J-S40025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAMES S. FLUELLEN

                            Appellant                   No. 2819 EDA 2015


            Appeal from the Judgment of Sentence August 20, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0006373-2014


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                  FILED JUNE 06, 2016

        Appellant, James S. Fluellen, appeals from the August 20, 2015

aggregate judgment of sentence of 12 to 24 years’ incarceration, plus 5

years’ probation, imposed after a jury convicted him of robbery, possessing

an instrument of a crime (PIC), and terroristic threats.1 After careful review,

we vacate and remand for re-sentencing.

        The trial court detailed the relevant facts of record as follows.

              On Thursday, September 18, 2014, Brittany
              Draughon, the assistant manager of the Dollar Tree
              store in Sharon Hill, and Diane Peters, a cashier,
              were working the closing shift. At about 8:30 p.m.,
              Ms. Draughon was prepared to close the store for the
              evening. She collected trash near the register and
              took it to a crowded stock room that was located at
____________________________________________


1
    18 Pa.C.S.A. §§ 3701, 907, and 2706, respectively.
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          the rear of the store. Ms. Draughon was occupied
          with her task among the boxes and shopping carts in
          the storeroom. When she looked up from her work
          she saw [Appellant] slowly emerge from an adjacent
          bathroom with a gun in his hand. His head was
          hooded and a black bandana covered his face. Ms.
          Draughon froze.       [Appellant] asked her whether
          there was a man in the store. She told him there
          was not and he asked whether there was anyone
          else in the store and also asked, “where’s the
          money?” Ms. Draughon told him that it was in a safe
          in the front of the store and [Appellant] walked her
          through the store to the front where the safe was
          located. As Ms. Draughon walked to the front of the
          store with [Appellant] close behind her, she passed
          her co-worker Ms. Peters and she whispered to her
          in an effort to get her attention.

                When they reached the safe, [Appellant] put
          the gun to Ms. Draughon’s back and said, “open the
          safe or I’ll blow your head off.” At this point Ms.
          Peters approached and Ms. Draughon testified that,
          “she looked at me, because nobody is supposed to
          be at the safe unless it’s just a manager. She
          walked up. I pretty much gave her the look like, you
          know, something’s going on, like the look, right?”
          [Appellant] looked at Ms. Peters and said, “hey, how
          you doing.”      Ms. Draughon looked directly at
          [Appellant] when he engaged in the conversation
          with Ms. Peters and “tried to ID his face.” He was
          standing less than an arm’s distance away from her
          and at this point his hood was still up but his face
          was no longer covered. Ms. Draughon testified that
          she looked at [Appellant’s] “full face” purposefully so
          that she would be able to identify him.

                After [Appellant] took the money, in accord
          with Dollar Tree procedure, Ms. Draughon locked the
          door and called “911.” Meanwhile, unbeknownst to
          Ms. Draughon, Ms. Peters had also called 911 and
          reported a robbery. Police officers arrived before Ms.
          Draughon completed her 911 call and she gave them
          a description of the robber.


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               About two weeks later, Detective Richard
          Herron of the Sharon Hill Police Department went to
          the Dollar Tree store with a photo array. In less
          than a minute, Ms. Draughon picked a photo of
          [Appellant] from the array and identified him as the
          robber.

                 Diane Peters, a Dollar Tree cashier, testified
          that she was working at the Sharon Hill Dollar Tree
          store when it was robbed. After 8:00 p.m. she saw a
          man enter the store. He was wearing a hoodie with
          the hood up over his head and he was carrying a
          bag. Ms. Peters thought this was strange because
          the weather was warm. Because he was carrying a
          bag, she suspected him of shoplifting. She followed
          him throughout the store, ending up by the safe
          where he stood with Ms. Draughon. Ms. Peters
          testified that she knew “something was wrong”
          because store protocol is that no one, except an
          employee or manager is allowed near the safe. Ms.
          Peters testified that she and Ms. Draughon looked at
          each other and that “the look in [Ms. Draughon’s]
          eyes was like fear.” After the man said “hi” to her,
          Ms. Peters walked down the aisle, pulled out her cell
          phone and called 911.

                 On cross-examination, trial counsel reviewed
          Ms. Peter’s direct testimony. Drawing his cross-
          examination to an end, trial counsel asked Ms. Peters
          whether she was ever asked to make an
          identification. She replied, “No.” Next, he asked:
          “And I think at one point you might even have told
          either the detective or the DA you don’t think you
          could identify anybody?”      Ms. Peters replied:   I
          probably did because it was a quick glance.”

                On re-direct, the prosecutor noted that Ms.
          Peters appeared to have been cut short in her reply:

               Q:   Was there any explanation you wanted
               to make in response to that question by
               [Appellant’s counsel]?




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               A:    I said if I ever – I did see his face. And if
               I [saw] it again, and that is him sitting over
               there. I mean, at the time I wasn’t like – I
               looked at his face and stuff, but I just wasn’t
               asked to identify him because like I caught the
               end of it. [Ms. Draughon] had more contact
               than I did. But that is him.

          Trial counsel did not object to this testimony.
          Instead, on re-cross, he continued and elicited
          further testimony which ended with the witness’s
          statement that she was “100 percent positive” that
          [Appellant] was the man who robbed the Dollar
          Tree[.]

                                    …

          Only after this exchange did trial counsel move for a
          mistrial.   In support, he argued that he had
          withdrawn a pre-trial motion for Ms. Peters to appear
          for a line-up when the Commonwealth represented
          that Ms. Peters would not be called to identify
          [Appellant] at trial. Trial counsel claimed further,
          that Ms. Peters identified [Appellant] “at the
          Commonwealth’s prompting.”           The prosecutor
          responded that she did not ask for identification but
          asked the witness to clarify her response to trial
          counsel’s question. She stated further that she did
          not know that Ms. Peters was going to identify
          [Appellant], that it “seemed [Ms. Peters] seemed she
          wanted to say something additional before he
          finished his questions.” The motion for a mistrial
          was denied.

                                    …

          [In addition,] Detective Herron testified that he
          responded to the reported armed robbery at the
          Dollar Tree on September [1]8, 2014. He arrived
          sometime after 8:00 p.m.          Upon his arrival,
          Detective Herron met both Ms. Draughon and Ms.
          Peters and he took a written statement from Ms.
          Draughon, including a description of the robber. The
          store was not outfitted with security video cameras


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              and no fingerprints were found on the safe. Ms.
              Draughon’s description of the robber was transmitted
              to local police departments and through a press
              release the description appeared in the Delaware
              County Daily Times. On September 30, 2014
              [Detective Herron] received a tip that [Appellant]
              was possibly the man he was searching for.
              Detective Herron secured a picture of [Appellant] via
              a computer search and used that photo to prepare a
              photo array. [Ms. Draughon identified Appellant as
              the robber from the photo array.]

Trial Court Opinion, 10/29/15, at 2-6, 10 (internal citations and footnote

omitted).

        After the two-day trial, the jury rendered its guilty verdict on June 3,

2015.     The trial court originally sentenced Appellant on July 16, 2015.

Appellant filed a motion for reconsideration of sentence on July 22, 2015,

and asserted that his sentence was “excessive” and “exceeded the statutory

maximum as allowed by law.”             The trial court vacated the July 16, 2015

judgment of sentence, and on August 20, 2015, entered an amended

sentence of 12 to 24 years’ incarceration for the robbery and PIC

convictions, with 5 years of consecutive probation for the terroristic threats

conviction.    Appellant filed a timely notice of appeal on September 17,

2015.2

        On appeal, Appellant presents three issues for our review.
____________________________________________


2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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            I.     Whether the [trial] court erred in denying
                   defense counsel’s motion for mistrial based on
                   the prejudicial event that occurred when
                   Commonwealth witness, Detective Richard
                   Herron testified about a tip he received that
                   [Appellant] was involved in the robbery at
                   issue[?]

            II.    Whether the [trial] court erred in denying
                   defense counsel’s motion for a mistrial based
                   on the prejudicial event that occurred when
                   Commonwealth witness, Diane Peters identified
                   [Appellant] as the individual who carried out
                   the robbery at issue, after the defense was
                   expressly assured by the Commonwealth on
                   multiple occasions that she would not be
                   making an in-court identification of [Appellant]
                   [?]

            III.   The sentence of five years consecutive
                   probation imposed for the terroristic threats
                   conviction is illegal since that charge should
                   have merged with the robbery conviction for
                   purposes of sentencing.

Appellant’s Brief at 7-8.

      In his first and second issues, Appellant claims that the trial court

erred by denying his requests for a mistrial. Our standard of review is as

follows.

            The trial court is in the best position to assess the
            effect of an allegedly prejudicial statement on the
            jury, and as such, the grant or denial of a mistrial
            will not be overturned absent an abuse of discretion.
            A mistrial may be granted only where the incident
            upon which the motion is based is of such a nature
            that its unavoidable effect is to deprive the
            defendant of a fair trial by preventing the jury from
            weighing and rendering a true verdict. Likewise, a
            mistrial is not       necessary   where    cautionary



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             instructions are adequate to overcome any possible
             prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014) (citation

omitted).    Furthermore, a mistrial is an “extreme remedy” that is only

required where the challenged event deprived the accused of a fair and

impartial trial.   Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010)

(citation omitted).

        Consistent with the foregoing, we find no abuse of discretion by the

trial court in denying Appellant’s requests for the remedy of a mistrial with

respect to the testimony of Detective Herron and the testimony of Ms.

Peters. In his first issue, Appellant asserts that Detective Herron’s testimony

concerning his receipt of an anonymous tip prejudiced Appellant and

deprived him of a fair and impartial trial.         Appellant’s Brief at 13.

Specifically, Appellant claims his “theory of defense in this case was

predicated entirely on the notion of mistaken identity,” such that “the

disclosure of the content of the anonymous tip by Detective Herron was

plainly an extra-judicial statement which had an undeniable effect on the

jury.   They were essentially told by the investigator that [Appellant] was

definitely the person who forced the [Ms. Draughon] at gun point to open

the safe and give up the money.” Id. at 18.

        In response, the Commonwealth counters that Detective Herron’s

testimony that he received an anonymous tip that Appellant was the robber

constituted permissible hearsay because it was not offered for the truth of

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the matter asserted; rather, it was offered so Detective Herron could explain

“his investigation and subsequent placement of [Appellant’s] photograph into

the photo array.”     Commonwealth’s Brief at 9.      Appellant registered his

objection at trial. N.T., 6/2/15, at 95. The Commonwealth notes that the

trial court provided a cautionary instruction “informing the jury the evidence

was only admitted to explain the officer’s course of conduct.         Even if the

court abused its discretion in admitting the evidence, the error was harmless

in light of the overwhelming evidence.” Commonwealth’s Brief at 9.

      Upon review, we agree with the Commonwealth, and incorporate the

trial court’s rationale as follows.

             To the extent [Appellant] claims this testimony was
             inadmissible hearsay it may be summarily dismissed.
             The Rule Against Hearsay precludes the admission of
             out-of-court statements that are offered to prove the
             truth of the matter asserted. See Pa.R.E. 801 &
             802. Detective Herron’s statement was not offered
             to prove the veracity or accuracy of the tip he
             received. In fact, aside from [Appellant’s] name,
             details concerning the tip were not included in his
             testimony.     The testimony was offered only to
             explain Detective Herron’s course of conduct.
             Specifically, it explained why [Appellant’s] picture
             was included in a photo array. “It is well established
             that certain out-of-court statements offered to
             explain the course of police conduct are admissible
             because they are offered not for the truth of the
             matters asserted but rather to show the information
             upon which police acted.”       Commonwealth v.
             Chmiel, 889 A.2d 501, 532 (Pa. 2005). See also
             Commonwealth v. Weiss, 81 A.3d 767, 806 (Pa.
             2013) (Trooper’s testimony that he had received an
             anonymous telephone call informing him that
             appellant was with the victim before her murder


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             offered to explain circumstance that prompted his
             interview with appellant was not hearsay).

Trial Court Opinion, 10/29/15, at 11. As we find the trial court’s reasoning

persuasive, we discern no abuse of discretion in its denial of a mistrial

relative to Trooper Herron’s testimony.

      Similarly, we discern no abuse of discretion with regard to the

identification testimony of Ms. Peters. Appellant asserts that the “back story

to this prejudicial event begins with multiple pre-trial requests to have Miss

Peters submit to a lineup procedure in order to determine her ability to

positively identify [Appellant] prior to seeing him in the courtroom setting.”

Appellant’s Brief at 20.   Appellant states that he “was assured” that Ms.

Peters would not be testifying as to the identity of Appellant as the individual

who held up the Dollar Tree Store.     Id.   Appellant contends that he “was

blindsided when the witness affirmatively identified him to the jury,” and

although “the Commonwealth does not appear to be complicit in the

shocking turn of events, the resulting unfairness nonetheless tangibly

handicapped the only theory of defense in play, i.e., that of mistaken

identity.”   Id. at 29.

      Conversely, the Commonwealth responds that, at trial, “the defense

was trying to take advantage of the Commonwealth’s belief that Ms. Peters

could not identify [Appellant].    The defense was trying to advance the

inference that Ms. Peters could not identify [Appellant].         [Appellant’s]

overreach is not the fault of the Commonwealth. The prosecutor only asked



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the   witness   to   finish   an   answer   to   defense   counsel’s   question.”

Commonwealth’s Brief at 23.

      Again, we find the trial court’s comprehensive analysis of Appellant’s

claim to be dispositive. The trial court explained as follows.

            [Ms. Peters’] identification [of Appellant] was not
            solicited by the prosecutor and when the statement
            was made, the prosecutor immediately ended her
            line of questioning. Trial counsel did not object and
            he did not move for a mistrial. He chose instead, in
            an effort to undermine Ms. Peters’ unsolicited
            identification, to launch a line of questioning that
            ended with testimony that resulted from his own
            leading question: “Q: And you’re sure of that, right?
            As you look, you’re positive, 100 percent – A: I’m
            positive, yes, positive. Q: 100 percent, right? A:
            100 percent positive. Q: Okay.”

                  Under these circumstances, it must be
            concluded the motion for a mistrial was untimely.
            The Commonwealth did not elicit an identification
            when Ms. Peters testified on direct. Rather, the
            unexpected testimony came only after, on cross
            examination, trial counsel attempted to impugn Ms.
            Peters’ ability to make an identification at all, an
            issue that had little if any relevance given the fact
            that her testimony was not offered for that purpose.
            Further, the motion for a mistrial was not made
            when the witness first identified [Appellant] on re-
            direct, but only after trial counsel elicited far
            more problematic testimony. Had trial counsel
            made an appropriate and timely objection and/or
            motion, a simple curative instruction would have
            eliminated any possible prejudice given the facts of
            this case.     See generally Commonwealth v.
            Boring, [684 A.2d 561 (Pa. Super. 1996)]. The
            objectionable identification was brief, unsolicited,
            unexpected and was not of “such a nature that its
            unavoidable effect is to deprive the defendant of a
            fair and impartial trial by preventing the jury from


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          weighing and rendering a true verdict,” and
          accordingly the motion for a mistrial was properly
          denied.

                Additionally,   the    prosecutor’s    clarifying
          question was allowable under the fair response
          doctrine. [Appellant] attempted to leave the jury
          with the impression that Ms. Peters was unable to
          make identification because her observations during
          the robbery were brief and because her interaction
          with [Appellant] was limited. … However, when
          given the opportunity, she explained that she was
          never asked previously to make identification but
          that in court she recognized [Appellant] as the man
          who spoke to her during the robbery.               The
          Commonwealth’s request for clarification, under
          these circumstances, where [Appellant] has created
          an inference to himself that is favorable to him is
          permissible. See Commonwealth v. Roots, 306
          A.2d 873, 876 (Pa. 1973); Commonwealth v.
          Rush, 121 A. 111 (Pa. 1923). Cf Commonwealth
          v. Molina, 104 A.3d 430, 451 (Pa. 2014) (right
          against self-incrimination prohibits use of a
          defendant’s pre-arrest silence as substantive
          evidence of guilt, unless it falls within an exception
          such as impeachment of a testifying defendant or in
          fair response to an argument of the defense);
          Commonwealth v. Saxton, 532 A.2d 352, 357 (Pa.
          1987) (exception to the prohibition against admitting
          evidence of prior crime exists where such evidence is
          offered by the Commonwealth to rebut statements
          which create inferences favorable to the accused).

                Finally, this evidence was cumulative. About a
          week and half after the robbery, Ms. Draughon
          picked [Appellant’s] picture from a photo array in
          less than a minute. At trial, Ms. Draughon explained
          that [Appellant’s] face was one she would never
          forget.     N.T., 6/2/15 p. 37.       She identified
          [Appellant] again at trial and her identification was
          unshakable under cross examination. She explained
          that employer training included “how to handle a
          robbery,” and she testified on direct that “when a
          robbery occurs, you’re pretty much supposed to stay

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            calm, not to give the person too much eye contact,
            try to get a description without actually physically
            looking at them directly. You know, you’re supposed
            to give them all the money, whatever they ask for,
            whatever they want. Don’t try to play hero. Once –
            once the perpetrator leaves, you’re supposed to lock
            the door, call 911, call your store manager, call your
            district manager, call loss prevention.” Id. at 34.
            On direct and cross-examination, Ms. Draughon
            reiterated that, in accord with her training, she
            purposefully looked at [Appellant’s] face without him
            noticing and that she took note of his facial features.
            Id. at pp. 29, 44. The observations made during the
            robbery allowed Ms. Draughon to identify [Appellant]
            without hesitation.      Ms. Draughon’s unwavering
            identification rendered the testimony of Ms. Peters
            merely cumulative given the facts of this case.

Trial Court Opinion, 10/29/15, at 8-10 (emphasis added).

      Based on the foregoing, we find no abuse of discretion by the trial

court in denying Appellant’s two requests for a mistrial. Our review confirms

that Appellant was not deprived of a fair and impartial trial, and in neither

instance of Detective Herron or Ms. Peters’ testimony was the “extreme

remedy” of a mistrial warranted. Laird, supra.

      Finally, in his third issue, Appellant challenges his probationary

sentence for terroristic threats, and argues that his conviction for terroristic

threats should have merged with his robbery conviction. Appellant cites 42

Pa.C.S.A. § 9765, which provides, “[n]o 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




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the other offense. Where crimes merge for sentencing purposes, the court

may sentence the defendant only on the higher graded offense.”

      Appellant was convicted of robbery, defined as follows.

            § 3701. Robbery

            (a) Offense defined.—

                  (1) A person is guilty of robbery if, in the
                  course of committing a theft, he:

                                              …

                        (ii)   threatens   another     with      or
                        intentionally puts him in fear           of
                        immediate serious bodily injury[.]

18 Pa.C.S.A. § 3701(a)(1)(ii).

      Appellant was also convicted of terroristic threats, defined as follows.

            § 2706. Terroristic threats

            (a) Offense defined.--A person commits the crime
            of terroristic threats if the person communicates,
            either directly or indirectly, a threat to:

                  (1) commit any crime of violence with intent to
                  terrorize another[.]

18 Pa.C.S.A. § 2706(a)(1).

      Appellant asserts that “the only threatening words and deeds

employed during the robbery of the Dollar Store were those actions of …

pointing the gun at [Ms. Draughon] and directing her to ‘open the safe or I’ll

blow your head off.’”    Appellant’s Brief at 32, citing Commonwealth v.

Walls, 449 A.2d 690 (Pa. Super. 1982) (terroristic threats merged with

robbery where there were no additional facts supporting the terroristic

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threats charge that was “part and parcel” of the robbery).      Appellant thus

concludes that “the terroristic threats of which [Appellant] was found guilty

of making were ‘part and parcel’ of the theft of the money from the store

safe.” Id. The Commonwealth and the trial court agree. Commonwealth

Brief at 24-26; Trial Court Opinion, 10/29/15, at 12-13 (requesting remand

for resentencing).     As the record supports this consensus, we vacate

Appellant’s judgment of sentence and remand for re-sentencing.             See

Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996) (noting

that while this Court has the option of amending an illegal sentence directly

or remanding it to the trial court for re-sentencing, “[i]f a correction by this

[C]ourt may upset the sentencing scheme envisioned by the trial court, the

better practice is to remand”). We specifically vacate the entire judgment of

sentence, including Appellant’s convictions of robbery and PIC, and remand

to the trial court for further sentencing proceedings on all three convictions.

See, e.g., Commonwealth v. Moody, 441 A.2d 371, 375 (Pa. Super.

1982) (noting that “where a conviction on one count may have influenced

sentencing on other counts, all sentences should be vacated and the case

remanded for resentencing”).

      Judgment    of   sentence   vacated.     Case    remanded    for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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