Com. v. Isaacs, D.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DWAYNE ISAACS, : No. 2750 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, August 10, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002568-2009
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 27, 2014
Dwayne Isaacs appeals from the judgment of sentence of August 10,
2012, following his conviction of robbery, criminal conspiracy, rape,
restraint, and false imprisonment. On appeal, appellant challenges the
sufficiency of the evidence and also raises a merger issue. After careful
review, we affirm.
The victim, R.S., testified that the night of November 25, 2008, she
was working as a bartender at a bar on Lansdowne Avenue in the City of
Philadelphia. (Notes of testimony, 5/29/12 at 8.) Appellant and his friend
Id. at 9.)1 R.S. remembered them because
1
last name or where he lived. (Id. at 54, 67.)
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they looked young, and she asked them for identification. (Id. at 10.) R.S.
testified that they both produced identification
throughout the evening. (Id.)
R.S. left the bar around 2:00 a.m. on November 26, 2008. (Id.) She
had called a taxi, which was waiting for her down the street. (Id.) As she
walked towards the taxicab, appellant stepped out in front of her from an
Id. at 11.) R.S.
accomplice, Reece, approached from behind. (Id.
you know what t Id.)
Reece then indicated that R.S. should turn around and start walking in the
opposite direction. (Id.)
R.S. complied, fearful that Reece had the gun pointed at her back.
(Id. at 14.) Appellant walked in front of her and Reece walked behind her.
(Id.) After walking several blocks, they led R.S. into an abandoned
apartment. (Id. at 16.) R.S. testified there were lights on, but it appeared
to be abandoned. (Id. at 16-17.) When they got inside, Reece demanded
money. (Id. at 17.) R.S. gave him the $90 she had in wages and tips from
working that night. (Id.) Reece stuffed the money into his pocket and then
demanded that R.S. perform oral sex on him. (Id. at 18.)
Reece forced R.S. down onto her knees and she began to perform oral
sex on him. (Id. at 18-
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clothes off. (Id.) While R.S. continued to perform oral sex on Reece,
appellant penetrated R.S. vaginally from behind. (Id. at 20.) R.S. testified
that Reece continued to keep the gun pointed at her head. (Id. at 21.)
Reece and appellant then switched positions; appellant placed his penis in
Id. at 22-23.) R.S.
testified that they had a camera and were taking photographs; Reece told
Id. at 23.)
Eventually, Reece told R.S. to get into the bathtub. (Id.) He took her
identification and asked her if the address was correct; R.S. confirmed that it
was. (Id.) Reece warned her that she better never go to the police. (Id.)
Then, Reece again demanded oral sex. (Id.) Reece was unable to ejaculate
and complained that R.S. was doing it wrong. (Id. at 23-24.) Reece stated
and cocked it. (Id.
(Id.)
Both Reece and appellant told R.S. that she better never go to the
Id.) Finally, they
left the apartment and R.S. called 911 on her cell phone which was in her
jacket. (Id. at 25.) However, R.S. was not familiar with the neighborhood
and had no idea where she was or what street she was on. (Id. at 27.) At
that point, R.S. heard noises and ended the call and hid her phone. (Id.)
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Reece and appellant re-entered the apartment and again told R.S. that she
better not leave or tell anyone. (Id.)
After they left a second time, R.S. redialed 911. (Id.) She heard
Reece and appellant banging on the front door to the apartment and
demanding to be let back in; apparently, they had locked themselves out.
(Id. at 27-28.) R.S. jumped out of the tub, ran into the kitchen, and
jumped out the window. (Id. at 28.) R.S. kept running until she found the
bar where she worked. (Id.) The bar owner lived upstairs and called the
police. (Id.
ellant. (Id. at
29.) R.S. was also treated at the hospital where a rape kit was performed.
(Id. at 30.) Police recovered a used condom from the scene which tested
Id. at 51.)
Appellant testified in his own defense. Appellant admitted having
sexual intercourse with R.S. that night but claimed that it was consensual.
(Id. at 56.) According to appellant, R.S. agreed to have sex with them for
money. Appellant claimed that R.S. was angry because after the encounter,
Reece took the money back. (Id. at 56-57.)
Following a waiver trial before the Honorable Donna M. Woelpper,
appellant was found guilty of the above offenses. On August 10, 2012,
appellant appeared for sentencing. Appellant received consecutive
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was run concurrently. Appellant also received consecutive sentences of
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imprisonment charges. After hearing the testimony of Barbara Ziv, M.D., of
the Sexual Offenders Assessment Board, the trial court also found appellant
Post-sentence motions were denied, and this timely appeal followed.
Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the
trial court has filed an opinion.2 Appellant has raised the following issues for
1. Whether appellant is entitled to an arrest of
judgment with regard to his conviction for
criminal conspiracy -- robbery since the
Commonwealth failed to sustain its burden of
proving the elements of the crime charged
beyond a reasonable doubt?
2. Whether appellant is entitled to an arrest of
judgment with regard to his conviction for
robbery where the Commonwealth failed to
prove beyond a reasonable doubt that the
appellant was guilty?
3. Whether appellant was illegally sentenced for
the crime of false imprisonment where false
2
Initially, appellant failed to file a Rule 1925(b) statement, and the trial
court filed an opinion finding waiver. (Trial court opinion, 2/6/13 at 1-3.)
remanded for appointment of substitute counsel. New counsel filed a
Rule 1925(b) statement, and the trial court filed a supplemental
Rule 1925(a) opinion.
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imprisonment and unlawful restrain [sic]
merged for the purposes of sentencing as false
imprisonment was a lesser included offense of
unlawful restraint[?]
Appell
In his first issue on appeal, appellant argues that he was entitled to
arrest of judgment on the charge of criminal conspiracy. According to
appellant, Reece robbed the victim on his own and appellant did not share
his criminal intent t
-8.)
In reviewing a refusal to arrest
judgment, we must consider whether the
evidence was sufficient to uphold the
verdict of the [jury]. We must accept all
the evidence and all reasonable
inferences which may be drawn from
that evidence upon which the fact finder
could have based its verdict. If the
evidence viewed in the light m[o]st
favorable to the verdict winner is not
sufficient to establish guilty [sic] beyond
a reasonable doubt of the crime charged,
then the motion should have been
granted.
Commonwealth v. McFadden, 377 Pa.Super. 454,
547 A.2d 774, 775 (1988). Further, our standard of
review for sufficiency of the evidence claims is well
settled:
In reviewing the sufficiency of the
evidence, we view all the evidence
admitted at trial in the light most
favorable to the Commonwealth, as
verdict winner, to see whether there is
sufficient evidence to enable [the
factfinder] to find every element of the
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crime beyond a reasonable doubt. This
standard is equally applicable to cases
where the evidence is circumstantial
rather than direct so long as the
combination of the evidence links the
accused to the crime beyond a
reasonable doubt. Although a conviction
suspicion or conjecture, the
Commonwealth need not establish guilt
Commonwealth v. Coon, 695 A.2d 794, 797
(Pa.Super.1997) (citations omitted). Moreover,
when reviewing the sufficiency of the evidence, this
Court may not substitute its judgment for that of the
fact-finder; if the record contains support for the
convictions they may not be disturbed.
Commonwealth v. Marks, 704 A.2d 1095, 1098
(Pa.Super.1997) (citing Commonwealth v.
Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213
(1986)).
Commonwealth v. McFadden, 850 A.2d 1290, 1292-1293 (Pa.Super.
2004).
Criminal conspiracy is defined by the Crimes Code as follows:
(a) Definition of conspiracy.--A person is guilty
of conspiracy with another person or persons
to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or
persons that they or one or more
of them will engage in conduct
which constitutes such crime or an
attempt or solicitation to commit
such crime; or
(2) agrees to aid such other person or
persons in the planning or
commission of such crime or of an
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attempt or solicitation to commit
such crime.
18 Pa.C.S.A. § mit a
crime unless an overt act in pursuant of such conspiracy is alleged and
18 Pa.C.S.A. § 903(e). Evidence of an agreement between co-conspirators
may be inferentially established by showing the relation, conduct, or
circumstances of the parties. Commonwealth v. Lawson, 650 A.2d 876
(Pa.Super. 1994), appeal denied, 655 A.2d 985 (Pa. 1995).
The general rule of law pertaining to the culpability
of conspirators is that each individual member of the
conspiracy is criminally responsible for the acts of his
co-conspirators committed in furtherance of the
conspiracy. The co-conspirator rule assigns legal
culpability equally to all members of the conspiracy.
All co-conspirators are responsible for actions
undertaken in furtherance of the conspiracy
regardless of their individual knowledge of such
actions and regardless of which member of the
conspiracy undertook the action.
Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.Super. 2001),
appeal denied, 803 A.2d 733 (Pa. 2002), quoting Commonwealth v.
Hannibal, 753 A.2d 1265, 1274 (Pa. 2000).
Appellant states that he was convicted of criminal conspiracy to
commit robbery. Actually, the information set forth the criminal objective of
count
indicates that appellant was convicted of criminal conspiracy generally, not
limited to robbery.
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Appellant argues that he was merely standing nearby while Reece
robbed the victim. However, as stated above, where the Commonwealth
proves the existence of a conspiracy, appellant is liable for the actions of his
co-conspirator in furtherance of the conspiracy, regardless of his individual
knowledge of such actions. Galindes, supra.
Here
conviction of criminal conspiracy. Appellant and Reece clearly acted in
concert where they waylaid the victim as she was walking to her taxicab.
Appellant walked in front and Reece walked behind as they escorted the
victim at gunpoint to the abandoned apartment. Appellant and Reece both
forced the victim to have sexual intercourse with them. Reece encouraged
warned the vic
In his second issue on appeal, appellant makes a similar argument,
contending that he could not be convicted of robbery where he was merely
present while Reece robbed the victim. Again, it
person who was not the principal actor may nonetheless be liable for the
Commonwealth v. King, 990
A.2d 1172, 1178 (Pa.Super. 2010), appeal denied, 53 A.3d 50 (Pa. 2012)
(citatio -conspirator is liable for the actions of the others
Id.
We find the robbery of R.S. was not outside the scope of the conspiracy.
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a mere onlooker and lacked shared
criminal intent is belied by the record. Appellant could be found guilty of
robbery as a co-conspirator.
Finally, appellant argues that his sentences for unlawful restraint and
false imprisonment should have merged. Appellant is correct that false
imprisonment is a lesser included offense of unlawful restraint.
Commonwealth v. Belgrave, 391 A.2d 662, 666 (Pa.Super. 1978).
separate criminal acts. Therefore, the offenses did not merge.
Initially, we note that merger is a nonwaivable
challenge to the legality of the sentence.
Commonwealth v. Robinson, 931 A.2d 15, 24
(Pa.Super.2007). The issue is a pure question of
law, allowing for plenary review. Id.
The merger statute states that:
No crimes shall merge for sentencing
purposes unless the crimes arise from a
single criminal act and all of the
statutory elements of one offense are
included in the statutory elements of the
other offense. Where crimes merge for
sentencing purposes, the court may
sentence the defendant only on the
higher graded offense.
42 Pa.C.S. § 9765.
Commonwealth v. Pettersen, 49 A.3d 903, 911 (Pa.Super. 2012), appeal
denied d that where a
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defendant commits multiple distinct criminal acts, concepts of merger do not
Id. at 911-912, quoting Robinson, 931 A.2d at 24.
When considering whether there is a single criminal
act or multiple criminal acts, the question is not
Robinson] (quoting Commonwealth v.
Wesley, 860 A.2d 585, 592 (Pa.Super.2004)). This
acts beyond that which is necessary to establish the
bare elements of the additional crime, then the actor
will be guilty of multiple crimes which do not merge
Commonwealth v.
Belsar, 544 Pa. 346, 676 A.2d 632, 634 (1996)
(quoting Commonwealth v. Weakland, 521 Pa.
353, 555 A.2d 1228, 1233 (1989)).
Id. at 912.
The unlawful restraint and false imprisonment statutes provide, in
relevant part, as follows:
§ 2902. Unlawful restraint
(a) Offense defined.-- Except as provided under
subsection (b) or (c), a person commits a
misdemeanor of the first degree if he
knowingly:
(1) restrains another unlawfully in
circumstances exposing him to risk
of serious bodily injury;
or
(2) holds another in a condition of
involuntary servitude.
18 Pa.C.S.A. § 2902(a).
§ 2903. False imprisonment
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(a) Offense defined.--Except as provided under
subsection (b) or (c), a person commits a
misdemeanor of the second degree if he
knowingly restrains another unlawfully so as to
interfere substantially with his liberty.
18 Pa.C.S.A. § 2903(a).
Appellant and his co-conspirator, Reece, committed unlawful restraint
when they forced the victim to walk to the abandoned apartment at
gunpoint. Once inside the apartment, they continued to unlawfully restrain
the victim while they forced her to perform sexual acts. The victim testified
that while she was performing oral sex on Reece, he kept the gun pointed
towards her head. (Notes of testimony, 5/29/12 at 21.) This exposed the
victim to risk of serious bodily injury. In addition, she was being held in a
condition of involuntary servitude. See Commonwealth v. Wells, 460
dimension -- any involuntary servitude, from brief to prolonged, may
represent unlawful restraint).
After they robbed and raped the victim, they ordered her to get into
the bathtub and stay there. (Notes of testimony, 5/29/12 at 23.) The
victim testified that they instructed her to count to a specific number before
getting out. (Id. at 26.) The victim remained in the bathtub after they left
the apartment. (Id. at 26-27.) Appellant and Reece repeatedly threatened
the victim and warned her not to contact authorities. (Id. at 23-27.)
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Directing the victim to get into the bathtub was a distinct criminal act
and constituted the crime of false imprisonment. Still brandishing a firearm,
address, appellant and his co-conspirator told the victim to remain in the
bathtub for a specific period of time. This s
of knowingly restraining another unlawfully so as to interfere substantially
with her liberty. Because appellant committed separate and distinct criminal
acts, unlawful restraint and false imprisonment did not merge for sentencing
See Pettersen
discount for these crimes simply because he managed to accomplish all the
acts within a relatively
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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