J-S59016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RYAN FLYNN

                            Appellant                No. 2934 EDA 2013


          Appeal from the Judgment of Sentence September 15, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004911-2010


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 08, 2014

        Ryan Flynn appeals from the judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after a jury convicted him of

theft by unlawful taking,1 conspiracy,2 and fleeing or attempting to elude a

police officer.3 After careful review, we vacate and remand for resentencing.

        In the early morning hours of April 4, 2010, Jill Kornock left her

friend’s house to walk to her car, which was parked in a lot under I-95 at the

intersection of Richmond Street and Lehigh Avenue in Philadelphia. As she
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
2
    18 Pa.C.S.A. § 903.
3
    75 Pa.C.S.A. § 3733(a).
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approached her car, she was accosted by Flynn and another male.             Flynn

grabbed her arm from behind and told her to give him her keys and

pocketbook and leave, because Kornock’s friend owed him money and he

was going to take her car. Thereafter, Flynn and the other male got into the

car and drove away on Richmond Street.         Kornock called 911 and Officer

Joseph Murphy responded within minutes to find Kornock very upset and

crying hysterically. N.T. Trial, 7/12/13, at 195.    Using information given to

him by Kornock, Officer Murphy provided flash information over police radio

regarding the vehicle and offenders.

        Officer Keith White and his partner were at the intersection of “F”

Street and Allegheny Avenue when he heard the radio call and observed

Flynn driving a red Chevy Lumina.        They, along with two other officers,

began to pursue the vehicle with their lights and sirens activated. A high-

speed    chase   ensued   through   residential   areas,   during   which   Flynn

disregarded traffic signs and lights and, at times, drove into oncoming

traffic. At one point, Flynn drove at 45 m.p.h. through a gas station, striking

trash cans and causing patrons to dive out of the way to avoid being struck.

Finally, Flynn drove into a wooded area and off a ravine with a twenty-foot

drop into a swamp.        Officer White, along with other officers, set up a

perimeter around the wooded area and called for back-up air support from a

helicopter in an effort to locate Flynn and the vehicle.

        Officer Chris Clemons, pilot of a police helicopter, responded to the

area and initiated a visual search for the vehicle, followed by a search with a

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thermal camera. After approximately twenty minutes, the thermal camera

located a heat source in the wooded area, to which Officer Clemons directed

ground units. Officer White located Flynn submerged in a swampy area in

an apparent attempt to conceal himself. Kornock was taken to the location

and positively identified Flynn and the other male as the individuals who had

taken her car. She also identified her vehicle and recovered her pocketbook

from inside.

        Flynn was arrested and charged with robbery, conspiracy, theft by

unlawful taking, carjacking, fleeing the police and related offenses.        Flynn

proceeded to a jury trial before the Honorable James Murray Lynn on July

12, 2011, after which he was convicted of conspiracy, theft by unlawful

taking and fleeing from police.                On September 15, 2011, Flynn was

sentenced to consecutive sentences of three to six years’ imprisonment on

the theft conviction, three and one-half to seven years’ imprisonment for

conspiracy and one to two years imprisonment for fleeing the police. Flynn

filed a motion for reconsideration of sentence, which was denied by order

dated March 2, 2012.

        Flynn did not file a direct appeal.        On October 28, 2012, he filed a

petition pursuant to the Post Conviction Relief Act (PCRA)4 in which he

alleged he had been abandoned by counsel on direct appeal. By order dated

____________________________________________


4
    42 Pa.C.S.A. §§ 9541-9546.




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October 1, 2013, the court reinstated Flynn’s direct appellate rights 5 and a

notice of appeal was filed that same day.          Flynn filed a court-ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

on October 29, 2013.          The trial court filed its Rule 1925(a) opinion on

December 27, 2013.

       Flynn raises the following issues on appeal:

       1.    Did the [trial] court err by refusing to declare a mistrial
       after the prosecutor twice impermissibly referenced [Flynn’s]
       post-arrest silence?

       2.     Did the [trial] court abuse its discretion in sentencing
       [Flynn] well above the sentencing guidelines without stating
       sufficient reasons on the record for doing so and after not giving
       proper weight to [Flynn’s] action in taking responsibility for his
       behavior, resulting in a manifestly excessive sentence?

Brief of Appellant, at 4.

       Flynn first asserts that Judge Lynn erred by refusing to grant a mistrial

after the prosecution made impermissible references to Flynn’s post-arrest

silence. This claim is meritless.

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

request for a mistrial has been summarized by this Court as follows:


____________________________________________


5
  The record also contains an order dated May 7, 2013, signed by the PCRA
court and filed of record in the Court of Common Pleas, purporting to
reinstate Flynn’s appellate rights by agreement of the parties. The docket
also reflects the filing of that order. The docket further shows that a second
PCRA petition was filed by counsel on September 24, 2013; however, that
petition is not contained in the certified record.



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      The decision to declare a mistrial is within the sound discretion
      of the court and will not be reversed absent a flagrant abuse of
      discretion.   A mistrial is an extreme remedy that must be
      granted only when an incident is of such a nature that its
      unavoidable effect is to deprive defendant of a fair trial. A trial
      court may remove taint caused by improper testimony through
      curative instructions.   Courts must consider all surrounding
      circumstances before finding that curative instructions were
      insufficient and the extreme remedy of a mistrial is required.
      The circumstances which the court must consider include
      whether the improper remark was intentionally elicited by the
      Commonwealth, whether the answer was responsive to the
      question posed, whether the Commonwealth exploited the
      reference, and whether the curative instruction was appropriate.

Commonwealth v. Manley, 985 A.2d 256, 266-67 (Pa. Super. 2009),

quoting Commonwealth v. Bracey, 831 A.2d 678, 682-83 (Pa. Super.

2003) (internal punctuation and quotations omitted).

      It is well-established that a defendant enjoys a constitutional right to

remain silent and that it is a violation of that right to refer at trial to his

post-arrest silence. Commonwealth v. Costa, 742 A.2d 1076, 1077 (Pa.

Super. 1999).    “An impermissible reference to an accused’s post-arrest

silence constitutes reversible error unless shown to be harmless. Because of

its nature, an impermissible reference to the accused’s post-arrest silence is

innately prejudicial.” Id. quoting Commonwealth v. Clark, 626 A.2d 154,

157-58 (Pa. 1993). However,

      If the Commonwealth mentions a defendant’s post-arrest
      silence, the court might still be able to cure any prejudice
      through prompt and adequate curative instructions. To evaluate
      whether cautionary instructions can cure a reference to a
      defendant’s post-arrest silence, courts must consider: (1) the
      nature of the reference to the defendant’s silence; (2) how it
      was elicited; (3) whether the district attorney exploited it; and
      (4) the promptness and adequacy of the cautionary instructions.

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      If the reference to the defendant’s post-arrest silence was such
      that it incurably compromised the jury’s objectivity and would
      deprive the defendant of a fair trial, then the court should grant
      a mistrial.

Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super. 2010) (internal

citations and quotation marks omitted).

      Finally, a reference to a defendant’s post-arrest silence could also

constitute harmless error if the appellate court concludes beyond a

reasonable doubt that the error could not have contributed to the verdict.

Commonwealth v. Mitchell, 839 A.2d 202, 214 (Pa. 2003). However, if

there is a reasonable possibility that the error may have contributed to the

verdict, it is not harmless. Id. A reviewing court will find an error harmless

where the uncontradicted evidence of guilt is overwhelming, so that by

comparison the error is insignificant. Id. at 214-15.

      Here, Flynn’s version of events differed substantially from Kornock’s.

In Flynn’s version, Flynn, his associate, Henry Reeves, and Kornock drove

around in Kornock’s vehicle looking for marijuana. At some point, Kornock

parked in the lot under I-95 in order to go to her friend’s house to procure

the drug. As Flynn and Reeves waited in the vehicle for Kornock to return,

they observed a police cruiser nearby and became concerned that the officer

was watching them.     Flynn claims that he panicked and decided to drive

away in Kornock’s vehicle, even though Kornock had not yet returned from

her friend’s house.    After Flynn pulled away, the police cruiser’s lights

activated, causing Flynn to flee.

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      On cross-examination, the prosecutor asked Flynn if he had spoken to

the police after he was arrested.

      Q:   [The police] were saying that Mr. Reeves was the driver
      and you were the passenger?

      A:      No, they never said anything like that.

      Q:      Okay. Did you say, I was driving?

              MR. DRISCOLL [Counsel for Flynn]:         Objection.
              THE WITNESS: No.
              THE COURT:     Overruled.

      Q:   Did you tell anybody, the night that this happened, that
      you were driving the car?

      A:    I didn’t say anything to anybody and I wasn’t asked any
      questions.

      Q:   Okay. Later on, did you have the opportunity to tell
      anybody; did you have a chance to tell any of the police officers
      what happened?

            MR. TAUBER [Counsel for Reeves]: Judge,       I’m   going   to
      object.
            MR. DRISCOLL: Can I have a sidebar?

N.T. Trial, 7/14/11, at 93-94.          At sidebar, the following discussion

transpired:

            MR. DRISCOLL: Your Honor, I object to this line of
      questioning.
            [The prosecutor] has asked the witness whether or not he
      made any statements to police. He clearly has a right to remain
      silent post-arrest.     Any questions aimed at eliciting any
      responses to these questions that may or may not have been
      asked could have violated his right to remain silent, and I’d ask
      for an instruction.
            MR. TAUBER:        It is a plain Fifth Amendment right to
      remain silent. It’s an inappropriate question under any analysis.
            MR. SCHULTZ:       I’ll move on.

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             THE COURT:            Alright.

Id. at 94-95. Thereafter, the prosecutor did not return to the objected-to

line of questioning.

      Later, during his closing remarks, counsel for Flynn’s co-defendant

argued as follows:

      Let me talk to you a little bit about [Flynn]’s testimony. You
      heard him testify. [His counsel] questioned him on direct. [The
      prosecutor] questioned him on cross-examination. You heard his
      testimony. I listened to it very carefully, obviously. There
      [were] no inconsistencies. There was no impeachment, as we
      say.   There was nothing presented to him or he was not
      questioned in any way as to some glaring differences in his
      statement. His statement was very authentic, very honest, and
      very direct.

      I can assure you, ladies and gentlemen, that after [Flynn]
      testified, that [the prosecutor] turned his file inside out to look
      for something that he could challenge him on, [Flynn] on. Okay?

N.T. Trial, 7/15/11, at 34-35.

      In   response    to   that    argument    by   co-defendant’s   counsel,   the

prosecutor explained why he had not been able to impeach Flynn’s

testimony:

            MR. SCHULTZ:     They said I couldn’t impeach Flynn.
      Well, I never had anything to impeach him with. He never gave
      a statement.

             MR. TAUBER:           Objection.

           MR. SCHULTZ:            It’s argument, Your Honor. It’s fair, fair
      response.
           THE COURT:              Overruled.

            MR. SCHULTZ:    He never gave a statement. He never
      told anybody anything. Of course I didn’t have a chance to

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      impeach him. He never wrote anything down. He never swore
      to tell the truth before. He never had to give his real name, his
      address. He never had to talk to the police before. . . .

Id. at 72.

      With regard to the first reference to Flynn’s post-arrest silence during

his cross-examination, we conclude that the trial court committed no error.

First, although Flynn claims that the court erred in failing to grant a mistrial,

defense counsel did not, in fact, request a mistrial.          Rather, counsel

requested a curative jury instruction, which the court did, in fact, give in its

jury charge. Finally, even if the court did err by not immediately providing a

curative instruction, rather than waiting until the end of trial, any error was

harmless given the overwhelming evidence of Flynn’s guilt.             Mitchell,

supra. Specifically, at trial, Flynn readily admitted that: (1) he, along with

his co-defendant, took Kornock’s car, which contained her handbag, without

her permission; (2) he was driving the car; (3) he led the police on a chase

through residential neighborhoods; (4) in an effort to elude police, he drove

the car down an embankment and crashed into a wooded area; and (5) he

hid himself from police in a nearby swamp.        The weight of this evidence,

compared to any potential prejudicial impact of the brief reference to Flynn’s

failure to “tell any of the police officers what happened,” leads us to

conclude that any error in failing to provide an immediate curative

instruction was harmless.

      The prosecution also referenced Flynn’s failure to give a statement to

police in its closing argument. However, Flynn did not immediately request


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a mistrial.   In fact, after interposing an objection, Flynn’s counsel advised

the court that he was “not trying to make a big deal out of it” and was

satisfied when the prosecutor agreed not to refer to Flynn’s silence again.

N.T. Trial, 7/15/11, at 78.        “When an event prejudicial to the defendant

occurs during trial only the defendant may move for a mistrial; the motion

shall be made when the event is disclosed.”        Pa.R.Crim.P. 605(B).   Here,

Flynn did not immediately move for a mistrial after the offending portion of

the Commonwealth’s argument. Rather, he merely joined in co-defendant’s

request for a mistrial after the Commonwealth had concluded its closing

statement. For this reason, Flynn’s claim is waived.6 See Commonwealth

v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007) (mistrial properly denied

where motion not made until after prosecution’s closing argument).

       Moreover, the trial court provided the jury with an instruction that

Flynn’s post-arrest silence could not be held against him:

       On another matter, with respect to Mr. Flynn, after Mr. Flynn
       was arrested he had an absolute right also not to speak to the
____________________________________________


6
  Even if this claim were not waived, the prosecution’s reference was a fair
response to the argument of co-defendant’s counsel, who, in his closing
argument, had remarked upon the prosecution’s failure to impeach Flynn.
See Commonwealth v. DiNicola, 866 A.2d 329, 335-36 (Pa. 1998),
applying United States v. Robinson, 485 U.S. 25 (1988) (no Fifth
Amendment proscription precluding raising of silence in fair response to
defense argumentation). In referring to the fact that Flynn had never before
trial given a statement to police, the prosecutor was not suggesting Flynn’s
silence was proof of his guilt. Rather, the prosecutor was simply explaining
to the jury his inability to impeach Flynn’s testimony, in fair response to
defense counsel’s argument. See id.



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      police at all. So the fact that he did not give a statement to the
      police cannot be held against him for that failure to – for his
      exercising his constitutional right not to give a statement to the
      police.

N.T. Trial, 7/15/11, at 108.      The law presumes that the jury follows the

court’s instructions.   Commonwealth v. Jordan, 65 A.3d 318, 334 (Pa.

2013).

      For the foregoing reasons, and particularly because Flynn was

convicted only of those offenses he freely admitted to having committed, the

trial court did not err in refusing to declare a mistrial.

      Flynn next claims that the trial court abused its discretion in imposing

a sentence that far exceeded the sentencing guidelines without stating

sufficient reasons for doing so.       This claim implicates the discretionary

aspects of sentencing, which are not appealable as of right.     An appellant

challenging the sentencing court’s discretion must invoke this Court’s

jurisdiction by satisfying a four-part test.     Commonwealth v. Prisk, 13

A.3d 526 (Pa. Super 2011).


      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 532 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)).     An appellate court will find a “substantial question” and

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review the decision of the trial court only where an aggrieved party can

articulate clear reasons why the sentence imposed by the trial court

compromises the sentencing scheme as a whole.             Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987).

      Here, Flynn has properly preserved his claim and has included a Rule

2119(f) statement in which he asserts that, in sentencing him to an

aggregate of ninety to one hundred eighty months’ imprisonment, the court

“did not offer any justification for [its] dramatic departure from the

guidelines” and “never even acknowledged what the guidelines were” before

imposing sentence. Brief of Appellant, at 9. This claim raises a substantial

question.   Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super. 1999)

(when court deviates from sentencing guidelines, it must indicate that it

understands suggested sentencing range). Accordingly, we will review the

issue on its merits.

      The imposition of sentence is vested in the discretion of the trial court,

and should not be disturbed on appeal for a mere error of judgment but only

for an abuse of discretion and a showing that a sentence was manifestly

unreasonable. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

      The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it. Simply stated, the sentencing
      court sentences flesh-and-blood defendants and the nuances of
      sentencing decisions are difficult to gauge from the cold
      transcript used upon appellate review. Moreover, the sentencing

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        court enjoys an institutional advantage to appellate review,
        bringing to its decisions an expertise, experience, and judgment
        that should not be lightly disturbed.

Id. at 961 (internal citations and quotation marks omitted).

        Nevertheless, the trial court’s discretion in matters of sentencing is not

unfettered.    The sentencing court must consider the factors set out in 42

Pa.C.S.A. § 9721(b), that is, the protection of the public, the gravity of the

offense in relation to impact on victim and community, and the rehabilitative

needs     of   the   defendant,   as   well     as   the   sentencing   guidelines.

Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa. Super. 2011). The

court is not bound by the sentencing guidelines.              Commonwealth v.

Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).              However, when it chooses to

depart from the guidelines, it must demonstrate on the record its awareness

of the guidelines and, further, must provide a contemporaneous written

statement of the specific reason or reasons for the deviation from the

guidelines.    Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super.

2008).     “Failure to comply shall be grounds for vacating the sentence or

resentence and resentencing the defendant.” 42 Pa.C.S.A. § 9721(b).

        Here, Flynn had a prior record score of five and the offense gravity

score was five as to theft and conspiracy and two as to fleeing police.

Accordingly, a standard range guideline sentence for theft or conspiracy

would have been twelve to eighteen months, plus or minus three.                The

standard range for fleeing police would have been one to nine months, plus


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or minus three. At sentencing, Judge Lynn imposed sentences of thirty-six

to seventy-two months’ incarceration on the conspiracy conviction, forty-two

to eighty-four months incarceration for theft, and twenty-four months for

fleeing police.   This aggregate sentence of ninety to one hundred eighty

months far exceeded the prosecution’s request, which was for an aggregate

sentence of thirty-six to seventy-two months incarceration, plus a two-year

probationary tail.

      Flynn’s sentences were all well in excess of the aggravated range of

the sentencing guidelines. The court stated the following prior to imposing

sentence:

      You know I have to consider certain things, but consider
      everything that’s been presented to me, but one of the things
      also is that if I do confine them I have to consider the public
      protection which I did mention, the type of offense it is that we
      have here, and obviously the impact of, and what needs to be
      done by the defendants if they are incarcerated. I don’t think
      probationary rehabilitation in either case would be appropriate at
      all because we are -- I don’t think probationary sentencing
      would be appropriate in either case because of the histories we
      went over a few moments ago.

      You have extensive criminal records and it’s ongoing, it’s not like
      several years in prison except when you are incarcerated so it’s
      not like you have a chance to be free and productive [sic].

N.T. Sentencing, 9/15/11, at 71-72.

      In its written opinion, the trial court also noted that it possessed and

considered a presentence report, provided Flynn the right of allocution and

considered the statutory factors. See Trial Court Opinion, 12/24/13, at 8-9.

However, Judge Lynn failed to acknowledge, either at the time of sentencing

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or in his Rule 1925(a) opinion, that Flynn’s sentence substantially exceeded

the guidelines. Nor did he provide any specific reasons for imposing a non-

guideline sentence, as required by section 9721(b) of the Sentencing Code.

Rather, the court discussed its belief that a mere probationary sentence

would be insufficient and, without providing any reason other than Flynn’s

criminal record, bypassed the guidelines entirely and imposed a sentence

significantly in excess not only of the aggravated range, but also of that

requested by the Commonwealth. Accordingly, we are constrained to vacate

Flynn’s sentence and remand for resentencing in accordance with the

dictates of this memorandum.     Commonwealth v. Warren, 84 A.3d 1092

(Pa. Super. 2014) (sentence vacated and case remanded for resentencing

where court failed to evince an awareness of sentencing guidelines or

explain its decision to deviate therefrom).

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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