J-A24029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANTHONY R. PINKNEY

                            Appellant                  No. 3546 EDA 2014


        Appeal from the Judgment of Sentence of December 11, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0013967-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                           FILED DECEMBER 02, 2015

       Anthony Pinkney appeals his December 11, 2014 judgment of

sentence entered upon his convictions for unlawful contact with a minor, 18

Pa.C.S. § 6318; criminal conspiracy, 18 Pa.C.S. § 903; indecent assault of a

person less than thirteen years of age, 18 Pa.C.S. § 3126; involuntary

deviate sexual intercourse (“IDSI”), 18 Pa.C.S. § 3123; and corruption of

the morals of a minor, 18 Pa.C.S. § 6301.          Pinkney raises an evidentiary

issue and also challenges the legality of his sentence. We find that Pinkney’s

evidentiary claim lacks merit.            However, we vacate his judgment of

sentence, and we remand for resentencing, because we agree that Pinkney’s



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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sentence is illegal pursuant to our decision in Commonwealth v. Wolfe,

106 A.3d 800 (Pa. Super. 2014).1

       During July and August, 2013, then-eighteen-year-old Pinkney visited

his great grandmother’s home, where his then eleven-year-old cousin

(“Victim”) lived. During his time there, Pinkney repeatedly persuaded Victim

to perform oral sex on him. Eventually, Pinkney convinced Victim to perform

oral sex on his friend, as well. This pattern continued on a nearly nightly

basis for some time.         Then, on August 5, 2013, Pinkney and his friend

convinced Victim to perform oral sex on one of the young men while the

other man inserted his penis into her anus.

       The day after this last episode, on August 6, 2013, Victim informed her

mother about Pinkney’s friend, but at first did not mention Pinkney’s own

involvement.      They then informed the police.              There, Detective Adam

O’Donnell interviewed Victim privately. Again, at first, she mentioned only

Pinkney’s friend, but, after further discussion, she also implicated Pinkney.

       Pinkney was arrested, whereafter he met with Detective O’Donnell.

Detective O’Donnell read Pinkney his Miranda rights.2 Pinkney waived his

rights,   and    Detective     O’Donnell       interviewed   Pinkney   about   Victim’s


____________________________________________


1
      Our Supreme Court has granted expedited review of our Wolfe
decision. See Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2015) (per
curiam). It has not yet issued its decision in that case.
2
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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allegations.        Pinkney denied having any sexual contact with Victim.

Detective      O’Donnell    then    summoned        his    colleague,     Detective        Justin

Montgomery, who reminded Pinkney that he had waived his Miranda rights

and asked Pinkney whether he would like to make a statement regarding the

events of the prior day. Pinkney then admitted that he had sexual contact

with Victim the prior day, and he signed a written statement to that effect.

However, during his trial, Pinkney denied that he had had such contact with

Victim and claimed never to have seen the written statement.

      During        Detective   Montgomery’s        testimony,        counsel   for    Pinkney

questioned him regarding the date recorded on the statement, which was

August 26, 2013.         Detective Montgomery admitted that he had noted the

wrong date; the statement in question had been made on August 6, 2013.

Detective      Montgomery        further   testified      that   he    realized      his   error

approximately one week before trial but never informed the prosecutor

about the discrepancy. At this time, Pinkney moved for a mistrial. The trial

court denied Pinkney’s motion.

      Following trial, the jury found Pinkney guilty of the above-cited crimes.

After receiving a pre-sentence report, on December 11, 2014, the trial court

imposed concurrent sentences on Pinkney’s various charges totaling twelve

and one half to twenty-five years’ incarceration, equal to the longest

individual sentence, which was imposed upon Pinkney’s conviction for IDSI.

The trial court also imposed seven years of probation for Pinkney’s

corruption     of    minors     conviction,    to   run     consecutively       to    Pinkney’s

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incarceration.     Of relevance to Pinkney’s sentencing argument, the IDSI

conviction then was subject to a ten-year mandatory minimum sentence

under 42 Pa.C.S. § 9718(a), which this Court since has held to be

unconstitutional. See Wolfe, supra.

      At the close of trial, counsel for Pinkney interposed what he styled a

“motion for JNOV,” which the trial court agreed to accept orally but

immediately denied.       On December 11, 2014, the trial court imposed

Pinkney’s judgment of sentence.     On December 15, 2014, Pinkney timely

filed the instant appeal.    On December 16, 2014, the trial court ordered

Pinkney to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On January 5, 2015, the trial court entered

an amended Rule 1925(b) order. On January 20, 2015, Pinkney timely filed

his Rule 1925(b) statement, and the trial court filed its Rule 1925(a) opinion

on February 5, 2015, ripening this case for appeal.

      In his statement of the questions involved, Pinkney raises only the

following issue:

      Was the court in error upon denying a mistrial as it was
      discovered in court that:

         a. [t]he initial interview between the detective and
         [Pinkney] was dated incorrectly and passed as pre-trial
         discovery with reasonable expectation that it is to be
         factual [sic], [and]

         b. [t]he detective did not notify the Commonwealth upon
         noticing the error.




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Brief for Pinkney at 6. However, in a two-sentence paragraph tacked on to

the argument section of his brief, Pinkney also challenges the legality of his

sentence.   See id. at 11.     Notably, the Commonwealth does not oppose

Pinkney’s challenge to the legality of sentence, and the trial court specifically

asks this Court to remand for resentencing. See Brief for Commonwealth at

10; Trial Court Opinion (“T.C.O.”), 2/5/2015, at 13.

      Pinkney first challenges the trial court’s refusal to enter a mistrial,

which Pinkney sought upon the basis that a discrepancy on the date noted

on Pinkney’s August 6, 2013 statement prejudiced the defense because

Pinkney had no notice of the discrepancy and thus was unable to adjust his

defense strategy accordingly.     Pinkney cites no case law in support of his

one-page argument and includes only conclusory claims of prejudice,

without the slightest effort to explain how advance notice of the discrepancy

would have changed the way Pinkney approached his trial.

      The standard governing our review of a challenge to a trial court’s

denial of a motion for a mistrial is as follows:

      A motion for a mistrial is within the discretion of the trial court.
      Commonwealth v. Stafford, 749 A.2d 489, 500 (Pa.
      Super. 2000) (citations omitted). “[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.” Commonwealth v. Lease, 703 A.2d
      506, 508 (Pa. Super. 1997).         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. Stafford, 749 A.2d at 500.



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      An abuse of discretion is more than an error in judgment.
      Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002).
      On appeal, the trial court will not be found to have abused its
      discretion unless the record discloses that the judgment
      exercised by the trial court was manifestly unreasonable, or the
      result of partiality, prejudice, bias, or ill-will. Id.

         When the discretion exercised by the trial court is
         challenged on appeal, the party bringing the challenge
         bears a heavy burden . . . .        [I]t is not sufficient to
         persuade the appellate court that it might have reached a
         different conclusion if, in the first place, [it was] charged
         with the duty imposed on the court below; it is necessary
         to go further and show an abuse of discretionary power.
         An abuse of discretion is not merely an error of judgment,
         but if in reaching a conclusion the law is overridden or
         misapplied, or the judgment exercised is manifestly
         unreasonable, or the result of partiality, prejudice, bias or
         ill-will as shown by the evidence of record, discretion is
         abused. We emphasize that an abuse of discretion may
         not be found merely because the appellate court might
         have reached a different conclusion . . . .

      Commonwealth v. Garcia, 661 A.2d 1388, 1394-95
      (Pa. Super. 1995) (quoting Paden v. Baker Concrete Constr.,
      Inc., 658 A.2d 341, 343 (Pa. 1995) (citations and quotation
      marks omitted)).

Commonwealth v. Tejeda, 834 A.2d 619, 623-24 (Pa. Super. 2003)

(citations modified; footnote omitted).

      As noted, Pinkney’s argument is conclusory and lacking in any material

legal analysis. This Court consistently has held that, “[w]hen an appellant

fails to develop his issue in an argument and fails to cite any legal authority,

the issue is waived.”   Commonwealth v. B.D.G., 959 A.2d 362, 371-72

(Pa. Super. 2008). Although Pinkney asserts that there is no Pennsylvania

case law addressing the question presented, that is beside the point: Our

decisional law, in fact, is replete with cases concerning Commonwealth

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discovery violations and the like from which one may derive broader

principles of general application, especially with regard to what constitutes

prejudice necessitating relief.

      It is not this Court’s responsibility to comb through our case law when

an appellant declines to do so.        Furthermore, a mistrial should only be

granted when the error in question has the unavoidable effect of depriving

the appellant of a fair and impartial trial, and this Court will reverse a trial

court’s refusal to do so only when its determination that such prejudice did

not occur reflects a manifest abuse of discretion.            See Tejeda, supra.

Pinkney’s failure to specify with any particularity how a simple discrepancy

on the date recorded on his statement compromised the fairness of his trial

leaves this Court with no basis upon which to grant relief. Accordingly, we

affirm the trial court’s decision not to grant a mistrial.

      With respect to Pinkney’s assertion that his judgment of sentence was

illegal, his failure to provide any meaningful argument on this point, beside a

citation to this Court’s decision in Wolfe, supra (without even providing a

citation for that decision), does not waive his claim. See Commonwealth

v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (“[C]hallenges to the legality

of the sentence are never waived.”).         As noted, supra, at the time of his

sentencing, Pinkney was subject to a ten-year mandatory minimum

sentence   for   his    IDSI   conviction   pursuant   to    42 Pa.C.S.   § 9718(a).

However, this Court since has held that subsection 9718(a) is facially

unconstitutional.      See Wolfe, supra.      Although our Supreme Court has

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granted review of our decision in that case, unless and until the Court

reverses or modifies our decision, it remains the law of Pennsylvania. See

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

     As noted, neither the trial court nor the Commonwealth disputes that

Wolfe renders Pinkney’s sentence illegal. The trial court expressly asks that

we remand the case for resentencing, and the Commonwealth does not

oppose the trial court’s request. Under these circumstances, we discern no

benefit to reviewing the law at length, although the trial court has provided

an admirably erudite account of the evolution of the law leading directly to

our Wolfe decision from the United States Supreme Court’s decision in

In re Winship, 397 U.S. 358 (1970), forward. See T.C.O. at 7-13.

     Both parties and the trial court correctly relate the effect of our

decision in Wolfe upon sentences like Pinkney’s. Although the trial court in

fact imposed a sentence upon Pinkney’s IDSI conviction that exceeds the

prescribed ten-year mandatory minimum sentence, neither the trial court

nor the Commonwealth suggests that this warrants a different result than

Wolfe would require had Pinkney been sentenced just to the ten-year

mandatory minimum on that charge. Given that it is not at all obvious that

such a circumstance would restore the legality of Pinkney’s sentence, and

because the parties provide no advocacy on this issue, we assume without

deciding   that   Wolfe    requires   the   same   result   under   the   instant

circumstances. Accordingly, we vacate Pinkney’s judgment of sentence and

remand for resentencing.

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      Judgment of sentence vacated.   Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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