Commonwealth v. Lowmiller

• Decision Date: 27 July 2021
• Docket Number: No. 1114 MDA 2020,1114 MDA 2020
• Parties: COMMONWEALTH of Pennsylvania v. Paul Daniel LOWMILLER, Appellant
• Court: Pennsylvania Superior Court

257 A.3d 758

COMMONWEALTH of Pennsylvania

v.Paul Daniel LOWMILLER, Appellant

No. 1114 MDA 2020

Superior Court of Pennsylvania.

Filed July 27, 2021

Submitted June 9, 2021

Helen A. Stolinas, State College, for appellant.

Martin L. Wade, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:

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. 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 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 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 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 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 , 570 Pa. 117, 808 A.2d 893, 904 (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).

Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook , 597 Pa. 572, 952 A.2d 594, 612 (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

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