J-S63037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
JAMES MICHAEL FLINT,                       :
                                           :
                    Appellant              :           No. 2928 EDA 2014

           Appeal from the Judgment of Sentence September 18, 2014
               in the Court of Common Pleas of Chester County,
                Criminal Division, No. CP-15-CR-0000020-2014

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED December 22, 2015

        James Michael Flint (“Flint”) appeals from the judgment of sentence

imposed following his convictions for two counts of robbery, and one count

each of criminal attempt (theft), simple assault, recklessly endangering

another person (“REAP”) and possession of an instrument of crime. 1           We

affirm.

        On December 24, 2013, Carlos Julian Primo (“Primo”) was in his

driveway getting ready to leave for work.      Flint approached Primo, held a

knife to his throat and demanded money.         As Flint and Primo struggled,

Primo cut his hand on the knife in his efforts to disarm Flint.           Primo’s

brothers heard the fight and ran outside to help. One brother called 911,

and together they were able to restrain Flint until the police arrived.



1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 901, 2701, 2705, 907.
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      Thereafter, Officer Ronald Simril (“Officer Simril”) and his partner

arrived on the scene. Officer Simril found the three brothers holding Flint

face-down on the ground. Officer Simril then arrested Flint.

      Following a jury trial, Flint was convicted of the above-mentioned

crimes. The trial court sentenced Flint to 7½ to 15 years in prison on one of

the robbery convictions, a consecutive term of 1 to 2 years in prison on the

REAP conviction, and a consecutive term of 1 to 2 years in prison on the

possession of an instrument of crime conviction.2 Flint filed a timely Notice

of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure

1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Flint raises the following questions for our review:

      I. Did the [trial c]ourt err in denying [Flint’s] [M]otion for mistrial
      after Officer [] Simril testified that he “recognized [] Flint right
      away,” thus alluding to prior police [or] criminal contact with []
      Flint?

      II. Did the [trial c]ourt err in sentencing [] Flint to a consecutive
      1-2 year sentence for [REAP] in that it merges with [r]obbery?

Brief for Appellant at 8.

      In his first claim, Flint argues that the trial court erred in denying his

Motion for mistrial based on Officer Simril’s testimony that he recognized

Flint “right away.” Id. at 10-13. Flint claims that, based on Officer Simril’s

statement, the jury could infer that Officer Simril recognized Flint due to



2
  The trial court stated that the remaining convictions merged for the
purpose of sentencing.


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prior criminal conduct.     Id. at 12.    Flint argues that such an inference

constituted prejudice. Id. at 12-13.

        “[A] mistrial is required only when an incident is of such a nature that

its unavoidable effect is to deprive the appellant of a fair and impartial trial.”

Commonwealth v. Lease, 703 A.2d 506, 508 (Pa. Super. 1997).                  It is

within the trial court’s discretion to determine whether a defendant was

prejudiced by the incident forming the basis of a motion for a mistrial.      Id.

On appeal, our standard if review is whether the trial court abused that

discretion.   Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa. Super.

2000).

        “It is well-settled that evidence of crimes unrelated to the charge for

which     a   defendant    is   being    tried   is   generally    inadmissible.”

Commonwealth v. Vazquez, 617 A.2d 786, 787 (Pa. Super. 1992). “Nor

can indirect testimony[,] from which a jury could reasonably infer that a

defendant had been involved in prior criminal activity[,] be admitted into

evidence in order to convict an accused[,] and if such is done the accused is

entitled to a new trial.” Commonwealth v. Sanders, 442 A.2d 817, 818

(Pa. Super. 1982). “However, not all improper references to criminal acts

require the award of a new trial…. [T]he extreme remedy of a mistrial is not

automatically required if it is determined that the inference of prior

criminality was innocuous….”       Vazquez, 617 A.2d at 787-88 (citations

omitted).



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      [T]he alleged prejudicial comments must be evaluated with
      regard to the circumstances of each trial, including, but not
      limited to: the nature of the comment, the person to whom the
      alleged prejudicial comment was directed, the identity of the
      person making the comment, and if a witness, the importance of
      that witness’[s] testimony to either the Commonwealth or the
      defense’s case, and whether the court gave immediate
      cautionary instructions if it deemed the remark prejudicial.

Commonwealth v. Grant, 387 A.2d 841, 844 (Pa. 1978).

      At trial, Officer Simril testified that after he had placed Flint in

handcuffs, he stood him up and shined his flashlight in Flint’s face because

Primo wanted to see who had attacked him.           N.T., 7/14/14, at 36-37.

Officer Simril testified that “[he] recognized Mr. Flint right away.”    N.T.,

7/14/14, at 37.

      After the Commonwealth had asked another question, Flint’s trial

counsel requested a sidebar and moved for a mistrial based on Officer

Simril’s testimony.    Id. at 37.   The trial court excused the jury while the

court asked Officer Simril additional questions regarding his previous

contacts with Flint.   Id. at 38-40. With defense counsel’s agreement, the

trial court then allowed the Commonwealth to seek clarification from Officer

Simril regarding his previous statement in front of the jury. See id. at 38-

39.   After the jury returned to the courtroom, the Commonwealth asked

Officer Simril several more questions before asking Officer Simril how he had

recognized Flint.      See id. at 41-45.      Officer Simril testified that he

recognized Flint “[f]rom seeing him around town.” Id. at 45.




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      Here, Officer Simril did not testify that he knew Flint from previous

criminal incidents.   He merely stated that he recognized Flint, and later

clarified that he recognized Flint from seeing him around town.   See Trial

Court Opinion, 2/2/15, at 6 n.2 (noting that “the area where this incident

took place is a small community[, ] and it would not be uncommon for a

police officer to recognize an individual from town.”) (quotation marks

omitted); see also Sanders, 442 A.2d at 818 (stating that “[m]erely

because a police officer knows someone … does not suggest that the person

has been engaged in prior criminal activity.      A policeman may know

someone because they reside in the same neighborhood or for any other

number of reasons.”).        Moreover, Officer Simril’s testimony that he

recognized Flint “right away” was an isolated statement made in passing,

which was later clarified.   See Commonwealth v. Harris, 443 A.2d 851,

855 (Pa. Super. 1982) (holding that the trial court did not abuse its

discretion by denying a motion for mistrial where alleged prejudicial

statement was “an isolated passing reference volunteered by the witness

and not responsive to the question.”); see also Commonwealth v.

Maxwell, 478 A.2d 854, 857 (Pa. Super. 1984) (stating that potentially

prejudicial testimony by a detective did not warrant a mistrial because it

“could have been cured by an appropriate explanation or cautionary




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instruction.”).3 Thus, Officer Simril’s testimony did not deprive Flint of a fair

trial, and Flint’s first claim is without merit

      In his second claim, Flint contends that the trial court erred by not

merging the offenses of robbery and REAP for sentencing purposes. Brief for

Appellant at 13-17.     Flint claims that these offenses must merge because

they arose from a single criminal act. Id. at 15. Further, Flint argues that

the act of placing a knife at the victim’s throat satisfies the elements of both

offenses because the act placed Primo in fear of immediate serious bodily

injury, and actually placed Primo in danger of serious bodily injury. Id. at

16. In support of his position, Flint relies upon our Supreme Court’s plurality

decision in Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (plurality).

Brief for Appellant at 16-17.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence.”       Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa. Super. 2012). “Therefore, our standard of

review is de novo and our scope of review is plenary.” Id.

      Whether offenses merge at sentencing implicates Section 9765 of the

Sentencing Code, which provides the following:

      § 9765. Merger of sentences



3
  Here, Flint did not seek a cautionary instruction. See Commonwealth v.
Bryant, 855 A.2d 726, 739 (Pa. 2004) (stating that a “[f]ailure to request a
cautionary instruction upon the introduction of evidence constitutes a waiver
of a claim of trial court error in failing to issue a cautionary instruction.”).


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        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the
        other offense. Where crimes merge for sentencing purposes, the
        court may sentence the defendant only on the higher graded
        offense.

42 Pa.C.S.A. § 9765.4

        In [] Jones, our Supreme Court addressed the issue of merger
        pursuant to section 9765, but was unable to establish a
        consensus approach. … [T]he lead plurality opinion in Jones …
        adopted a “practical, hybrid approach” that required courts to
        “evaluate the statutory elements [of each crime], with an eye to
        the specific allegations leveled in the case.” 912 A.2d at 822.
        Justice Newman wrote a dissent favoring the adoption of a strict
        statutory test in accordance with section 9765. Id. at 827
        (Newman, J., dissenting) (“[T]he elements of these two crimes
        differ, and sentencing thus cannot be merged pursuant to our
        jurisprudence and the legislative intent as evidenced by 42
        Pa.C.S.[A.] § 9765.”).

Commonwealth v. Jenkins, 96 A.3d 1055, 1057 (Pa. Super. 2014)

(citation omitted).

        Just three years later, our Supreme Court revisited its approach
        to merger. See Commonwealth v. Baldwin, 604 Pa. 34, 985
        A.2d 830 (2009). In a majority decision, Baldwin adopted the
        Jones dissent’s reasoning and held the plain language of Section
        9765 reveals a legislative intent “to preclude the courts of this
        Commonwealth from merging sentences for two offenses that
        are based on a single criminal act unless all of the statutory
        elements of one of the offenses are included in the statutory
        elements of the other.” Id. at 45, 985 A.2d at 837. Baldwin
        rejected the “practical, hybrid approach” advocated in the lead
        Jones plurality opinion. Id. at 42, 912 A.2d at 835. Instead,
        Baldwin held that when each offense contains an element the
        other does not, merger is inappropriate.

Quintua, 56 A.3d at 401.


4
    Section 9765 became effective on February 7, 2003.


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      Here, a single criminal act resulted in Flint violating the REAP and

robbery   statutes.    See,   e.g.,   N.T.,   9/18/14,   at   8   (wherein    the

Commonwealth acknowledges that the REAP charge resulted from the “same

conduct” as the robbery charge). Therefore, we must determine whether all

of the statutory elements of REAP are included in the statutory elements of

robbery. The Crimes Code defines REAP as follows: “A person commits a

misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S.A. § 2705 (emphasis added). The Crimes Code defines

robbery, in relevant part as follows: “A person is guilty of robbery if, in the

course of committing a theft, he … threatens another with or intentionally

puts him in fear of immediate serious bodily injury.” Id. § 3701(a)(1)(ii).

      This Court has previously held that REAP and robbery merge for

sentencing purposes. See, e.g., Commonwealth v. Robinson, 549 A.2d

977, 979 (Pa. Super. 1988); Commonwealth v. Walls, 449 A.2d 690, 693

(Pa. Super. 1982); Commonwealth v. Eberts, 422 A.2d 1154, 1156 (Pa.

Super. 1980).    However, because these cases were decided prior to the

enactment of section 9765, they do not support a finding of merger.          See

Baldwin, 985 A.2d at 835 (stating that “jurisprudence prior to the

enactment of Section 9765 simply do not support his claim for relief.”);

Commonwealth v. Calhoun, 52 A.3d 281, 285 (Pa. Super. 2012) (stating

that “[s]ection 9765, particularly as elucidated by our Supreme Court in



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Baldwin, evinces a clear intent to confine merger for sentencing purposes

to the defined condition that all of the statutory elements of one of the

offenses are included in the statutory elements of the other.”).

        Based on a comparison of the two offenses, it is clear that the offenses

of REAP and robbery cannot merge for sentencing purposes.               Indeed,

robbery does not require a mens rea of recklessness, which is an element of

REAP.     See Commonwealth v. Weigle, 949 A.2d 899, 907 (Pa. Super.

2008) (stating that “the thrust of the REAP statute is to provide criminal

sanctions for the reckless creation of a risk of death or serious bodily

injury.”); see also Commonwealth v. Payne, 868 A.2d 1257, 1262 (Pa.

Super. 2005) (noting that aggravated assault requires a mental state that

robbery does not, and, therefore, the offenses do not merge).        Moreover,

the REAP statute does not impact on the state of mind of the victim, while

the robbery statute is written from the victim’s perspective, and requires

that the victim be placed in fear of immediate serious bodily injury.      See

Commonwealth v. Cancilla, 649 A.2d 991, 994 (Pa. Super. 1994) (stating

that to support a REAP conviction, conduct in question must create an

actual, not merely perceived, danger); see also Weigle, 949 A.2d at 907

(holding REAP is not a cognate offense to robbery because it “could be

accomplished without committing a robbery, and a robbery could be

accomplished without committing [an offense] involving danger to the

person.”). Additionally, unlike robbery, REAP does not require proof of theft.



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See Weigle, 949 A.2d at 907 (acknowledging that while REAP and robbery

are intended to protect part of the same harm, “i.e., protection against

infliction of bodily injury or fear thereof[,] the robbery statute contains the

additional goal of protection of property which REAP does not).    Thus, each

offense requires proof of an element that other does not, and cannot merge

for sentencing purposes. See Payne, 868 A.2d at 1262-63 (concluding that

aggravated assault did not merge with robbery arising from the same

criminal conduct, where robbery did not require that the defendant cause

serious bodily injury by acting intentionally, knowingly or recklessly, and

aggravated assault did not require proof of theft). We thus conclude Flint’s

merger issue to be unavailing.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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