J. S09008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ISAIAH JONES,                          :          No. 431 WDA 2014
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, February 10, 2014,
          in the Court of Common Pleas of Westmoreland County
              Criminal Division at No. CP-65-CR-0003493-2011


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 24, 2015

     Isaiah Jones appeals from the judgment of sentence of February 10,

2014, following his conviction of robbery and related charges. After careful

review, we vacate and remand for resentencing, but affirm in all other

respects.

     The trial court has summarized the history of this case as follows:

                   The Defendant was charged by Criminal
            Information filed at No. 3493 C 2011 with numerous
            violations of the Pennsylvania Crimes Code, including
            Robbery, Aggravated Assault, Simple Assault,
            Recklessly Endangering Another Person and Theft by
            Unlawful Taking.     These charges arose from an
            incident that occurred on June 4, 2011 in Monessen,
            Westmoreland County, Pennsylvania. The testimony
            at trial established that on June 4, 2011,
            Jason McCullough was working as an employee of
            Del Rosa’s Pizza Shop, and that part of his job
            involved delivering pizzas to individuals who had
            placed orders. McCullough testified that he knew
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          Isaiah Jones before that date, but only knew him by
          his nickname, “Oogie.” He testified that he had
          delivered an order to “Oogie” at 464 Reed Avenue in
          Monessen earlier that evening, and returned to
          deliver another order at approximately 10:00 p.m.
          McCullough related that as he approached the rear
          entrance to the residence, he was struck from behind
          and thrown to the ground. He further stated that the
          person who had assaulted him then placed a gun to
          the side of his head and demanded all of his money.
          McCullough gave the person some of the money that
          was in the pocket of his pants, and the person
          demanded that he give him all of the money or he
          would kill him. The person patted McCullough down,
          felt more money in his pocket and “pistol whipped”
          him before he removed the rest of the money from
          his pants. McCullough could see parts of the gun,
          and was able to describe the weapon.

                When the person who assaulted and robbed
          him ran off, McCullough immediately screamed for
          help. The resident of the front apartment, Stephanie
          Shanefelt, let him inside her apartment and called
          9-1-1 for him. McCullough told her, “Oogie robbed
          me, Oogie robbed me,” and also called his employer
          at the pizza shop to tell him what had occurred.
          Although he never saw his face, McCullough
          recognized the voice of his attacker as that of the
          person who he knew as “Oogie,” and identified
          “Oogie” at trial as the defendant, Isaiah Jones.

                 Stephanie Shanefelt testified that she had
          been inside her apartment on the evening of June 4,
          2011 when McCullough rang her doorbell, thinking
          that the delivery was for her. She suggested that he
          try the rear apartment.        Shortly thereafter, she
          heard yelling, and when she looked outside her
          window, she saw “the pizza man” running from
          around the side of the house and also saw “Oogie”
          running from behind the house and down the street.
          She stated that McCullough (the [“]pizza man”)
          repeatedly said that “Oogie” had robbed him. She
          testified that she knew “Oogie” at the time of the
          incident, and also positively identified him at trial.


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                 Some time after the incident, after Jones had
          been charged with these crimes, McCullough testified
          that he received an anonymous letter in the mail
          offering him $1,000.00 if he would not testify against
          Jones, and threatening him with “consequences” if
          he chose to do so.          Jones’ girlfriend, Pashun
          Pettiford, testified that Jones had written to her,
          instructed her to send a letter to McCullough, and
          specified exactly what words should be contained in
          that letter. She identified the letter that McCullough
          had received as being the letter she wrote at Jones’
          direction.

                 Keith Barber testified that on February 19,
          2012, he h[e]ard sounds of a crash outside of his
          North Belle Vernon home at approximately
          10:20 p.m. He saw that a SUV had collided with a
          tree across the street from hi[s] house. He heard
          police shouting to “come out of the car.” He was on
          his way to see if his neighbor was all right, and
          noted that his back gate was open. He went to the
          back yard to investigate, and when he opened the
          door to his shed, a tall individual wearing a dark
          hoodie and jeans came out of the shed and ran
          away. Barber alerted the police that “they’re back
          here,” and the police gave chase. Barber testified
          that he immediately went into the shed and spotted
          a red ball cap that did not belong to him or any
          member of his family. Upon closer examination,
          Barber saw a cell phone and a gun and traces of
          blood inside of the shed. He stated that he had been
          in the shed earlier [and] that none of the items he
          discovered, nor the blood smears, had been there
          prior to his observing the unknown individual running
          out of the shed on that night. He promptly notified
          police of his discoveries. Police took custody of the
          gun that Barber found in his shed, and also
          preserved samples of the blood smears that were
          located in the interior of the shed. DNA analysis of
          the blood found inside Barber’s shed matched the
          sample of blood that was subsequently obtained
          from Jones. DNA analysis of the gun found in the



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            shed was inconclusive because it contained a DNA
            mixture from at least four individuals.

Trial court opinion, 6/4/14 at 1-4 (footnote and citations omitted).

      Following a jury trial held November 4, 6, and 7, 2013, appellant was

found guilty of three counts of robbery, aggravated assault, simple assault,

recklessly endangering another person, and theft by unlawful taking.       On

February 10, 2014, appellant was sentenced to a mandatory minimum of

5 to 10 years’ incarceration at Count 1, robbery, pursuant to 42 Pa.C.S.A.

§ 9712(a) (visible possession of a firearm during commission of the offense).

At Count 4, aggravated assault, appellant received a concurrent sentence of

1½ to 3 years; at Count 6, recklessly endangering, the trial court imposed

no further sentence.      The remaining charges merged for sentencing

purposes.   Therefore, appellant’s aggregate sentence was 5 to 10 years’

imprisonment.     This timely appeal followed.   Appellant has complied with

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an

opinion.

      Appellant has raised the following issues for this court’s review:

            I.     Did the Trial Court impose an illegal sentence
                   in relying upon the mandatory sentence in
                   42 Pa.C.S.A. § 9712, in light of the Superior
                   Court decision in Commonwealth v. Newman,
                   2014 PA Super 178 (2014), which declared the
                   mandatory     sentencing   statute     to   be
                   unconstitutional?

            II.    Did the Trial Court err in excluding from
                   evidence the proposed testimony of alibi
                   witnesses for Defendant?


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            III.    Did the Trial Court err in allowing the
                    Commonwealth to introduce evidence tending
                    to show that Defendant possessed a firearm on
                    an occasion approximately eight months after
                    the offenses for which he was tried?

            IV.     Did the Trial Court err in refusing to grant a
                    mistrial where the prosecuting attorney elicited
                    testimony from a witness about an alleged
                    conversation she had with Defendant’s
                    attorney, which testimony would have required
                    counsel to become a witness in the trial to
                    contradict the same?

Appellant’s brief at 4.

      In his first issue on appeal, appellant argues that his sentence is

illegal. As stated above, the trial court imposed the 5 to 10-year mandatory

minimum sentence          for   crimes committed with firearms pursuant        to

42 Pa.C.S.A. § 9712. Following the United States Supreme Court’s decision

in Alleyne v. United States,                U.S.     , 133 S.Ct. 2151 (2013),

Section 9712       has     been    held    unconstitutional   in   its   entirety.

Commonwealth v. Ferguson, 107 A.3d 206, 213-216 (Pa.Super. 2015),

discussing Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014);

and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).

Therefore, it is necessary to vacate appellant’s sentence and remand for




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resentencing without consideration of the mandatory minimum sentence

provided in Section 9712.1

     The Commonwealth argues that any error is harmless because

appellant’s sentence was within the guidelines and the trial court could have

imposed the same sentence without applying the mandatory minimum

sentence pursuant to Section 9712.        The Commonwealth’s argument is

misplaced.   Regardless of whether the trial court could have imposed the

same sentence without relying on Section 9712 and remained within the

guidelines, the fact of the matter is that the trial court did impose the

mandatory 5 to 10-year sentence required by Section 9712, as requested by

the Commonwealth. (Notes of testimony, sentencing, 2/10/14 at 2, 4.) See

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014) (“It is

also well-established that [i]f no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.   An

illegal sentence must be vacated.” (quotation marks and citation omitted)).

In addition, the fact that the jury found appellant was in possession of a

firearm at the time of the crime beyond a reasonable doubt is of no moment.

(Notes of testimony, 11/4, 6-7/13 at 423.) The unconstitutional provisions

of Section 9712 are not severable, and the trial court cannot create a new

procedure in an effort to impose the mandatory minimum sentence in


1
  Appellant did not raise this issue in the court below. However, it is well
settled that a challenge to the legality of a sentence is non-waivable.
Ferguson, 107 A.3d at 213 n.4.


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compliance with Alleyne by allowing the jury to determine the factual

predicate of Section 9712. Ferguson, 107 A.3d at 216.

      In his second issue on appeal, appellant argues that the trial court

abused its discretion by excluding proposed alibi witnesses.        According to

appellant, two alibi witnesses, Earl Pinkney and Ethan Pinkney, could testify

that he was not in the vicinity of his home at the time of the robbery. The

trial court ruled that appellant could not call these witnesses at trial because

he failed to comply with the notice requirements of Pa.R.Crim.P. 567.

      Rule 567 provides, in relevant part:

            Rule 567. Notice of Alibi Defense

            (A)   Notice by Defendant.          A defendant who
                  intends to offer the defense of alibi at trial shall
                  file with the clerk of courts not later than the
                  time required for filing the omnibus pretrial
                  motion provided in Rule 579 a notice specifying
                  an intention to offer an alibi defense, and shall
                  serve a copy of the notice and a certificate of
                  service on the attorney for the Commonwealth.

                  (1)   The notice and a certificate of
                        service shall be signed by the
                        attorney for the defendant, or the
                        defendant if unrepresented.

                  (2)   The notice shall contain specific
                        information as to the place or
                        places where the defendant claims
                        to have been at the time of the
                        alleged offense and the names and
                        addresses of the witnesses whom
                        the defendant intends to call in
                        support of the claim.




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            (B)     Failure to File Notice.

                    (1)   If the defendant fails to file and
                          serve the notice of alibi as required
                          by this rule, the court may exclude
                          entirely any evidence offered by
                          the defendant for the purpose of
                          proving    the    defense,     except
                          testimony by the defendant, may
                          grant a continuance to enable the
                          Commonwealth to investigate such
                          evidence, or may make such other
                          order as the interests of justice
                          require.

Pa.R.Crim.P. 567.

            Accordingly, Rule [567] enables the trial court, when
            the notice requirement is not met, to take such
            measures as preventing an alibi witness from
            testifying and to deny a request for an alibi
            instruction. Rule [567] is “designed to enhance the
            search for truth in the criminal trial by insuring both
            the defendant and the state ample opportunity to
            investigate certain facts crucial to the determination
            of guilt or innocence.”

Commonwealth v. Poindexter, 646 A.2d 1211, 1219 (Pa.Super. 1994),

appeal denied, 655 A.2d 512 (Pa. 1995), quoting Commonwealth v.

Fernandez, 482 A.2d 567, 572 (Pa.Super. 1984).               “The imposition of

sanctions for violations of Pa.R.Crim.P. [567] rests in the sole discretion of

the trial court.”   Commonwealth v. Zimmerman, 571 A.2d 1062, 1067

(Pa.Super. 1990), appeal denied, 600 A.2d 953 (Pa. 1991), cert. denied,

503 U.S. 945 (1992) (citations omitted).

      Instantly, appellant filed his alibi notice on July 5, 2012, well after the

time required for filing pre-trial motions. See Pa.R.Crim.P. 579(A) (“Except


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as otherwise provided in these rules, the omnibus pretrial motion for relief

shall be filed and served within 30 days after arraignment, unless

opportunity therefor did not exist, or the defendant or defense attorney, or

the attorney for the Commonwealth, was not aware of the grounds for the

motion, or unless the time for filing has been extended by the court for

cause shown.”). Appellant waived formal arraignment on October 6, 2011.

       In his alibi notice, appellant provided the names, addresses, and

telephone numbers of the two witnesses. (Notes of testimony, 11/4/13 at

3.)2 However, appellant did not provide any specific information regarding

where he was at the time the crime was alleged to have been committed, as

required by Rule 567. Appellant stated only that he “was not in the vicinity”

as alleged in the information. A hearing was held on July 11, 2012, before

the Honorable Alfred B. Bell, who granted appellant 30 days to file an

amended alibi notice. (Notes of testimony, 7/11/12 at 13-14; Docket #30.)

A continuance was granted until the September trial term to give appellant

time to provide the Commonwealth with the requested information. (Id. at

14.)



2
  In its original Rule 1925(a) opinion, the trial court states that, “No contact
information was provided by the defense other than the names of these
individuals.” (Trial court opinion, 6/4/14 at 5.) Subsequently, after the
record was transmitted to this court, it came to the trial court’s attention
that appellant had, in fact, provided the Commonwealth with the witnesses’
names, addresses, and telephone numbers. (Notes of testimony, 8/22/14 at
3.) Subsequently, the trial court filed a supplemental Rule 1925(a) opinion
on August 26, 2014.


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     On November 1, 2013, the Commonwealth filed a second motion to

exclude alibi defense, noting that appellant had failed to provide any of the

ordered alibi defense information. (Docket #56.) A hearing was held on the

motion on November 4, 2013, before the Honorable Rita Donovan

Hathaway.    The Commonwealth argued that on July 11, 2012, Judge Bell

had given appellant 30 days to provide additional information and appellant

failed to comply. (Notes of testimony, 11/4/13 at 2.) Appellant conceded

that he failed to amend his alibi notice to include specific information

regarding where appellant claimed to be at the time the crime was

committed.      (Id. at 3-4.)     Appellant argued that he provided the

Commonwealth with the witnesses’ names, addresses, and telephone

numbers and it was up to the Commonwealth to investigate the witnesses.

(Id. at 3-6.)   According to appellant, “I’m being blamed for not providing

information that she could have or Officer Gray could have gotten with a

phone call or a stop by.”        (Id. at 5.)   Judge Hathaway granted the

Commonwealth’s motion and ruled that while appellant could testify as to his

whereabouts at the time of the alleged crime, the proposed alibi witnesses

would be excluded. (Id. at 6.)

     We determine that the trial court did not abuse its discretion in

granting the Commonwealth’s motion to exclude alibi defense. Appellant’s

initial alibi notice was manifestly untimely, having been filed approximately

eight months after arraignment. Then, despite having been given 30 days



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to file an amended alibi notice in compliance with Rule 567, appellant failed

to do so. Contrary to appellant’s argument, it is not the Commonwealth’s

responsibility to investigate his proposed alibi witnesses to ascertain what

they are likely to testify to at trial. Rule 567 is explicit that “The notice shall

contain specific information as to the place or places where the defendant

claims   to     have   been    at   the    time    of   the    alleged   offense.”

Pa.R.Crim.P. 567(A)(2).       On the eve of trial, some 16 months after

Judge Bell’s order, appellant had still not filed an amended alibi notice.

There is no error here.

      Next, appellant argues that the trial court erred in granting the

Commonwealth’s motion in limine to admit the firearm recovered from

Barber’s shed. Appellant maintains that there was no evidence linking the

gun to the robbery and any probative value the gun had was outweighed by

its prejudicial effect. (Appellant’s brief at 23.) We disagree.

      “The admission of evidence is a matter vested within the sound

discretion of the trial court, and such a decision shall be reversed only upon

a showing that the trial court abused its discretion.”        Commonwealth v.

Broaster, 863 A.2d 588, 591-592 (Pa.Super. 2004), citing Commonwealth

v. Reid, 811 A.2d 530, 550 (Pa. 2002).

                    According to Pa.R.E. 401, “‘Relevant evidence’
              means evidence having any tendency to make the
              existence of any fact that is of consequence to the
              determination of the action more probable or less
              probable than it would be without the evidence.”



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               Relevant evidence may nevertheless be
               excluded ‘if its probative value is
               outweighed by the danger of unfair
               prejudice, confusion of the issues, or
               misleading the jury, or by considerations
               of undue delay, waste of time, or
               needless presentation of cumulative
               evidence.’[Footnote 4]

                   [Footnote 4] See Pa.R.E. 403;
                   Commonwealth v. Kitchen,
                   730 A.2d 513 (Pa.Super.1999).

               Because all relevant Commonwealth
               evidence is meant to prejudice a
               defendant, exclusion is limited to
               evidence so prejudicial that it would
               inflame the jury to make a decision
               based upon something other than the
               legal propositions relevant to the case.
               As this Court has noted, a trial court is
               not required to sanitize the trial to
               eliminate all unpleasant facts from the
               jury’s consideration where those facts
               form part of the history and natural
               development of the events and offenses
               with which [a] defendant is charged.

          Commonwealth v. Serge, 837 A.2d 1255, 1260-61
          (Pa.Super.2003).

                In addressing the admissibility of a gun for
          demonstrative purposes, the Pennsylvania Supreme
          Court has held that:

               [a] weapon shown to have been in a
               defendant’s possession may properly be
               admitted into evidence, even though it
               cannot positively be identified as the
               weapon used in the commission of a
               particular crime, if it tends to prove that
               the defendant had a weapon similar to
               the one used in the perpetration of the
               crime.


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            Commonwealth v. Williams, 537 Pa. 1, 16, 640
            A.2d 1251 (1994).

Id. at 592.    “With regard to the admission of weapons evidence, such

evidence is clearly admissible where it can be shown that the evidence was

used in the crime charged.” Commonwealth v. Owens, 929 A.2d 1187,

1191 (Pa.Super. 2007), appeal denied, 940 A.2d 364 (Pa. 2007) (citation

omitted). “Uncertainty whether the weapons evidence was actually used in

the crime goes to the weight of such evidence, not its admissibility.”     Id.

(citation omitted).

      At the hearing on the Commonwealth’s motion, the Commonwealth

argued that the appearance of the gun recovered from Barber’s shed was

consistent with the victim’s description of the gun used in the robbery. The

victim described the gun as a small, black and silver semi-automatic

handgun, not a revolver.    (Notes of testimony, 11/4/13 at 7.)      The gun

found in Barber’s shed was a small-caliber, black and silver semi-automatic

handgun. (Id. at 8, 12-13.) The gun was black and shiny with silver trim,

which matched the victim’s description to police. (Id.)

      In fact, at trial, the victim identified it as the same gun.   (Notes of

testimony, 11/4, 6-7/13 at 51; Commonwealth’s Exhibit 12.)       Clearly, the

gun was admissible as evidence, whether it was actually the same gun used

in the robbery or not. At a minimum, it tended to prove that appellant had a

weapon similar to the one used in the perpetration of the crime. Although it



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was not recovered until eight months later, it was highly relevant.

Furthermore, the trial court gave the jury a limiting instruction. (Id. at 416-

417.)      The trial court did not abuse its discretion in granting the

Commonwealth’s motion to introduce this evidence.

        Finally, appellant argues that the trial court should have declared a

mistrial   when    the   Commonwealth      elicited    testimony    from     Shanefelt

regarding    a    conversation   she   allegedly      had   with   defense    counsel

approximately 3-4 months after the crime occurred. On cross-examination,

Shanefelt admitted that she did not identify appellant as the victim’s

assailant the night of the incident, nor three months later, when she

provided police with a written statement. (Id. at 124-127.) On redirect, the

Commonwealth attempted to rehabilitate Shanefelt by questioning her about

a   telephone     conversation   she   allegedly   had      with   defense    counsel,

Alan J. Manderino, Esq., in September or October 2011.                (Id. at 133.)

According to Shanefelt, she told Attorney Manderino that she saw appellant

running away from the house. (Id. at 134.) Shanefelt testified that she told

Attorney Manderino she could identify the perpetrator as appellant. (Id.)

        At sidebar, Attorney Manderino made a request for mistrial.            (Id. at

135.) Attorney Manderino remembered speaking with Shanefelt but denied

that she ever told him she could identify his client, appellant. (Id. at 136,

138-139.) Attorney Manderino indicated that he would have to call himself

as a witness to refute Shanefelt’s testimony. (Id. at 136-138.) According



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to the prosecuting attorney, Shanefelt had just informed her about the

conversation with Attorney Manderino the previous day. (Id. at 136, 139.)

The trial court denied the motion for mistrial but issued a curative instruction

to the jury as follows:

            Ladies and gentlemen, thank you for your patience.
            As I told you earlier this morning, sometimes the
            attorneys and I have legal matters that we have to
            discuss at sidebar outside of your hearing to make
            sure that you receive the evidence in a fair and
            impartial manner.      I am now instructing you to
            disregard the questions that Mrs. Patterson asked
            the witness pertaining to any possible conversations
            with Mr. Manderino.          You’re to disregard her
            questions, you’re to disregard any answers that the
            witness gave, so it’s just like that part never
            happened.       I should not have allowed those
            questions or answers to be given. They were legally
            inappropriate so they never happened and I do trust
            that you’ll be able to follow that instruction, so if you
            have anything in your notes about it just cross it out.

Id. at 144-145.

            With regard to the denial of mistrials, the following
            standards govern our review:

                  In criminal trials, the declaration of a
                  mistrial serves to eliminate the negative
                  effect wrought upon a defendant when
                  prejudicial elements are injected into the
                  case or otherwise discovered at trial. By
                  nullifying the tainted process of the
                  former trial and allowing a new trial to
                  convene, declaration of a mistrial serves
                  not only the defendant’s interests but,
                  equally important, the public’s interest in
                  fair trials designed to end in just
                  judgments. Accordingly, the trial court is
                  vested with discretion to grant a mistrial
                  whenever the alleged prejudicial event


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                   may reasonably be said to deprive the
                   defendant of a fair and impartial trial. In
                   making its determination, the court must
                   discern     whether      misconduct      or
                   prejudicial error actually occurred, and if
                   so, . . . assess the degree of any
                   resulting prejudice. Our review of the
                   resulting    order   is   constrained    to
                   determining whether the court abused its
                   discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “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 tribunal.’”    Id. at 878 (citations omitted).   When the trial court

provides cautionary instructions to the jury in the event the defense raises a

motion for mistrial, “[t]he law presumes that the jury will follow the

instructions of the court.” Commonwealth v. Brown, 786 A.2d 961, 971

(Pa. 2001) (citation omitted), cert. denied, 537 U.S. 1187 (2003).

      Instantly, the trial court issued a prompt and thorough curative

instruction to the jury, instructing them to disregard Shanefelt’s testimony

regarding the alleged conversation with Attorney Manderino. The prejudice

to appellant was minimal.          Appellant was able to establish, through

cross-examination, that Shanefelt never told police she could identify the

victim’s assailant.     Shanefelt admitted that she never identified “Oogie” as

the individual she saw running from the house the night of the robbery

either in her statement to police that night or in a written statement three


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months later.   The first time she identified appellant was at trial.   At any

rate, the victim himself testified unequivocally that he is familiar with

appellant and that he was the robber. (Id. at 61.) The trial court did not

abuse its discretion in denying appellant’s motion for mistrial.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2015




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