J-S41022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEWART C. SMITH

                            Appellant                No. 977 MDA 2016


             Appeal from the Judgment of Sentence May 16, 2016
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003032-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 18, 2017

        Stewart C. Smith appeals from the judgment of sentence, entered in

the Court of Common Pleas of Dauphin County, following his conviction for

sexual assault,1 indecent assault-without consent of other2 and simple

assault.3 After careful review, we affirm.

        On May 6, 2013, Smith was charged with multiple offenses stemming

from the alleged rape of his then-girlfriend, Angela Lewis.   On April 25,

2014, following a two day jury trial, Smith was convicted of the

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3124.1.
2
    18 Pa.C.S. § 3126.
3
    18 Pa.C.S. § 2701(a)(3).
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aforementioned charges.           During Smith’s jury trial, the Commonwealth

elicited testimony and/or referenced, several times, the subject of Smith’s

prior crimes, including a burglary, and his then present incarceration due to

a state parole detainer.4       However, Smith’s trial counsel, Autumn Walden,

Esquire, only requested a mistrial at one juncture in Smith’s jury trial,

immediately following the Commonwealth’s closing argument. On July 29,

2014, Smith was sentenced to an aggregate sentence of 7 to 14 years of

state incarceration.

       Smith filed no post sentence motions; however, Smith did file a notice

of appeal on August 1, 2014. Attorney Walden was permitted to withdraw

and Smith was ordered to file a Pa.R.A.P. 1925(b) statement of errors



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4
   The Commonwealth made inquiry and/or elicited testimony regarding
Smith’s prior criminal history and incarceration several times during trial:
“[Smith] was incarcerated at the Camp Hill Prison.” N.T. Trial, 4/24/14, at
223 (emphasis added); 2. “Did you go visit [Smith] in jail?” N.T. Trial,
4/24/14, at 236 (emphasis added); 3. “[Y]ou told us that in 1997 you had a
burglary charge. . . . I was – I was on drugs, and I committed a string
of burglaries.” N.T. Trial, 4/25/14, at 309-10 (emphasis added); 4. Do you
find it hard to believe that you’re still in love with a woman that accused you
of raping her and has put you in prison for the last year?” N.T. Trial,
4/25/14, at 309-10 (emphasis added).

The Commonwealth also twice referenced Smith’s prior criminal history and
incarceration during its closing argument: “[I]t came out in the defense’s
testimony that . . . he had nothing else [because] he was on parole.” N.T.
Trial, 4/25/14, at 360 (emphasis added); “He had time . . . to think about
this traumatic thing that he was accused of in state prison.” N.T. Trial,
4/25/14, at 367 (emphasis added).



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complained of on appeal. Smith then filed a motion for new trial nunc pro

tunc on August 27, 2014, which was denied on August 29, 2014.

        On October 9, 2014, the trial court held a Grazier5 hearing, at which

time the Dauphin County Public Defender’s Office took over Smith’s case.

The Public Defender’s Office was granted extra time to file an amended Rule

1925(b) statement. The amended statement was filed November 4, 2014.

On November 13, 2014, the trial court issued its 1925(a) opinion.           On

November 20, 2014, the Dauphin County Public Defenders Office filed a

notice of discontinuance of action pursuant to Pa.R.A.P. 1973.

        Smith filed a timely pro se petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on December 14, 2014. On

November 23, 2015, Smith filed a supplemental PCRA petition and a

supporting legal memorandum.            On April 18, 2016, the PCRA court found

Smith’s sentence exceeded the statutory maximum and filed a PCRA order

granting Smith a resentencing hearing and giving notice of intent to dismiss

his other PCRA claims. The trial court resentenced Smith to 4½ to 10 years’

imprisonment on May 10, 2016, and the trial court entered the sentencing

order on the docket on May 16, 2016. Smith filed a post-sentence motion

for a new trial on May 27, 2016, which the trial court denied on June 7,

2016.    On June 8, 2016, Smith timely appealed the trial court’s May 16,

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5
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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2016 sentencing order and the June 7, 2016 order denying his post-

sentence motion.6 On June 27, 2016, Smith filed a Rule 1925(b) statement.

Smith raises the following issues on appeal:

       1. Whether [Smith’s] [d]ue [p]rocess rights were violated by
       the continual referencing of his incarceration and other prior
       criminal offenses?

       2. Whether the trial [c]ourt erred by not granting a mistrial,
       when requested by trial counsel, due to the referencing of
       incarceration and other criminal offenses by the Commonwealth?

       3. Whether the trial Court erred by not [o]rdering a mistrial sua
       sponte as manifest necessity required a mistrial?

       4. Whether [Smith] should be discharged under double jeopardy
       as the references to other crimes and state prison incarceration
       were intentional?

Brief of Appellant, at 3.

       Smith first claims that the Commonwealth violated his due process

rights by continually referencing his incarceration and other criminal offenses

at trial. “A question regarding whether a due process violation occurred is a

question of law for which the standard of review is de novo and the scope of

review is plenary.”       Commonwealth v. Smith, 131 A.3d 467, 472 (Pa.

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6
   Smith attached cash slips to his docketing statement, which show he
placed his mail with the post-sentence motion in the hands of prison officials
on May 19, 2016. See Pa.R.A.P. 121(a) (“A pro se filing submitted by a
prisoner incarcerated in a correctional facility is deemed filed as of the date
it is delivered to the prison authorities for purposes of mailing or placed in
the institutional mailbox, as evidenced by a properly executed prisoner
cash slip or other reasonably verifiable evidence of the date that the prison
deposited the pro se filing with the prison authorities.”) (emphasis added).



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2015). However, in order to preserve his claim for appellate review, Smith

must have complied whenever the trial court ordered that he file a Rule

1925(b) statement; any issues not raised in such statement will be deemed

waived.    See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

When a trial court orders a Rule 1925(b) statement, the statement must

specify the error to be addressed on appeal. Commonwealth v. Dowling,

778 A.2d 683 (Pa. Super. 2001). Further, when a court has to guess what

issues an appellant is appealing, that is not enough for meaningful review.

Id. at 686-87 (“[A] [c]oncise [s]tatement which is too vague to allow the

court to identify the issues raised on appeal is the functional equivalent of no

[c]oncise [s]tatement at all.”) (emphasis added).

       Instantly, Smith’s concise statement was not specific enough for the

trial court to identify and address his claim.7      See Trial Court Opinion,

10/27/16, at 11 (“[Smith’s] blanket assertion that his due process rights

were violated provides [the Court of Common Pleas of Dauphin County] with

very little context in which to examine this.”). Smith’s vague Rule 1925(b)

statement has fatally hampered this Court’s review, and thus, this issue is

waived.8 Dowling, supra.
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7
    Smith’s Rule 1925(b) statement states, in relevant part: “4.
Commonwealth violated [Smith’s] Due Process rights under the 5 th and 14th
Amendment[]s to the U.S. Constitution and Pennsylvania’s Constitution Art.
1 Sec. 9.” Concise Statement of Errors Complained of on Appeal, 6/27/16,
at 2.




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      Smith next claims that the trial court erred in not granting a mistrial.

Specifically, Smith avers that his due process rights were violated because

the Commonwealth referenced his incarceration and other criminal offenses

at trial. The remedy of a mistrial is within the sound discretion of the trial

court, and a court need only grant a mistrial where the alleged prejudicial

event may reasonably be said to deprive the defendant of a fair, impartial

trial. Commonwealth v. Messersmith, 860 A.2d 1078, 1092 (Pa. Super.

2004). When dealing with a motion for mistrial due to a reference to past

criminal   behavior,       the    nature   of   the   reference    and    whether   the

Commonwealth intentionally elicited the remark are considerations relevant

to the determination of whether a mistrial is required. Commonwealth v.

Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007). Mere passing references

to a defendant’s prior criminal activity do not warrant reversal, unless the

record     illustrates     that    prejudice     resulted   from    the     references.

Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super. 1998). Where

an appellant fails to request a mistrial when the alleged prejudicial event

occurs, the issue is not preserved for appellate review. Commonwealth v.

Bell, 562 A.2d 849, 853 (Pa. Super. 1989).

      During closing argument, the Commonwealth made passing references

to Smith’s parole and his incarceration in a state prison facility due to a state

parole detainer.         N.T. Trial, 4/25/14, at 360, 367.         Immediately upon

conclusion of the Commonwealth’s closing argument, Smith’s trial counsel

requested a mistrial. Id. at 373. Thus, Smith has preserved this claim for

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our review.   However, as Smith did not request a mistrial following the

Commonwealth’s other references to prior criminal behavior at trial, we are

constrained to limit our review to the passing references made by the

Commonwealth during its closing argument.         Bell, supra.    Specifically,

Smith challenges the following references from the Commonwealth’s closing

argument:

     [Lewis] paid all of the bills. She had the family, the children, the
     grandchildren. She had it all.

     [Smith] had nothing. He had no way to support himself. And
     unfortunately, it came out in the defense’s testimony that,
     literally, he had nothing else [because] [Smith] was on parole.

                                *     *     *

     [Smith] knew his story really, really, really well for a whole year
     later, after drinking a bottle of liquor. He remembered thing that
     I[, the prosecutor,] [cannot] remember from two nights ago.

     He had time, right, to think about his traumatic thing that he
     was accused of in state prison [sic].

N.T. Trial, 4/25/14, at 360, 367 (emphasis added).

     Here, the Commonwealth’s reference to Smith’s parole was merely a

reiteration of Smith’s own testimony that his dependence on Lewis as a

provider was, in part, a function of his status as a parolee.       N.T. Trial,

4/25/14, at 251-253, 261.       Additionally, at trial, Smith’s trial counsel

conceded that she believed the Commonwealth’s reference to Smith’s time

in state prison was unintentional.   Id. at 374 (“Attorney Walden: I’m not

saying it was intentional, but it came out.”); Kerrigan, supra.      Following



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our review of the record, we can discern no prejudice that resulted from the

Commonwealth’s passing references to Smith’s parole and/or incarceration.

Valerio, supra.        Accordingly, we find the trial court’s denial of Smith’s

request    for   a   mistrial    did   not     constitute   an    abuse   of   discretion.

Messersmith, supra.

       Finally, Smith claims the trial court erred in not granting a mistrial sua

sponte, as required by manifest necessity,9 and that his charges must be

discharged under double jeopardy. However, neither of Smith’s remaining

two claims were preserved in an objection lodged at trial nor were they

raised in his Rule 1925(b) statement.                 A concise statement of errors

complained of on appeal must concisely identify each ruling or error that

Smith intends to challenge with sufficient detail to identify all pertinent

issues for the judge.        See Pa.R.A.P. 1925(b)(4)(ii).          Further, issues not

included in the Rule 1925(b) statement and/or not raised in accordance with

the   provisions     of   this    paragraph        (b)(4)   are   waived.       Pa.R.A.P.

1925(b)(4)(vii); Lord, supra. Therefore, we are constrained to find these

two issues waived on appeal.

       Judgment of sentence affirmed.



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9
   When an event prejudicial to the defendant occurs during trial only the
defendant may move for mistrial; the motion shall be made when the event
is disclosed. Otherwise, the trial judge may declare a mistrial only for
reasons of manifest necessity. Pa.R.C.P. 1118(b).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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