J-A27017-16

                                   2017 PA Super 309



    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MANUEL ROSE

                             Appellant                  No. 3471 EDA 2014


             Appeal from the Judgment of Sentence August 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008926-2013


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.:                          FILED SEPTEMBER 29, 2017

        Manuel Rose appeals from the judgment of sentence, entered in the Court

of Common Pleas of Philadelphia County, following his conviction for burglary1

and simple assault.2 After careful review, we affirm.

        At approximately 4:00 a.m. on May 21, 2013, Ralph Sheridan was asleep

on the couch of the first floor of Georgette Walton’s home at 3132 Tasker Street,

Philadelphia, where he was renting a room. While Sheridan was sleeping, Rose

forced his way into the home through the window by the couch. Once inside the

house, Rose approached Sheridan and sat on top of him. As Sheridan awoke,

he became aware that Rose was pushing the covers over his face and had placed

____________________________________________


*
    Former Justice specially assigned to the Superior Court.

1
    18 Pa.C.S. § 3502(a)(1).

2
    18 Pa.C.S. § 2701(a).
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a silver firearm against his head behind his left ear.     Rose demanded that

Sheridan give him all his “F-in money.” N.T. Trial, 4/8/14, at 20. Sheridan

pulled the covers away from his face and immediately recognized Rose, whom

he knew as “Moe,” since Sheridan was friends with Rose’s brother, Mack. An

altercation between Sheridan and Rose followed, in which Sheridan grabbed for

the gun and threw Rose off of him. Rose attempted to hit Sheridan with the

gun, but Sheridan pushed Rose and ran out of the house. During the fight, Rose

told Sheridan he would kill him if he called the police.

      Sheridan ran to his next door neighbor’s house and was allowed inside.

His neighbor, Lawrence Smith, listened while Sheridan told him what had

happened. While they were talking, Sheridan looked out Smith’s window and

saw Rose running up the street towards an alley. Smith also looked out his

window and saw Walton’s Cadillac being driven away by a man with a bald head.

Smith told the police later that evening that he was 70% sure that the man he

saw in the car was Rose.

      Smith called Walton on the phone; she had remained asleep upstairs and

did not know her house had been burglarized. She walked to her stairs and saw

that her windows and front door were open.            Immediately thereafter, at

approximately 4:25 a.m., Walton sat on the steps and called 911 because she

was too afraid to go downstairs. While she was on the 911 call, Walton looked

outside through the open front door and confirmed that her 2006 Cadillac was

missing. It was later learned that Sheridan’s keys for the Cadillac were also




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missing from the house. When he fled from the house, Sheridan had left his set

of the keys on the table near the couch where Rose had threatened him.

     After she called the police, Walton spoke with Sheridan about what had

happened. According to Walton, Sheridan told her that Rose broke in through

the window, opened the door to let another individual, named Frizz, into the

house, attacked Rose and then fled the scene. Walton then got dressed, walked

downstairs to make sure nobody was in the house, and shut the door and the

window where Rose had entered the house. When Walton closed the window,

she noticed that the screen to the window was up and that the blinds to the

windows had become disheveled.

     After arriving on scene shortly thereafter,   a police officer transported

Walton and Sheridan to the police station where they were interviewed. Walton

was interviewed by Detective Darnell Hobbs and Sheridan was interviewed by

Detective John Frei. Walton told Detective Hobbs that she had seen Rose the

previous Saturday.   Based on Walton’s description of Rose, Detective Hobbs

prepared an eight-person photo array that included Rose’s picture. Meanwhile,

Detective Frei interviewed Sheridan for approximately an hour. Detective Frei

noticed that he was visibly shaken and nervous throughout the interview.

Detective Frei showed the photo array prepared by Detective Hobbs to Sheridan;

he unequivocally identified Rose as the burglar. Detective Hobbs prepared a

search warrant for Rose’s house and an arrest warrant for Rose. Detective Frei

traveled to Walton’s house to process the crime scene, where he noticed that




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the screen to the window where Rose broke in was all the way up and that the

blinds by the window were disheveled.

      The next day, Walton received a phone call from an unidentified individual

notifying her that her car was parked in North Philadelphia. Walton informed

the police and then traveled with Mack and Sheridan to retrieve the car, which

was abandoned and parked on the street, with the keys inside. After they waited

about an hour, a police officer arrived and told Walton to drive her car home.

Officer Kimyatta Davies was immediately dispatched to Walton’s home to guard

to preserve possible fingerprints until it was taken into police custody. Detective

Hobbs lifted three fingerprints from the outside of the car. Fingerprint examiner

Andrea Williams later concluded to a reasonable degree of scientific certainty

that the fingerprint lifted from the passenger side front door of the car matched

Rose’s fingerprints. Sometime thereafter, Rose turned himself into the police

and was arrested.

      Prior to trial, Rose’s preliminary hearing was scheduled on three separate

occasions. Sheridan failed to appear at the first scheduled preliminary hearing

because he had moved and failed to receive notice of the hearing. For the second

preliminary hearing, however, Sheridan was notified but failed to appear

because he was scared he would be harmed. Sheridan later testified at the third

preliminary hearing. After the third preliminary hearing, Rose made a number

of prison calls revealing, among other things, that he had worked with others to

prevent Sheridan from testifying at the preliminary hearing and trial. Rose also

admitted to his knowledge of and involvement in the burglary. At trial, the jury


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was provided with an agreed-upon transcript of the prison phone calls, and

Detective Frei was permitted to testify as a lay witness regarding the meaning

of the street language used in the conversations. See N.T. Trial, 4/10/14, at

153-87; N.T. Trial, 4/11/14, at 30-31; Exhibit G (Prison Phone Call Transcripts).

      Also at trial, the prosecutor broke the sequestration order that was in place

for the witnesses of the incident. Specifically, Assistant District Attorney (ADA)

Kevin Harden informed Sheridan that Walton had testified that two people had

been present during the burglary, when Sheridan had always indicated to police

that Rose was acting alone.     Walton’s testimony occurred on a Friday; ADA

Harden immediately initiated an investigation of the second person, whom

Walton knew as “Frizz,” over the weekend. Through this investigation, Frizz was

identified as Dawu, a person mentioned in some of the prison phone calls Rose

had made.

      ADA Harden disclosed his violation of the sequestration order the following

Monday. Rose moved for a mistrial, which the court denied. Instead, the court

permitted Rose’s counsel to have an overnight period of investigation regarding

the revelation that Frizz was present during the burglary.       Defense counsel

interviewed Sheridan during the investigation period, and Sheridan indicated

that he had not wanted to reveal Frizz’s identity because he was afraid for his

life and did not want to testify against him.     When trial resumed, Sheridan

changed his testimony from his previous accounts of the burglary to indicate

that two people, Rose and Frizz, had actually been present.         In Sheridan’s




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version of events, Frizz had not entered Walton’s residence, but had been outside

and had recovered the gun from Rose when he fled the scene.

       On April 16, 2014, the jury convicted Rose of burglary and simple assault.

The court sentenced Rose on August 14, 2014, to 25 to 50 years’ imprisonment

because his burglary conviction had a 25-year mandatory minimum as a “third

strike” conviction for a crime of violence. See 42 Pa.C.S. § 9714. Rose filed a

timely post-sentence motion, which the court denied on November 21, 2014.

Thereafter, Rose filed a timely notice of appeal followed by a court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).3

       Rose raises the following issues for our review:

       1. Did not the trial court err in denying [Rose’s] motion for mistrial
          or to preclude the testimony of Ralph Sheridan, where the
          prosecutor intentionally violated the court’s sequestration order
          and disclosed the content of another witness’[] testimony to
          Ralph Sheridan in the middle of trial, which resulted in [Sheridan]
          altering his testimony and significantly impacting the outcome of
          the trial, and a jury instruction was not sufficient to cure the taint
          of the violation?


____________________________________________


3
   Rose filed an initial timely Rule 1925(b) statement and simultaneously
requested an extension of time because the relevant notes of testimony were
not yet complete. On May 20, 2015, once the notes of testimony were complete,
the court issued an amended 1925(b) order, directing Rose to file a supplemental
concise statement within 14 days. However, counsel never received the
amended order and did not receive a complete set of the notes of testimony at
that time. Thereafter, on July 6, 2015, Rose’s counsel requested a remand to
the trial to obtain a complete set of the notes of testimony and to allow him to
file a supplemental concise statement. Our Court granted the motion and the
trial court issued an order on August 24, 2015, directing Rose to file a
supplemental Rule 1925(b) statement within 21 days. Rose did so on September
14, 2015.
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       2. Did not the trial court err in permitting Ralph Sheridan to testify
          to incidents of intimidation, where there was no evidence that
          those incidents occurred at [Rose’s] behest, where [Sheridan]
          was cooperative with the prosecution both at the time of his initial
          statement and at trial, and where such evidence was therefore
          both irrelevant and grossly prejudicial?

       3. Did not the trial court err by admitting recorded calls and the lay
          testimony interpreting them, where: 1) the lay witness testimony
          of Detective Frei “interpreting” “street language” in recorded
          prison phone calls invaded the province of the jury, his
          “interpretations” were based on pure speculation and the
          language in the calls required no interpretation; and 2) the
          content of the calls themselves were inadmissible in that they
          contained inadmissible hearsay?

       4. Did not the lower court err by imposing a “third strike” sentence
          under 42 Pa.C.S. § 9714 where [Rose’s] prior conviction for
          robbery under New Jersey [law] was not an “equivalent crime” as
          defined in 42 Pa.C.S. § 9714(g)?

Brief for Appellant, at 4-5.

       In his first issue, Rose asserts that the trial court should have declared a

mistrial after the ADA violated the court’s sequestration order and disclosed the

content of Walton’s testimony to Sheridan. Rose’s counsel moved for a mistrial

after the violation was disclosed; he also asked, in the alternative, for time to

investigate based upon the newly-disclosed information. The court denied the

motion for a mistrial and allowed the defense to investigate before resuming trial

the following day.4 At the conclusion of the trial, the court also provided a jury

instruction indicating that ADA Harden broke the sequestration order and that

Sheridan changed his testimony after ADA Harden informed him of Walton’s

testimony. N.T. Trial, 4/11/14, at 202-03.

____________________________________________


4
 Two days after declining to call a mistrial, the court ruled that the sequestration
order had been violated. See N.T. Trial, 4/10/14, at 10-13.
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      Where violation of a sequestration order occurs, the remedy selected

      is within the sound discretion of the trial court. In exercising its
      discretion, the trial court should consider the seriousness of the
      violation, its impact on the testimony of the witness, and its probable
      impact on the outcome of the trial. We will disturb the trial court’s
      exercise of its discretion only if there is no reasonable ground for the
      action taken.

Commonwealth v. Smith, 346 A.2d 757, 760 (Pa. 1975). “Additionally, the

trial court should consider whether . . . the party calling the witness procured

his disobedience.”   Commonwealth v. Mokluk, 444 A.2d 1214, 1216 (Pa.

Super. 1982) (citation omitted).     Further, “[a] mistrial may be granted only

where the incident upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by preventing the

jury from weighing and rendering a true verdict.”             Commonwealth v.

Simpson, 754 A.2d 1264, 1272 (Pa. 2000).

      Instantly, the ADA’s purposeful decision to break the sequestration order

was a serious violation in which the Commonwealth “procured the disobedience”

of its own witness. Mokluk, supra. The violation of the sequestration order

clearly caused Sheridan to change his testimony to indicate that two people were

present during the burglary, when he had previously indicated that only Rose

was involved. Rose asserts that the violation had an impact on the outcome of

the trial by “chang[ing] the entire course of the trial . . . [T]he Commonwealth

was able to spin a story of threats and intimidation linked to [Frizz], and by

association, to Mr. Rose.” Brief for Appellant, at 26. However, regarding the

actual elements of the crime of burglary, Frizz’s presence “did not substantively

change [Sheridan’s] consistent account that [Rose] broke into the house through


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the window, put a sheet over [Sheridan’s] head, demanded that [Sheridan] give

[Rose] his money, and threatened to kill [Sheridan] for calling the cops.” Trial

Court Opinion, 12/11/15, at 13. Thus, the trial court had reasonable grounds to

permit a period of investigation rather than declare a mistrial. Additionally, Rose

requested an investigation period as discussed above.             Accordingly, Rose

received his requested remedy, and the trial court did not abuse its discretion.

Smith, supra.

      Moreover, as the trial court noted, its jury instruction “pointedly explained

that [Sheridan] lied when he testified that he revealed Frizz’s involvement to

ADA Harden before Ms. Walton’s testimony, [which] is a dream scenario for any

defendant and overcomes any possible prejudice that [Rose] may have faced by

not granting a mistrial and starting the trial anew.”           Trial Court Opinion,

12/11/15, at 14. Additionally, we note that we have previously affirmed the

denial of a mistrial motion made after a prosecution witness’ testimony was

alleged to be “openly deceptive, sarcastic and insulting” since it was “arguable,

particularly in view of defense counsel’s exhaustive efforts to destroy [the

witness’] credibility . . . that [his] cavalier attitude on the witness stand benefited

appellant.”   Commonwealth v. Krasner, 427 A.2d 1169, 1179 (Pa. Super.

1981).   Similarly, in this matter, defense counsel thoroughly cross-examined

Sheridan and attacked his credibility with the inconsistencies in his reports of

the crime.    Accordingly, we find that Rose was not deprived of a fair trial.

Simpson, supra.




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       In his second issue, Rose argues that the court erred in permitting

Sheridan to testify to incidents of intimidation, claiming that such evidence was

irrelevant and prejudicial. While Rose objected to this testimony at trial, the

objection was a bald objection without specificity.         In his Rule 1925(b)

statement, Rose objected on grounds that the evidence included statements that

were inadmissible hearsay. The argument Rose includes in his brief differs, in

that instead of asserting inadmissible hearsay, Rose’s argument is focused on

relevance. Because a specific objection was not raised for the first time until it

was included in Rose’s Rule 1925(b) statement, we find this issue waived. See

Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (appellate claim

that testimony was inadmissible hearsay waived where, at trial, counsel merely

objected without explanation); see also Commonwealth v. Gordon, 528 A.2d

631, 639 (Pa. Super. 1987) (“Our Supreme Court’s rules on issue preservation

simply do not allow the parties to change their theories for relief indiscriminately

as they move through the trial and appellate processes.”).

       Next, Rose asserts that the trial court erred by permitting Detective Frei

to interpret street language in recorded prison phone calls, arguing that this

invaded the province of the jury and the content of the calls itself was

inadmissible hearsay.5




____________________________________________


5
 As to the contention that the calls contained inadmissible hearsay, we note that
at trial, the jury was provided with an agreed-upon transcript of the content of
the calls. See N.T. Trial, 4/10/14, at 153-55. Thus, we find this argument to
be without merit.
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       Among other conversations, when speaking about the burglary in the

prison phone calls, Rose discussed preventing Sheridan from testifying as

follows:

       [Rose]: So Inshallah I can give [my mom] a call tonight because I
       wanna let her know what’s going on because I don’t think she
       actually knows. Cause I told you . . . Cause I told you I talked to
       her. And it was all suppose to be. Yah mean. Good good. Now I
       had a . . . Called Dawu[] and said he uh talked to Mack. And Mack
       seen[,] Mack seen the individual too. And he was like nah that’s a
       good look [inaudible] and he was like nah I ain’t gon fuck ya people‘s
       up over like that it wasn’t him this that and the other. Ya feel me?

                                        ...

       They was calling my name at that point. Now when I got in the jawn
       the broad was like “Yeah they brought him in.” So they might have
       went and got him.

                                           ...

       But the only thing like I said when I talk to Mack you know this is
       how we going to handle it like cool because I could have handled it
       another way.

       [Recipient]: Mmhmm.

       [Rose]: I should have did it on my own but then it would have been
       a lot[.] I’d a been cool[;] I’d a been cool.

Exhibit G, at 14-15, 19. Detective Frei testified that the above meant that Rose

“doesn’t believe his mother knows what happened in court today, because he

had earlier assurances from her that everything was going to be okay,” N.T.

Trial, 4/10/14, at 177, that “law enforcement[] picked up Ralph,” id. at 177-78,

and that Rose indicated that he “should have [taken] care of it himself and not

depend[ed] on other people to make sure it was all good, good for him.” Id. at

178.


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      Rose indicated his involvement in the burglary as follows:

      I can’t blame vicinity area people cause everything is a choice  ..
      . Well I’m hearing situation with the people but you not hearing my
      situation. Because maybe it didn’t go down like that. Maybe that
      nigga had the thing. Maybe I was trying to take the jawn from him.
      You don’t know you weren’t there you gon[na] take what he say. I
      can’t really talk about it. But the bottom line was it was an issue
      something that had issue and it had um it had um it had some
      validity to it[.]

Exhibit G, at 20-21. Detective Frei testified that this meant that Rose “is not

going to put blame on somebody else for actions that he took.”           N.T. Trial,

4/10/14, at 182.     Further, the detective indicated that Rose “heard what

[Sheridan] has been saying happened[,] but nobody is hearing what he said

happened. . . .     Maybe it didn’t go down the way that [Sheridan] said it

happened,” and “[t]hey were fighting over a firearm.” Id. 184-85. ADA Harden

finished questioning Detective Frei regarding this particular conversation with

the following:

      Q: Based on your opinion, does it make sense that, based on your
      investigation, that [Sheridan] had the gun and not the defendant
      like the defendant was asserting here?

      A: No.

      Q: Why not?

      A: Because [Sheridan] was asleep and the defendant stuck the gun
      to [Sheridan’s] head.

Id. at 185. Defense counsel objected. The court sustained the objection and

instructed the jury to disregard the detective’s final statement. Id. at 186.

      In the midst of the Commonwealth presenting the above conversations,

the court provided a jury instruction indicating that regardless of Detective Frei’s


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opinion testimony, the jury alone was charged with making credibility

determinations and deciding the proper weight to give to the evidence

presented. See N.T. Trial, 4/11/14, at 26-29.

     Detective Frei was permitted to testify regarding the meaning of the words

in Rose’s prison phone calls as a lay witness. Pursuant to Pennsylvania Rule of

Evidence 701,

     [i]f a witness is not testifying as an expert, testimony in the form of
     an opinion is limited to one that is:

        (a)     rationally based on the witness’s perception;

        (b) helpful to clearly understanding the witness’s testimony
        or to determining a fact in issue; and

        (c)  not based on scientific, technical, or other specialized
        knowledge within the scope of Rule 702.

Pa.R.E. 701. We may reverse the trial court’s admission of lay witness testimony

only if the court abused its discretion. Commonwealth v. Randall, 758 A.2d

669, 679 (Pa. Super. 2000).       “[I]f in reaching a conclusion the trial court

overrides or misapplies the law, discretion is then abused and it is the duty of

the appellate court to correct the error.” Commonwealth v. Sitler, 144 A.3d

156, 163 (Pa. Super. 2016) (citation omitted).

     The precise issue in this matter is one of first impression in Pennsylvania.

We note that in Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013),

in a prosecution of various drug crimes, a drug enforcement agent was permitted

to testify as an expert regarding street language and as a lay witness regarding

his fact-based knowledge of the investigation. Id. at 974. This Court found no

error in allowing the agent “to testify in dual capacities,” since the Rules of


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Evidence do not prohibit such testimony and the court instructed the jury in

order to minimize confusion.     Id. However, the instant matter presents the

converse situation, where an officer testified as a lay witness regarding the

meaning of street language.

      Because no Pennsylvania case law is directly on point, we turn to federal

court decisions as a guide. Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa.

1999) (“[T]his Court is not bound by decisions of federal courts inferior to the

United States Supreme Court, even though we may look to them for guidance.”);

see also Huggins, 68 A.3d at 968 n.5 (because Pennsylvania Rule of Evidence

701 is substantively identical to its federal counterpart, examination of federal

law is instructive). We find the reasoning employed by a number of the United

States’ Circuit Courts of Appeals to be persuasive.       See United States v.

Freeman, 730 F.3d 590, 596 (6th Cir. 2013) (prosecution failed to establish

proper foundation for lay testimony given by Federal Bureau of Investigation

(FBI) agent regarding his personal impressions of recorded conversations

between defendant and co-defendants; therefore, testimony was inadmissible in

prosecution for murder for hire; five other Circuit Courts have held testimony

inadmissible under similar circumstances).

      As the Court of Appeals for the 6th Circuit noted, “[c]ourts often qualify law

enforcement officers as expert witnesses under [Federal Rule of Evidence] 702

to interpret intercepted conversations that use ‘slang, street language, and the

jargon of the illegal drug trade.’” United States v. Kilpatrick, 798 F.3d 365,

379 (6th Cir. 2015) (quoting United States v. Peoples, 250 F.3d 630, 641 (8th


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Cir. 2001)). However, “[i]n contrast, when an officer is not qualified as an

expert, the officer’s lay opinion is admissible ‘only when the law

enforcement officer is a participant in the conversation, has personal

knowledge of the facts being related in the conversation, or observed

the conversations as they occurred.’” Kilpatrick, 798 F.3d at 379 (quoting

Peoples, 250 F.3d at 641)) (emphasis added).           Stated another way, lay

testimony is intended to describe something that jurors otherwise had not been

able to experience for themselves, by drawing upon the sensory and experiential

observations that the witness made firsthand. Kilpatrick, 798 F.3d at 379.

      Instantly, Detective Frei did not participate in the prison phone

conversations, did not have personal knowledge of the facts being related, and

did not observe the conversations as they occurred. ADA Harden admitted as

much when he stated that “never have I actually said that my officer had any

specialized [] familiarity with Mr. Rose. He doesn’t know him from a can of paint.

He knows the case.” N.T. Trial, 4/11/14, at 22-23. This level of knowledge has

been held to be insufficient to permit the type of lay testimony Detective Frei

provided.   See Freeman, 730 F.3d at 596 (inadequate foundation for lay

testimony where FBI agent never specified personal experiences leading to his

information but instead relied on general knowledge of investigation).

Therefore, Detective Frei was not qualified to testify to the meaning of the

conversations as a lay witness.     Instead, Detective Frei should have been

qualified as an expert in order to testify to the meaning of any of the particular

words within the conversations.        Huggins, supra; Kilpatrick, supra.


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Furthermore, Detective Frei’s testimony as to the meaning of Rose’s

conversations, sentence by sentence, went well beyond the Commonwealth’s

proffer that he would testify regarding the meaning of certain street language.

Accordingly, we find that the trial court misapplied the law and abused its

discretion in permitting Detective Frei to testify as a lay witness regarding the

content of Rose’s prison phone calls. Sitler, supra.

      Having determined that the trial court abused its discretion, we next turn

to whether the error was harmless. See Commonwealth v. McClure, 144 A.3d

970, 975-76 (Pa. Super. 2016) (“In the event of an erroneous admission of

evidence, a verdict can still be sustained if the error was harmless.”). “Harmless

error exists if . . . the properly admitted and uncontradicted evidence of guilt

was so overwhelming and the prejudicial effect of the error so insignificant by

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Mitchell, 135 A.3d 1097, 1106 (Pa. Super. 2016).

      As we noted above, Sheridan’s identification of Rose and account of him

breaking into Walton’s home and threatening him with a gun remained

unchanged    throughout    the investigation    and   proceedings   of   the case.

Additionally, the majority of the content of the prison phone calls involved efforts

to intimidate Sheridan rather than discussions directly relating to Rose’s

involvement in the burglary.         Thus, the evidence of Rose’s guilt was

overwhelming in comparison to any prejudicial effect that resulted from

Detective Frei interpreting the prison phone calls.        Id.   Moreover, as we

previously indicated, the court instructed the jury to weigh the evidence and


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make its own credibility determinations.      See Commonwealth v. Means, 773

A.2d 143, 157 (Pa. 2001) (it is well-established that jurors are presumed to

follow instructions). Accordingly, we find that the trial court’s error in permitting

Detective Frei to testify as a lay witness regarding the meaning of portions of

the conversations was harmless, and we decline to reverse the court on this

basis.

         In his final issue, Rose asserts that the court erred by imposing a “third

strike” minimum sentence, claiming that Rose’s prior conviction for robbery

under New Jersey law was not an “equivalent crime” as defined in 42 Pa.C.S. §

9714(g). We note that a challenge to the applicability of a mandatory sentencing

statute such as section 9714 is a challenge to the legality of the sentence. See

Commonwealth v. Shiffler, 879 A.2d 185, 188-89 (Pa. 2005) (challenge to

applicability of section 9714 raises question of statutory construction, which is

pure question of law implicating legality of sentence).

         Pursuant to section 9714(a)(2),

         [w]here the person had at the time of the commission of the current
         offense previously been convicted of two or more such crimes of
         violence arising from separate criminal transactions, the person shall
         be sentenced to a minimum sentence of at least 25 years of total
         confinement, notwithstanding any other provision of this title or
         other statute to the contrary.

42 Pa.C.S. § 9714(a)(2). Section 9714(g) lists crimes that qualify as “crimes of

violence,” including burglary, as defined in 18 Pa.C.S. § 3502(a)(1). See 42

Pa.C.S. § 9714(g).

         Instantly, Rose was convicted of felony burglary pursuant to section

3502(a)(1). Previously, Rose was convicted of first-degree robbery, a felony,

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once in Pennsylvania and once in New Jersey.            Pursuant to section 9714(g),

“crimes of violence” include “robbery as defined in 18 Pa.C.S. 3701 § (a)(1)(i),

(ii), (iii) (relating to robbery) . . . or an equivalent crime in another jurisdiction.”

42 Pa.C.S. § 9714(g). Rose specifically argues that his robbery conviction under

New Jersey law6 was not equivalent to the particular types of robbery in

Pennsylvania that are considered to be “crimes of violence.”7 Brief for Appellant,

at 51.


____________________________________________


6
    The New Jersey robbery statute is as follows:

         a. Robbery defined. A person is guilty of robbery if, in the course
         of committing a theft, he:

            (1) Inflicts bodily injury or uses force upon another; or

            (2) Threatens another with or purposely puts him in fear of
            immediate bodily injury; or

            (3) Commits or threatens immediately to commit any crime of
            the first or second degree.

         An act shall be deemed to be included in the phrase “in the course
         of committing a theft” if it occurs in an attempt to commit theft or
         in immediate flight after the attempt or commission.

         b. Grading. Robbery is a crime of the second degree, except that it
         is a crime of the first degree if in the course of committing the theft
         the actor attempts to kill anyone, or purposely inflicts or attempts to
         inflict serious bodily injury, or is armed with, or uses or threatens
         the immediate use of a deadly weapon.

N.J.S.A. § 2C:15-1.
7
  In Pennsylvania, a robbery that is a “crime of violence” occurs when, in the
course of committing a theft, a person:

         (i) inflicts serious bodily injury upon another;



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       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.” Commonwealth v. Northrip, 985 A.2d

734, 740 (Pa. 2009) (quoting Commonwealth v. Shaw, 744 A.2d 739, 743

(Pa. 2000)). 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.” Commonwealth v. Ward, 856 A.2d 1273,

1277 (Pa. Super. 2004).

       The difference between the New Jersey and Pennsylvania robbery statutes,

upon which Rose focuses, is that the New Jersey statute permits robbery to be

graded as a first-degree offense if the defendant is merely armed with a deadly

weapon, whereas the Pennsylvania statute does not. See notes 4, 5, supra.

Otherwise, the statutes include nearly identical elements and grading for robbery

offenses of the first degree, including that threatening or inflicting serious bodily

injury on another while committing a theft is a first-degree offense. Additionally,

the statutes are aimed at preventing the same criminal activity, indicating that

the public policy rationale for both statutes is identical. Ward, supra.

____________________________________________


       (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; see 42 Pa.C.S. § 9714(g).
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      We also note that our three strikes law “neither directs nor requires the

court to consider every possible set of circumstances in order to determine

whether the mandatory sentence applies.”           Northrip, 985 A.2d at 740 (not

appellate court’s task to imagine whether any possible factual scenario exists

that would result in conviction in another state and acquittal in Pennsylvania);

see also Commonwealth v. Greene, 25 A.3d 359, 365 (Pa. Super. 2011)

(stating in dicta that “there would be no dispute that” Massachusetts armed

robbery   statute   substantially   similar   to   Pennsylvania   robbery   statute;

Massachusetts statute, similar to New Jersey statute, applies when a person

commits robbery while armed with dangerous weapon). Accordingly, we find

that the trial court properly considered Rose’s New Jersey robbery conviction to

be a “crime of violence” and a strike toward his “three strikes” conviction in the

instant matter.

      For the foregoing reasons, we affirm the trial court.

      Judgment of sentence affirmed.

      Judge Panella joins the Opinion.

      Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017


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