Com. v. Flint, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES MICHAEL FLINT, :
:
Appellant : No. 2928 EDA 2014
Appeal from the Judgment of Sentence September 18, 2014
in the Court of Common Pleas of Chester County,
Criminal Division, No. CP-15-CR-0000020-2014
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED December 22, 2015
James Michael Flint (“Flint”) appeals from the judgment of sentence
imposed following his convictions for two counts of robbery, and one count
each of criminal attempt (theft), simple assault, recklessly endangering
another person (“REAP”) and possession of an instrument of crime. 1 We
affirm.
On December 24, 2013, Carlos Julian Primo (“Primo”) was in his
driveway getting ready to leave for work. Flint approached Primo, held a
knife to his throat and demanded money. As Flint and Primo struggled,
Primo cut his hand on the knife in his efforts to disarm Flint. Primo’s
brothers heard the fight and ran outside to help. One brother called 911,
and together they were able to restrain Flint until the police arrived.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 901, 2701, 2705, 907.
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Thereafter, Officer Ronald Simril (“Officer Simril”) and his partner
arrived on the scene. Officer Simril found the three brothers holding Flint
face-down on the ground. Officer Simril then arrested Flint.
Following a jury trial, Flint was convicted of the above-mentioned
crimes. The trial court sentenced Flint to 7½ to 15 years in prison on one of
the robbery convictions, a consecutive term of 1 to 2 years in prison on the
REAP conviction, and a consecutive term of 1 to 2 years in prison on the
possession of an instrument of crime conviction.2 Flint filed a timely Notice
of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure
1925(b) Concise Statement of Matters Complained of on Appeal.
On appeal, Flint raises the following questions for our review:
I. Did the [trial c]ourt err in denying [Flint’s] [M]otion for mistrial
after Officer [] Simril testified that he “recognized [] Flint right
away,” thus alluding to prior police [or] criminal contact with []
Flint?
II. Did the [trial c]ourt err in sentencing [] Flint to a consecutive
1-2 year sentence for [REAP] in that it merges with [r]obbery?
Brief for Appellant at 8.
In his first claim, Flint argues that the trial court erred in denying his
Motion for mistrial based on Officer Simril’s testimony that he recognized
Flint “right away.” Id. at 10-13. Flint claims that, based on Officer Simril’s
statement, the jury could infer that Officer Simril recognized Flint due to
2
The trial court stated that the remaining convictions merged for the
purpose of sentencing.
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prior criminal conduct. Id. at 12. Flint argues that such an inference
constituted prejudice. Id. at 12-13.
“[A] mistrial is required only when an incident is of such a nature that
its unavoidable effect is to deprive the appellant of a fair and impartial trial.”
Commonwealth v. Lease, 703 A.2d 506, 508 (Pa. Super. 1997). It is
within the trial court’s discretion to determine whether a defendant was
prejudiced by the incident forming the basis of a motion for a mistrial. Id.
On appeal, our standard if review is whether the trial court abused that
discretion. Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa. Super.
2000).
“It is well-settled that evidence of crimes unrelated to the charge for
which a defendant is being tried is generally inadmissible.”
Commonwealth v. Vazquez, 617 A.2d 786, 787 (Pa. Super. 1992). “Nor
can indirect testimony[,] from which a jury could reasonably infer that a
defendant had been involved in prior criminal activity[,] be admitted into
evidence in order to convict an accused[,] and if such is done the accused is
entitled to a new trial.” Commonwealth v. Sanders, 442 A.2d 817, 818
(Pa. Super. 1982). “However, not all improper references to criminal acts
require the award of a new trial…. [T]he extreme remedy of a mistrial is not
automatically required if it is determined that the inference of prior
criminality was innocuous….” Vazquez, 617 A.2d at 787-88 (citations
omitted).
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[T]he alleged prejudicial comments must be evaluated with
regard to the circumstances of each trial, including, but not
limited to: the nature of the comment, the person to whom the
alleged prejudicial comment was directed, the identity of the
person making the comment, and if a witness, the importance of
that witness’[s] testimony to either the Commonwealth or the
defense’s case, and whether the court gave immediate
cautionary instructions if it deemed the remark prejudicial.
Commonwealth v. Grant, 387 A.2d 841, 844 (Pa. 1978).
At trial, Officer Simril testified that after he had placed Flint in
handcuffs, he stood him up and shined his flashlight in Flint’s face because
Primo wanted to see who had attacked him. N.T., 7/14/14, at 36-37.
Officer Simril testified that “[he] recognized Mr. Flint right away.” N.T.,
7/14/14, at 37.
After the Commonwealth had asked another question, Flint’s trial
counsel requested a sidebar and moved for a mistrial based on Officer
Simril’s testimony. Id. at 37. The trial court excused the jury while the
court asked Officer Simril additional questions regarding his previous
contacts with Flint. Id. at 38-40. With defense counsel’s agreement, the
trial court then allowed the Commonwealth to seek clarification from Officer
Simril regarding his previous statement in front of the jury. See id. at 38-
39. After the jury returned to the courtroom, the Commonwealth asked
Officer Simril several more questions before asking Officer Simril how he had
recognized Flint. See id. at 41-45. Officer Simril testified that he
recognized Flint “[f]rom seeing him around town.” Id. at 45.
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Here, Officer Simril did not testify that he knew Flint from previous
criminal incidents. He merely stated that he recognized Flint, and later
clarified that he recognized Flint from seeing him around town. See Trial
Court Opinion, 2/2/15, at 6 n.2 (noting that “the area where this incident
took place is a small community[, ] and it would not be uncommon for a
police officer to recognize an individual from town.”) (quotation marks
omitted); see also Sanders, 442 A.2d at 818 (stating that “[m]erely
because a police officer knows someone … does not suggest that the person
has been engaged in prior criminal activity. A policeman may know
someone because they reside in the same neighborhood or for any other
number of reasons.”). Moreover, Officer Simril’s testimony that he
recognized Flint “right away” was an isolated statement made in passing,
which was later clarified. See Commonwealth v. Harris, 443 A.2d 851,
855 (Pa. Super. 1982) (holding that the trial court did not abuse its
discretion by denying a motion for mistrial where alleged prejudicial
statement was “an isolated passing reference volunteered by the witness
and not responsive to the question.”); see also Commonwealth v.
Maxwell, 478 A.2d 854, 857 (Pa. Super. 1984) (stating that potentially
prejudicial testimony by a detective did not warrant a mistrial because it
“could have been cured by an appropriate explanation or cautionary
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instruction.”).3 Thus, Officer Simril’s testimony did not deprive Flint of a fair
trial, and Flint’s first claim is without merit
In his second claim, Flint contends that the trial court erred by not
merging the offenses of robbery and REAP for sentencing purposes. Brief for
Appellant at 13-17. Flint claims that these offenses must merge because
they arose from a single criminal act. Id. at 15. Further, Flint argues that
the act of placing a knife at the victim’s throat satisfies the elements of both
offenses because the act placed Primo in fear of immediate serious bodily
injury, and actually placed Primo in danger of serious bodily injury. Id. at
16. In support of his position, Flint relies upon our Supreme Court’s plurality
decision in Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (plurality).
Brief for Appellant at 16-17.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa. Super. 2012). “Therefore, our standard of
review is de novo and our scope of review is plenary.” Id.
Whether offenses merge at sentencing implicates Section 9765 of the
Sentencing Code, which provides the following:
§ 9765. Merger of sentences
3
Here, Flint did not seek a cautionary instruction. See Commonwealth v.
Bryant, 855 A.2d 726, 739 (Pa. 2004) (stating that a “[f]ailure to request a
cautionary instruction upon the introduction of evidence constitutes a waiver
of a claim of trial court error in failing to issue a cautionary instruction.”).
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No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S.A. § 9765.4
In [] Jones, our Supreme Court addressed the issue of merger
pursuant to section 9765, but was unable to establish a
consensus approach. … [T]he lead plurality opinion in Jones …
adopted a “practical, hybrid approach” that required courts to
“evaluate the statutory elements [of each crime], with an eye to
the specific allegations leveled in the case.” 912 A.2d at 822.
Justice Newman wrote a dissent favoring the adoption of a strict
statutory test in accordance with section 9765. Id. at 827
(Newman, J., dissenting) (“[T]he elements of these two crimes
differ, and sentencing thus cannot be merged pursuant to our
jurisprudence and the legislative intent as evidenced by 42
Pa.C.S.[A.] § 9765.”).
Commonwealth v. Jenkins, 96 A.3d 1055, 1057 (Pa. Super. 2014)
(citation omitted).
Just three years later, our Supreme Court revisited its approach
to merger. See Commonwealth v. Baldwin, 604 Pa. 34, 985
A.2d 830 (2009). In a majority decision, Baldwin adopted the
Jones dissent’s reasoning and held the plain language of Section
9765 reveals a legislative intent “to preclude the courts of this
Commonwealth from merging sentences for two offenses that
are based on a single criminal act unless all of the statutory
elements of one of the offenses are included in the statutory
elements of the other.” Id. at 45, 985 A.2d at 837. Baldwin
rejected the “practical, hybrid approach” advocated in the lead
Jones plurality opinion. Id. at 42, 912 A.2d at 835. Instead,
Baldwin held that when each offense contains an element the
other does not, merger is inappropriate.
Quintua, 56 A.3d at 401.
4
Section 9765 became effective on February 7, 2003.
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Here, a single criminal act resulted in Flint violating the REAP and
robbery statutes. See, e.g., N.T., 9/18/14, at 8 (wherein the
Commonwealth acknowledges that the REAP charge resulted from the “same
conduct” as the robbery charge). Therefore, we must determine whether all
of the statutory elements of REAP are included in the statutory elements of
robbery. The Crimes Code defines REAP as follows: “A person commits a
misdemeanor of the second degree if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S.A. § 2705 (emphasis added). The Crimes Code defines
robbery, in relevant part as follows: “A person is guilty of robbery if, in the
course of committing a theft, he … threatens another with or intentionally
puts him in fear of immediate serious bodily injury.” Id. § 3701(a)(1)(ii).
This Court has previously held that REAP and robbery merge for
sentencing purposes. See, e.g., Commonwealth v. Robinson, 549 A.2d
977, 979 (Pa. Super. 1988); Commonwealth v. Walls, 449 A.2d 690, 693
(Pa. Super. 1982); Commonwealth v. Eberts, 422 A.2d 1154, 1156 (Pa.
Super. 1980). However, because these cases were decided prior to the
enactment of section 9765, they do not support a finding of merger. See
Baldwin, 985 A.2d at 835 (stating that “jurisprudence prior to the
enactment of Section 9765 simply do not support his claim for relief.”);
Commonwealth v. Calhoun, 52 A.3d 281, 285 (Pa. Super. 2012) (stating
that “[s]ection 9765, particularly as elucidated by our Supreme Court in
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Baldwin, evinces a clear intent to confine merger for sentencing purposes
to the defined condition that all of the statutory elements of one of the
offenses are included in the statutory elements of the other.”).
Based on a comparison of the two offenses, it is clear that the offenses
of REAP and robbery cannot merge for sentencing purposes. Indeed,
robbery does not require a mens rea of recklessness, which is an element of
REAP. See Commonwealth v. Weigle, 949 A.2d 899, 907 (Pa. Super.
2008) (stating that “the thrust of the REAP statute is to provide criminal
sanctions for the reckless creation of a risk of death or serious bodily
injury.”); see also Commonwealth v. Payne, 868 A.2d 1257, 1262 (Pa.
Super. 2005) (noting that aggravated assault requires a mental state that
robbery does not, and, therefore, the offenses do not merge). Moreover,
the REAP statute does not impact on the state of mind of the victim, while
the robbery statute is written from the victim’s perspective, and requires
that the victim be placed in fear of immediate serious bodily injury. See
Commonwealth v. Cancilla, 649 A.2d 991, 994 (Pa. Super. 1994) (stating
that to support a REAP conviction, conduct in question must create an
actual, not merely perceived, danger); see also Weigle, 949 A.2d at 907
(holding REAP is not a cognate offense to robbery because it “could be
accomplished without committing a robbery, and a robbery could be
accomplished without committing [an offense] involving danger to the
person.”). Additionally, unlike robbery, REAP does not require proof of theft.
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See Weigle, 949 A.2d at 907 (acknowledging that while REAP and robbery
are intended to protect part of the same harm, “i.e., protection against
infliction of bodily injury or fear thereof[,] the robbery statute contains the
additional goal of protection of property which REAP does not). Thus, each
offense requires proof of an element that other does not, and cannot merge
for sentencing purposes. See Payne, 868 A.2d at 1262-63 (concluding that
aggravated assault did not merge with robbery arising from the same
criminal conduct, where robbery did not require that the defendant cause
serious bodily injury by acting intentionally, knowingly or recklessly, and
aggravated assault did not require proof of theft). We thus conclude Flint’s
merger issue to be unavailing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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