J-S15032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GRANT DAVID LEWIS                          :
                                               :
                      Appellant                :   No. 1530 WDA 2019

     Appeal from the Judgment of Sentence Entered September 12, 2019
     In the Court of Common Pleas of McKean County Criminal Division at
                       No(s): CP-42-CR-0000044-2018


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 20, 2020

        Appellant Grant David Lewis appeals from the judgment of sentence

entered by the Court of Common Pleas of McKean County after a jury

convicted Appellant of Aggravated Assault, Strangulation, and two counts

each of Simple Assault and Harassment.             Appellant asserts that the trial

court erred in denying his motion for a mistrial and imposing an illegal

mandatory minimum sentence. After careful review, we affirm.

        Appellant was charged with the aforementioned offenses in connection

with his January 4, 2018 attacks on his girlfriend, Charlotte Shugars (“the

victim”).    On that date, Appellant became enraged after discovering the

victim stayed overnight at the residence of another male in Bradford,


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Pennsylvania. When Appellant located the victim at the male’s apartment,

he struck the victim several times in the face and demanded that she leave

with him. The victim complied with Appellant’s order as she did not want to

be assaulted again. Notes of Testimony (N.T.), 7/15/19, at 35-38.

      Once Appellant and the victim returned to their residence at 189 High

Street in Bradford, the victim attempted to call her friend, Traci Frenz, for

help. Shortly thereafter, Appellant pushed the victim to the floor and began

to choke her. Appellant then hit victim’s face, spit in her eyes, and kicked

her head and ribs with his steel-toe boots. N.T. at 38-42.

      Appellant stopped his assault of the victim after Frenz arrived in

response to the victim’s call.     Frenz testified she observed the victim

whimpering on the floor of the residence and noticed that the victim’s nose

was bleeding and her face and eye were swollen. Frenz heard Appellant yell

to the victim multiple times, “I’m going to fucking kill you.” After Frenz took

the victim out of the residence and placed the victim in her car, Frenz called

the police. N.T. at 14-18.

      After the Bradford City Police Department responded to the scene,

officers observed the victim had swelling and bruises on her eye and nose,

cuts on her lip, and blood coming from her mouth.            Appellant told the

officers that he and the victim only had a verbal argument and indicated “if

it was physical[,] I would have marks on my hand.”           Officers observed

Appellant had a laceration between his fingers and his khaki pants appeared

to be stained with blood. N.T. at 128-131.

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      The victim was subsequently transported to the Bradford Regional

Medical Center, where physicians determined that the victim sustained

multiple injuries, including a “blowout” fracture in the right orbital floor of

her skull that was likely caused by blunt force trauma. Id. at 71-74.

      At Appellant’s jury trial, the prosecution presented the testimony of

multiple witnesses, including Nichole Steinhauer, a forensic nurse examiner

who evaluated the victim’s injuries on January 4, 2018.             On direct

examination, Ms. Steinhauer described her observations of Appellant’s

bruises. On cross-examination, defense counsel asked Ms. Steinhauer about

the size and color of the victim’s bruises and whether these distinctions were

important.    In response, Ms. Steinhauer injected her opinion that the

coloration of the victim’s bruises were “consistent with the mechanism of the

injury of those bruises that [the victim had] described.” N.T. at 106.

      Appellant’s counsel objected to this testimony and argued that Ms.

Steinhauer had improperly given an expert opinion when she was never

qualified as an expert. The trial court sustained Appellant’s objection, but

declined to grant a mistrial and instead gave a curative instruction in which

the trial court asked the jury to disregard Ms. Steinhauer’s statement.

      At the conclusion of trial, the jury convicted Appellant of the

aforementioned offenses.    The Commonwealth gave notice of its intent to

seek a ten-year mandatory minimum sentence pursuant to 42 Pa.C.S.A. §

9714 based on the fact that Appellant had previously been convicted of a

crime of violence. While sentencing was originally scheduled for August 29,

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2019, the defense objected to the imposition of the mandatory minimum as

it asserted that the prosecution had failed to present adequate proof of

Appellant’s prior conviction of a crime of violence.

      The trial court continued the sentencing hearing until September 12,

2019, at which the Commonwealth presented evidence that Appellant had

two prior robbery convictions in which he threatened two victims with a

firearm in 1992. At the conclusion of the hearing, the trial court imposed a

mandatory ten to twenty year sentence on the Aggravated Assault

conviction pursuant to Section 9714.         The trial court also imposed a

concurrent term of three to six years’ incarceration on the Strangulation

conviction and a concurrent term of three to twelve months’ incarceration for

the Simple Assault conviction.    The trial court did not impose any further

penalties on the remaining charges.

      Appellant filed a timely appeal and complied with the trial court’s

direction to file a Concise Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b).     On appeal, Appellant raises the following

issues for our review:

      1. Whether the trial court erred in denying Appellant’s motion
         for a mistrial following testimony from Nic[h]ole Steinhauer
         at the jury trial on July 15-16?

      2. Whether the trial court erred in imposing a mandatory
         sentence of ten (10) to twenty (20) years of incarceration on
         September 12, 2019, pursuant to 42 Pa.C.S.A. § 9714?

Appellant’s Brief, at 5.




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      In reviewing Appellant’s claim that the trial court erred in refusing to

grant a mistrial, we are guided by the following standard:

      A motion for a mistrial is within the discretion of the trial court.
      Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.
      2003). A mistrial upon motion of one of the parties 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. Id.
      It is within the trial court's discretion to determine whether a
      defendant was prejudiced by the incident that is the basis of a
      motion for a mistrial. Id. On appeal, our standard of review is
      whether the trial court abused that discretion.

Commonwealth v. Wade, ___A.3d___, 1669 WDA 2016 (Pa.Super. Jan.

13, 2020).    Further, with respect to a request for a mistrial based on the

admission of improper testimony, this Court has provided that:

      [a] trial court may remove taint caused by improper testimony
      through curative instructions. Commonwealth v. Savage, 529
      Pa. 108, 602 A.2d 309, 312-13 (Pa. 1992); Commonwealth v.
      Richardson, 496 Pa. 521, 437 A.2d 1162 (Pa. 1981). Courts
      must consider all surrounding circumstances before finding that
      curative instructions were insufficient and the extreme remedy of
      a mistrial is required. Richardson, 496 Pa. at 526-527, 437
      A.2d at 1165. The circumstances which the court must consider
      include whether the improper remark was intentionally elicited
      by the Commonwealth, whether the answer was responsive to
      the question posed, whether the Commonwealth exploited the
      reference, and whether the curative instruction was appropriate.
      Id.

Commonwealth v. Manley, 985 A.2d 256, 266–67 (Pa.Super. 2009)

(citation denied).

      As noted above, Appellant argues that a mistrial was warranted after

Ms. Steinhauer, the forensic nurse examiner, offered improper expert

opinion testimony when the Commonwealth had not qualified her as an



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expert witness. Defense counsel elicited the following testimony on cross-

examination:

      [Defense counsel:] Is it significant to you and maybe I just
      don’t know the answer this for myself but does the coloration of
      the bruise matter?

      [Ms. Steinhauer:]        So, the coloration of bruises I mean
      scientifically there’s no way to date a bruise right we are aware
      of that but as human beings we all know that bruises happen
      along a continuum.         Like when you strike your knee on
      something for instance you have a red mark right and it may
      hurt a little and then the next day or you know several hours
      later it may become purplish in coloration and then it will
      develop into a yellow or brown coloration. I mean being a
      human being and having bruised something at some point –
      prominence in your life I’m certain you’ve all experienced that.
      So for me the relevance of the fact that the bruises are red or
      purple in coloration indicates to me that they are newer bruises
      as opposed to bruises that have been there for some time and
      are healing. Can I date them on a timeline[?] [A]bsolutely not
      but it is certainly relevant to me that the bruises that I witnessed
      were consistent with the mechanism of the injury of those
      bruises that my patient described to me. Does that make sense
      to you?

N.T. at 105-106 (emphasis added).        After defense counsel objected and

asked for a sidebar conference, defense counsel requested a mistrial.

      The trial court sustained defense counsel’s objection and indicated that

Ms. Steinhauer’s comment, indicating that the victim’s bruises were

“consistent with the mechanism of the injury” that victim had described, was

nonresponsive to the question posed by defense counsel. However, the trial

court denied Appellant’s request for a mistrial and gave the jury the

following curative instruction:




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      …[A]t the very end there was a statement from this witness that
      was “Well, these injuries were consistent with what the patient
      was telling her” [or] something along that line.           It was
      nonresponsive to the initial question. The witness was not asked
      for an opinion about consistency[. I]t’s the jury’s job to decide
      credibility issues. This is a fact witness who’s been called to
      provide testimony about what she observed as far as injuries
      and photos. It’s up to the jury to what evidence they accept and
      don’t accept but that conclusionary statement at the end
      infringes upon the jury’s duty to – and job to decide credibility
      issues. And also, it was nonresponsive to the question asked.
      Therefore, the jury is to completely disregard that statement,
      not consider it or give it any weight in their determination when
      addressing this case at the conclusion of the case.

N.T. at 109-10.

      Our review of the record shows that the Commonwealth did not

intentionally elicit Ms. Steinhauer’s remark, but rather, Ms. Steinhauer gave

this testimony in response to an inquiry by defense counsel on cross-

examination. Upon defense counsel’s objection, the trial court promptly and

definitively cautioned the jury to disregard Ms. Steinhauer’s statement. Our

courts have emphasized that “[i]t is well settled that juries are presumed to

follow the instructions of a trial court to disregard inadmissible evidence.”

Manley, 985 A.2d at 268. As such, we conclude that the trial court did not

abuse its discretion in denying Appellant’s request for a mistrial.

      Second, Appellant claims that the trial court imposed an illegal

mandatory minimum sentence.

      Generally, a challenge to the application of a mandatory
      minimum sentence is a non-waiveable challenge to the legality
      of the sentence. Issues relating to the legality of a sentence are
      questions of law, as are claims raising a court's interpretation of
      a statute. Our standard of review over such questions is de novo
      and our scope of review is plenary.

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Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012)

(quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.Super.

2009) (citation omitted)).

      Specifically, Appellant claims that the trial court could not impose a

mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714 as the

Commonwealth had not provided adequate proof that Appellant’s 1992

robbery conviction qualified as a “crime of violence.” Section 9714 provides

in relevant part:

      (a) Mandatory sentence.—

      (1) Any person who is convicted in any court of this
      Commonwealth of a crime of violence shall, if at the time of the
      commission of the current offense the person had previously
      been convicted of a crime of violence, be sentenced to a
      minimum sentence of at least ten years of total confinement,
      notwithstanding any other provision of this title or other statute
      to the contrary. Upon a second conviction for a crime of violence,
      the court shall give the person oral and written notice of the
      penalties under this section for a third conviction for a crime of
      violence. Failure to provide such notice shall not render the
      offender ineligible to be sentenced under paragraph (2).

                                      •••
      (d) Proof at sentencing.--Provisions of this section shall not
      be an element of the crime and notice thereof to the defendant
      shall not be required prior to conviction, but reasonable notice of
      the Commonwealth's intention to proceed under this section
      shall be provided after conviction and before sentencing. The
      applicability of this section shall be determined at sentencing.
      The sentencing court, prior to imposing sentence on an offender
      under subsection (a), shall have a complete record of the
      previous convictions of the offender, copies of which shall be
      furnished to the offender. If the offender or the attorney for the
      Commonwealth contests the accuracy of the record, the court
      shall schedule a hearing and direct the offender and the attorney
      for the Commonwealth to submit evidence regarding the

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       previous convictions of the offender. The court shall then
       determine, by a preponderance of the evidence, the previous
       convictions of the offender and, if this section is applicable, shall
       impose sentence in accordance with this section. …

42 Pa.C.S.A. § 9714(a)(1), (d).1

       Section 9714 specifies that the term “crime of violence” includes

“robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i),(ii),(iii) (relating to

robbery)” or “an equivalent crime under the laws of this Commonwealth in

effect at the time of the commission of that offense.”           42 Pa.C.S.A. §

9714(g). Sections 3701 of the Crimes Code defines robbery as follows:

       (1) 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;

       (iii) commits or threatens immediately to commit any felony of
       the first or second degree…
____________________________________________


1 Although not discussed by Appellant, we note that in Alleyne v. United
States, 570 U.S. 99, 133 S.Ct. 2151 (2013), the Supreme Court of the
United States established that “[a]ny fact that, by law, increases the penalty
for a crime is an ‘element’ that must be submitted to the jury and found
beyond a reasonable doubt.” Id. at 103, 133 S.Ct. at 2155. However, the
Supreme Court in Alleyne did not overturn prior federal precedent that
created an exception to this rule for the fact of a prior conviction. Alleyne,
133 S.Ct. at 2160 n. 1; see also Almendarez–Torres v. United
States, 523 U.S. 224, 243–44, 118 S.Ct. 1219, 1230–31, 140 L.Ed.2d 350
(1998). Prior to the Alleyne decision, the Pennsylvania Supreme Court
explained in a different context, “[w]here ... the judicial finding is a fact of a
prior conviction, submission to a jury is unnecessary, since the prior
conviction is an objective fact that was initially cloaked in all the
constitutional safeguards and is now a matter of public record.”
Commonwealth v. Aponte, 579 Pa. 246, 264, 855 A.2d 800, 811 (2004).



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       (iv) inflicts bodily injury upon another or threatens another with
       or intentionally puts him in fear of immediate bodily injury;

       (v) physically takes or removes property from the person of
       another by force however slight; or

       (vi) takes or removes the money of a financial institution without
       the permission of the financial institution by making a demand of
       an employee of the financial institution orally or in writing with
       the intent to deprive the financial institution thereof.

18 Pa.C.S.A. § 3701. Robbery convictions under Sections 3701(a)(1)(i)-(iii)

are graded as felonies of the first degree.        18 Pa.C.S.A. § 3701(b)(1).

Otherwise, a robbery conviction will be graded as a felony of the second or

third degree, unless the object of the robbery is a controlled substance or

designer drug. 18 Pa.C.S.A. § 3701(b)(1)-(2).

       While Appellant concedes that he was convicted of robbery in 1992 in

Philadelphia County, he argues that the record does not contain sufficient

evidence that Appellant’s prior conviction constituted a “crime of violence” as

the particular subsection of the robbery conviction was never specified.

       However, Appellant fails to acknowledge that the record contains the

criminal history file from the Pennsylvania State Police Central Repository,2

which states that that Appellant was convicted of two counts of Robbery

(which the document specifically notes were “F1” convictions), conspiracy,
____________________________________________


2  Section 9102 of the Criminal History Record Information Act (CHRIA)
defines “central repository” as “[t]he central location for the collection,
compilation, maintenance and dissemination of criminal history record
information by the Pennsylvania State Police.” 18 Pa.C.S.A § 9102.



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and carrying a firearm without a license for offenses that occurred on June

11, 1992.3 This document also states that Appellant was sentenced to five

to ten years’ imprisonment for one of the robbery convictions.

       The record also contains the corresponding criminal complaints for

Appellant’s robbery of two separate victims; each complaint alleged that on

June 11, 1992, Appellant had “approached the victim …, pointed a firearm at

his head, threatened to kill him, and demanded money.”               Complaint,

6/12/92, at 1.      Moreover, at sentencing, Appellant admitted that he had

used a firearm in the 1992 robbery to retaliate against individuals for a prior

crime. Appellant expressly stated:

       My decision to purchase a pistol was made because I wanted to
       be able to protect my family and myself in the urban
       environment we lived in. That would turn out to be one of the
       first of a series of stupid decisions I’ve made throughout my life.
       The second was answering the phone at 2:00 in the morning to
       hear my friend, Eugene, tell me that his cousin and his cousin’s
       girlfriend had been robbed.


____________________________________________


3 We note that a conviction of conspiracy to commit robbery under Sections
3701(a)(1)(i)-(iii) of Crimes Code also constitutes a “crime of violence”
under Section 9714. However, Appellant’s prior robbery and conspiracy
convictions would not require Appellant to receive a mandatory minimum
sentence as a third-strike offender. In Commonwealth v. Shiffler, 583 Pa.
478, 879 A.2d 185 (2005), our Supreme Court concluded that the three
strikes law under 42 Pa.C.S.A. 9714(a)(2), “reflects a ‘recidivist philosophy’
and should be construed to allow for heightened punishment for repeat
offenders only where their convictions for crimes of violence, and
corresponding terms of incarceration, are sequential and each is separated
by an intervening opportunity to reform.” Id. at 480, 879 A.2d at 186.



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      With my skewed sense of loyalty and justice, my reaction was
      not to call the police but to get up and quick --- and pick up
      Gene and his cousin up to look for the perpetrators of this deed
      and deliver some retribution. That act resulted in my first
      contact ever with the justice system, charged with, ironically,
      Robbery. Despite the fact that I was a wartime veteran and had
      no prior record at all, because of the presence of the firearm, the
      subsequent conviction resulted in my being given a mandatory
      sentence of five to ten years.

N.T. Sentencing, 9/12/19, at 10.

      Based on our review of the record, we agree that the Commonwealth

presented sufficient proof that Appellant’s 1992 robbery conviction was

graded as first-degree felony and constituted a “crime of violence” under 42

Pa.C.S.A. § 9714. While Appellant argues that the specific subsection of the

robbery statute was not identified in the record, Appellant never disputed

that the factual basis underlying his conviction constitutes first-degree felony

robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii) (“in the course of committing a

theft, [the individual] … threatens another with or intentionally puts him in

fear of immediate serious bodily injury”). Appellant does not dispute that, in

committing the 1992 robbery, he pointed a firearm at his victims,

threatened to kill them, and demanded money.

      As such, we conclude that the trial court did not err in determining

that Appellant’s prior robbery conviction constituted a “crime of violence”

and warranted a mandatory minimum sentence under 42 Pa.C.S.A. §

9714(a)(1).

      For the foregoing reasons, we affirm.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2020




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