Com. v. Cross, N.

J-S13020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NAQUAN MALCOLM CROSS :
:
Appellant : No. 1160 MDA 2021
Appeal from the Judgment of Sentence Entered April 19, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000986-2019
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED JULY 06, 2022
Appellant, Naquan Malcolm Cross, appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following his
jury trial convictions for persons not to possess a firearm and carrying a
firearm without a license.1 We affirm in part and vacate the judgment of
sentence in part.
The relevant facts and procedural history of this appeal are as follows.
On January 2, 2019, York City Police Officer Daniel Kling, along with other
officers and U.S. Marshals, congregated in an alley behind the residence at
306 Kurtz Avenue. The officers and marshals were present to serve an arrest
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.
J-S13020-22
warrant. At approximately 8:10 a.m., Officer Kling noticed Appellant carrying
a backpack and walking towards him. After Appellant saw the officers, he
reversed course and began to walk away from the scene. Officer Kling started
to follow, and Appellant broke into a run. During his flight, Appellant discarded
the backpack. Officer Kling retrieved the backpack, which contained a loaded
firearm.
On March 4, 2019, the Commonwealth filed a criminal information
charging Appellant with various firearms offenses. Appellant filed a
suppression motion on April 16, 2019. Following a hearing, the court denied
the suppression motion on June 5, 2019. Appellant subsequently proceeded
to a jury trial, where Officer Kling testified about his identification of Appellant:
I was able to identify this person that came into the
alleyway. He saw me, turned around, and came back out
to Stone Avenue. This person was identified as [Appellant],
and I knew him by name and face upon sight of him.
(N.T. Trial, 3/2/21, at 74). Trial counsel immediately objected to the officer’s
statement as unfairly prejudicial, but he withdrew the objection following a
sidebar. (Id. at 74-75).
Later, Deputy Nathan Payne, a York County Sheriff’s Deputy who
assisted with the service of the warrant, testified about his interaction with
Appellant on the day of the incident. Deputy Payne explained that Officer
Kling initially alerted him to Appellant’s presence: “I was notified by Officer
Kling that an individual of which he knows and has had prior dealings with—”
(Id. at 149). At that point, trial counsel raised another objection, and the
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court conducted a discussion with the attorneys in chambers. (See id. at
150). During this discussion, trial counsel moved for a mistrial, claiming that
it was “unfairly prejudicial” for the law enforcement witnesses to reference
prior interactions with Appellant. (Id. at 151-52). The court declined to grant
a mistrial, but it offered to provide a curative instruction. (Id. at 154-55).
Trial counsel did not accept the offer for a curative instruction. (Id. at 155).
At the conclusion of trial, the jury found Appellant guilty of the above-
mentioned crimes. On April 19, 2021, the court sentenced Appellant to an
aggregate term of five (5) to ten (10) years’ imprisonment, followed by one
(1) year of reentry supervision, pursuant to 61 Pa.C.S.A. § 6137.2. On April
28, 2021, Appellant timely filed a post-sentence motion. The court denied
Appellant’s post-sentence motion on July 30, 2021.
Appellant timely filed a notice of appeal on August 27, 2021. On
September 7, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On September 28, 2021,
Appellant timely filed his Rule 1925(b) statement.
Appellant now raises two issues for our review:
Did the trial court abuse its discretion in denying a mistrial
after two police officers testified that [Appellant] was known
to one of them, thus signaling to the jury that [Appellant]
had committed other crimes?
Did the court impose an illegal sentence where, pursuant to
a statute enacted after the conduct at issue in this case, it
ordered [Appellant] to undergo one year of reentry
supervision following his release from incarceration in
violation of the ex post facto clauses of the United States
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and Pennsylvania Constitutions?
(Appellant’s Brief at 4).
In his first issue, Appellant argues that Officer Kling’s testimony that he
“knew [Appellant] by name and face upon sight of him,” was unfairly
prejudicial because it strongly indicated prior criminal conduct. (Id. at 15).
Appellant acknowledges that a single remark without specific reference to
criminal activity will not automatically warrant a mistrial. Nevertheless,
Appellant insists that Officer Kling’s statement, in conjunction with Deputy
Payne’s testimony, “made it a more than reasonable inference [to the jury]
that [Appellant] was familiar to the police because he had committed prior
crimes.” (Id. at 17). Appellant claims the prejudicial impact of the testimony
from the two witnesses was not harmless in light of the other facts of the case.
Appellant concludes that the court abused its discretion by denying his motion
for mistrial, and this Court must grant relief. We disagree.
Our standard of review of a court’s denial of a motion for mistrial is as
follows:
In criminal trials, declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene, declaration
of a mistrial serves not only the defendant’s interest but,
equally important, the public’s interest in fair trials designed
to end in just judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to deprive
the defendant of a fair and impartial trial. In making its
determination, the court must discern whether misconduct
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or prejudicial error actually occurred, and if so, … assess the
degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the
court abused its discretion. Judicial discretion requires
action in conformity with the law on facts and circumstances
before the trial court after hearing and consideration.
Consequently, the court abuses its discretion if, in resolving
the issue for decision, it misapplies the law or exercises its
discretion in a manner lacking reason.
Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa.Super. 2016), appeal
denied, 641 Pa. 63, 165 A.3d 895 (2017) (quoting Commonwealth v.
Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016)). “[T]he nature of the reference
and whether the remark was intentionally elicited by the Commonwealth are
considerations relevant to the determination of whether a mistrial is required.”
Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa.Super. 2007), appeal
denied, 594 Pa. 676, 932 A.2d 1286 (2007).
Generally, “reference to prior criminal activity by the accused, either
expressly or by reasonable implication, is impermissible.” Commonwealth
v. Smith, 552 A.2d 1053, 1060 (Pa.Super. 1988), appeal denied, 525 Pa.
581, 575 A.2d 112 (1990). “This Court has recognized, however, that [n]ot
everything a policeman says about a person constitutes an inference of prior
criminal activity on the part of that person.” Id. (internal quotation marks
omitted). “A singular, passing reference to prior criminal activity is usually
not sufficient to show that the trial court abused its discretion in denying the
defendant’s motion for a mistrial.” Commonwealth v. Parker, 957 A.2d
311, 319 (Pa.Super. 2008), appeal denied, 600 Pa. 755, 966 A.2d 571 (2009).
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Instantly, Officer Kling testified that he recognized Appellant “upon sight
of him.” (N.T. Trial, 3/2/21, at 74). When viewed in context, the officer’s
remark was spontaneous, as the Commonwealth originally posed a question
about what the officer was doing at the scene. See Kerrigan, supra.Further, Officer Kling did not expressly reference prior criminal activity.
Rather, “[m]erely because a police officer knows someone … does not suggest
that the person has been engaged in prior criminal activity.” Smith, supra
at 1060. Later, Deputy Payne’s testimony referenced Officer Kling’s “prior
dealings with” Appellant. (N.T. Trial, 3/2/21, at 149). As with the earlier
testimony, Deputy Payne’s turn of phrase did not expressly reference criminal
conduct. See id. Here, the witnesses’ passing comments were part of a
multi-day trial that featured several Commonwealth witnesses. See Parker,
supra. Under these circumstances, we cannot say that the court abused its
discretion in denying Appellant’s request for a mistrial. See Tucker, supra.
In his second issue, Appellant argues the trial court erred in imposing a
period of reentry supervision as part of his sentence. Appellant relies on a
recently enacted statute, 61 Pa.C.S.A. § 6137.2, in support of his claim.
Appellant argues that “because the charged conduct in this case preceded the
enactment of Section 6137.2, imposition of the reentry requirement violated
the ex post facto clauses of the United States and Pennsylvania Constitutions.”
(Appellant’s Brief at 25-26). Appellant concludes the portion of the sentencing
order providing a period of reentry supervision constitutes an illegal sentence,
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and this Court must vacate that portion of the sentence. We agree.
The relevant standard and scope of review are as follows:
[T]he determination as to whether the trial court imposed
an illegal sentence is a question of law; our standard of
review in cases dealing with questions of law is plenary.
This case will also necessarily call upon us to engage in
statutory construction, which similarly presents a pure
question of law and also implicates the legality of [the]
sentence. Thus, our standard of review is de novo and our
scope of review is plenary.
Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa.Super. 2019) (internal
citations and quotation marks omitted).
Section 6137.2 provides as follows:
§ 6137.2. Reentry supervision
(a) General rule.—This section applies to persons
committed to the department with an aggregate minimum
sentence of total confinement under 42 Pa.C.S. § 9756(b)
(relating to sentence of total confinement) of 4 years or
more. Regardless of the sentence imposed, this section
does not apply to persons sentenced to death, life
imprisonment, persons otherwise ineligible for parole or
persons subject to 42 Pa.C.S. § 9718.5 (relating to
mandatory period of probation for certain sexual offenders).
(b) Reentry supervision.—Any person under
subsection (a) shall be sentenced to a period of reentry
supervision of 12 months consecutive to and in addition to
any other lawful sentence issued by the court.
(c) Parole granted.—Persons who have been granted
any period of parole by the parole board during the same
period of incarceration shall be deemed to have served the
requirements of this section.
(d) Supervision.—A person released to reentry
supervision shall be considered to be released on parole.
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(e) Imposition.—The court shall impose reentry
supervision in addition to the maximum sentence permitted
for the offense for which the defendant was convicted.
(f) Applicability.—This section shall only apply to
persons sentenced after the effective date of this section.
61 Pa.C.S.A. § 6137.2.
“Article I, Section 17 of the Pennsylvania Constitution prohibits the
enactment of any ex post facto law.” Commonwealth v. Carey, 249 A.3d
1217, 1228 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d 373(2021). “A criminal law is deemed ex post facto if two critical elements are
met: it must be retrospective, that is, it must apply to events occurring before
its enactment, and it must disadvantage the offender affected by it.” Id.(internal quotation marks omitted).
In Carey, the trial court sentenced the defendant for criminal acts he
committed in February 2019. The defendant’s sentencing hearing occurred
on January 13, 2020, after the enactment of Section 6137.2. Consequently,
the court included a twelve-month period of reentry supervision as part of the
defendant’s sentence. The defendant subsequently filed a notice of appeal
arguing that the imposition of reentry supervision was an unconstitutional ex
post facto punishment as applied to him.
This Court evaluated Section 6137.2 and agreed with the defendant’s
argument:
The statute at issue … was enacted on December 18, 2019.
It is included under the provisions concerning the parole
power of the Pennsylvania Parole Board.
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* * *
The statute requires a trial court to impose a mandatory
12-month period of reentry supervision in addition to any
aggregate sentence of four or more years’ imprisonment.
Furthermore, it applies to any defendant sentenced after
the effective date. … [T]his law changes the punishment,
and inflicts a greater punishment, than the law annexed to
the crime, when it was committed.
Id. (emphasis in original) (internal citations and quotation marks omitted).
This Court noted that Section 6137.2 provided additional punishment for acts
the defendant committed prior to the enactment of the statute. Therefore,
this Court concluded that Section 6137.2, as applied to the defendant,
amounted to an unconstitutional ex post facto punishment. See id. at 1229.
Instantly, the trial court agreed with Appellant’s contention that the
imposition of reentry supervision was improper:
Pursuant to the re-entry supervision statute, it applies to
persons sentenced after the effective date of this section.
That section of the statute became effective on December
18, 2019, and [Appellant] was sentenced on April 19, 2021,
after the effective date. However, on April 19, 2021, the
same date [Appellant] was sentenced, the Superior Court
decided [Carey, supra].
* * *
In the instant case, [Appellant] committed the offenses on
January 2, 2019, which is prior to the December 2019
enactment of [Section 6137.2]. Given the Superior Court’s
decision in Carey, the [t]rial [c]ourt agrees with [Appellant]
that the portion of his sentence regarding re-entry
supervision should be vacated.
(Trial Court Opinion, filed November 16, 2021, at 6-7) (internal citations and
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quotation marks omitted). Based upon the applicable standard of review and
relevant case law, we agree that the court imposed an illegal sentence under
Section 6137.2. See Carey, supra; Hunt, supra. Accordingly, we vacate
the provision of Appellant’s sentence imposing one year of reentry
supervision. In all other respects, we affirm.
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
is relinquished.
Judge Stabile joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/06/2022
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