J-S39013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD LESTER WARREN

                            Appellant                No. 1402 MDA 2015


              Appeal from the Judgment of Sentence July 9, 2015
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No: CP-40-CR-0001307-2014


BEFORE: STABILE, PLATT,* and STRASSBURGER, JJ.*

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 15, 2016

        Appellant, Donald Lester Warren, appeals from the July 9, 2015,

judgment of sentence entered in the Court of Common Pleas of Luzerne

County (“trial court”) following his convictions of simple assault and

endangering welfare of children (“EWOC”).1 Appellant challenges the

sufficiency of the evidence and whether the trial court abused its discretion

for failing to order a mistrial. Upon review, we affirm.

        This matter stems from an incident on February 19, 2014. See N.T.

Jury Trial, 4/21/2015, at 132-133. On that date, eight-year-old K.W.2 was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701(a)(1), and 4304(a)(1), respectively.
2
 K.W. is the son of Appellant. At the time of trial K.W. was nine-years-old.
Id. at 51.
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laying on an air mattress and his sister, M.W.,3 was jumping on it. Id. at

51, 54. As a result of the jumping on the mattress, it popped. Id. at 51,

54. Appellant had previously repaired the mattress and instructed K.W. not

to jump on the mattress.          Id. at 54-55.   After Appellant walked in and

observed the damaged mattress, Appellant started yelling and separated

K.W. from his sister, A.W.4 Appellant proceeded to strike K.W. repeatedly,

with a belt, in the face and arm. Id. at 59-61. K.W. described the hits as

hard and very painful. Id. at 60. As a result, it made K.W. feel bad. Id. at

61. After being struck, a crying K.W. was bundled up against the wall. Id.

at 111.    K.W. had multiple marks/bruises from where he was hit with the

belt. Id. at 63-71. K.W. did not go to school the following day. Id. at 96-

97.

        The trial court summarized the procedural history as follows:

              A jury trial commenced on April 21, 2015, and the jury
              returned their verdict on April 24, 2015, at which time
              [Appellant] was found guilty on all counts. A pre-sentence
              investigation (PSI) was [o]rdered to be completed by the
              Luzerne County Adult Probation Department prior to
              sentencing.

                     On July [9], 2015, [Appellant] appeared before th[e
              trial c]ourt for imposition of sentence. Upon a review of
              the PSI and the submissions of counsel, and taking into
____________________________________________


3
    M.W. is the daughter of Appellant. M.W. is the younger sister of K.W.
4
  A.W. is the daughter of Appellant. A.W. was ten-years-old at the time of
trial. Id. at 104.




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           consideration the serious nature of the offenses and the
           sentencing guidelines, th[e trial c]ourt sentenced
           [Appellant] in the standard range to an aggregate term of
           incarceration of twenty four (24) months to a maximum of
           forty-eight (48) months to be served in a state correctional
           institution.    [On July 20, 2015, Appellant, while
           represented by counsel, filed a pro se motion or
           modification of sentence. On July 21, 2015, Appellant,
           through counsel, filed a motion for modification of
           sentence.] Following a hearing[, on August 10, 2015,]
           held pursuant to [Appellant’s] [m]otion for [m]odification
           of [s]entence, the [trial c]ourt granted [Appellant’s]
           [m]otion and modified [Appellant’s] sentence to an
           aggregate term of one (1) year less one (1) day to two (2)
           years less (2) days to be served in the Luzerne County
           Correctional Facility followed by thirty (30) months
           probation.

                  On August 10, 2015, [Appellant] filed a timely notice
           of Appeal. Th[e trial c]ourt by an [o]rder dated August 11,
           2015, directed [Appellant] to file a [c]oncise [s]tatement
           of [e]rrors [c]omplained of on [a]ppeal pursuant to
           Pa.R.A.P. 1925(b) and requested the Commonwealth to
           respond thereto.      After granting an extension of time
           within which [Appellant] and the Commonwealth were to
           file their respective pleadings in accordance with th[e trial
           c]ourt’s [o]rder of August 11, 2015, [Appellant’s] [c]oncise
           [s]tatement of [m]atters [c]omplained of on [a]ppeal
           pursuant to Pa.R.A.P. 1925(b) was filed on September 22,
           2015. The Commonwealth filed its response on October 2,
           2015.

Trial Court Opinion, 10/16/15, at 1-2.

     Preliminarily, this Court must determine whether the trial court had

the authority to modify the sentence imposed on July 9, 2015, when it

issued its order on August 10, 2015.     Appellant’s timely pro se motion to

modify sentence was a legal nullity as he was represented by counsel. See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal



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denied, 936 A.2d 40 (Pa. 2007). Appellant filed an untimely, counseled post

sentence motion on July 21, 2015. The trial court could have deemed the

issue waived; however, the trial court granted Appellant’s post-sentence

motion. Pursuant to 42 Pa.C.S.A. § 5505, “[e]xcept as otherwise provided

or prescribed by law, a court upon notice to the parties may modify or

rescind any order within 30 days after its entry, notwithstanding the prior

termination of any term of court, if no appeal from such order has been

taken or allowed.”      42 Pa.C.S.A. § 5505.     “Trial courts have the power to

alter or modify a criminal sentence within thirty days after entry, if no

appeal is taken.” Commonwealth v. Quinlan, 639 A.2d 1235, 1238 (Pa.

Super. 1994) (citations omitted).

       In the matter sub judice, the trial court held a hearing on the

untimely5 post sentence motion to modify sentence on August 10, 2015, at

1:30 p.m.       At the conclusion of the hearing the trial court granted

Appellant’s motion. See N.T. Motion to Reconsider Sentence, 8/10/2015, at

20. The same date, the trial court filed a written copy of the order at 3:36

p.m. Appellant filed a notice of appeal one minute prior to the filing of the

order. While typically the filing of an appeal would remove the trial court’s

authority to modify Appellant’s sentence, it is abundantly clear that

Appellant filed the notice of appeal relying on the in court ruling.        See

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5
  While the motion was filed beyond the ten-day period, it was still filed
within thirty days of sentencing.



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Quinlan, 6349 A.2d at 1238. Therefore, this Court will not find that the trial

court lacked the authority to grant Appellant’s motion to modify sentence.

      Next, this Court must determine whether Appellant’s notice of appeal

was filed timely. “Only a timely-filed post-sentencing motion will trigger an

extension of the time for filing a notice of appeal.    If indeed, Appellant’s

motion was untimely, the notice of appeal subsequently filed after the trial

court considered and ruled on Appellant’s motion in excess of 30 days from

the original judgment of sentence would be untimely.” Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 n. 1 (Pa. Super. 2003) (internal citation

omitted). When an appellant fails to “file a timely post-sentence motion, her

appeal period began to run from the date sentence was imposed.”

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004). Because

the Appellant’s post-sentence motion was untimely, the time to file a notice

of appeal was not tolled.    However, Appellant’s notice of appeal was filed

within 30 days of his original judgment of sentence; therefore, the appeal

was timely.

      Appellant raises three issues on appeal, which this Court quotes

verbatim.

      I.      Whether the Commonwealth failed to present sufficient
              evidence to prove beyond a reasonable doubt that
              [Appellant] was acting as a parent when disciplining a
              minor for his misconduct used force designed to cause or
              known to cause a substantial risk of death, serious bodily
              injury, disfigurement, extreme pain or mental distress or
              gross degradation as required by 18 Pa.C.S.A. §
              509(1)(ii)[.]


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       II.    Whether [the] Commonwealth failed to present sufficient
              evidence to prove beyond a reasonable doubt that
              [Appellant] was 18 years of age or older at the time of the
              offense as required by 18 Pa.C.S.A. § 2701(b)(2) to
              support the guidelines of a misdemeanor of the [f]irst
              [d]egree[.]

       III.   Whether the [t]rial [c]ourt abused its discretion in denying
              a motion for mistrial based upon intentional prosecutorial
              misconduct committed during closing argument[.]6

Appellant’s Brief at 3-4; Statement of Errors Complained of on Appeal

Pursuant to Pa.R.A.P. 1925(b), 9/22/2015, at 1.

       Appellant’s first issue is a challenge to the sufficiency of the evidence.

This Court’s standard of review for sufficiency of the evidence is well

established.

       As a general matter, our standard of review of sufficiency claims
       requires that we evaluate the record in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. Evidence
       will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. [T]he facts and circumstances
       established by the Commonwealth need not be absolutely
       incompatible with the defendant's innocence. Any doubt about
       the defendant’s guilt is to be resolved by the fact finder unless
       the evidence is so weak and inconclusive that, as a matter of
       law, no probability of fact can be drawn from the combined
       circumstances.

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6
  Appellant’s brief does not contain a third question presented; however, the
matter is included in the brief and was included in his Rule 1925(b)
statement; therefore, we will not find the issue waived.




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Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.

2013)).


      Appellant’s first claim is that the Commonwealth failed to disprove a

justification defense.

            The use of force upon or toward the person of another is
            justifiable if:

            (1)     The actor is the parent or guardian or other person
                    similarly responsible for the general care and
                    supervision of a minor or a person acting at the
                    request of such parent, guardian or other responsible
                    person and:

                  (i)      The force is used for the purpose of
                           safeguarding or promoting the welfare of the
                           minor,    including   the   preventing    or
                           punishment of his misconduct; and

                  (ii)     The force used is not designed to cause or
                           known to create a substantial risk of causing
                           death, serious bodily injury, disfigurement,
                           extreme pain, or mental distress or gross
                           degradation.


18 Pa.C.S.A. § 509. Essentially, Appellant argues that striking his child with

a belt multiple times, including on the face, does not give rise to proof that

the force was designed to cause or known to create a substantial risk of

causing death, serious bodily injury, disfigurement, extreme pain, or mental

distress or gross degradation.

      In the matter sub judice, Appellant struck his eight-year-old son with a

belt multiple times. K.W. was hit in his face and arm. These strikes led to

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bruises and marks such that Appellant held K.W. out of school the next day.

Furthermore, K.W. testified that these strikes were very painful. Viewing the

evidence in the light most favorable to the Commonwealth, there was

sufficient evidence to establish that the force was designed to cause or

known to create a substantial risk of causing death, serious bodily injury,

disfigurement, extreme pain, or mental distress or gross degradation.

Appellant’s first sufficiency claim lacks merit.

      Appellant’s second issue is that there was insufficient evidence to

establish that Appellant was 18 years of age or older at the time of the

offense.   In his brief, Appellant concedes that his age can be proven by

circumstantial evidence including his personal appearance in court, whether

he was married, and/or has children. See Commonwealth v. Miller, 657

A.2d 946 (Pa. Super. 1995).        Moreover, Appellant was identified by his

daughter A.W. during trial, and Appellant stipulated to the identification.

See N.T. Jury Trial, 4/21/2015, at 115.            Therefore, we find there was

sufficient circumstantial evidence to establish that Appellant was 18 years of

age or older at the time of the offense.

      Finally, Appellant argues that the trial court abused its discretion when

it denied Appellant’s motion for a mistrial.       Specifically, Appellant asserts

that the prosecutor’s use of a belt as a demonstrative tool and using the

phase “that belt” during closing constituted prosecutorial misconduct that

required the trial court to order a mistrial.      “The trial court is vested with

discretion to grant a mistrial whenever the alleged prejudicial event may

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reasonably be said to deprive the defendant of a fair and impartial trial.”

Commonwealth v. Culver, 51 A.3d 886, 871 (Pa. Super. 2012) (quoting

Comonwealth v. Lettau, 95 A.2d 360, 363 (Pa. Super. 2008)). It is well

settled that this Court’s standard of review for the denial of a motion for a

mistrial is an abuse of discretion. See Commonwealth v. Bryant, 67 A.3d

716, 728 (Pa. 2013) (citations omitted).          When considering a claim of

prosecutorial   misconduct,    “our   attention   is   focused   on   whether   the

defendant was deprived of a fair trial, not a perfect one.” Commonwealth

v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008) (quoting Commonwealth

v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005)). “The remedy of a mistrial

is an extreme remedy 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. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010)

(quoting Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super.

2009)).

      In the matter sub judice, we find that the demonstrative use of a belt,

and the ambiguous wording describing it as “that belt” did not deprive

Appellant of a fair trial.   Immediately after Appellant’s objection, the trial

court gave the following curative instruction to the jury.

            As you’ve seen, the Assistant District Attorney has with her
            a belt which she’s utilizing in her closing argument.
            Clearly that is being used as a demonstrative tool as part
            of her closing argument, and it is not the belt alleged to
            have been used in this proceeding or the type of belt
            that was used or alleged to have been used in this
            proceeding. So I just want to caution you, she is utliziting

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            that as part of making a closing argument to you as a
            demonstrative aid; but you should in no way consider or
            be of the belief that is, in fact, the belt at issue or the type
            of belt at issue.

N.T. Jury Trial, 4/21/2015, at 335. Therefore, we find that the trial court did

not abuse its discretion in denying Appellant’s motion for a mistrial.

      Judgment of sentence affirmed.

      Judge Strassburger joins this memorandum.

      Judge Platt concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




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