Com. v. Lowmiller, P.

J-A12040-21
2021 PA Super 149COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL DANIEL LOWMILLER :
:
Appellant : No. 1114 MDA 2020
Appeal from the Judgment of Sentence Entered July 7, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000413-2018
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J.: FILED JULY 27, 2021
Paul Daniel Lowmiller (“Lowmiller”) appeals from the judgment of
sentence imposed following his convictions of one count each of statutory
sexual assault – person less than 16 years of age, involuntary deviate sexual
intercourse – person less than 16 years of age (“IDSI”), aggravated indecent
assault – person less than 16 years of age, indecent assault – person less than
16 years of age, and two counts of corruption of minors.1 We reverse and
remand for a new trial
On February 26, 2018, Lowmiller sent a Facebook friend request to M.M.
(the “victim”), a 14-year-old girl. A couple of hours later, Lowmiller met the
victim at a K-Mart in Loyalsock Township, Lycoming County, Pennsylvania.
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1 18 Pa.C.S.A. §§ 3122.1(b), 3123(a)(7), 3125(a)(8), 3126(a)(8),
6301(a)(1)(i)-(ii).
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Lowmiller and the victim walked to an area near the Loyalsock Fire
Department, at which time Lowmiller exposed his penis. Lowmiller directed
the victim to rub his penis, and the victim complied. At this time, Lowmiller
began rubbing the victim’s vagina through her clothing. Lowmiller then took
the victim to a nearby wooded area, near Saint Ann’s Catholic Church, and
directed the victim to perform oral sex on him. Lowmiller digitally penetrated
the victim and performed oral sex on her. Lowmiller began rubbing his penis
on the victim’s exposed vagina. The victim repeatedly asked Lowmiller to stop
and tried to push Lowmiller away. Lowmiller was not dissuaded and ejaculated
onto the victim’s sweatshirt.
The next day, Lowmiller attempted to meet with the victim again.
However, the victim’s parents had already taken the victim to the hospital and
contacted the police. On, February 28, 2018, Pennsylvania State Trooper
Daniel Switzer (“Trooper Switzer”) interviewed the victim, during which time
the victim described the above incident and identified Lowmiller’s Facebook
page. Trooper Switzer reviewed Lowmiller’s and the victim’s Facebook pages,
and acquired surveillance footage from the various shops in the area around
K-Mart and the Saint Ann Catholic Church.
The trial court summarized what transpired next as follows:
[O]n or about March 5, 2018, the Commonwealth charged
[Lowmiller] with [the above-mentioned offenses.] On May 4,
2018, [Lowmiller] entered a guilty plea to IDSI with a person less
than 16 years of age, a felony of the first degree. The negotiated
plea agreement called for a sentence of 7½ to 20 years’
incarceration in a state correctional institution and the remaining
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charges would be dismissed at the time of sentencing. Due to the
need for an assessment by the Sexual Offender Assessment Board
[Lowmiller’s sentencing was postponed]….
On May 30, 2018, [Lowmiller] filed a Motion for Discovery
because he was contemplating withdrawing his guilty plea[,] and
the discovery allegedly would aid in his decision-making.
[Lowmiller] believed he had a mistake[-]of[-]age defense to the
charges and he thought that evidence supporting such a [defense]
could be found on his cell phone.
On August 22, 2018, [Lowmiller] formally filed a Motion to
Withdraw Guilty Plea. … During the hearings on his Motion to
Withdraw Guilty Plea, … [Lowmiller stated that he] wished to
withdraw his guilty plea and pursue a mistake[-]of[-]age defense
at trial. In an [O]pinion and [O]rder entered on March 15, 2019,
the [trial] court granted [Lowmiller]’s Motion to Withdraw Guilty
Plea.
Trial Court Opinion, 10/1/19, at 1-2 (citations omitted).
Subsequently, on January 6, 2020, the Commonwealth filed a Motion
pursuant to Pa.R.E. 404(B). In particular, the Commonwealth requested that
it be permitted to admit evidence of Lowmiller’s prior conviction of statutory
sexual assault, in the event that Lowmiller testified that he was mistaken
about the victim’s age. Lowmiller filed an Objection on January 16, 2020, and
argued, inter alia, that allowing evidence of his prior conviction into evidence
would have a chilling effect on his right to testify in his own defense.
On February 10, 2020, after conducting a hearing, the trial court granted
the Commonwealth’s Rule 404(B) Motion. The trial court would permit the
Commonwealth to introduce evidence of Lowmiller’s prior conviction of
statutory sexual assault, if Lowmiller testified that he was mistaken about the
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victim’s age. Ultimately, Lowmiller did not testify, and his prior conviction was
not introduced at trial.
On March 10, 2020, after a jury trial, Lowmiller was found guilty of the
above-mentioned offenses. The trial court deferred sentencing for the
purpose of preparing a pre-sentence investigation report (“PSI”). At the close
of trial, the Commonwealth informed the trial court and Lowmiller of its
intention to seek the mandatory minimum sentence pursuant to 42 Pa.C.S.A.
§ 9718.2. On March 12, 2020, Lowmiller filed a Response.
On July 7, 2020, the trial court conducted a sentencing hearing2 and
heard arguments regarding the mandatory minimum sentence pursuant to
section 9718.2 (“mandatory minimum”). At the close of arguments, the trial
court agreed with the Commonwealth that Lowmiller was subject to the
mandatory minimum, and sentenced Lowmiller to an aggregate term of 441
to 882 months in prison.3
On July 17, 2020, Lowmiller filed a Post-Sentence Motion, which the trial
court denied after a hearing. Lowmiller filed a timely Notice of
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2 The trial court had the benefit of a PSI, which detailed, inter alia, Lowmiller’s
extensive mental health history as well as his low IQ of 62.
3 Lowmiller’s second conviction of corruption of minors merged for sentencing
purposes.
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Appeal4 and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal.
Lowmiller now presents the following claims for our review:
1. Did the trial court err by granting the Commonwealth’s [Rule
404(B) M]otion … to allow introduction of [Lowmiller]’s prior
offense if he chose to testify at trial?
2. Did the trial court err in denying [Lowmiller]’s [M]otion to
enforce the plea offer in this matter, given that a firm offer was
made[] and withdrawn by the Commonwealth without notice that
it would be withdrawn?
3. Did the sentencing court err when it applied a mandatory
minimum … because [Lowmiller] had never received penal
discipline for a predicate offense?
4. Did the sentencing court abuse its discretion by failing to
adequately consider [Lowmiller]’s mental health issues, history of
abuse, and lower intellectual functioning when imposing
consecutive sentences, particularly since the offenses did not
involve violence or force and that they related to a single criminal
episode with the victim?
5. Is a sentence of [441] to [882] months cruel and unusual under
the United States and Pennsylvania Constitutions?
Brief for Appellant at 4 (reordered).
In his first claim, Lowmiller contends that the trial court erred when it
granted the Commonwealth’s Rule 404(B) Motion to introduce his prior
conviction of statutory sexual assault. Brief for Appellant at 10-12. Lowmiller
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4 Lowmiller purports to appeal from the August 13, 2020, denial of his Post-
Sentence Motion. However, in criminal matters, an appeal properly lies from
the imposition of the judgment of sentence. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation
omitted).
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acknowledges that both offenses “bear the same title,” but contends that they
were not “remarkably similar.” Id. at 12. Lowmiller points out the
Commonwealth’s concession that his prior conviction of statutory sexual
assault is not similar to the instant case. Id. Lowmiller asserts that the
introduction of his prior conviction would have been prejudicial, because it
would suggest that Lowmiller has a propensity to commit sex offenses against
minors. Id. at 12-13. Lowmiller claims that a cautionary jury instruction
would not have been sufficient to limit the inflammatory nature of his prior
conviction. Id. Lowmiller acknowledges that he did not testify and that the
evidence of his prior conviction was, ultimately, not introduced at trial. Id. at
13-14. However, Lowmiller argues that the trial court’s decision to admit his
prior conviction deprived him of a fair trial, deprived him of the ability to testify
on his own behalf, and prevented him from presenting his mistake-of-age
defense. Id.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.
2002). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record.” Commonwealth v. Harris,
884 A.2d 920, 924 (Pa. Super. 2005).
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Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Pursuant to
Pennsylvania Rule of Evidence 401, evidence is relevant if “(a) it has the
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”
Pa.R.E. 401. “Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a material fact.”
Drumheller, 808 A.2d at 904. “All relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is not admissible.”
Pa.R.E. 402. “The court may exclude relevant evidence if its probative value
is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b) provides as follows:
Rule 404. Character Evidence; Crimes or Other Acts
***
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
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mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
“[E]vidence of prior crimes is not admissible for the sole purpose of
demonstrating a criminal defendant’s propensity to commit crimes.”
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa. Super.
2004). Nevertheless, “[e]vidence may be admissible in certain circumstances
where it is relevant for some other legitimate purpose and not utilized solely
to blacken the defendant’s character.” Id. Specifically, other crimes evidence
is admissible if offered for a non-propensity purpose such as proof of an actor’s
knowledge, plan, motive, identity, or absence of mistake or accident.
Commonwealth v. Chmiel, 889 A.2d 501, 534 (Pa. 2005). When offered
for a legitimate purpose, evidence of prior crimes is admissible if its probative
value outweighs its potential for unfair prejudice. Commonwealth v.
Hairston, 84 A.3d 657, 664-65 (Pa. 2014).
Unfair prejudice “means a tendency to suggest decision on an improper
basis or to divert the jury’s attention away from its duty of weighting the
evidence impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
2007).
Evidence will not be prohibited merely because it is harmful to the
defendant. This Court has stated that it is not required to sanitize
the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at hand
and form part of the history and natural development of the
events and offenses for which the defendant is charged.
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Moreover, we have upheld the admission of other crimes
evidence, when relevant, even where the details of the other
crime were extremely grotesque or highly prejudicial.
Id.Evidence of a prior crime may also be admitted to show a defendant’s
actions were not the result of a mistake or accident, “where the manner and
circumstances of two crimes are remarkably similar.” Commonwealth v.
Kinard, 95 A.3d 279, 294-95 (Pa. Super. 2014) (emphasis added); see
Commonwealth v. Sherwood, 982 A.2d 483, 497-98 (Pa. 2009) (holding
that evidence of defendant’s prior physical assaults of child was admissible to
show absence of mistake or accident in prosecution for intentional beating
death of child).
Instantly, on January 6, 2020, the Commonwealth filed its Rule 404(B)
Motion, seeking to introduce Lowmiller’s prior conviction of statutory sexual
assault. In particular, the Commonwealth argued that Lowmiller’s prior
conviction demonstrated that he could not have been mistaken as to the
victim’s age, because he had previously committed statutory sexual assault
against another 14-year-old. See Commonwealth’s 404(B) Motion, 1/6/20,
at 2 (unnumbered). Lowmiller filed a Response in which he argued that the
probative value of such evidence is significantly outweighed by danger of
unfair prejudice; the facts of the prior conviction are not remarkably similar
to the instant case; and that the resulting prejudice would deprive him of a
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fair trial. See Defendant’s Objection to Commonwealth’s Rule 404(B) Motion,
1/16/20, at 1-3.
Relevantly, in 2009, Lowmiller pled guilty to statutory sexual assault
and indecent assault. In that case, the victim, a 14-year-old girl, had been in
a relationship with Lowmiller, a 19-year-old at the time, for several years. At
some point during their relationship, Lowmiller and the victim engaged in
intercourse in a residential home. Lowmiller and the victim continued their
relationship for three years after the incident. The relationship ended when
the victim gave birth to their child and informed her parents that Lowmiller
was the father.
In the instant case, Lowmiller, a 27-year-old male, sent a Facebook
friend request to the victim, a 14-year-old girl. See N.T. (Jury Trial), 3/10/20,
at 26. She accepted, and Lowmiller immediately asked her to meet with him.
Id. at 26-29. The victim agreed, and they met later that same day at the
nearby K-Mart. Id. at 28-29. After walking around the area, the victim and
Lowmiller entered a wooded area near St. Ann’s Catholic Church. Id. at 29-
30. Lowmiller then directed the victim to perform oral sex on him; Lowmiller
performed oral sex on the victim; Lowmiller attempted to penetrate the
victim; and, ultimately, Lowmiller ejaculated on her sweater. Id. at 30-33.
On February 7, 2020, the trial court conducted a hearing on the
Commonwealth’s Rule 404(B) Motion, wherein Lowmiller again asserted that
he was intending to present a mistake-of-age defense at trial through his own
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testimony. N.T. (Pre-Trial Motion Hearing), 2/7/20, at 2-6. Lowmiller argued
that any introduction or reference to his prior conviction would inflame the
jury’s senses. Id. at 5-6. Additionally, Lowmiller argued that in order for the
Commonwealth to introduce his prior conviction pursuant to Rule 404(b), and
rebuff his mistake-of-age defense, the Commonwealth would be required to
demonstrate that the prior conviction and the instant offenses were
“remarkably similar.” Id. at 3-5. In response, the Commonwealth stated as
follows:
Yeah, I agree that it doesn’t come in in the case[-]in[-]chief. It
would -- if it comes in at all it doesn’t come in unless and until
there is a mistake[-]of[-]age defense presented. So at the
earliest stage cross examination….
I’m not claiming and I don’t claim in my notice remarkable
similarities between the crimes. They are actually quite
distinct. I agree.
N.T. (Pre-Trial Motion), 2/7/20, at 6-7 (emphasis added).
Upon our review of the record, we agree with Lowmiller that his prior
conviction is not remarkably similar to the instant offense. See Kinard,
supra; Cf. Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004)
(holding that evidence of defendant’s murder of former wife was admissible
to show absence of accident in prosecution for murder of defendant’s second
wife, where both victims were found dead in a bathtub or hot tub in highly
similar circumstances). Indeed, the Commonwealth concedes that essential
factor. See N.T. (Pre-Trial Motion Hearing), 2/7/20, at 6-7. As noted above,
Lowmiller’s first conviction was a result of a multi-year relationship with a
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minor 14-year-old girl, and the event in question occurred in a residential
home. By contrast, the facts of the instant case detail a whirlwind series of
events spurred by a Facebook friendship request, and, within hours,
culminated in the above-described event in the woods near a church. N.T.
(Jury Trial), 3/10/20, at 26-33; see Trial Court Opinion, 8/13/20, at 1-2. We
conclude that Lowmiller’s prior conviction of statutory sexual assault is not
remarkably similar to the facts of the instant case, and therefore, would have
been inadmissible under Pa.R.E. 404(b). See Kinard, supra; see also
Melendez-Rodriguez, supra. Accordingly, the trial court erred in granting
the Commonwealth’s Rule 404(B) Motion.
Moreover, as a result of the trial court’s error, Lowmiller suffered
prejudice, because the error led him to not testify in his own defense. See
Commonwealth v. Baldwin, 8 A.3d 901, 902-03 (Pa. Super. 2010) (stating
that “[t]he right of the accused to testify on his own behalf is a fundamental
tenet of American jurisprudence and is explicitly granted by Article I, Section
9 of the Pennsylvania Constitution.”) (citation omitted); see also
Commonwealth v. Nieves, 746 A.2d 1102, 1104-06 (Pa. 2000) (stating that
appellant was entitled to a new trial after his trial counsel incorrectly advised
that appellant should not testify in his own defense because he would be
impeached by, ultimately inadmissible, prior convictions). Importantly,
Lowmiller withdrew his initial plea agreement because he wished to pursue a
mistake-of-age defense. See N.T. (Guilty Plea Withdrawal Hearing),
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10/10/18, at 3-6; see also Trial Court Opinion, 10/1/19, at 1-2. Additionally,
Lowmiller indicated throughout the proceedings that he wished to pursue a
mistake-of-age defense by testifying in his own defense. See Trial Court
Opinion, 10/1/19, at 1-2; N.T. (Jury Trial), 3/10/20, at 98-99; N.T. (Pre-Trial
Motion Hearing), 2/7/20, at 2-6; N.T. (Guilty Plea Withdrawal Hearing),
10/10/18, at 3-6. In essence, the trial court’s ruling prevented Lowmiller from
asserting his constitutional right to testify in his own defense. See
Commonwealth v. Walker, 110 A.3d 1000, 1005-06 (Pa. Super. 2015)
(concluding that where appellant elected not to testify based upon counsel’s
erroneous advice that the Commonwealth would introduce inadmissible
crimen falsi evidence against him, it is irrelevant whether appellant’s
testimony at trial would have compelled a different result).5
Furthermore, the trial court’s Opinions and Orders offer no reasoning as
to why it granted the Commonwealth’s Rule 404(b) Motion, or whether
Lowmiller suffered prejudiced as a result of its ruling. Indeed, nothing in the
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5 We note that, based upon the foregoing, Lowmiller’s on-the-record colloquy
waiving his right to testify is necessarily tainted, and was not knowing or
intelligent. See N.T. (Jury Trial), 3/10/20, at 96-99 (wherein the trial court
conducted an on-the-record colloquy of Lowmiller’s right to testify, after which
Lowmiller’s counsel stated that the only reason he was not testifying is
because of the trial court’s erroneous pre-trial ruling); see also Nieves, 746
A.2d at 1105-06 (concluding that where counsel had improperly advised
appellant not to testify in his own defense, appellant’s waiver could not have
been knowing or intelligent). Thus, Lowmiller’s on-the-record colloquy was
not knowing or intelligent and cannot cure the trial court’s erroneous grant of
the Commonwealth’s Rule 404(B) Motion.
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record indicates that the trial court engaged in the required evidentiary
analysis pursuant to Pa.R.E. 403 and 404(b). See Commonwealth v.
Tyson, 119 A.3d 353, 358-59 (Pa. Super. 2015) (explaining that when a trial
court rules upon the admissibility of evidence, it “must assure that the
probative value of the evidence is not outweighed by its potential prejudicial
impact[.]”) (emphasis added). Accordingly, we conclude that the trial court
abused its discretion in granting the Commonwealth’s Rule 404(b) Motion. We
therefore reverse the judgment of sentence, and remand for a new trial.6
Judgment of sentence reversed. Case remanded for a new trial
consistent with this Opinion. Superior Court jurisdiction relinquished.
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6 In light of our disposition, we need not address Lowmiller’s remaining claims.
Nevertheless, in regards to Lowmiller’s second claim, our review of the record
reveals that the Commonwealth made an off-the-record plea offer of 7½ to
18 years in prison. Trial Court Opinion, 10/11/19, at 3. Lowmiller did not
respond for several days, and the Commonwealth withdrew its offer, via email.
See id. at 2-3. Lowmiller filed a Motion to Enforce Plea Agreement. See id.
at 3. After a hearing, the trial court determined that the parties had not
reached an agreement, because the Commonwealth had rescinded its offer
prior to any response from Lowmiller. See id. at 1-4. Our review confirms
the trial court’s determinations, in particular that the Commonwealth made a
plea offer of 7½ to 18 years in prison, but Lowmiller did not respond. Rather,
Lowmiller filed a Motion to Enforce Plea Agreement. Accordingly, the trial
court did not err in denying Lowmiller’s Motion to Enforce Plea Agreement.
See Pa.R.Crim.P. 590 (providing that “[w]hen counsel for both sides have
arrived at a plea agreement, they shall state on the record in open court, in
the presence of the defendant, the terms of the agreement….”). In addition,
we note our concern over the excessiveness of the aggregate sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2021
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