Com. v. Washington, S.

J-A06041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SAMSON EZEKIEL WASHINGTON :

:

Appellant : No. 87 WDA 2023

Appeal from the Judgment of Sentence Entered January 18, 2023

In the Court of Common Pleas of Somerset County Criminal Division at

No(s): CP-56-CR-0000141-2019

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: MAY 2, 2024

Samson Ezekiel Washington (“Washington”) appeals from the judgment

of sentence entered by Somerset County Court of Common Pleas (“trial court”)

following his convictions of two counts each of first-degree murder,

aggravated assault, kidnapping, unlawful restraint; eight counts of

conspiracy; and one count of possession of a firearm by a prohibited person.1

Washington raises ten claims of error. After review, we affirm.

Washington, Marekus Benson (“Benson”), and Devon Wyrick (“Wyrick”)2

were members of the East Main Money Gang from Columbus, Ohio, who came

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1 18 Pa.C.S. §§ 2502(a); 2702(a)(1); 2901(a)(3); 2902(a)(1); 903(a);

6105(a).

2 Washington and Wyrick are half-brothers.

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to Johnstown, to sell drugs. In March 2017, a stash house in Johnstown used

by the East Main Money Gang was burglarized and the burglars stole drugs,

money, and a firearm. Washington, Benson, Wyrick, Jasmine Browning

(“Browning”),3 and Jasmine Hinton (“Hinton”)4 proceeded to Washington’s

home to discuss the burglary. Gang members contacted several drug users

to identify the burglars. On March 26, 2017, Washington and Benson went to

a well-known drug house, where they asked Amanda Ehrhart and Tracey

Kralik about the missing drugs. While at the house, Benson flashed his gun.

Washington and Benson, however, did not learn any information about the

missing drugs.

The following day, Joshua Bergmann (“Bergmann”) informed

Washington that James Smith (“Smith”) and Damian Staniszewski

(“Staniszewski”) were suddenly in possession of a large quantity of drugs. At

Washington’s request, Bergmann led Washington, Benson, Wyrick, and

Deandre Callender (“Callender”) to Staniszewski’s residence in Portage,

Pennsylvania but no one was home. Later that day, however, Smith and

Staniszewski contacted Hinton to purchase drugs from Washington and

Benson. The parties agreed to meet at the Galleria Mall.

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3 Browning and Washington have a child together.

4 Hinton and Benson were in a relationship.

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At the mall, Smith and Staniszewski got in the back seat of the vehicle

that Wyrick was driving. Browning followed in another vehicle. Wyrick then

picked up Washington, who upon entering the vehicle, pointed a gun at Smith

and Staniszewski and stated that they would not get away with stealing the

drugs and money. Wyrick drove to the stash house. At this point, Browning

observed Wyrick and Washington take Smith and Staniszewski into the house

and left the scene.

Smith and Staniszewski were taken down into the basement where

Wyrick punched Staniszewski in the mouth, and Washington poured bleach in

Staniszewski’s mouth. Washington called Benson, stating that they got the

people who stole the drugs and told Benson to come to the home. After

arriving, Benson asked the victims the location of the drugs. The victims

indicated a different person stole the drugs; thereafter, Benson struck one of

the victims in the face with the butt of his gun. Washington then invited

Bergmann to his home. Bergmann professed his innocence, and upon seeing

the victims, indicated the victims were in the situation because of the stolen

drugs. Washington gave Bergmann drugs as he left the scene.

Subsequently, Benson retrieved Staniszewski’s truck from the mall to

search it for the missing money and drugs. After Benson found only small

portion of the stolen property in the truck, he indicated to Wyrick that he

would kill Smith and Staniszewski. Later, Washington and Benson put the

victims into Staniszewski’s truck and drove them to a wooded area off Ligonier

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Pike in Somerset County. Wyrick followed in a separate vehicle. As soon as

Staniszewski’s truck stopped, Smith attempted to run away from the scene.

Benson shot him in the back. Benson then attempted to shoot Staniszewski,

but his gun malfunctioned. Consequently, Washington left the scene to

retrieve another weapon. Benson and Wyrick waited at the scene with the

two victims. Upon returning, Washington shot both victims in the head two

times. Washington, Benson, and Wyrick ran out of the woods. While running,

Benson dropped his laser aiming device.

Washington and Benson then drove away in Staniszewski’s truck while

Wyrick followed them. Washington and Benson eventually pulled over along

Somerset Pike, wiped their fingerprints from Staniszewski’s truck, abandoned

the truck, and left the scene in Wyrick’s vehicle. Afterwards, they drove to a

different wooded area, disassembled their firearms, and left the components

into the woods. Subsequently, Washington, Benson, and Wyrick returned to

Johnstown. They went to Browning’s residence and argued about Benson

dropping the laser aiming device from his firearm as they fled the woods and

Washington inviting Bergmann to come into his basement while the victims

were there. Washington told Browning that they had beaten up the victims in

the basement and then shot them in the woods.

On March 28, 2017, the police found Staniszewski’s truck near a bar

called “Jim & Jimmies.” The remains of Smith and Staniszewski were

discovered on September 29, 2017. The police classified the cause of death

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for both victims as homicide. During the investigation, the FBI mapped the

locations of cell phone numbers associated with Callender, Wyrick, Smith,

Staniszewski, Bergmann, and a phone that was designated as a “shared

phone.” Notably, the victims called the “shared phone” to set up the drug

deal that was to take place at the Galleria Mall and the victims’ cell phones

pinged off cell towers near the stash house on March 27, 2017. The FBI also

determined that various calls and texts were made to a phone attributed to

Benson and two phones attributed to Washington from some of the phones

mapped.

Further, as part of their investigation into the homicides, the

Pennsylvania State Police obtained a search warrant for Washington’s

apartment in Cambria County. The affidavit of probable cause in support of

the warrant stated that the search was related to the homicide investigation.

Upon executing the warrant, the officers discovered controlled substances,

drug paraphernalia, and firearms. As a result, police arrested Washington,

and the Commonwealth charged him with various offenses. On October 1,

2018, Washington pled guilty to possession with intent to distribute a

controlled substance in the Cambria County Court of Common Pleas and that

court sentenced him to 30 to 84 months in prison.

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In December 2018, the police arrested Washington and Wyrick for the

murders of the victims.5 The Commonwealth charged Washington in

Somerset County with two counts each of homicide, aggravated assault,

kidnapping, and conspiracy. Subsequently, Washington and Wyrick’s cases

were joined for trial. Later, Benson, Callender, and Hinton were joined as

codefendants with Washington and Wyrick. Washington filed a motion to

sever the cases. The trial court denied the motion to sever.

Washington also filed a motion to dismiss based upon double jeopardy,

arguing that the Cambria County and Somerset County cases involve one

criminal episode and that the charges should have been tried together.

Specifically, Washington argued that the drugs found in Cambria County were

obtained as part of the Somerset County homicide investigation. Washington

averred that the homicide charges should have been prosecuted with the drug

charges in Cambria County under the compulsory joinder rule.6 The trial court

found that the first and third prongs were met—the Cambria County drug

possession case resulted in a conviction and, at the time of the entry of the

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5 The police later arrested Benson, Callender, and Hinton.

6 Under the compulsory joinder rule, a current prosecution is prohibited if a

defendant meets all four prongs under 18 Pa.C.S. § 110(1)(ii): (1) “[t]he

former prosecution must have resulted in an acquittal or conviction[;]” (2) the

subsequent prosecution is “based on the same conduct or arising from the

same criminal episode[;]” (3) the “offense was known to the appropriate

prosecuting officer at the time of the commencement of the first trial[;]” and

(4) the offense “occurred within the same judicial district as the former

prosecution.” 18 Pa.C.S. § 110(1)(ii).

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guilty plea in Cambria County, the prosecution was aware that the police were

investigating Washington’s role in the murder of the victims, as evidenced by

the search warrant of his apartment. The trial court found that the fourth

prong was met regarding the kidnapping, assault, and conspiracy charges

because they occurred in either Cambria County or Somerset County, but not

the homicide charge, due to the location of the bodies in Somerset County.

Additionally, the trial court found the second prong was not met as the drug

possession in Cambria County was a different criminal episode than the

kidnapping, assault, and murder episode.

Ultimately, on July 14, 2022, the trial court denied Washington’s motion

to dismiss, finding it to be frivolous. Because of the finding of frivolity,

Washington filed a petition for permission to appeal to this Court pursuant to

Pa.R.A.P. 1311(a)(3) prior to the commencement of trial. Washington also

requested the trial court stay the proceedings pending the outcome of the

petition with this Court. The trial court denied the stay and subsequently, this

Court did the same. Ultimately, this Court entered a per curiam order denying

the petition for permission to appeal. See Order, 44 WDM 2022 (Pa. Super.

filed Sept. 21, 2022). Washington filed a petition for permission to appeal to

the Pennsylvania Supreme Court. The Supreme Court denied Washington’s

petition for allowance of appeal on March 8, 2023, after his trial had been

completed. See Commonwealth v. Washington, 293 A.3d 1219 (Pa. 2023)

(per curiam).

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In the interim, Washington filed a motion in limine seeking to preclude

the Commonwealth from admitting evidence that he was a drug dealer in the

Johnstown community. The Commonwealth also filed a motion in limine,

requesting that the defense be precluded from introducing statements made

by Landon Reighard (“Reighard”), who was deceased. The trial court denied

Washington’s motion in limine, and granted the Commonwealth’s motion to

exclude Reighard’s statements, aside from three specific statements made by

Reighard that were against his interest: (1) he was involved with victims in

the robbery of Washington, Benson, and Wyrick, (2) he used illicit drugs, and

(3) he was helping the victims sell drugs.

Originally, the trial court scheduled trial for October 12, 2022, but prior

to trial, Wyrick pled guilty to two counts of third-degree murder and agreed

to testify on the Commonwealth’s behalf.7 The jury trial held for the charges

against Washington, Benson, and Callender occurred between October 17 and

October 21, 2022. At the conclusion of trial, the jury found both Benson and

Washington guilty of all charges and acquitted Callender. Subsequently, the

trial court also found Washington guilty of possession of a firearm by a

prohibited person.

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7 Hinton’s case was also severed from this case after the trial court dismissed

conspiracy charges against her.

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On January 4, 2023, the trial court sentenced Washington to an

aggregate term of life in prison without the possibility of parole. At

sentencing, Washington made a motion for extraordinary relief and a request

for arrest of judgment based on double jeopardy. The trial court denied the

motions. The trial court also ordered restitution to the victims’ families for

funeral expenses to be paid jointly and severally by the codefendants.

Specifically, the trial court ordered codefendants to pay $1,644.96 to

Staniszewski’s family and $2,800 to Smith’s family. The Commonwealth filed

a timely post-sentencing motion, seeking to amend the restitution for Smith’s

funeral to $2,770 and payment be made to the funeral home.8 On January

18, 2023, the trial court granted the Commonwealth’s motion. Washington

timely appealed.9

Washington raises the following questions for our review:

1. Whether the verdict was against the weight of the evidence?

2. Whether the verdict was against the sufficiency of the

evidence?

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8 Washington did not file any post-sentence motions.

9 While Washington filed his notice of appeal the day before the trial court

granted the Commonwealth’s motion, we overlook this jurisdictional defect by

treating as done what ought to have been done, and treat this appeal as timely

filed because Washington indisputably had notice of the final sentence

decreasing his share of the restitution. See Commonwealth v. Carter, 122

A.3d 388, 391 (Pa. Super. 2015). We have changed the caption to reflect the

correct sentencing date.

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3. Whether the Court of Common Pleas of Somerset County

had jurisdiction to hear this matter due to double

jeopardy/compulsory joinder arguments?

4. Whether [the] trial court erred by denying co[]defendants

Washington’s, Wyrick’s and Benson’s requests for

severance?

5. Whether [the] trial court erred by denying [Washington’s]

request to stay proceedings pending appeal to Superior

Court and Supreme Court regarding double

jeopardy/compulsory joinder matters?

6. Whether the trial court erred by denying the defense the

ability to elicit testimony regarding Landon Reighard during

trial?

7. Whether the trial court erred by permitting [the]

Commonwealth to utilize [the] updated FBI Cellular Data

Analysis report without the defense having been provided

the same prior to trial?

8. Whether the trial court erred by permitting the

Commonwealth to reference a phone number contained

within the updated FB[I] Cellular Data Analysis report as

being associated with Samson Washington without having

laid a proper foundation?

9. Whether the trial court erred by permitting the

Commonwealth to utilize [the] updated FBI Cellular Data

Analysis report that contained references to a “shared drug

phone” without laying proper foundation?

10. Whether the trial court erred by allowing the Commonwealth

to utilize the updated FBI Cellular Data Analysis report with

specific reference to a phone number associated with

Samson Washington without laying a proper foundation?

11. Whether the trial court erred by denying [Washington’s]

[m]otion in [l]imine requesting that the Commonwealth be

prohibited from introducing evidence that [Washington] was

a drug dealer in his community?

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Washington’s Brief at 6-8 (bracketed corrections added).10

1. Weight of the Evidence

In his first claim, Washington argues that his convictions were against

the weight of the evidence presented at trial. Id. at 18, 21. Washington

asserts that there was no DNA evidence linking him to the murders, and the

entire case relied on lay testimony. Id. at 20. Washington claims that the

trial court gave too much weight to Wyrick’s contradictory testimony and the

imprecise cellular phone data. Id.

The following legal principles apply to a trial court’s consideration of a

challenge to the weight of the evidence supporting a conviction:

An allegation that the verdict is against the weight of the

evidence is addressed to the discretion of the trial court. A new

trial should not be granted because of a mere conflict in the

testimony or because the judge on the same facts would have

arrived at a different conclusion. A trial judge must do more than

reassess the credibility of the witnesses and allege that he would

not have assented to the verdict if he were a juror. Trial judges,

in reviewing a claim that the verdict is against the weight of the

evidence do not sit as the thirteenth juror. Rather, the role of the

trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice.

Thus, to allow an appellant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague[,]

and uncertain that the verdict shocks the conscience of the trial

court.

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10 We note that issues 8 and 10 raise the same claims of error.

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Commonwealth v. Juray, 275 A.3d 1037, 1046-47 (Pa. Super. 2022)

(quotation marks and citations omitted).

The trial court ruled on Washington’s weight claim, finding that

[i]n addition to the evidence presented, … there are two reasons

why [Washington’s] convictions were not against the weight of the

evidence. First, the Commonwealth’s witnesses’ version of events

were generally consistent with each other. Additionally, the

forensic evidence and cellular date evidence corroborated the

testimony of the Commonwealth witnesses. Second, the defense

did not present any defense witnesses that raised serious

questions about the Commonwealth’s case in chief.

Trial Court Opinion, 7/13/23, at 48.

Washington’s argument invites this Court to reassess the credibility of

the witnesses and reweigh the evidence in favor of Washington to reach a

different result. We decline Washington’s invitation, as the factfinder, the jury

in this case, is the ultimate arbiter of the credibility of the witness and the

weight to be given to the evidence. See Commonwealth v. Clemons, 200

A.3d 441, 464 (Pa. 2019) (noting that the jury is the factfinder and sole arbiter

of the witnesses’ credibility). The credible evidence established that the

Commonwealth witnesses, including Wyrick, were generally consistent, and

the forensic evidence and cellular data evidence corroborated the witness’

testimony. See Trial Court Opinion, 7/13/2023, at 48; see also

Commonwealth v. Landis, 277 A.3d 1172, 1183 (Pa. Super. 2022) (“A new

trial should not be granted because of a mere conflict in the testimony or

because the judge on the same facts would have arrived at a different

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conclusion.”) (citation omitted). Therefore, the verdicts were not so contrary

to the weight of the evidence as to shock one’s sense of justice.

2. Sufficiency of the Evidence

In his second claim, Washington contends that the evidence was

insufficient to support his convictions. Washington’s Brief at 15, 17.

Washington argues that the Commonwealth did not present any witnesses

who could place him at the scene of the homicide, assault, or kidnapping

beyond Wyrick, Browning, and Jamar Jordan (“Jordan”).11 Id. at 16.

According to Washington, Wyrick testified only after he was offered a plea

bargain, and his testimony was inconsistent with the Commonwealth’s other

witnesses. Id. at 16-17. Washington takes issue with the trial court’s finding

that the testimony of Wyrick, Browning, and Jordan was corroborated by

forensic evidence and cellular data, noting that no evidence established the

“shared phone” on the scene of the kidnapping and assault belonged to

Washington. Id. at 17. Washington further notes that only his codefendants’

phones and the “shared phone” were at the scene of the shootings. Id.

Therefore, Washington concludes that no scientific evidence established his

presence at the murder scene. Id.

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11 Jordan sold drugs with Washington from the stash house. N.T.,

10/18/2022, at 290-91. Jordan indicated that Washington told him that the

victims had broken into his home and took drugs and money and that the

victims “paid a price for it.” Id. at 299.

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We review a challenge to the sufficiency of the evidence according to

the following standard:

Because a determination of evidentiary sufficiency presents a

question of law, our standard of review is de novo and our scope

of review is plenary. 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 [factfinder] 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. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the

[factfinder].

Commonwealth v. Rosario, 307 A.3d 759, 764–65 (Pa. Super. 2023)

(citation omitted).

Preliminarily, we observe that Washington’s arguments that the

evidence was insufficient actually challenges the weight of the evidence, as

his claims focus on the unreliability of Wyrick’s testimony because it was not

corroborated by physical evidence. See Commonwealth v. Thomas, 194

A.3d 159, 167 (Pa. Super. 2018) (“It is well-settled that credibility

determinations go to the weight, not the sufficiency of the evidence.”) (citation

and quotation marks omitted). This Court has explained that a sufficiency

challenge does not include an assessment of witness credibility. Juray, 275

A.3d at 1043. As noted above, Washington’s weight of the evidence challenge

is without merit.

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Further, our review of the record reveals the evidence was sufficient to

support his convictions. In his appellate brief, Washington does not contest

the evidence in relation to any specific element of his convictions. Instead,

his argument is premised solely upon the Commonwealth’s alleged failure to

prove that he was the person who committed the crimes. The evidence

presented at trial, viewed in a light most favorable to the Commonwealth, was

sufficient to establish that Washington committed the crimes. See Trial Court

Opinion, 7/13/2023, at 28-47. Notably, Wyrick stated that he and Washington

transported the victims from the mall to the residence on Boyd Avenue at

gunpoint. N.T., 10/19/2022, at 681-685. The victims were tied up and Wyrick

punched Staniszewski in the mouth and Washington poured bleach down

Staniszewski’s throat. Id. at 540-41, 689. Wyrick testified that Washington

shot both victims twice in the head. Id. at 699-705. Browning testified that

Washington admitted that he, Benson, and Wyrick took the victims into the

woods and killed them. N.T., 10/20/2022, at 870. Therefore, the evidence

was sufficient to support Washington’s convictions. See Commonwealth v.

Johnson, 838 A.2d 663, 669-70 (Pa. 2003) (concluding evidence was

sufficient to support finding that defendant was the killer, as an eyewitness

testified he saw defendant shoot victim, and a second witness, who did not

see actual killing, corroborated details of eyewitness witness’s account).

3. Compulsory Joinder

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In his third claim, Washington argues that the compulsory joinder rule

barred the Commonwealth from prosecuting his kidnapping and homicide

charges in Somerset County because he had already pled guilty to the drug

charge in Cambria County and all the charges were part of the same criminal

episode. Washington’s Brief at 21-31. Washington contends that the search

warrant obtained for his apartment in Cambria County was part of the

Somerset County homicide investigation. Id. at 23. According to Washington,

the items to be found during the search were anticipated to be related to the

homicide investigation and the prosecuting authorities in Cambria and

Somerset Counties were aware of the search. Id. at 23-24, 26. Washington

highlights that the items confiscated during the search were used in the

prosecutions in both counties. Id. at 24.

Citing to 18 Pa.C.S. § 110, Washington argues that contrary to the trial

court’s finding, he met all four prongs. Id. at 25-31; see also note 6, supra.

Washington observes that the trial court found he met the first and third

prongs, as he pled guilty to the delivery charge in Cambria County, and he

could have been charged in Cambria County with all the offenses brought in

Somerset County. Washington’s Brief at 26, 28-29.

Regarding the second prong, Washington contends that the trial court

erred in analyzing the logical and temporal relationships between the acts in

each case and finding the drug and homicide cases required different

evidence. Id. at 26-27. According to Washington, the police were looking for

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evidence at his residence related to the homicide investigation, and had the

Commonwealth been required to bring the Cambria County case to trial, they

would have presented duplicative evidence from the residence in that case

and Somerset County. Id. at 27-28.

Finally, Washington notes that the trial court found the fourth prong was

met for the kidnapping, assault, and conspiracy charges, as they occurred in

Cambria County, but not the homicide charge, as the murder may have

occurred in Somerset County. Id. at 29-30. Washington maintains that most

of the conspiracy involving the charges occurred in Cambria County, and

argues that conspiracy may be brought in any county where a conspiracy was

formed. Id.

Washington also claims that the trial court erred in finding his

compulsory joinder argument to be frivolous, noting that the trial court

conceded he met three of the four prongs. Id. at 30-31. Washington

concludes that even if the homicide charge was properly brought in Somerset

County, the remaining charges should have been brought in Cambria County

in his initial drug delivery prosecution. Id. at 31.

“Where the relevant facts are undisputed, the question of whether

prosecution is barred by the compulsory joinder rule, 18 Pa.C.S.A. § 110, is

subject to plenary and de novo review.” Commonwealth v. Brown, 212

A.3d 1076, 1082 (Pa. Super. 2019).

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“Section 110 of the Crimes Code generally prohibits subsequent

prosecution of a defendant for different crimes arising from the same criminal

episode after the defendant has already been convicted or acquitted of

criminal charges arising from that criminal episode.” Commonwealth v.

Copes, 295 A.3d 1277, 1279 (Pa. Super. 2023) (citing 18 Pa.C.S. § 110).

“Section 110’s compulsory joinder rule was designed to serve two distinct

policy considerations: (1) to protect a person accused of crimes from

governmental harassment by being forced to undergo successive trials for

offenses stemming from the same criminal episode, and (2) to ensure judicial

economy.” Commonwealth v. Forrester-Westad, 282 A.3d 811, 821 (Pa.

Super. 2022) (citation and brackets omitted).

As recited hereinabove, there is a four-part test to determine when

section 110 bars a subsequent prosecution:

(1) the former prosecution must have resulted in an acquittal or

conviction;

(2) the current prosecution is based upon the same criminal

conduct or arose from the same criminal episode as the

former prosecution;

(3) the prosecutor was aware of the instant charges before the

commencement of the trial on the former charges; and

(4) the current offense occurred within the same judicial district

as the former prosecution.

Copes, 295 A.3d at 1279 (citation omitted). “Each prong of this test must be

met for compulsory joinder to apply.” Commonwealth v. Davis, 242 A.3d

923, 935 (Pa. Super. 2020) (citation omitted).

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Here, the thrust of Washington’s argument concerns the second prong—

whether the drug delivery conviction in Cambria County was based on the

same criminal conduct and episode as the charges arising out of the murder

of the two victims.

To determine whether various acts constitute a single criminal

episode, a court must consider the logical relationship and the

temporal relationship between the acts. Courts have recognized

that although the relationship between the timing of actions is

often determinative, in defining what acts constitute a single

criminal episode, not only is the temporal sequence of events

important, but also the logical relationship between the acts must

be considered. Offenses are logically related when there is a

substantial duplication of factual, and/or legal issues presented by

the offenses. Whether there is substantial duplication of fact and

law depends ultimately on how and what the Commonwealth must

prove in the subsequent prosecution. For example, there would

be substantial duplication if the Commonwealth’s case rests solely

upon the credibility of one witness in both prosecutions and there

would not be substantial duplication if proof requires the

introduction of the testimony of completely different police officers

and expert witnesses as well as the establishment of separate

chains of custody.

Copes, 295 A.3d at 1280 (citations, quotation marks, and paragraph break

omitted).

Here, in denying Washington’s motion, the trial court found that

evidence required to establish the crime of possession with intent to deliver

was substantially different from the evidence establishing the kidnapping,

assault, conspiracy, and homicide charges. Trial Court Opinion, 7/14/2022,

at 6. More specifically, the trial court observed that for the possession with

intent to deliver charge, the Commonwealth would have presented evidence

related to the drugs and contraband seized from Washington’s residence,

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while the charges related to the murder of the two victims required the

Commonwealth to present eyewitness testimony, cell phone data, forensic

evidence, and the autopsies. Id. The trial court concluded that there was not

a substantial duplication of facts and law between the cases. Id. at 7.

We conclude that the trial court did not commit legal error in ruling upon

Washington’s compulsory joinder argument. There is clearly not a substantial

temporal or logical connection between the crimes. Beginning with the

temporal connection, the record reflects that the crimes related to the killing

of the two victims occurred on March 27, 2017, when Washington and his co-

conspirators kidnapped, assaulted, and murdered the victims. The crimes

related to possession with intent to deliver occurred on December 19, 2017,

when the police executed a search warrant on Washington’s residence and

discovered controlled substances and contraband. Therefore, there was scant

temporal relationship between the crimes. See Copes, 295 A.3d at 1280.

Likewise, there is no logical connection between the crimes. Possession

with intent to deliver and the crimes arising out of the murder require the

introduction of different lay witnesses, expert witnesses, and forensic and

other scientific evidence. See id. at 1281 (finding no logical connection

between prosecution as “there is little, if any, duplication in the witnesses or

evidence necessary to support the respective convictions.”).

Moreover, there is not a commonality of legal issues within the two

prosecutions. The fact that the drugs were found during a search of

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Washington’s residence that was conducted as part of the homicide

investigation does not in and of itself provide a logical connection between the

prosecutions. See Commonwealth v. Reed, 990 A.2d 1158, 1164-65 (Pa.

2010) (finding that the fact police located items of evidence used in a murder

and kidnapping prosecution in one county at the same time they obtained

evidence of a firearm unrelated to the murder and drug offenses supporting

another county’s prosecution was not a sufficient and logical connection to

support finding the offenses constituted one criminal episode). The two sets

of prosecutions also clearly would require proof of different legal elements.

See Brown, 212 A.3d at 1083 (noting that “the alleged crimes did not have

any overlapping elements, and that any duplication of factual issues or

evidence was ‘de minimis and insufficient to establish a logical relationship’

between the charges”) (citation omitted). Further, Washington has not

established through any evidence or argument that the drugs found in his

residence were the same drugs that were stolen from Washington’s gang.

Therefore, he has not established a logical connection between the

prosecutions.

We therefore conclude, based upon the totality of the circumstances,

that the cases brought against Washington in Cambria and Somerset Counties

constituted two separate criminal episodes that are distinct and apart from

each other. As the four-part test has not been satisfied, see Davis, 242 A.3d

at 935, we find that 18 Pa.C.S. § 110(1)(ii) did not bar the current charges

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brought against Washington for his involvement in the murder of the victims.12

Washington’s third argument fails.

4. Severance

In his fourth claim, Washington contends that the trial court erred in

denying his motion to sever his trial from his codefendants, Benson and Wyrik.

Washington’s Brief at 32, 40. Washington argues that the admission at trial

of inculpatory statements made by Washington to Jordan and Browning

violated Bruton v. United States, 391 U.S. 123, 135-37 (1968) (concluding

that a confession from non-testifying codefendant that directly incriminates

the defendant in a joint trial is of such a powerfully incriminating nature that

an instruction to the jury limiting its consideration of the confession is

insufficient to cure prejudice to the defendant from the confession’s admission

at trial). Washington’s Brief at 32-39. Washington disputes the trial court’s

finding that the statements by Jordan and Browning were not testimonial in

nature and did not implicate Bruton. Id. at 39. Washington claims that the

United States Supreme Court has not limited the Confrontation Clause

protections to only testimonial hearsay. Id. (citing Crawford v.

Washington, 541 U.S. 36, 68 (2004)).

____________________________________________

12 Washington also baldly asserts the trial court erred in finding his claim

frivolous. However, even if the trial court erred, we conclude that Washington

is not entitled to relief because his double jeopardy claim is without merit.

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“Whether to join or sever offenses for trial is within the trial court’s

discretion and will not be reversed on appeal absent a manifest abuse thereof,

or prejudice and clear injustice to the defendant.” Commonwealth v.

Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018) (citation omitted).

“Defendants charged in separate indictments or informations may be

tried together if they are alleged to have participated in the same act or

transaction or in the same series of acts or transactions constituting an offense

or offenses.” Pa.R.Crim.P. 582(A)(2). “The 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. However, “[u]nder 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. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010) (citation

omitted).

Here, Washington’s reliance on Bruton is misplaced, as the testimony

by Browning and Jordan at trial referenced Washington’s own statements, not

those of his codefendants. See Commonwealth v. McCrae, 832 A.2d 1026,

1038 (Pa. 2003) (stating that Bruton applies only where there is “introduction

of a powerfully incriminating statement made by a non-testifying

co[]defendant at a joint trial,” and “Bruton is inapplicable to statements made

by an individual other than a non-testifying co[]defendant at a joint trial of

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co[]defendants”). Washington has not established through any argument or

analysis that the Bruton holding extends to confessions made by the

defendant himself. Further, Washington has not cited to any statements made

by a non-testifying codefendant that implicated him or was prejudicial to him.

Moreover, Washington does not dispute that the consolidation of his

case with his codefendants promoted judicial economy and enhanced fairness

among the codefendants. As our Supreme Court has observed, if the crimes

charged against each defendant arise out of the same facts and evidence,

[i]t would impair both the efficiency and the fairness of the

criminal justice system to require ... that prosecutors bring

separate proceedings, presenting the same evidence again and

again, requiring victims and witnesses to repeat the inconvenience

… of testifying, and randomly favoring the last tried defendants

who have the advantage of knowing the prosecution’s case

beforehand.

Commonwealth v. Rainey, 928 A.2d 215, 231 (Pa. 2007) (citation omitted).

At trial, the prosecution presented numerous witnesses, and forensic

and cell phone data evidence. Consolidating the three cases eliminated the

inconvenience and burden for the prosecution to require these witnesses to

give testimony at multiple trials. See id. Accordingly, Washington failed to

show that the trial court abused its discretion in consolidating his trial with his

codefendants’ prosecutions. Therefore, Washington’s fourth issue fails.

5. Request for Stay

In his fifth claim, Washington contends that the trial court erred in

denying his request to stay proceedings pending his appeal to this Court and

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the Pennsylvania Supreme Court regarding his double jeopardy and

compulsory joinder claims. Washington’s Brief at 40-43. Washington argues

that the Supreme Court denied allowance of appeal without comment and

notes that it may have heard his case had he not already been convicted. Id.

at 42-43. Washington asserts that he was prejudiced by the trial court’s

refusal to stay the proceedings pending the resolution of his interlocutory

appeal. Id. at 43.

Preliminarily, we note that Washington has not indicated the relief he

seeks. Washington merely asks for this Court to rule upon his underlying

claim regarding compulsory joinder and double jeopardy, which we have,

finding the argument to be meritless. Accordingly, no relief is due on this

issue.

6. Admissibility of Evidence: Reighard’s Recorded Statement

In his sixth claim, Washington contends that trial court abused its

discretion in denying him the ability to elicit testimony regarding Reighard at

trial. Washington’s Brief at 43. Noting that the trial court allowed the

introduction of some statements by Reighard, Washington argues that he

attempted to introduce an additional statement given by Reighard to another

Commonwealth witness, Mindy Olshavsky (“Olshavsky”),13 three days after

the murders regarding the location of the bodies of the victims, which was a

____________________________________________

13 Olshavsky is Bergmann’s stepsister and knew both victims and Reighard.

N.T., 10/18/2022, at 370-72.

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statement against his interest. Id. at 44-45. Washington asserts that the

trial court erred in ruling this statement was inadmissible hearsay, finding that

Reighard was simply stating a fact and not making a statement against his

interest. Id. at 45. Washington’s statement to Olshavsky was that he was a

person of interest in the murders, and he knew the location of the bodies, thus

establishing the statement was incriminating. Id. at 47.

Additionally, Washington sought to introduce Reighard’s statement to

Olshavsky, “I am just really, really fuckin’ done with everyone. I am to the

point right now where I am really better off dead.” Id. at 48 (citation

omitted). Washington argues that this statement was admissible under the

hearsay exceptions of excited utterance and an existing emotional state of

mind, claiming that Reighard felt remorse or stress. Id. at 48-49. Washington

maintains that these statements should have been admitted to provide the

jury with evidence of another suspect of the murders. Id. at 49.

“The 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. Ganjeh, 300 A.3d 1082, 1091

(Pa. Super. 2023) (citation and brackets omitted).

Hearsay is a statement that “(1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

Hearsay is inadmissible “except as provided by [the Rules of Evidence], by

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other rules prescribed by the Pennsylvania Supreme Court, or by statute.”

Pa.R.E. 802; see also Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa.

2020) (“Hearsay generally is inadmissible unless it falls within one of the

exceptions to the hearsay rule delineated in the Pennsylvania Rules of

Evidence.”).

We will first address Reighard’s out-of-court statement regarding the

location of the bodies of the victims. Washington believes this statement is

admissible under the statement against interest hearsay exception. A

statement may be admitted under the hearsay exception for statements

against interest if the declarant is unavailable as a witness and

(A) a reasonable person in the declarant’s position would have

made only if the person believed it to be true because, when

made, it was so contrary to the declarant’s proprietary or

pecuniary interest or had so great a tendency to invalidate

the declarant’s claim against someone else or to expose the

declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly

indicate its trustworthiness, if it is offered in a criminal case

as one that tends to expose the declarant to criminal

liability.

Pa.R.E. 804(b)(3).

The trial court rejected Washington’s claim:

Here, Reighard’s statement indicates that he had knowledge three

days after the murders of the general area of where the victims’

bodies were. The fact that Reighard knew of the general area of

where the victims’ bodies would be found is not indicative of

criminal liability. Perhaps, if he were alive, this statement would

make him a witness to the case, but the statement alone would

not subject him to criminal liability. In other words, having some

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knowledge of certain details of a crime committed days earlier

does not per se subject someone to criminal liability.

Trial Court Opinion, 7/13/2023, at 18 (footnote omitted); see also N.T.,

10/18/2022, at 404 (denying admission of the statement at trial because

“[j]ust simply knowing facts about something is not a statement against

interest”).

We conclude that the trial court did not abuse its discretion in denying

admission of this out-of-court statement by Reighard. Significantly, a

statement is admissible as a statement against interest if it exposes the

declarant to criminal liability. See Pa.R.E. 804(b)(3)(B); cf. Commonwealth

v. Statum, 769 A.2d 476, 480 (Pa. Super. 2001) (noting that an unavailable

witness’ statement was admissible under the statement against interest

hearsay exception because the witness admitted to the crime for which the

defendant had been charged). Identifying the location of the bodies did not,

in and of itself, implicate Reighard in any crime. The trial court therefore did

not abuse its discretion in denying admission of this evidence.

We next turn to Washington’s attempt to introduce Reighard’s

statement on March 28, 2017, “But yes, I am just really, really fuckin’ done

with everyone. I am to the point right now where I am really better off dead,”

N.T., 10/18/2022, at 410, under the excited utterance and then-existing

mental, emotional, or physical condition hearsay exceptions. These

exceptions state the following:

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(2) Excited Utterance. A statement relating to a startling event

or condition, made while the declarant was under the stress of

excitement that it caused. When the declarant is unidentified, the

proponent shall show by independent corroborating evidence that

the declarant actually perceived the startling event or condition….

(3) Then-Existing Mental, Emotional, or Physical Condition.

A statement of the declarant’s then-existing state of mind (such

as motive, intent, or plan) or emotional, sensory, or physical

condition (such as mental feeling, pain, or bodily health), but not

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the validity or terms

of the declarant’s will.

Pa.R.E. 803(2), (3).

Here, Washington does not demonstrate the statement was made in

relation to a startling event or condition to meet the excited utterance

exception. Nor does he provide any context of the statement to establish

Reighard’s then-existing state of mind related to the murders.

Further, and more globally, Washington has not established the

relevance of this out-of-court statement. See Pa.R.E. 402 (“Evidence that is

not relevant is not admissible.”). “Evidence is relevant if: (a) it has any

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. Both before the trial court and in his brief before this Court,

Washington failed to explain the context surrounding the statement or how, if

at all, it was related to this case. See Trial Court Opinion, 7/13/2023, at 20.

He purely speculates as to what Reighard was feeling, that the statement was

somehow a statement of remorse, and what, if anything, Reighard was

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remorseful about without any evidentiary support or analysis. See, e.g.,

Commonwealth v. Fitzpatrick, 255 A.3d 452, 479 (Pa. 2021) (noting that

the introduction of a statement under the then-existing mind hearsay

exception “must be pertinent to some contested issue in the legal

proceeding”). The trial court properly excluded this evidence at trial.

Washington’s claim is without merit.

7. Admissibility of Evidence: Updated FBI Cellular Data Analysis

In his seventh issue on appeal, Washington intended to argue that the trial

court erred in permitting the Commonwealth to utilize an updated FBI cellular

data analysis. Washington’s Brief at 49. Washington expressly withdraws this

issue from consideration on appeal. Id.

8. Authentication of Cell Phone Evidence

In his eighth issue, Washington contends that the trial court erred by

permitting the Commonwealth to introduce an FBI cellular analysis report,

wherein Agent John Orlando (“Agent Orlando”) compiled an analysis based on

cell phone tracking of six phones and determined that two unrelated phone

numbers, one ending in 7381 and another ending in 9204, showing incoming

and outgoing calls to the six phones, were associated with Washington without

setting forth a proper foundation for the information.14 Id. at 49-50, 53.

Washington acknowledges that the numbers in question were found in

____________________________________________

14 The full phone numbers were included in the records and testimony at trial.

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Wyrick’s phone under the contact name “Blamson,” which was Washington’s

nickname. Id. at 50, 52. And although Washington concedes that one phone

number (ending in 9204) was found to belong to him through records from a

cellphone company, the other number (ending in 7381) was solely connected

to him based upon his nickname in Wyrick’s phone, which he contends is

insufficient. Id. at 52. According to Washington, the fact that the numbers

were saved in Wyrick’s phone as a nickname associated with Washington did

not establish a proper foundation for the admission of this evidence at trial

because the number could have been entered in this manner for many

different reasons. Id. at 53. Washington argues that no other evidence (such

as subscriber information) corroborated the information that the phone

number belonged to Washington. Id.

[T]o satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.” Pa.R.E. 901(a).

“Authentication generally entails a relatively low burden of proof[.]”

Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017) (citation

omitted). Circumstantial evidence may be used to authenticate evidence.

Commonwealth v. Orr, 255 A.3d 589, 595-96 (Pa. Super. 2021).

At trial, Agent Orlando testified that in preparing the report, he reviewed

the Commonwealth’s case file, including the cell phone extraction report from

Wyrick’s phone completed by Special Agent April Campbell that contained a

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list of contacts of names and cell phone numbers, a list of the defendants’

names and nicknames, including Washington’s nickname of “Blamson,” and

cell phone records and certifications. See N.T., 10/20/2022, at 925-27; N.T.,

10/19/2022, at 589-93 (Commonwealth Exs. at 92-96A — cell phone records

and certifications for various numbers); N.T., 10/19/2022, at 635

(Commonwealth Ex. 100 — cell phone extraction report); N.T., 10/19/2022,

at 652 (Commonwealth Ex. 101 — pictures, names, and nicknames of the

defendants); see also N.T, 10/19/2022, at 593-94 (Special Agent Matthew

Seefeld of the Pennsylvania Office of the Attorney General testified that the

subscriber of the phone number ending in 9204 was Washington); id. at 635-

36 (Special Agent Campbell testified that two phone numbers, ending in 9204

and 7381, were associated with “Blamson” in Wyrick’s phone). Agent Orlando

stated that he analyzed six numbers, including a “shared phone,” Callender’s

phone, the victims’ phones, Wyrick’s phone, and Bergmann’s phone. N.T.,

10/20/2022, at 936-37; see also id. at 935 (Commonwealth Ex. 102 — FBI

Cellular Analysis Report). Agent Orlando indicated that Washington and

Benson were listed in Wyrick’s phone under their nicknames. N.T.,

10/20/2022, at 938; N.T., 10/19/2022, at 593-94, 635-36.

Our review of the record reveals that although the Commonwealth

properly authenticated the 9204 number as belonging to Washington, it did

not properly authenticate the 7381 number as his, because there was no

evidence to support that this number belonged to Washington, aside from the

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saved contact in Wyrick’s phone. See Commonwealth v. Koch, 39 A.3d

996, 1005 (Pa. Super. 2011) (noting that because a cell phone may not

necessarily be used exclusively by the person whom the phone number is

assigned, “circumstantial evidence, which tends to corroborate the identity of

the sender, is required.”).15 We nevertheless conclude that this error was

harmless.

The harmless error doctrine provides as follows:

Harmless error exists if the state proves either: (1) the error did

not prejudice the defendant or the prejudice was de minimis; or

2) the erroneously admitted evidence was merely cumulative of

other untainted evidence which was substantially similar to the

erroneously admitted evidence; or (3) the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the

prejudicial effect of the error was so insignificant by comparison

that the error could not have contributed to the verdict.

Commonwealth v. Callen, 198 A.3d 1149, 1163 (Pa. Super. 2018) (citation

omitted); see also Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa.

2020) (stating that “sua sponte invocation of the harmless error doctrine is

not inappropriate as it does nothing more than affirm a valid judgment of

sentence on an alternative basis”).

____________________________________________

15 An evenly divided Supreme Court affirmed our decision in Koch.

Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014). “Due to the lack of a

majority opinion, the Supreme Court’s decision in Koch is not binding upon

us.” Orr, 255 A.3d at 596. Notably, numerous post-Koch cases have “applied

our own opinion in Koch as binding on the subject of authentication.” Id.

(collecting cases).

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Here, the prejudicial impact of erroneously attributing the number

ending in 7381 to Washington was de minimis. As stated above, Washington

does not dispute that the number ending in 9204 belonged to him or that he

exchanged numerous phone calls with Wyrick, Benson, and Bergmann during

the period in question, and that this was also stated in the report. See, e.g.,

N.T., 10/20/2022, at 944-45 (Agent Orlando testifies that the cell data

analysis confirmed testimony that Wyrick called Washington on the morning

of the burglary of the drug stash house), 947 (cell data confirms Bergmann

spoke with Washington on March 27, 2017).

Moreover, the FBI cellular analysis report did not explicitly provide any

information regarding the identity of the shooter in this case, only that the

shared phone, Wyrick, and the two victims were in the vicinity of the murder

scene, the shared phoned was traveling toward Johnstown at the time

Washington left the scene to get a new gun, and Wyrick was messaging the

shared phone during this time. See N.T., 10/20/2022, at 967, 969-71.

Accordingly, Washington is not entitled to relief. See Commonwealth v.

Wilson, 286 A.3d 1288, 1300 (Pa. Super. 2022) (noting that the “harmless

error doctrine reflects the reality that the accused is entitled to a fair trial, not

a perfect trial”) (citation and quotation marks omitted).

9. Admissibility of Evidence: Shared Phone

In his ninth claim, Washington argues that the trial court erred in

permitting the Commonwealth to introduce evidence of a “shared phone” in

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the FBI report. Washington’s Brief at 53. However, Washington affirms that

he did not preserve this issue for appeal and withdraws the issue for

consideration on appeal. Id.; see also Trial Court Opinion, 7/13/2023, at 27-

28 (noting that Washington did not object to the issue of the “shared phone”

before the trial court).

10. Admissibility of Evidence: Drug Dealer in the Community

In his final claim, Washington contends that the trial court erred in

denying his motion in limine seeking to exclude evidence that he was a drug

dealer in his community. Washington’s Brief at 54. Washington argues that

the prejudicial impact of the admission of this evidence outweighed the

probative value. Id. at 54, 58. Washington notes that the evidence of prior

bad acts or unrelated criminal activity is generally inadmissible to show a

defendant acted in conformity with those prior acts or to show a defendant’s

criminal propensity. Id. at 55. Washington asserts that the entire trial

centered on the fact he was a drug dealer, his drugs had been stolen, and he

and his codefendants were part of a gang from Ohio that was involved in drug

activity. Id. at 57-58. Washington claims that the repetitive nature of the

drug related evidence was extremely prejudicial “because it was cumulative

and irrelevant to showing motive.” Id. at 58.

“When ruling on a trial court’s decision to grant or deny a motion in

limine, we apply an evidentiary abuse of discretion standard of review.”

Commonwealth v. Cook, 231 A.3d 913, 919 (Pa. Super. 2020). “[A]n abuse

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of discretion occurs only where the trial court has reached a conclusion that

overrides or misapplies the law, or when the judgment exercised is manifestly

unreasonable, or is the result of partiality, prejudice, bias or ill-will.” Id.

(citation omitted).

“Generally, evidence of prior bad acts or unrelated criminal activity is

inadmissible to show that a defendant acted in conformity with those past acts

or to show criminal propensity.” Commonwealth v. Sherwood, 982 A.2d

483, 497 (Pa. 2009) (citing Pa.R.E. 404(b)(1)). “However, evidence of prior

bad acts may be admissible when offered to prove some other relevant fact,

such as motive, opportunity, intent, preparation, plan, knowledge, identity,

and absence of mistake or accident.” Sherwood, 982 A.2d at 497 (citing

Pa.R.E. 404(b)(2)). “[E]vidence may also be admitted where the acts were

part of a chain or sequence of events that formed the history of the case and

were part of its natural development.” Commonwealth v. Powell, 956 A.2d

406, 419 (Pa. 2008). “In determining whether evidence of other prior bad

acts is admissible, the trial court is obliged to balance the probative value of

such evidence against its prejudicial impact.” Sherwood, 982 A.2d at 497.

The trial court, in denying Washington’s motion in limine, stated the

following:

[The trial court] would allow testimony and evidence to generally

show that the defendants were involved in drug-dealing in the

Johnstown community at or about the time that these alleged

events occurred. It is the natural course of events in the history

of the case. It clearly shows the Commonwealth’s allegations of

motive and why they would have wanted to kidnap the victims. …

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[I]t all ties into the story line of this case, and … it is appropriate

for the jury to understand the case to hear that evidence.

N.T., 7/27/2022, at 106.

We conclude that the trial court’s conclusion is supported by the record

and the law. Washington’s drug related activity was relevant and probative

of the motive and intent as to why Washington and his codefendants

kidnapped, assaulted, and ultimately murdered the victims. See Ganjeh, 300

A.3d at 1091 (stating that “[t]he challenged evidence shows the chain or

sequence of events which formed the history of the case, is part of the natural

development of the case, and demonstrates [a]ppellant’s malice and ill-will

toward the victim”). Therefore, the trial court did not abuse its discretion in

denying Washington’s motion in limine.

Judgment of sentence affirmed.

FILED: 5/2/2024

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