Com. v. Washington, J. ( 2021 )

J-S05010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAL WASHINGTON :
:
Appellant : No. 876 EDA 2020
Appeal from the Judgment of Sentence Entered February 12, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004885-2017
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED MAY 25, 2021
Jamal Washington appeals from the judgment of sentence of six to
twelve years of incarceration imposed after his non-jury conviction of
burglary. We affirm.
The trial court offered the following summary of the underlying facts of
the case:
On the evening of January 3, 2017, Marcella Vance watched
movies with her cousin, Jessica Kidd, and her paramour, the
decedent Darryl “Kwan” Curtis, in the back room of her apartment
located at 8039 Erdrick Street in Northeast Philadelphia. Vance
shared the apartment with her roommate Nashieta [Noland], who
was present in the front room with her paramour, [Appellant]. At
approximately 8:30 p.m., Vance left the apartment to drive Kidd
home. Shortly thereafter, both Noland and [Appellant] left the
apartment, leaving the decedent alone inside.
Between 7:52 p.m. and 8:24 p.m., [Appellant] received
multiple phone calls from [an] individual named Robert Thorogood
and co-defendant Andrew Holder. At 8:24 p.m., [Appellant] called
Holder. Holder, who was wearing a global position-tracking
J-S05010-21
electronic monitor while under the supervision of state parole,
travelled to the area of 8039 Erdrick Street. There, he and an
unidentified individual met [Appellant], and all three walked
together in the apartment, which Holder entered at 9:35 p.m.,
armed with a pistol. Inside, Holder searched a safe inside Noland’s
room and encountered the decedent inside Vance’s bedroom.
There, he shot and killed the decedent.
Detective Thorsten Lucke, an expert in both video
surveillance recovery and cell phone data extraction, recovered
video surveillance recordings from private residences at 8052 and
8045 Erdrick Streets, along with video recorded from a church
located at the corner of W[e]lsh and Erdrick Streets. Surveillance
footage recovered from the corner of Erdrick and W[e]lsh Streets
depicted two vehicles make a left-hand turn from W[e]lsh Street
onto Erdrick, in the directions of the apartment. The camera
located at 8052 Erdrick Street captured video of [Appellant],
Holder, and another individual walking down Erdrick Street at
9:32 p.m. towards the decedent’s location, before disappearing
from view. At 9:34 p.m., the cameras at 8052 Erdrick Street
recorded [Appellant] speaking on a cellular device while walking
back towards Welsh Street, away from the crime scene. At 9:38
p.m., both cameras captured Holder, armed with a pistol, running
away from the murder scene with the unidentified individual.
Holder’s positive identity was captured as he ran past the camera
located at 8052 Erdrick Street at 9:39 p.m.
Vance, who had dropped Kidd off at her home before
purchasing dinner and cigarettes at other locations, called the
decedent at 9:48 p.m. but received no response. Upon entering
the apartment less than fifteen minutes later, Vance discovered
the decedent’s body lying in a pool of blood in the back bedroom.
After attempting to give CPR, both Vance and her upstairs
neighbors called 911. Philadelphia Police Sergeant Conway and
Officer Theodore Brown answered a radio call for an unresponsive
male. The decedent was pronounced dead at the scene at 10:19
p.m.
Forensic pathologist Dr. Lindsay Simon performed the
decedent’s autopsy and determined that the cause of death was a
single gunshot wound to the head, and the manner of death was
homicide. The projectile entered the decedent’s head above the
right eyebrow, traveled through his skull and brain, before exiting
behind the left ear, causing immediate incapacitation and death.
-2-
J-S05010-21
There was no soot or stippling discovered on the body to
determine the distance of the shooter.
....
Detective Lucke completed a call detail record report on the
cellular device attributed to [Appellant] on June 7, 2017, which
revealed a series of phone calls between his device and those
attributed to Holder and Thorogood. At 7:53 p.m., Thorogood
placed a call to [Appellant], lasting fifteen seconds. At 7:54 and
7:57 p.m., Holder left voicemails with [Appellant], who responded
with an outgoing call to Holder at 8:24. [Appellant] and Holder
next communicated at 9:21 p.m., before the instant shooting.
[Appellant] next placed several calls to Holder between 9:40 p.m.
and 9:41 p.m., and again between 10:01 p.m. and 10:09 p.m.
that evening. In total, [Appellant]’s device recorded twenty-six
communications between devices associated with [Appellant] and
Holder, all of which occurring within the time frame immediately
before and after the murder.
Detective Lucke’s analysis further revealed that, in the
aftermath of the instant shooting, [Appellant] deleted from his cell
phone all records of his communications with [Holder] and
Thorogood that evening. Cell phone data extraction permitted
Detective Lucke to recover some, but not all, of their
communications.
Detective James Dunlap, an expert in cellular tower
analysis, reviewed data from towers located at 8046 Erdrick Street
and .6 miles away from the crime scene on Interstate-95, and
identified numerous connection between [Appellant]’s device and
those towers between 8:04 p.m. and 9:54 p.m. on the night of
the murder. Additional connections depicted [Appellant]’s device
making two connections at a tower located at Rhawn Street and
Roosevelt Boulevard, 1.5 miles away from the crime scene. Nine
connections between 10:06 p.m. and 10:10 p.m. show the device
travelling along Roosevelt Boulevard before making a connection
with the tower at 1831 West Allegheny Avenue, which is
associated with [Appellant]’s home address at 1931 West Willard
Street.
Analysis of the device associated with Holder (215-880-
7871) showed that it connected to the tower associated with the
crime scene numerous times between 9:25 p.m. and 10:08 p.m.
-3-
J-S05010-21
Analysis of the device associated with Thorogood revealed that
the device was not in the area of the crime scene . . . at the time
of the shooting.
Trial Court Opinion, 6/22/20, at 2-4, 6-7 (citations omitted).
Appellant was arrested and charged with burglary, conspiracy to commit
murder/robbery, and other crimes not at issue in this appeal. Ultimately
Appellant and co-defendant Holden elected to waive their rights to a trial by
jury and proceeded to a bench trial at the conclusion of which Appellant was
convicted of burglary and conspiracy to commit burglary. Prior to sentencing,
Appellant filed a motion for extraordinary relief, which resulted in the grant of
a judgment of acquittal on the conspiracy count on the basis that the
Commonwealth had only listed murder and robbery as the objectives of the
conspiracy alleged in the criminal information. Thereafter, Appellant was
sentenced as indicated above.
Appellant filed a timely post-sentence motion, which was promptly
denied. Appellant thereafter filed a timely notice of appeal, and both Appellant
and the trial court complied with Pa.R.A.P. 1925. Appellant presents the
following questions for our consideration:
[1.] Whether the court wrongly convicted [A]ppellant of
burglary. . . when he lived in the house, he was found not guilty
of conspiracy . . . and there was no evidence Appellant was in the
residence at the time the crime was committed.
[2.] Whether the verdict was against the sufficiency of the
evidence to convict [A]ppellant of burglary. . . when he had
privilege to be in the residence in question, [he] was not present
at the time of the crime, and [he] was found not guilty of
conspiracy . . . .
-4-
J-S05010-21
[3.] Whether the verdict was against the weight of the evidence
to convict [A]ppellant of burglary . . . when he had privilege to be
in the residence in question, [he] was not present at the time of
the crime, and [he] was found not guilty of conspiracy. . . .
[4.] Whether the court abused its discretion when it sentenced
[A]ppellant to [six]-[twelve] years SCI.
Appellant’s brief at 5 (unnecessary capitalization omitted).
We begin with a review of the applicable legal principles.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to
the Commonwealth as verdict winner, were sufficient to prove
every element of the offense beyond a reasonable doubt. [T]he
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence.
Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)
(citations and quotation marks omitted).
Appellant was convicted of burglary under 18 Pa.C.S. § 3205(a), which
provides as follows, in pertinent part:
A person commits the offense of burglary if, with the intent to
commit a crime therein, the person:
(1)(i) enters a building or occupied structure, or separately
secured or occupied portion thereof, that is adapted for
overnight accommodations in which at the time of the offense
any person is present and the person commits, attempts or
threatens to commit a bodily injury crime therein[.]
-5-
J-S05010-21
18 Pa.C.S. § 3502(a)(1)(i). “To sustain a burglary conviction, the
Commonwealth is required to prove beyond a reasonable doubt that the
offender entered the premises with the contemporaneous intent of committing
a crime therein, at a time when he or she was not licensed or privileged to
enter.” Commonwealth v. Jacoby, 170 A.3d 1065, 1078 (Pa. 2017). A
burglary is complete the moment the residence is entered. See, e.g.,
Commonwealth v. Tavarez, 174 A.3d 7, 13 (Pa.Super. 2017).
The trial court acknowledges that the Commonwealth did not prove that
Appellant entered the apartment with Holden to commit the theft therein. See
Trial Court Opinion, 6/22/20, at 10. The question before us is whether
Appellant nonetheless may be found culpable for the crime. Along these lines,
this appeal implicates questions of both conspiracy liability and accomplice
liability. Regarding the former, we have explained:
The essence of a criminal conspiracy is a common understanding,
no matter how it came into being, that a particular criminal
objective be accomplished. Therefore, a conviction for conspiracy
requires proof of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can seldom, if ever,
be proved and it need not be, for proof of a criminal partnership
is almost invariably extracted from the circumstances that attend
its activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances of the
parties, and the overt acts of the co-conspirators sufficiently prove
the formation of a criminal confederation. The conduct of the
parties and the circumstances surrounding their conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt. Even if the conspirator
did not act as a principal in committing the underlying crime, [he]
is still criminally liable for the actions of his co-conspirators taken
in furtherance of the conspiracy.
-6-
J-S05010-21
Commonwealth v. Gross, 232 A.3d 819, 839 (Pa.Super. 2020) (en banc)
(cleaned up). On the other hand,
An accomplice is equally criminally liable for the acts of another if
the accomplice acts with the intent of promoting or facilitating the
commission of an offense and agrees, aids, or attempts to aid such
other person in either planning or committing that offense. Unlike
conspiracy, the term “commission of the offense” in the
accomplice context focuses on the conduct of the accomplice, not
the result of the offense. . . . Accomplice liability simply requires
the defendant to have the mental state necessary for the
commission of the crime, i.e., aiding the principal.
Id. at 840 (cleaned up). See also 18 Pa.C.S. § 306.1
With these principles in mind, we consider the merits of Appellant’s
appellate issues. We begin by noting that Appellant does not contend, in
____________________________________________
1The complicity liability statute provides, in relevant part:
(b) Conduct of another.--A person is legally accountable for the
conduct of another person when:
....
(3) he is an accomplice of such other person in the
commission of the offense.
(c) Accomplice defined.--A person is an accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person
in planning or committing it[.]
18 Pa.C.S. § 306.
-7-
J-S05010-21
relation to any of his arguments, that the evidence was insufficient to
establish: (1) that Holder committed the burglary; (2) that Appellant
conspired with Holder to commit the burglary; or (3) that Appellant acted as
Holder’s accomplice in committing the burglary.
Rather, Appellant’s claims, including his sentencing challenge, are
wholly based upon the notion that his acquittal on the separate conspiracy
charge means that his burglary conviction and sentence cannot stand unless
the evidence at trial established that he himself committed each of the
elements of that crime. See Appellant’s brief at 12 (arguing his burglary
conviction should be overturned because the not guilty verdict as to conspiracy
means he cannot be found guilty of burglarizing a residence he had permission
to be in and that he did not enter at or near the time of the crime); id. at 14
(arguing the evidence was insufficient to sustain his burglary conviction
because the Commonwealth did not prove that he “entered the residence
during the critical time frame”); id. at 15 (same as to weight of the evidence);
id. at 17 (“[A]ppellant received a 6-12 sentence for a crime he did not commit.
. . . The sentence would be a legal sentence if [Appellant] was guilty of the
crime charged, which he was not.”).
Thus, the resolution of all of Appellant’s questions hinges upon a single
issue: whether his acquittal of the conspiracy charge precluded the imposition
of any liability upon him for the actions of co-defendant Holder in committing
the burglary. For the following reasons, we conclude that it did not.
-8-
J-S05010-21
First, this Court has expressly held that, where there is evidence in the
record to establish that a conspiracy existed, the defendant may properly be
held liable on a theory of conspiracy liability for a substantive crime committed
in furtherance of the conspiracy even where the fact-finder finds the defendant
not guilty of the separate conspiracy charge. In Commonwealth v. King,
990 A.2d 1172 (Pa.Super. 2010), King was charged with murder, robbery,
and conspiracy in connection with the death of a victim shot by King’s alleged
co-conspirator. The jury found King guilty of murder, but acquitted him of
robbery and conspiracy. On appeal, King argued, inter alia, that the evidence
was insufficient to sustain his murder conviction because it did not establish
that he acted as the shooter’s accomplice. This Court ruled that it “need not
address the question of accomplice liability because the evidence was
sufficient to support the conviction under conspiratorial liability.” Id. at 1177.
This Court reiterated the well-settled principles of conspiracy liability
discussed supra, and discussed the evidence that demonstrated that King
agreed with the shooter to commit the robbery in question, that King knew
that the shooter had a gun, and that the shooting was a probable result of the
robbery. Id. at 1179. Hence, we held King was liable for his co-conspirator’s
murder. We went on to illuminate that King’s acquittal on the separate
conspiracy count did not preclude a murder conviction premised on conspiracy
liability:
We are quite aware the jury acquitted [King] of the
conspiracy charge. The acquittal on that count and the jury’s
-9-
J-S05010-21
reasons for it are of no moment to us. Because the evidence of
record was sufficient to establish conspiratorial liability and
conspiratorial liability was a legally sufficient theory which could
be applied to the murder charge, there is no basis to disturb
[King]’s conviction. Simply put, the jury had a sufficient
evidentiary basis upon which to conclude [King] was liable for
third degree murder as a co-conspirator. We do not know, and
cannot care, why the jury acquitted him of conspiracy. Therefore,
his sufficiency claim fails.
Id. at 1179 (footnote omitted).
In the instant case, we do know why Appellant’s guilty verdict for
conspiracy to commit burglary was reversed: because it was not charged by
the Commonwealth in the information. See N.T., Sentencing, 2/12/21 at 17-
20 (“I can’t convict someone for a charge in which they’re not charged. The
Commonwealth chose what crimes to put on those bills and they did not
include burglary, so the motion is granted to that extent.”). The acquittal was
not based upon a dearth of evidence that Appellant reached an agreement
with Holder to commit the robbery. In any event, the mere fact that
Appellant’s conviction for the inchoate conspiracy charge was reversed
precludes neither conspiracy nor accomplice liability for the burglary. See
King, supra at 1179; Commonwealth v. Tolbert, 670 A.2d 1172, 1185
(Pa.Super. 1995) (holding acquittal of conspiracy charge did not preclude
Commonwealth from pursuing a theory of accomplice liability on retrial).
Second, the evidence offered at trial was sufficient to establish
Appellant’s liability either as a co-conspirator or as an accomplice for Holder’s
- 10 -
J-S05010-21
unauthorized entry into the apartment with the intent to commit a crime
therein. As the trial court explained:
[T]his court’s guilty verdict was reached on the strength of
overwhelming evidence demonstrating [Appellant]’s culpability as
both a conspirator and an accomplice. Data extracted from
[Appellant]’s cell phone and nearby cell towers showed that,
although he informed [his paramour] Noland that he was
returning home as they left the apartment at 8029 Erdrick Street
prior to the burglary, [Appellant] remained in the immediate
vicinity of the residence. At that time, [Appellant] began
communicating with Holder, an individual for whom he had no
record of prior phone communications. Nonetheless, as evidence
extracted from Holder’s ankle monitor shows, after
communicating with [Appellant], Holder travelled across the city
to [Appellant]’s location. There, video cameras captured
[Appellant] escorting Holder and another individual to the
apartment.
This court agrees with [Appellant]’s assertion that the
Commonwealth failed to present any evidence indicating that he
was present in the home at the time of the burglary. However,
both fingerprint evidence recovered from [the residence] and GPS
monitoring from [Holder’s] ankle monitor unequivocally
demonstrate that Holder entered the home at approximately 9:35
p.m. The object of the instant conspiracy, burglary, was
completed once Holder stepped foot inside the abode.
While the Commonwealth could not prove that [Appellant]
was in the home at the time of the burglary, and certain video
evidence seems to show that [Appellant] left the area of Erdrick
and Welsh Streets four minutes before the instant homicide, his
role as the mastermind of the instant burglary cannot be
diminished. Due to his relationships with both Noland and the
decedent, [Appellant] clearly knew that Vance kept a safe in
Nolan’s closet and that the decedent, due to his status as low-
level narcotics dealer, likely kept narcotics and cash inside his
backpack. Importantly, Holder had no connection to anyone in
the home save for [Appellant], and only began to travel to the
location after [Appellant] directed him to the home and informed
him of the valuables contained within.
- 11 -
J-S05010-21
Once inside the home, Holder ransacked the safe, leaving
his fingerprint on a box of ammunition and the remainder of its
contents strewed across the bedroom. After shooting the
decedent once in the head, Holder escaped from the apartment
with the decedent’s backpack. GPS monitoring data demonstrated
that Holder was only in the home for a brief period of time, and
his actions therein demonstrated a familiarity with the apartment
that could have only been provided through [Appellant]’s direction
and description of the abode. As the fact-finder tasked with
analyzing this evidence, this court was correct to conclude that
[Appellant] directed Holder to the home for the purpose of
burglary, thereby soliciting Holder to remove any items he
deemed sufficiently valuable. The evidence presented at trial was
therefore sufficient to support the burglary conviction, and the
instant claim fails.
Trial Court Opinion, 6/22/20, at 10-11 (unnecessary capitalization omitted).
We agree with the trial court’s assessment. The Commonwealth’s
evidence, and reasonable inferences therefrom, support both the findings that
Appellant reached an agreement with Holder that Holder would enter the
apartment to commit a crime therein, and that Appellant actively participated
in the burglary by guiding Holder to the apartment and informing him where
to locate the items of value. Consequently, Appellant was properly convicted
pursuant to either conspiracy or accomplice liability. Accord King, supra at
1179 (affirming murder conviction on conspiracy theory where co-conspirator
shot victim in course of committing robbery that defendant had agreed to
arrange and share proceeds from); Commonwealth v. Lambert, 795 A.2d
1010, 1024 (Pa.Super. 2002) (holding defendant guilty of burglary though
accomplice liability where defendant drove co-defendant to the scene, waited
outside during the burglary, then drove co-defendant away afterwards).
- 12 -
J-S05010-21
As Appellant makes no attack on his conviction or sentence apart from
his argument that he did not commit the burglary and could not be liable for
Holder’s doing so, he is entitled to no relief on any of his appellate issues.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2021
- 13 -