidence.” Commonwealth v. Dozzo, 991 A.2d 898, 903 (Pa.Super. 2010)

(cleaned up). We have further expounded upon Rule 582 as it relates to the

admissibility of evidence of other crimes pursuant to Pa.R.E. 404(b), as

follows:

Evidence of crimes other than the one in question is not admissible solely to show the defendant’s bad character or propensity to commit crime. Nevertheless:

Evidence of other crimes is admissible to demonstrate (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) the identity of the person charged with the commission of the crime on trial. Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts.

Id. at 902 (cleaned up). Additionally, we have observed the following:

Identity as to the charged crime may be proven with evidence of another crime where the separate crimes share a method so

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distinctive and circumstances so nearly identical as to constitute the virtual signature of the defendant. Required, therefore, is such a high correlation in the details of the crimes that proof that a person committed one of them makes it very unlikely that anyone else committed the others.

In comparing the methods and circumstances of separate crimes, a court must necessarily look for similarities in a number of factors, including: (1) the manner in which the crimes were committed; (2) weapons used; (3) ostensible purpose of the crime; (4) location; and (5) type of victims. Remoteness in time between the crimes is also factored, although its probative value has been held inversely proportional to the degree of similarity between crimes.

Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa.Super. 2009)

(cleaned up). Evidence of other crimes is admissible for one of the

enumerated, permitted purposes “so long as proof of one crime tends to prove

the others. Furthermore, whether or not separate indictments should be

consolidated for trial is within the sole discretion of the trial court.”

Commonwealth v. Cousar, 928 A.2d 1025, 1037 (Pa. 2007) (cleaned up).

As for severance, “[t]he court may order separate trials of offenses or

defendants, or provide other appropriate relief, if it appears that any party

may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583. “Under Rule 583, the prejudice the defendant suffers due

to the joinder must be greater than the general prejudice any defendant

suffers when the Commonwealth’s evidence links him to a crime.”

Commonwealth v. Hobel, 275 A.3d 1049, 1067 (Pa.Super. 2022) (cleaned

up). Rather,

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[t]he prejudice of which Rule 583 speaks is . . . that which would occur if the evidence tended to convict the appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence. Additionally, the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial, and it is not grounds for severance by itself.

Commonwealth v. Brown, 186 A.3d 985, 993 (Pa.Super. 2018) (cleaned

up).

Evaluating Rules 582 and 583 together, our courts have devised a three-

part test: “(1) whether the evidence of each of the offenses would be

admissible in a separate trial for the other; (2) whether such evidence is

capable of separation by the jury so as to avoid danger of confusion; and, if

the answers to these inquiries are in the affirmative, (3) whether the

defendant will be unduly prejudiced by the consolidation of offenses.” Hobel,

supra at 1067 (cleaned up). Indeed, “[t]he general policy of the laws is to

encourage joinder of offenses and consolidation of indictments when judicial

economy can thereby be effected, especially when the result will be to avoid

the expensive and time consuming duplication of evidence.” Commonwealth

v. Johnson, 236 A.3d 1141, 1150 (Pa.Super. 2020) (en banc) (cleaned up).

Thus, this Court will not reverse an order deciding whether to join or sever

offenses “absent a manifest abuse of discretion.” Id. (cleaned up). Rather,

“[t]he critical consideration is whether the appellant was prejudiced by the

trial court’s decision not to sever. The appellant bears the burden of

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establishing such prejudice.” Commonwealth v. Mollett, 5 A.3d 291, 305

(Pa.Super. 2010) (cleaned up).

In its Rule 1925(a) opinion, the trial court stated that it denied

Appellant’s motion to sever because it determined that evidence from each

case would be admissible to prove Appellant’s common scheme, plan, or

design, as well as to prove absence of mistake and identity of the perpetrator.

See Trial Court Opinion, 2/17/22, at 15. The court explained its findings as

In both cases, the victim[s] resided in a first-floor apartment and were asleep when the assaults began. In both instances, the perpetrator utilized a window on the first floor to gain access to the victim. Both crimes occurred in the early morning hours and neither victim knew their assailant. However, both described the perpetrator as a dark-skinned male.

The 2014 crime [and 2016 crime] occurred . . . approximately 1.2 miles away. The victims were of similar ages - Ms. Whitmer was twenty-nine in 2014 and Ms. Gatson was twenty-seven in 2016. The incidents occurred nearly on the same date two years apart - June 14-15, 2014 and June 15-16, 2016.

Additionally, the evidence from each case would be admissible at trial for the other because it would prove absence of mistake and the identity of the perpetrator. Until 2018, both crimes remained unsolved. In June of 2017, Detective Kimmick received a hit on the latent fingerprints lifted from the 2016 case on AFIS. After further examination and analysis, it was determined that the latent prints lifted from the 2016 case were a match to Appellant. In November of 2018, Detective Paul received notice of a DNA hit on the swabs submitted from the Ms. Whitmer’s sexual assault kit. Thereafter, Detective Paul obtained a search warrant for a buccal swab from Appellant for lab comparison. It was subsequently determined that Appellant was a match for the DNA from Ms. Whitmer’s sexual assault kit, as well as the seminal fluid left on her floor. The similar pattern of sexual assault (although the second event was interrupted and not completed) and the high

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correlation of details between the crimes indicates a single perpetrator - Appellant.

Lastly, is it clear from the jury’s verdict that the evidence of each crime was capable of separation. The jury convicted Appellant of the 2014 case, but w[as] deadlocked on the 2016 case.

Trial Court Opinion, 2/17/22, at 15-16.

Appellant maintains that the 2014 case and 2016 case were not similar,

that the trial court did not address whether the victims were of the same race

so as to demonstrate a signature, and the court could only speculate that the

attack in the 2016 case was interrupted before reaching the level of brutality

exhibited in the 2014 case. See Appellant’s brief at 27-28. Moreover, he

argues that the court erred in failing to assess the prejudice resulting from

joinder in its order denying his motion to sever or in its Rule 1925(a) opinion.

Id. at 29. Despite the deadlock on the 2016 case, Appellant asserts prejudice

because the jury could have used the evidence from one case to determine

that Appellant had the propensity to and did commit the crimes in both cases.

Id. at 30.

As noted, prejudice in this context “must be greater than the general

prejudice any defendant suffers when the Commonwealth’s evidence links him

to a crime.” Hobel, supra at 1067 (cleaned up). Instead, prejudice will be

found: (1) “if the evidence tended to convict the appellant only by showing

his propensity to commit crimes,” or (2) because the jury was incapable of

separating the evidence or could not avoid cumulating the evidence.” Brown,

supra at 993 (cleaned up). We find unavailing Appellant’s conclusory

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statements that the evidence showed only his propensity to commit crimes.

Moreover, as discussed infra, we disagree with his assessment that the cases

“shared no logical connection[.]” See Appellant’s brief at 30. The court

expressly addressed the second type of Rule 583 prejudice by determining

that the jury was capable of separating the evidence of the 2014 case and the

2016 case. We discern no abuse of discretion on the trial court’s part in

reaching that conclusion and agree with its analysis. Thus, our review leads

us to conclude that Appellant has not carried the burden of establishing

prejudice as a result of the court’s decision not to sever the 2014 case from

the 2016 case.

Furthermore, the certified record bears out that “[s]ufficient

commonality of factors between the two crimes here dispels the notion that

they are merely coincidental and permits the contrary conclusion that they are

so logically connected they share a perpetrator.” Weakley, supra at 1189.

Like the fictional Michael Myers who only attacks on Halloween night, Appellant

chose nearly identical dates, two years apart, to illegally gain entry through

the window into the first-floor apartment of a woman in her late twenties to

sexually assault her as she slept. The two apartments were located

approximately one mile apart. In the 2014 case, the victim was alone in her

bed and Appellant gained entry and began to brutally attack her before she

awoke. He strangled her unconscious multiple times and covered his face to

prevent her from reporting the attack. In the 2016 case, the victim was in

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bed with her daughter and she awoke before Appellant gained full entry into

her room. Nonetheless, he attempted to prevent her from reporting the

sexual assault by taking her phone.

Based on the foregoing, we determine no abuse of discretion in the trial

court’s conclusion that (1) “the evidence of each of the offenses would be

admissible in a separate trial for the other;” (2) the evidence in each case was

“capable of separation by the jury so as to avoid danger of confusion; and,”

(3) Appellant would not “be unduly prejudiced by the consolidation of

offenses.” Hobel, supra at 1067 (cleaned up). Thus, we conclude that the

trial court did not abuse its discretion in denying Appellant’s motion to sever.

Having no cause to disturb Appellant’s judgment of sentence, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/25/2023

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