Com. v. Richardson, A.

J-S22027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTWAN LEON RICHARDSON :
:
Appellant : No. 825 MDA 2020
Appeal from the Judgment of Sentence Entered March 10, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000473-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 23, 2021
Antwan Leon Richardson (Appellant) appeals from the judgment of
sentence entered in the Dauphin County Court of Common Pleas, following his
jury conviction of kidnapping and false imprisonment.1 On appeal, he asserts:
(1) the trial court erred in denying his Pa.R.Crim.P. 600 pretrial motion for
nominal bail; (2) the court improperly found there was sufficient evidence to
sustain his kidnapping conviction; (3) the court erred in denying his motion
for a mistrial after the court referred to the victim as having been kidnapped;
and (4) the court imposed an illegal sentence. For the reasons below, we
affirm.
I. FACTS & PROCEDURAL HISTORY
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2901(a)(3), 2903(a).
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The facts underlying Appellant’s convictions, as presented during his
jury trial, were aptly summarized by the trial court as follows:
On December 5, 2017, just before midnight, [Swatara
Township Police] Officer Justin Anderson received a report of an
assault and responded to the scene at Apartment 1003 on
Chestnut Pointe. Officer Anderson immediately made contact with
the victim, Amanda Mora, or Azarria Simon.5 Ms. Simon stated to
Officer Anderson that she had been kidnapped, taken, tied and
put into a car. Ms. Simon was able to point out the car that was
parked just a few spaces down from Officer Anderson’s patrol
vehicle. Ms. Simon told Officer Anderson that two African
American males had done this to her and that she knew one by
the name of “Fetty.” Officer Anderson took note of the license
plate and ran it through the PennDOT system. It was determined
that Appellant . . . owned the vehicle.
__________
5Amanda Mora is the name the victim gave Officer Anderson. It
was later determined that her real name is Azarria Simon. Azarria
Simon, or Ms. Simon, will be used to refer to the victim
hereinafter.
__________
Ms. Simon was further able to tell Officer Anderson that she
had been in the trunk of this vehicle for many hours. Officer
Anderson noted that Ms. Simon was not dressed for the weather,
had only one shoe on, and seemed very cold. Officer Anderson
observed part of the rear seat of the vehicle down with what
looked like rope keeping it closed. A piece of used duct tape,
partially rolled up, was found on the ground nearby the vehicle.
Officer Anderson suggested that Ms. Simon sit in the back seat of
his patrol vehicle to keep warm. While sitting in the back seat,
Officer Anderson observed her point to his monitor in his patrol
car and state, “That's the person that — that did this to me.” She
identified this person as “Fetty.” [The monitor still displayed the
photo of Appellant, the vehicle owner.] Ms. Simon told Officer
Anderson that this kidnapping took place in Harrisburg City, in the
area of Green and Maclay [Streets]. Green [S]treet is between
Second and Third Streets. Due to jurisdictional issues, the case
was handed over to Harrisburg City police. According to Ms.
Simon, she was moved from the Chestnut Apartments to Third or
Fourth Street in Harrisburg. This is approximately ten (10) to
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fifteen (15) minutes and less than five (5) miles according to
Officer Anderson’s testimony.
Ms. Simon initially met Appellant through a mutual friend.
Ms. Simon needed money to fuel a drug addiction and Appellant
arranged dates for her to earn money. After a second date
arranged by Appellant, Ms. Simon and Appellant argued over
money. Appellant purchased drugs for Ms. Simon and later
wished for her to pay him back. Ms. Simon then decided that she
would only give Appellant thirty (30) percent of that second date’s
profit. Ms. Simon testified that Appellant became upset at that
point and began to strangle her. Appellant ended up with all of
the money made from the second date.
Ms. Simon testified that she decided to get back at Appellant
for strangling her and taking all of the money from the second
date. After speaking with her boyfriend, Ms. Simon asked
Appellant to set up another date in order to set him up. Ms. Simon
met Appellant at a Super 8 motel on Eisenhower Boulevard in
Swatara. Ms. Simon contacted her boyfriend, Angel, to let him
know where they were. Ms. Simon went back into the motel room,
Appellant tried to close the door, but Angel came through the
doorway and began to beat Appellant up. Angel then took money
from Appellant.
Approximately three weeks after this incident, the mutual
friend contacted Ms. Simon and asked to meet her on Fourth
Street. This mutual friend directed Ms. Simon to go up the street
and go to a specific address on North Fourth [S]treet. Ms. Simon
felt like a man was following. As Ms. Simon walked down Fourth
[S]treet, the man she felt was following her said, “Yo, yo, Shorty.”
Ms. Simon stopped walking to turn and face the man. The man
attempted to make small talk with Ms. Simon and asked for her
name. As this conversation is happening, a vehicle pulls up and
Ms. Simon recognizes Fetty, or Appellant, get out of the vehicle.
Ms. Simon testified that Appellant had a gun in his hoodie pocket.
Ms. Simon tried to back up, but Appellant held her so that she
could not go anywhere. This turned into a struggle to get Ms.
Simon into the backseat of Appellant’s vehicle. Appellant opened
the trunk and both men threw Ms. Simon into the trunk of
Appellant’s vehicle. As they began to drive off, Ms. Simon kicked
her way through the backseat of the vehicle. They stopped the
vehicle in order to tie her up with rope and return her to the trunk
of the vehicle. Ms. Simon testified that she feared that she might
die that day. After driving for an undetermined amount of time,
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the vehicle comes to a stop. The men allow Ms. Simon to crawl
back through to the backseat of the vehicle. Ms. Simon recognizes
that they have arrived at Allison or Aspen Hill.
At this point, . . . Appellant and the second man questioned
Ms. Simon about the beating and robbery of Appellant that Ms.
Simon set up with her boyfriend, Angel. Then, the men bound Ms.
Simon’s ankles and hands. A McDonald’s wrapper was placed into
her mouth with duct tape placed over the wrapper. During her
testimony, Ms. Simon estimates that approximately thirty (30)
minutes passed between the time she was initially taken and the
time they placed the duct tape over her mouth and bound her.
Ms. Simon eventually fell asleep in the trunk of the vehicle. When
she woke up, she noticed that the vehicle was not moving
anymore, and the music was turned off. After realizing that no
one was in the vehicle, Ms. Simon loosened the ropes and began
kicking at the backseat. She was able to exit the vehicle and
determine that she was at the Chestnut Pointe Apartments. Ms.
Simon went to a door in order to borrow a phone. The first person
shut the door but called the police. Ms. Simon went upstairs to
another door and was permitted to borrow a phone in order to
contact her mother. Ms. Simon was taken at 4:30 p.m. and finally
got out of the trunk at 11:30 p.m. for a total of seven (7) hours.
* * *
The city of Harrisburg has eleven (11) city cameras placed
in high crime areas. [Harrisburg Police] Detective Jon Fustine
viewed the camera footage in the area Ms. Simon indicated the
incident took place. Detective Fustine was able to see the
kidnapping take place on video. The video depicts two men, one
wearing a hoodie while holding a handgun.
On December 6, 2017, Detective Fustine obtained an arrest
warrant for Appellant. Appellant was taken into custody by police
in Maryland on December 9, 2017. Appellant was transferred to
Harrisburg on December 13, 2017.
Trial Ct. Op., 9/18/20, at 2-5 (record citations and some footnotes omitted).
A criminal complaint was filed on December 7, 2017, charging Appellant
with kidnapping and false imprisonment. Appellant was represented by
Joseph Hartye of the Dauphin County Office of the Public Defender. Attorney
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Hartye sought defense continuances between May 10, 2018, and January 14,
2019. During that same time period, Appellant filed several pro se motions
seeking his release on nominal bail and asserting the ineffectiveness of
Attorney Hartye.2 The motions were appropriately forwarded to Attorney
Hartye.3 On February 11, 2019, Attorney Hartye filed a motion for nominal
bail pursuant to Pa.R.Crim.P. 600. See Pa.R.Crim.P. 600(B)(1) (no defendant
shall be held in pretrial incarceration for more than 180 days from the date
the complaint is filed). The trial court conducted a hearing on March 26, 2019.
At the Rule 600 hearing, the Commonwealth acknowledged Appellant has
been incarcerated pretrial for two days past the 180-day period set forth in
Rule 600(B)(1). See N.T., 3/26/19, at 2. However, the Commonwealth
argued that the violation was de minimis, and the court could deny nominal
bail because Appellant “was a danger to the community[,] had a violent prior
record” and was a flight risk Id. at 3-4. The trial court agreed, and denied
Appellant’s petition. Trial was scheduled for April 8, 2019.
Three days before the scheduled trial date, the Commonwealth filed a
motion seeking a competency examination of Appellant. Following argument
on the morning of the scheduled trial, the court granted the Commonwealth’s
____________________________________________
2Throughout this litigation, Appellant has repeatedly and consistently filed pro
se petitions for relief while represented by counsel.
3 See Pa.R.Crim.P. 576(A)(4) (requiring clerk of courts to accept, docket, and
forward to defendant’s attorney, any motion submitted by defendant pro se,
when defendant is represented by attorney).
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request, and directed that Appellant be evaluated on an inpatient basis at a
mental health facility to determine his competency. See Order, 4/8/19. The
trial court based its decision on its “observations over the last several
months,” during which Appellant had been “basically trying to sabotage [his]
own abilities in the courtroom and the defense that’s been provided to” him.
N.T., 4/8/19, at 3.
On June 4, 2019, conflict counsel, Wendy Grella, Esquire, was appointed
to represent Appellant.4 Three days later, the trial court entered an order
directing that Appellant be “immediately transferred to the Torrence State
Hospital” for a competency examination. Order, 6/7/19. Appellant avers he
was returned to the Dauphin County Prison on October 24, 2019, after having
been deemed to be competent.5 See Appellant’s Brief at 47.
On December 2, 2019, Attorney Grella filed a motion for nominal bail or
dismissal of the charges pursuant to Pa.R.Crim.P. 600. She averred more
than 365 days had passed since the criminal complaint was filed, and
Appellant “has been available for trial at all times since” then. Appellant’s
Motion for Nominal Bail and/or Dismissal of Charges Pursuant to
____________________________________________
4 During the hearing on the Commonwealth’s motion for a competency
examination, Appellant stated he had a “conflict of interest” with his attorney,
noting there was an “ongoing investigation” against Attorney Hartye based on
Appellant’s claim that Attorney Hartye “sexually assault[ed]” or “sexually
harass[ed]” him. N.T., 4/8/19, at 3.
5 The certified record does not include a report from the competency
examination.
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Pa.R.Crim.Proc. Rule 600, 12/2/19, at 2 (unpaginated). The trial court
conducted a second Rule 600 hearing on December 19, 2019. At the
conclusion of the hearing, the trial court delayed its decision and requested
memos from both parties.6 See N.T., 12/19/19, at 7. The court never ruled
upon Appellant’s dismissal request before trial.
Appellant’s jury trial began on January 8, 2020. Appellant testified in
his own defense and denied that he ever scheduled “dates” for Simon, or that
he abducted her in December of 2017. See N.T. Jury Trial, 1/8-9/20, at 277,
291. In fact, Appellant claimed he was visiting his girlfriend in Maryland at
the time of the incident, and was using a rental car; his car was parked in
front of his house. Id. at 285-87. He also testified that Simon and her
boyfriend stole a set of car keys from him when they robbed and assaulted
him. Id. at 287. The next day, the jury found Appellant guilty of both
charges.
Appellant was sentenced on March 10, 2020. The Commonwealth
sought a mandatory minimum term of 10 years’ imprisonment based upon its
contention that the kidnapping conviction was Appellant’s “second-strike
violent crime.” N.T. Sentencing H’rg, 3/10/20, at 2. See 42 Pa.C.S. §
9714(a)(1) (mandatory minimum 10-year sentence when defendant is
conviction of crime of violence and had previously been convicted of crime of
____________________________________________
6The certified record does not include a memo from either Appellant or the
Commonwealth on the Rule 600 issue.
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violence). Specifically, the Commonwealth introduced a certified copy of
Appellant’s criminal record in Florida which established he had a prior
conviction of “armed robbery.” See N.T., Sentencing H’rg, at 2. Appellant
objected to the characterization of his Florida conviction as a prior crime of
violence because although he was convicted of armed robbery, he claimed he
was not armed with a firearm. See id. at 6-7. Rather than explicitly ruling
on the issue, the trial court stated that “regardless of whether or not
[Appellant had] a second strike, [he was] still . . . considered a repeat offender
and the guidelines still fall within 10 to 20 years.” Id. at 7. The trial court
then imposed a sentence of 10 to 20 years’ imprisonment for kidnapping,
noting it was an appropriate sentence “[h]aving sat through the trial, as well
as hearing the testimony of the victim and the fear and terror that she went
through.”7 Id. at 8. The court further stated that the false imprisonment
conviction merged for sentencing purposes. Id.
On March 17, 2020, Appellant filed a timely post-sentence motion
seeking modification of his sentence. He asserted his Florida conviction did
not qualify as a first-strike for purposes of the mandatory minimum statute,
____________________________________________
7 Appellant’s sentencing guideline ranges are not included in the certified
record. At the sentencing hearing, the Commonwealth’s attorney stated they
“pass[ed] forward the guidelines.” N.T., Sentencing H’rg, at 2. Thus, it
appears they were before the court. In his brief, Appellant asserts he was
subject to a standard range sentence of 90 to 102 months, with an aggravated
range of 114 months. Appellant’s Brief at 25. Thus, the 10-to-20-year
sentence imposed by the trial court would fall outside the aggravated range
of the guidelines.
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and the sentence imposed by the trial court was excessive in that the court
gave “little consideration” to his background or rehabilitative and mental
health needs, but focused on the “negative aspects of the offense[.]”
Appellant’s Post-Sentence Motion, 3/17/20, at 2 (unpaginated). The trial
court denied the motion on May 13, 2020, and this timely appeal followed.
After receiving an extension of time, Attorney Grella complied with the trial
court’s directive to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
On November 19, 2020, before the briefs were filed in this matter,
Appellant filed in this Court a pro se motion for appointment of new counsel,
asserting, inter alia, Attorney Grella refused to assist him in the defense of his
case. See Appellant’s Motion for Appointment of New Counsel, 11/19/20, at
6. By order entered November 24, 2020, we stayed the briefing schedule and
directed the trial court to conduct a Grazier8 hearing to determine whether
Appellant wished to proceed with Attorney Grella or pro se. See Order,
11/24/20. The trial court conducted a Grazier hearing on December 8, 2020.
At the conclusion of the hearing, the court permitted Attoreney Grella to
withdraw and appointed new appellate counsel, Kristen Weisenberger,
Esquire. The trial court informed this Court that it directed Attorney
Weisenberger to file a new Rule 1925(b) statement within 21 days. See Letter
from trial court, 12/8/20. Thereafter, on February 3, 2021, the trial court
____________________________________________
8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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notified this Court that Attorney Weisenberger “will not be filing a new [Rule]
1925b statement in this matter[.]” Letter from trial court, 2/3/21.
II. ISSUES ON APPEAL
Appellant raises the following four issues on appeal, which we have
reordered for ease of review:
I. Whether the trial court erred in denying Appellant’s Rule 600
motion for nominal bail pending trial[?]
II. Whether the evidence presented at trial was insufficient to
prove beyond a reasonable doubt that [Appellant] (1)
kidnapped the alleged victim and (2) that he moved her a
substantial distance[?]
III. Whether the trial court erred in denying [Appellant’s] motion
for a mistrial where the trial court referred to the victim as
having been “kidnapped[?]”
IV. Whether the imposition of an aggregate sentence of ten (10)
to twenty (2) years incarceration was excessive given the
circumstances of Appellant and when his prior conviction
does not qualify as a [first] strike pursuant to 42 Pa.C.S. §
9714[?]
Appellant’s Brief at 6-7 (some capitalization removed).
III. RULE 600 VIOLATION
In his first claim, Appellant contends the trial court erred in denying his
Rule 600 motion. Pennsylvania Rule of Criminal Procedure 600 protects a
defendant’s right to a speedy trial, and prohibits excessive pretrial
incarceration. Subsection A mandates, inter alia, that trial must “commence
within 365 days from the date on which [a written criminal] complaint is
filed[.]” Pa.R.Crim.P. 600(A)(2)(a). Subsection B pertains to the pretrial
incarceration of a defendant. It provides, inter alia, that, unless release on
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bail is prohibited by law, “no defendant shall be held in pretrial incarceration
in excess of . . . 180 days from the date on which the criminal complaint is
filed[.]” Pa.R.Crim.P. 600(B)(1).
When a defendant is not brought to trial within the requisite 365-day
period, they may seek to have the charges “dismissed with prejudice[.]”
Pa.R.Crim.P. 600(D)(1). However, for a violation of the pretrial incarceration
rule, a defendant may seek immediate release on “nominal bail.” Pa.R.Crim.P.
600(D)(2). The computation of time for each potential violation is different.
When considering dismissal of the charges based upon Subsection (A)(2)(a),
“periods of delay at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed to exercise due diligence
shall be included in the computation of time[, but a]ny other periods of delay
shall be excluded[.]” Pa.R.Crim.P. 600(C)(1) (emphasis added). However,
when computing time for a purported violation of the pretrial incarceration
rule, “only periods of delay caused by the defendant shall be excluded[, and
a]ny other periods of delay shall be included in the computation.”
Pa.R.Crim.P. 600(C)(2) (emphasis added). Thus, a trial court’s consideration
of each of these violations is distinct.
In both his Rule 1925(b) statement, and the Statement of Questions
Presented in his brief, Appellant challenges only the trial court’s denial of his
Rule 600 motion for nominal bail pending trial. See Appellant’s Statement
of Matters Complained of Pursuant to Pa.R.A.P. 1925(b), 8/20/20; Appellant’s
Brief at 7, 45. However, in his argument on appeal, Appellant focuses on his
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claim that more than 365 days passed before he was brought to trial, that is,
a violation of Rule 600(A)(2)(a). See Appellant’s Brief at 45-50. Specifically,
he argues the time period between April 5, 2019, and October 24, 2019 —
while he was waiting for a competency examination — “was delay caused the
Commonwealth” because it did not seek the examination “in good faith and
there was insufficient evidence to support the Commonwealth’s request.” Id.
at 48-49. Moreover, Appellant avers the trial court never ruled upon his Rule
600 motion to dismiss prior to trial, and requests the matter be “remanded
for an evidentiary hearing.” Id. at 50.
With regard to the denial of his motion for nominal bail, we note that
although Appellant properly preserved the claim in his Rule 1925(b)
statement, he provides no argument in his brief as to why the trial court’s
denial of nominal bail was in error. More importantly, now that Appellant has
been convicted, and is no longer in pretrial detention, this issue is technically
moot. See Commonwealth v. Sloan, 907 A.2d 460, 464-65 (Pa. 2006);
Commonwealth v. Samuel, 102 A.3d 1001, 1006 (Pa. Super. 2014). We
recognize that our Supreme Court has permitted appeals from the “technically
moot” denial of pretrial release when the issue involved is “capable of
repetition yet evading review” and is “important to the public interest.”
Commonwealth v. Dixon, 907 A.2d 468, 472-73 (Pa. 2006) (citations
omitted) (interlocutory appeal by Commonwealth does not extend 180-day
period); Sloan, 907 A.2d at 465 (release on nominal bail following 180-day
pretrial incarceration does not mean “unconditional release;” trial court may
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impose non-monetary conditions). However, Appellant makes no claim that
his issue on appeal overcomes the mootness doctrine. Accordingly, we decline
to address this claim.
With regard to Appellant’s assertion that the trial court abused its
discretion when it neglected to rule on his Rule 600(A)(2)(a) claim and dismiss
the charges against him before trial, we conclude this argument is waived.
Appellant did not raise this claim in his court-ordered Rule 1925(b) statement,
and the trial court did not address it in its opinion. See Trial Ct. Op. at 13-15
(addressing only nominal bail claim); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement . . . are waived.). Thus, the claim has not been
properly presented for our review.
Nevertheless, we recognize the better practice would have been for the
trial court to formally deny Appellant’s motion to dismiss on the record. Its
failure to do so, however, does not require remand. As noted above,
Appellant’s argument focuses on the time period from April 5, 2019, through
October 24, 2019 — when the Commonwealth sought a competency
examination until Appellant was returned to the prison after he was deemed
competent. Appellant recognizes that “[i]f a defendant is being examined to
determine competency, the time period is generally excludable because he is
unavailable for trial until he is deemed competent.” Appellant’s Brief at 48-
49, citing Commonwealth v. Mansberry, 514 A.2d 926 (Pa. Super. 1986).
However, he complains that, here, the Commonwealth’s petition was not
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made in good faith; thus, the time should not be excludable. His assertion is
not supported by the record.
Appellant’s mental health was at issue throughout the proceedings.
Indeed, during an October 22, 2018, listing, Attorney Hartye acknowledged
that he might seek a competency evaluation, although it does not appear he
ever did so. See N.T., 10/22/18, at 2. Subsequently, during the sentencing
hearing, Attorney Grella requested the court consider an “involuntary
commitment” for Appellant, explaining that “[s]ince trial[,] he had some
mental health issues, which included suicidal ideations[,] a hunger strike[,
and] banging his head against the walls” at the prison. N.T., Sentencing H’rg,
at 5. Furthermore, the trial court commented that it granted the requested
examination based upon its own observation of Appellant in court. See N.T.,
4/8/19, at 3-4. Thus, even if we were to review this claim, we would conclude
Appellant would be entitled to no relief.
IV. SUFFICIENCY OF EVIDENCE
In his second claim, Appellant challenges the sufficiency of the evidence
supporting his conviction of kidnapping. Our standard of review is well-
settled:
The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
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may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence. Furthermore,
when reviewing a sufficiency claim, our Court is required to give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Green, 149 A.3d 43, 47–48 (Pa. Super. 2016) (citation
omitted).
Appellant challenges only his conviction of kidnapping. In order to
secure a conviction for that offense, the Commonwealth must prove the
defendant “unlawfully remove[d] another a substantial distance under the
circumstances from the place where [the victim] is found, or . . . unlawfully
confine[d] another for a substantial period in a place of isolation, with [the
intent to, inter alia,] inflict bodily injury on or to terrorize the victim or
another.” 18 Pa.C.S. § 2901(a)(3). In determining whether the victim was
moved a substantial distance for purposes of the kidnapping statute, “the
incidental movement of the victim during the commission of a crime which
does not substantially increase the risk of harm to the victim, does not meet
the statutory definition[.]” In re T.G., 836 A.2d 1003, 1006 (Pa. Super. 2003)
(citation and quotation marks omitted). However, the term “is not limited to
a defined linear distance.” Commonwealth v. Malloy, 856 A.2d 767, 779
(Pa. 2004). Rather, “[t]he determination of whether the victim was moved a
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substantial distance is evaluated ‘under the circumstances’ of the incident.”
Id. (citation omitted). See Commonwealth v. Hughes, 399 A.2d 694, 696,
698 (Pa. Super. 1979) (abduction of victim at knifepoint from public bench
and movement only two miles to isolated, wooded area was sufficient to
establish movement of a “substantial distance” under kidnapping statute; the
movement placed “the victim in a completely different environmental setting
removed from the security of familiar surroundings”).
Appellant’s challenge to his conviction is two-fold. He first contends
the Commonwealth failed to present any evidence that he was Ms. Simon’s
attacker, whom she identified as “Fetty.” Appellant’s Brief at 40. Absent any
evidence that he was known as “Fetty,” Appellant claims that the
Commonwealth did not prove he was the one that “committed the act.” Id.Second, Appellant maintains the evidence was insufficient to establish the
victim was moved a “substantial distance.” Id. at 41 (internal quotation
marks omitted). Appellant avers: “[T]he victim testified she was moved from
the street to the trunk of the vehicle, which was parked immediately next to
the victim.” Id., citing N.T., Jury Trial, at 115.
In rejecting Appellant’s claims, the trial court opined:
[T]he Commonwealth presented evidence, through the testimony
of Ms. Simon and Officer Anderson, that Ms. Simon identified
Appellant as the person who had a gun and kidnapped her by
forcibly throwing her into the trunk of his vehicle. Ms. Simon knew
Appellant as Fetty and recognized his face on Officer Anderson’s
vehicle monitor. Ms. Simon’s version of events was corroborated
by footage captured by Harrisburg City cameras as viewed by
Detective Fustine. One of the men in the video matches the
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physical description of the man described by Ms. Simon and
identified by her as Fetty, or Appellant. . . .
The Commonwealth also presented evidence . . . that
Appellant moved Ms. Simon a substantial distance and for a
substantial period of time. . . . In this case, Appellant moved Ms.
Simon approximately ten (10) to fifteen (15) minutes away and
less than five (5) miles. This is certainly not an incidental
movement during the commission of another crime. This
confinement lasted approximately seven (7) hours. This is from
the time Ms. Simon was thrown into the trunk of Appellant’s
vehicle to the time Ms. Simon was able to free herself from the
vehicle. Seven hours of confinement and isolation is a substantial
amount of time. . . .
Trial Ct. Op. at 10-11 (record citations omitted).
The trial court’s findings are supported by the record. Ms. Simon’s
identification of Appellant as “Fetty,” if believed by the jury, is, itself, sufficient
to support Appellant’s identification as her abductor. See Greene, 149 A.3d
at 48. Indeed, Officer Anderson testified that Ms. Simon saw Appellant’s photo
on the monitor in his patrol car, and unprompted, told him “That’s the person
that . . . did this to me.” N.T., Jury Trial, at 80. Appellant’s assertion that the
Commonwealth did not present any other testimony that he used the
nickname “Fetty,” goes to the weight of the evidence, not the sufficiency.
Moreover, Appellant’s claim that the Commonwealth did not establish
he moved Ms. Simon a substantial distance is based on a mischaracterization
of the evidence. Appellant maintains Ms. Simon was moved from the street
to the trunk of a car parked nearby. See Appellant’s Brief at 41. However,
he ignores her testimony that her assailants then proceeded to “drive off” with
her in the trunk. N.T., Jury Trial, at 118. Ms. Simon testified that she was
abducted on the 2100 block of North Fourth Street in Harrisburg — this was
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corroborated by video footage in the area. See id. at 113-15, 251-52. She
escaped the vehicle, and sought help, at the Chestnut Pointe Apartments in
Swatara Township, which is 10 to 15 minutes, and less than five miles, from
the abduction site. Id. at 90-91. We conclude that, under the facts of this
case, Ms. Simon was moved a “substantial distance” for purposes of the
kidnapping statute. See Hughes, 399 A.2d at 695-96, 698. Furthermore,
as the trial court points out, Ms. Simon’s confinement in the trunk of
Appellant’s car lasted seven hours. See Trial Ct. Op. at 11. Thus, even if we
were to conclude Ms. Simon was not moved a substantial distance, she was
“unlawfully confine[d] another for a substantial period in a place of
isolation[.]” 18 Pa.C.S. § 2901(a). Accordingly, Appellant’s sufficiency
challenge fails.
V. DENIAL OF MISTRIAL
Next, Appellant asserts the trial court erred when it denied his motion
for a mistrial. “A mistrial is an extreme remedy that is only required where
the challenged event deprived the accused of a fair and impartial trial.”
Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010) (citation and
quotation marks omitted). Because the trial court has the “discretion to
determine whether a defendant was prejudiced by the incident[,]” we review
a trial court’s denial of a motion for mistrial for an abuse of discretion.
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003).
Furthermore, “[w]hen the trial court gives adequate cautionary instructions,
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declaration of a mistrial is not necessary.” Commonwealth v. Bryant, 67
A.3d 716, 728 (Pa. 2013).
Appellant’s claim is based upon the following exchange. During her
cross-examination of Ms. Simon, Attorney Grella asked her about a missing
purse. See N.T., Jury Trial, at 183-84. Although Ms. Simon told the
detectives that her abductors took her purse, no purse was recovered from
the vehicle. See id. at 184. Attorney Grella stated to Ms. Simon, “So you
lied to [the detectives,]” to which Ms. Simon replied that her purse was not in
the car when she escaped. Id. Attempting to clarify Ms. Simon’s testimony,
the trial court inquired:
THE COURT: Did you have your purse?
THE WITNESS: No, I didn’t.
THE COURT: You never had it the whole time?
THE WITNESS: Oh, during the day I had my purse, yes.
THE COURT: But when you got the call from [your mutual friend]
to meet her and then you ended up getting kidnapped, did
you have your purse?
THE WITNESS: It was on me at the time. . . . So when they took
me, they had took my purse and threw me in the trunk. So when
I had got out – when I escaped the car, I tried to look for my
purse, and it wasn’t there.
THE COURT: So you did have your purse when the incident
occurred.
THE WITNESS: Yes.
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Id. at 184-85 (emphasis added). At that point, Attorney Grella asked to
approach the bench, and a sidebar discussion was conducted off the record.
See id. at 185.
Attorney Grella asked Ms. Simon a few more questions, focusing on
when Ms. Simon first met Appellant and their mutual friend. See N.T., Jury
Trial, at 185-86. The Commonwealth’s attorney objected to one question,
stating it mischaracterized Ms. Simon’s testimony. Id. at 186. The trial court
responded as follows:
THE COURT: It’s up to the jury.
And again, any questions that I ask are just for further
clarification, but none of my questions are relevant. So I made
the mistake of saying not “alleged kidnapping.”
So when I asked you about the purse before the alleged
kidnapping, you did have a purse –
THE WITNESS: Yes.
THE COURT: -- prior to that.
THE WITNESS: Yes, I did.
THE COURT: Okay, Thank you.
Id. (emphases added). Subsequently, Attorney Grella continued to cross-
examine Ms. Simon, after which the Commonwealth conducted a brief redirect
examination. See id. at 187-203.
After the jury was excused for the day, Attorney Grella objected to the
court’s reference to Ms. Simon as having been “kidnapped,” and moved for a
mistrial. N.T., Jury Trial, at 204. She stated: “I think it’s prejudicial. I think
. . . that’s up to the jury to decide.” Id. The trial court denied the motion
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commenting that Ms. Simon “already testified that she was kidnapped” and
the court “indicated to the jury that it’s their recollection, not [the court’s],
about the facts.” Id. at 205. Further, the court noted that the jury had
already seen the video of the abduction. Id.Appellant insists he was prejudiced by the trial court “declaring the
victim had been kidnap[p]ed.” Appellant’s Brief at 44. He maintains that, in
doing so, the court usurped the jury’s role as fact finder. Id. Further,
Appellant contends the court’s “curative instruction” was “insufficient.” Id.He states: “While the trial court acknowledged she make a ‘mistake’, the trial
court should be held to a higher standard in that [its] words imply a higher
importance. If the court is acting without impartiality, then so can the jury.”
Id. at 45 (record citation omitted).
We agree with the ruling of the trial court that its isolated reference to
Ms. Simon as having been “kidnapped” — as opposed to “allegedly kidnapped”
— was not so prejudicial as to deprive Appellant of a fair trial. See Trial Ct.
Op. at 12-13. Indeed, before Appellant even lodged an objection, the court
clarified to the jury that it made “a mistake” by not referring to the incident
as an “alleged kidnapping[,]” and informed the jury that its questions were
not relevant. N.T., Jury Trial, at 186. The jury was presumed to follow the
court’s cautionary instruction. See Bryant, 67 A.3d at 728. We disagree with
Appellant’s characterization of the comment as a declaration that the trial
court believed Appellant was guilty. Consequently, this claim fails.
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VII. SENTENCING CLAIMS
In his final issue, Appellant challenges both the legality and discretionary
aspects of his sentence. By way of background, we note that the
Commonwealth sought the imposition of a mandatory minimum 10-year term
of imprisonment pursuant to Pennsylvania’s Three-Strikes statute. See 42
Pa.C.S. § 9714. To that end, at the sentencing hearing, the Commonwealth
introduced a certified copy of Appellant’s prior record in Florida, which included
a conviction of armed robbery. See N.T., Sentencing H’rg, at 2. The
Commonwealth averred that this prior conviction constituted a first crime of
violence pursuant to Section 9714, so that Appellant’s present conviction of
kidnapping — a second crime of violence — would be subject to the mandatory
minimum 10-year sentence under the statute. Id. Appellant objected to the
characterization of his Florida conviction as a first crime of violence. See id.
at 3, 6-7. He argued his conviction was for “robbery with a weapon, [but] not
a firearm[,]” and that was “stated at [the Florida] sentencing hearing[.]” Id.
at 7.
Rather than rule upon the objection, the trial court commented:
Well, even regardless of whether or not you have a second
strike, you still are considered a repeat offender and the guidelines
still fall within 10 to 20 years.
So even if they determined that that is correct and you’re
not a second strike, you’re still looking at 10 to 20 years in State
prison based on your prior record, based on the actions that
you’ve been conducting throughout your life.
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N.T., Sentencing H’rg, at 7-8. The court then proceeded to sentence Appellant
to a term of 10 to 20 years’ imprisonment for kidnapping, based upon “the
testimony of the victim and the fear and terror that she went through” and
the court’s concern for “the safety not only of the victim but of the community
as well as the Commonwealth.” Id. at 8.
Because the trial court “never accepted or rejected the Commonwealth’s
request that [Appellant] be sentenced pursuant to [Section] 9714(1)[,]” on
appeal, Appellant challenges the discretionary aspects of his sentence.9
Appellant’s Brief at 25-26. He contends that his minimum term of 10 years’
imprisonment actually falls outside the aggravated range of the sentencing
guidelines, and the trial court failed to put adequate reasons on the record for
its guidelines departure. Appellant’s Brief at 25-26. Appellant also insists the
trial court failed to consider his “lack of education and his mental health
diagnosis” when imposing its sentence. Id. at 27.
However, we need not address Appellant’s discretionary aspects of
sentencing claims because, as the trial court clarified in its opinion, it imposed
the requested mandatory minimum sentence. See Trial Ct. Op. at 8. Indeed,
____________________________________________
9 We note Appellant challenged the discretionary aspects of his sentence in a
post-sentence motion and complied with the four-part test for raising such
claims on appeal. See Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.
Super. 2015) (en banc) (in order to invoke Superior Court jurisdiction to
consider discretionary aspects of sentencing claim, appellant must file timely
appeal, preserve claim at sentencing or in timely post-sentence motion,
include Pa.R.A.P. 2119(f) statement in brief, and raise substantial question
that sentence imposed is not appropriate under Sentencing Code).
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Section 9714(e) specifically states that, when applicable, a trial court has “no
authority . . . to impose on an offender . . . any lesser sentence than
provided for in” the statute. 42 Pa.C.S. § 9714(e) (emphasis added).
Although Appellant does not explicitly challenge the applicability of the
statute in his brief, we will briefly address this issue since he asserted at his
sentencing hearing that his Florida conviction did not constitute a prior crime
of violence. See N.T., Sentencing H’rg, at 6-7; see also Commonwealth v.
Harley, 924 A.2d 1273, 1277 (Pa. Super. 2007) (“Ordinarily, a challenge to
the application of a mandatory minimum sentence is a non-waivable challenge
to the legality of the sentence.”) (citation omitted).
Section 9714 mandates that a trial court impose a minimum sentence
of at least 10 years for a crime of violence when the defendant has been
previously convicted of a crime of violence. 42 Pa.C.S. § 9714(a)(1). The
statute includes a list of enumerated offenses which constitute crimes of
violence, including Appellant’s conviction herein — kidnapping — and robbery
“as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii)[,] or an equivalent crime
in another jurisdiction.” 42 Pa.C.S. § 9714(g). This Court has held:
To determine whether a crime in another state is equivalent to a
Pennsylvania offense, a court must consider “the elements of the
foreign offense in terms of classification of the conduct proscribed,
its definition of the offense, and the requirements for culpability.”
Additionally, a court shall consider the “underlying public policy
behind the two criminal statutes. . . . We note that the offenses
do not identically have to mirror each other but must be
substantially equivalent to invoke operation of 42 Pa.C.S. § 9714.”
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Commonwealth v. Rose, 172 A.3d 1121, 1132–33 (Pa. Super. 2017)
(citations omitted). Furthermore, Section 9714(d) explains that if a defendant
contests the accuracy of their prior record, the court must determine, “by a
preponderance of the evidence,” whether the mandatory minimum section is
applicable. 42 Pa.C.S. § 9714(d).
As noted above, only violations of subsections (a)(1)(i), (ii), and (iii) of
Pennsylvania’s robbery statute qualify as prior crimes of violence under
Section 9714. Under those subsections, “[a] person is guilty of robbery if, in
the course of committing a theft, he . . . (i) inflicts serious bodily injury upon
another; (ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury; [or] (iii) commits or threatens immediately
to commit any felony of the first or second degree[.]” 18 Pa.C.S. §
3701(a)(1)(i)-(ii). Thus, robbery is considered a prior crime of violence only
if the defendant put the victim in fear of “serious bodily injury,” that is
“[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S. § 2301.
At trial and during the sentencing hearing, the Commonwealth
introduced into evidence a “certified copy” of Appellant’s criminal record in
Florida which indicated he pled guilty in Broward County on October 27, 2009,
to one count of “Armed Robbery” for an incident that occurred in March of
2007. See N.T., Jury Trial, at 296; N.T., Sentencing H’rg, at 2;
Commonwealth’s Exhibit 33. The attached judgment indicates Appellant pled
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guilty to Sections 812.13(1) and (a)(2) of the Florida Criminal Code, which
provide, in relevant part:
(1) “Robbery” means the taking of money or other property which
may be the subject of larceny from the person or custody of
another, with intent to either permanently or temporarily deprive
the person or the owner of the money or other property, when in
the course of the taking there is the use of force, violence, assault,
or putting in fear.
(2)(a) If in the course of committing the robbery the offender
carried a firearm or other deadly weapon, then the robbery
is a felony of the first degree, punishable by imprisonment for a
term of years not exceeding life imprisonment or as provided in
[sentencing statutes].
Fla. Stat. § 812.13(1), (2)(a) (emphasis added).
Even if, as he asserts, Appellant did not possess a firearm when he
committed the robbery, he pled guilty to carrying either a “firearm or other
deadly weapon” at the time of the robbery. See Commonwealth’s Exhibit 33.
We conclude that this particular subsection of Florida’s robbery statute is an
equivalent crime to Subsection 3701(a)(1)(ii) of Pennsylvania’s robbery
statute. Indeed, a person who commits a robbery with a “firearm or other
deadly weapon” necessarily puts the victim in fear of serious bodily injury.
Fla. Stat. § 812.13 (2)(a) (emphasis added). Accordingly, the trial court
properly found the present kidnapping conviction constituted Appellant’s
second crime of violence, and imposed the mandatory minimum term of ten
years’ imprisonment pursuant to Section 9714(a)(1).
Judgment of sentence affirmed. Appellant’s pro se Application for
Extraordinary Relief is DENIED.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2021
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