J-S39035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TOMAS MIGUELE MATTHEWS                     :
                                               :
                       Appellant               :      No. 1597 MDA 2017

             Appeal from the Judgment of Sentence August 4, 2017
              in the Court of Common Pleas of Lancaster County,
              Criminal Division at No(s): CP-36-CR-0003836-2015

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 22, 2018

       Tomas Miguele Matthews (“Matthews”) appeals from the judgment of

sentence imposed after a jury convicted him of two counts each of unlawful

restraint and simple assault, and one count each of intimidation of a witness,

aggravated assault, theft by unlawful taking, terroristic threats, rape, sexual

assault, and firearms not to be carried without a license.1 We affirm.

       The trial court set forth the factual and procedural history underlying

this appeal in its Opinion, which we incorporate as though fully set forth

herein. See Trial Court Opinion, 12/7/17, at 1-6.

       Matthews now presents the following questions for our review:



____________________________________________


1 See 18 Pa.C.S.A. §§ 2902(a)(1) and (a)(2), 2701(a)(1) and (a)(3),
4952(a)(1), 2702(a)(1), 3921(a), 2706(a)(1), 3121(a)(2), 3124.1,
6106(a)(1).
J-S39035-18


       1. Did the trial court err in admitting the hearsay statements of
          J[.]R[.] [(hereinafter “the victim”)] to Katherine Orell Mummey
          [(“Mummey”)2], as these statements were not made for
          medical diagnosis or treatment, but for purposes of evidence
          collection?

       2. Was [] Matthews’[s] conviction for intimidation of a witness,
          graded as a first[-]degree felony, illegal, where the verdict slip
          contained the question: “If guilty, do you find the defendant
          used force, violence or threatened to employ force or violence
          upon the victim or another person?”, but neither the verdict
          slip nor any instructions given by the court informed the jury
          that they were required to find this extra factor, which is an
          element of the offense, beyond a reasonable doubt?

       3. Was [] Matthews improperly sentenced as a second strike
          offender, pursuant to 42 Pa.C.S. § 9714, where his [prior]
          conviction for kidnapping in Arizona was not a previous crime
          of violence[,] as set forth in Section 9714?

Brief for Appellant at 8 (footnote added, emphasis in original).

       In his first issue, Matthews contends that the trial court committed

reversible error when it admitted, over his objection, prejudicial hearsay3




____________________________________________


2 Mummey, a registered nurse, performed a sexual assault forensic
examination (“SAFE exam”) on the victim at the emergency room.

3 See Pa.R.E. 801(c) (stating that “‘[h]earsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”); see also Pa.R.E. 802
(providing that hearsay is per se inadmissible except as provided in the
Pennsylvania Rules of Evidence or by statute). Pennsylvania Rule of Evidence
803 enumerates various exceptions to the general inadmissibility of hearsay
testimony. Commonwealth v. Belknap, 105 A.3d 7, 11 (Pa. Super. 2014).



                                           -2-
J-S39035-18


statements that the victim made to Mummey about the assault during the

SAFE exam.4 See id. at 17-23.

       Our standard of review concerning a challenge to the admissibility of

evidence is as follows:       “[I]n reviewing a challenge to the admissibility of

evidence, we will only reverse a ruling by the trial court upon a showing that

it abused its discretion or committed an error of law. To constitute reversible

error, an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.” Commonwealth v. Schley, 136 A.3d

511, 515 (Pa. Super. 2016) (citation and ellipses omitted).

       Here, the trial court admitted the victim’s out-of-court statements to

Mummey under Pa.R.E. 803(4), which excludes from the hearsay bar

statements made for purposes of medical diagnosis and treatment (the

“medical treatment exception”). This exception is met where the statement

       (A) is made for – and is reasonably pertinent to – medical
       treatment or diagnosis in contemplation of treatment; and

       (B) describes medical history, past or present symptoms, pain, or
       sensations, or the inception or general character of the cause or
       external source thereof, insofar as reasonably pertinent to
       treatment, or diagnosis in contemplation of treatment.




____________________________________________


4 In these statements, the victim essentially disclosed that she had been
beaten and raped. See N.T. (trial), 1/23-27/17, at 305-06. Though the trial
court ruled that the victim’s statements in question were admissible, it
precluded any mention of the identity of the perpetrator who had assaulted
the victim. Id. at 299; see also id. at 305-06.

                                           -3-
J-S39035-18


Pa.R.E. 803(4); see also Belknap, 105 A.3d at 11 (stating that “[t]he

following two requirements must be satisfied in order for a statement to

qualify as a medical treatment exception: (1) the statement must be made

for the purpose of receiving medical treatment; and (2) the statement must

be necessary and proper for diagnosis and treatment.”).

      Matthews contends that the victim’s statements to Mummey during the

SAFE exam were not admissible under the medical treatment exception

“because [] Mummey did not interact with [the victim] for the purpose of

medical treatment and diagnosis[.]” Brief for Appellant at 21 (citing Pa.R.E.

803(4)(A)). According to Matthews, “[b]y her own admission, [] Mummey’s

reason for seeing [the victim] was to exam[ine] her for injury, document them

and collect evidence, and [Mummey] saw [the victim] only after she had been

medically cleared by treating personnel.”   Brief for Appellant at 21 (citing,

inter alia, N.T., 1/23-27/17, at 327-28 (wherein Mummey testified that part

of her job as a SAFE nurse required her to “collect any evidence and examine

the patient for any injuries.”)).   Matthews further points out Mummey’s

testimony that she could not prescribe treatment for the victim’s injuries.

Brief for Appellant at 21.

      In its Opinion, the trial court addressed Matthews’s claim, summarized

Mummey’s relevant trial testimony, and opined, inter alia, that the victim’s

statements in question were properly admitted under the medical treatment

exception, as they “were made in the emergency room to medical staff for the


                                    -4-
J-S39035-18


purpose of medical diagnosis and treatment.” Trial Court Opinion, 12/7/17,

at 8. Because we agree with the trial court’s rationale and determination, we

affirm on this basis in rejecting Matthews’s first issue, see id. at 7-8, with the

following addendum.

      We are unpersuaded by Matthews’s claim that the victim’s statements

were not “made for – and [] reasonably pertinent to – medical treatment or

diagnosis in contemplation of treatment.” Pa.R.E. 803(4)(A). At the time of

these statements, the victim was still in the emergency room and Mummey

was tasked with examining and evaluating the victim’s injuries.         Mummey

testified that it was part of her job, in performing a SAFE exam, to “interview

the patient and ask them what exactly happened,” and “take quotes from

them and just kind of write exactly what they’re telling me.” N.T., 1/23-27/17,

at 302. The comment to Rule 803(4)(A) explains that “[s]tatements as to

causation[, e.g., how a victim sustained the injury,] have been held to be

admissible.” Pa.R.E. 803(4), cmt.; see also Commonwealth v. Fink, 791

A.2d 1235, 1247 (Pa. Super. 2002) (stating that “a statement comes within

[the medical treatment] exception when … [it] relat[es] to the cause of the

injury … and … as to how the person sustained the injuries[.]”). Moreover,

contrary to Matthews’s urging, for the purpose of meeting the medical

treatment exception, it is irrelevant that Mummey, a non-physician, was not

authorized to “prescribe” treatment. See, e.g., Pa.R.E. 803(4), cmt. (stating

that “[t]his rule is not limited to statements made to physicians. Statements


                                      -5-
J-S39035-18


to a nurse have been held to be admissible.”).5 Accordingly, the trial court

did not err in admitting the evidence in question.

       In his second issue, Matthews argues that his conviction of intimidation

of a witness, graded as a first-degree felony, is illegal and “must be reduced

to a conviction for intimidation of [a] witness, graded as a second-degree

misdemeanor.”6 Brief for Appellant at 30. Specifically, Matthews contends

that the conviction is illegal,

       where the verdict slip contained the question: “If guilty, do you
       find the defendant used force, violence or threatened to employ
       force or violence upon the victim or another person?” [(i.e., an
       element contained in the intimidation of a witness statute
       regarding the grading of the offense, see 18 Pa.C.S.A.
       § 4952(b)(1)(i))], but neither the verdict slip nor any instructions
       given by the court informed the jury that they were required to
       find this extra factor, which is an element of the offense, beyond
       a reasonable doubt.

Id. at 24 (emphasis in original). According to Matthews, because “the jury

was never informed that the use or threat of force or violence was an element




____________________________________________


5 Further, Mummey’s statement that she could only begin her examination of
the victim after the victim was “cleared” as being stable and ready for a SAFE
exam by emergency room trauma physicians is unavailing to Matthews.
Relatedly, Matthews fails to acknowledge Mummey’s testimony that it wasn’t
until after Mummey had completed the SAFE exam that the victim’s physicians
finally cleared her so that she could receive the “sexually transmitted disease
prophylactic medication” that is regularly-prescribed in connection with sexual
assault incidents. See N.T., 1/23-27/17, at 325-26.

6 The provision governing grading of the offense of intimidation of a witness,
18 Pa.C.S.A. § 4952(b), is fully set forth in the trial court’s Opinion, which we
incorporate herein by reference. See Trial Court Opinion, 12/7/17, at 9.

                                           -6-
J-S39035-18


of the offen[s]e[,] [] they had no way of knowing that they had to answer the

question on the verdict slip beyond a reasonable doubt[.]” Id. at 28.

      “The determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Atanasio, 997 A.2d 1181,

1183 (Pa. Super. 2010) (citation and brackets omitted)). Further, this Court

has explained that

      [t]he defense has an absolute right to have the jury instructed as
      to the quantum of proof required to establish guilt. To that end,
      the trial court must provide the jury with a positive instruction
      fully and accurately defining that burden, i.e., “beyond a
      reasonable doubt.” See Sullivan v. Louisiana, 508 U.S. 275,
      113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (a constitutionally
      deficient jury instruction in a criminal case as to the definition of
      reasonable doubt, for purposes of the prosecution’s burden of
      proving guilt beyond a reasonable doubt, is not amenable to
      harmless error analysis and will always invalidate a conviction).

Commonwealth v. Clark, 683 A.2d 901, 906 (Pa. Super. 1996) (some

internal citations omitted).

      Initially, we acknowledge that Matthews’s counsel never objected at trial

to the trial court’s jury instruction concerning this offense or the verdict slip

that was given to the jury. See Pa.R.Crim.P. 647(C) (providing that “[n]o

portions of the charge[,] nor omissions from the charge[,] may be assigned

as error, unless specific objections are made thereto before the jury retires to

deliberate.”); Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa.

2008) (emphasizing that “it is axiomatic that issues are preserved

when objections are made timely to the error or offense[,]” and “an absence

                                      -7-
J-S39035-18


of contemporaneous objections renders an appellant’s claims waived.”

(citations and quotation marks omitted)); see also Commonwealth v.

Matty, 619 A.2d 1383, 1387 (Pa. Super. 1993) (holding that the defendant’s

“failure to contemporaneously object to the jury instructions or the verdict slip

… operates as a waiver.”). Nevertheless, as Matthews’s issue implicates the

legality of his sentence, we will reach its merits. See Commonwealth v.

Rivera, 154 A.3d 370, 379 (Pa. Super. 2017) (en banc) (observing that a

claim that implicates the legality of a sentence cannot be waived on appeal).

      In its Opinion, the trial court addressed and expounded upon Matthews’s

challenge to the legality of his intimidation of a witness conviction, adeptly set

forth the relevant law, and determined that the conviction was lawful and

properly graded as a first-degree felony. See Trial Court Opinion, 12/7/17,

at 8-11. The trial court’s sound analysis is supported by the record and the

law, and we agree with its determination. Therefore, we affirm on this basis

in rejecting Matthews’s second issue. See id.

      In his third and final issue, Matthews contends that the trial court

imposed an illegal sentence when it sentenced him as a “second-strike”

offender pursuant to 42 Pa.C.S.A. § 9714. See Brief for Appellant at 31-43.

According to Matthews, his prior 2010 conviction, in Arizona, for kidnapping

was not a “crime of violence,” as that term is defined in section 9714, and

thus, he was not subject to ten-year mandatory minimum sentences, under

section 9714, for his convictions of aggravated assault and rape. Id. at 32-


                                      -8-
J-S39035-18


33, 38-42.      Matthews contends that there is an “appreciable difference”

between Arizona’s and Pennsylvania’s kidnapping statutes, which are not

“substantially identical in nature and definition.”            See id. at 40-42.

Specifically, Matthews argues that although the offense of kidnapping, in

Pennsylvania, is defined as a “crime of violence,”7 Arizona’s kidnapping statute

is not equivalent to Pennsylvania’s kidnapping statute, as the latter “requires

elements of removing another a substantial distance, or confining another for

a substantial period of time in a place of isolation.” Id. at 42; see also id.

(asserting    that   Arizona’s kidnapping        statute   is “more   general”   than

Pennsylvania’s kidnapping statute).

        In its Opinion, the trial court thoroughly addressed Matthews’s claim;

thoroughly set forth (a) the language of section 9714, (b) the kidnapping

statutes of Pennsylvania and Arizona, and (c) the relevant associated law; and

determined that the court properly applied section 9714 to this case, as the

elements of the kidnapping statutes from both states are equivalent. See

Trial Court Opinion, 12/7/17, at 11-18. We agree with the cogent rationale

and determination of the trial court, and therefore affirm on this basis in

concluding that Matthews’s final issue entitles him to no relief. See id.

        Accordingly, we affirm Matthews’s judgment of sentence.

        Judgment of sentence affirmed.



____________________________________________


7   See 42 Pa.C.S.A. § 9714(g).

                                           -9-
J-S39035-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/22/2018




                          - 10 -
                                                                                       Circulated 07/23/2018 03:25 PM




          IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                    CRIMINAL


     COMMONWEALTH OF PENNSYLVANIA

                            v.                                     No. 3836 - 2015(8)

            TOMAS MIGUELE MATTHEWS
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                                    OPINION SUR PA.R.A.P. 1925(a)                           :z
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     BY:     ASHWORTH, J., DECEMBER 7, 2017                                                     ::x,                           CJ
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             Tomas Miguele Matthews has filed an appeal from his judgment of sen�nce.n
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     imposed on August 4, 2017, and finalized by the denial of his post sentence m1:>tion by

     Order and Opinion dated September 14, 2017. This opinion is written pursuant to Rule

     1925(a) of the Pennsylvania Rules of Appellate Procedure and, for the following

     reasons, this Court requests that this appeal be dismissed.


     I.      Background
-,



             On June 7, 2015, Matthews was charged at Information No. 3836-2015 with

     committing 15 offenses 1 related to the beating, strangulation, oral and anal rape, and

     sexual assault of his girlfriend, J.R., over a nine-hour period, while threatening her with




              1Aggravated   assault, 18 Pa.C.S.A. § 2702(A)(1), theft by unlawful taking - movable
     property, 18 Pa.C.S.A. § 3921(a), terroristic threats, 18 Pa.C.S.A. § 2706(A}(1}, unlawful
     restraint/risk of serious injury, 18 Pa.C.S.A. § 2902{A)(1 ), intimidation of witness or victim, 18
     Pa.C.S.A. § 4952(A)(1), simple assault, 18 Pa.C.S.A. § 2701(A}(1}, rape by forcible
     compulsion, 18 Pa.C.S.A. § 3121(A)(1), rape by threat of forcible compulsion, 18 Pa.C.S.A. ·
     § 3121(A}(2), sexual assault, 18 Pa.C.S.A. § 3124.1, involuntary deviate sexual intercourse by
     forcible compulsion, 18 Pa.C.S.A. § 3123(A)(1), involuntary deviate sexual intercourse by
     threat of forcible compulsion, 18 Pa.C.S.A. § 3123(A)(2}, and unlawful restraint/involuntary
     servitude, 18 Pa.C.S.A. § 2902(a)(2).


                                        APPENDIX C
a gun in her. home in Columbia. By Amended Information, and at the direction of the

Court, the charge of Person Not to Possess Firearm, 18 Pa.C.S.A. § 6105(a)(1), was

severed from the main body of the case, to be tried before a separate jury.2 This

charge, originally placed at Count 3, was moved to Count 15 in the Amended

Information, as filed.

       On January 24, 2017, Matthews went to trial on Counts 1 through 14. Matthews

was represented at trial by Assistant Public Defender Douglas A. Conrad. On January

27, 2017, Matthews was convicted of 11 of the 14 offenses. Sentencing was deferred

pending completion of a pre-sentence investigation report. Moreover, having been

found guilty of rape by threat of forcible compulsion and sexual assault, Matthews was

ordered to undergo an assessment by the Pennsylvania Sexual Offender Assessment

Board (SOAB).3 See 42 Pa.C.S.A. § 9799.24(a) ("a court shall order an individual

convicted of a sexually violent offense to be assessed by the board"); 42 Pa.C.S.A.

§ 9799.12 (defining "sexually violent offense"). On April 10, 2017, the Commonwealth

received notice from the SOAB that Matthews did not meet the criteria of a sexually

violent predator.




       2This  charge of persons not to possess a firearm was severed because to allow it to be
tried with the remaining offenses would permit the jury to hear prejudicial evidence that
Matthews was previously convicted of a crime. See Commonwealth v. Jones, 858 A.2d 1198,
1207-08 (Pa. Super. 2004).
       3The SOAB is "composed of psychiatrists, psychologists and criminal justice experts,
each of whom is an expert in the field of the behavior and treatment of sexual offenders." 42
Pa.C.S.A. § 9799.35(a).


                                               2
       The Commonwealth gave notice on April 28, 2017, of its intent to seek a

mandatory sentence of not less than 25 years' confinement and/or a sentence of life

imprisonment without parole on the charges of rape by forcible compulsion, sexual

assault and aggravated assault, asserting that Matthews had three prior crimes of

violence under 42 Pa.C.S.A. § 9714(9). Specifically, Matthews had convictions in

Arizona in 2004 and 2010 for aggravated robbery, kidnapping, and aggravated assault

Following the filing of briefs on this sentencing issue, the Commonwealth conceded that

only one of the prior three convictions, kidnapping, was equivalent to a "crime of

violence" under Pennsylvania law. This Court agreed. Therefore, Matthews was

subject to a mandatory minimum sentence of at least ten years, as required by Section

9714, on the charges of rape by forcible compulsion, sexual assault and aggravated

assault. Sentencing on the 11 convictions from the January 24, 2017, trial was

deferred, however, pending the result in the second trial on the firearms charge.

       On May 24, 2017,4 Matthews filed a prose motion to proceed as his own

attorney in the second trial. Following a Grazier5 Hearing on July 13, 2017, I

determined that Matthews' waiver of counsel was knowing, intelligent and voluntary




        4Although Matthews' motion was time-stamped and docketed in the Clerk of Courts on

May   26, 2017, the mailing envelope included in the record with the motion reflects a post-mark
date of May 24, 2017. Pursuant to the prisoner mailbox rule, a prose document is considered
filed on the date it was delivered to prison authorities for mailing. See Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). Applying the prisoner mailbox rule, I consider
May 24, 2017, as the date of filing of Matthews' motion.
       5Commonwealth       v. Grazier, 552 Pa. 9, 713 A.2d 81 (1988) (requiring, when waiver of
right to counsel is sought, an on-the-record determination that waiver is knowing, intelligent and
voluntary).

                                                3
and, therefore, granted Matthews' motion. Attorney Conrad was appointed standby

counsel.

       Matthews proceeded to trial on July 24, 2017, on Count 15, Person Not to

Possess Firearms charge. Matthews represented himself at trial and he was convicted

by a jury of this crime on July 25, 2017. An updated pre-sentence investigation report

was ordered.

       Matthews stood for sentencing on all charges on August 4, 2017. At that time,

Matthews received an aggregate sentence of 33 to 70 years' .incarceration, plus

restitution in the amount of $9,387.07, and fines and costs.6 Matthews was

represented at the sentencing on all counts by Attorney Conrad.

       Matthews filed a pro se notice of appeal from his judgment of sentence on

August 5, 2017.7 The Clerk of Court accepted the prose filing, but because Matthews




       6Matthews    received the following sentence: Count 1, aggravated assault, 10 to 20 years'
incarceration;  Count  2, theft by unlawful taking, 4 to 8 years' incarceration; Count 3, terroristic
threats, 1-1/2 to 3 years' incarceration; Count 4, unlawful restraint, 1-1/2 to 3 years'
incarceration; Count 5, intimidation of a witness/victim, 8 to 20 years' incarceration; Count 6,
simple assault, merged with Count 1; Count 7, simple assault, merged with Count 1; Count 9,
 rape by forcible compulsion, 10 to 20 years' incarceration; Count 10, sexual assault, merged
with Count 1; Count 13, unlawful restraint, 1-1/2 to 3 years' incarceration; Count 14, firearm not
to be carried without a license, 3-1/2 to 7 years' incarceration; and Count 15, person not to
 possess a firearm, 5 to 10 years' incarceration. Count 1 was concurrent to Count 9 and
consecutive to all counts. Count 3 was concurrent to Counts 4 and 13 and consecutive to all
 counts. Count 4 was concurrent to Counts 3 and 13, and consecutive to all other counts. Count
 9 was concurrent with Count 1 and consecutive to all other counts. Count 13 was concurrent to
 Counts 3 and 4, and consecutive to all other counts. Count 14 was concurrent to Count 15 and
 consecutive to all other counts. Count 15 was concurrent to Count 14 and consecutive to all
 other counts.

       7Although Matthews's notice was time-stamped and docketed in the Clerk of Courts on

August 7, 2017, the mailing envelope included in the record with the motion reflects a post-
mark date of August 5, 2017. Applying the prisoner mailbox rule, the filing date is August 5,
2017. See Crawford, supra.

                                                  4
was represented by counsel at the time, the Clerk notified Matthews by letter dated

August 9, 2017, that it was obligated by Pa.R.Crim.P. 576(A)(4)8 to time stamp the

pleading, make a docket entry reflecting the date of receipt, place the document in the

criminal case file, and forward a copy of the pro se pleading to the attorney of record,

Douglas Conrad. However, the copy of the prose pleading was sent by the Clerk's

Office to private criminal defense attorney Douglas Cody and not Assistant Public

Defender Douglas Conrad.

       Unaware that Matthews had filed a prose notice of appeal, Attorney Conrad filed •

a timely post sentence motion to modify sentence on August 11, 2017. In the motion,

Matthews claimed the Court improperly imposed mandatory sentences under 42

Pa.C.S.A. § 9714 to both the aggravated assault and the rape charges in the same

Information. See Post Sentence Motion at ,m 2-3. Matthews further claimed the Court

failed to give adequate consideration to various factors in the case, including Matthews'

"significant history of mental health diagnoses," his acceptance of responsibility for "the

majority of the charges," and his cooperation with the police. Id. at ,r 4. Finally,

Matthews argued that the imposition of the aggregate sentence of 33 to 70 years'

incarceration was "manifestly excessive and constituted an abuse of the Court's



       8Rule 576 of the Pennsylvania Rules of Criminal Procedure provides In relevant part:
      In any case in which a defendant is represented by an attorney, if the
      defendant submits for filing a written motion, notice, or document that
      has not been signed by the defendant's attorney, the clerk of courts
      shall accept it for filing, time stamp it with the date of receipt and make
      a docket entry reflecting the date of receipt, and place the document
      in the criminal case file. A copy of the time stamped document shall be
      forwarded to the defendant's attorney and the attorney for the
      Commonwealth within 1 O days of receipt.
Pa.R.Crim.P. 576(A)(4).

                                              5
discretion." Id. at,r 5. By Opinion and Orderdated·September 14, 2017, Matthews'

post sentence motion was denied.

       On October 13, 2017, Matthews filed a timely notice of appeal to the Superior

Court of Pennsylvania from his judgment of sentence. See 1597 MDA 2017. Pursuant

to this Court's directive, Matthews filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) which raises the following issues: (1) the court

erred in admitting certain hearsay statements; (2) Matthews' conviction for intimidation

of a witness was illegal where the jury was not instructed that an element of the offense

was one of the factors set forth in 18 Pa.C.S.A. § 4952(b)( 1); and (3) Matthews was

improperly sentenced as a second strike offender pursuant to 42 Pa.C.S.A. § 9714.


II.    Discussion


       A.     Witness Hearsay Statements


       Initially, Matthews asserts that the Court erred in admitting the victim's hearsay

statements to Katie Orell Mummey, the nurse who performed a sexual assault forensic

examination (SAFE) on the victim in the emergency room. Generally, an out-of-court

statement is inadmissible at trial unless it falls into one of the exceptions to the hearsay

rule. Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super. 2006). The victim's

statements in this case were admitted under the medical diagnosis or treatment

hearsay exception. This exception exists when the. statement:

       (A) is made for - and is reasonably pertinent to - medical treatment or
       diagnosis in contemplation of treatment; and      ·



                                             6
       (B) describes medical history, past or present symptoms, pain, or
       sensations, or the inception or general character of the cause or
       external source thereof, insofar as reasonably pertinent to treatment,
       or diagnosis in contemplation of treatment.

Pa.R.E. 803(4). See also Commonwealth v. Belknap, 105 A.3d 7, 11 (Pa. Super.

2014). Matthews claims, however, that these statements were not made for medical

diagnosis or treatment, but rather for purposes of evidence collection and, thus, were

inadmissible.

       At trial, the Commonwealth presented Nurse Mummey as a witness in its case in

chief. Nurse Mummey testified that her job as a SAFE nurse is twofold: she conducts a

physical examination of the patient to identify, document and treat injuries, and then

she collects any evidence related to those injuries. Notes of Testimony (N.T.), Trial at

303. This examination properly entails obtaining a history from the victim of the events

leading to her visit, to assist in looking for any vaginal, penile or anal injuries, as well as

non-genital injuries. Id. at 303, 314.

       Nurse Mummey testified about the injuries she saw on the victim, as well as the

fact that she performed a sexual assault kit on the victim consistent with her SAFE

training.9 N.T., Trial at 304-27; Commonwealth Exhibit No. 23. The Court, over

defense counsel's objection, further allowed Nurse Mummey to testify as to the

information that the victim provided to her regarding the attack in order to assist in the

medical examination and treatment. Id. at 299, 309, 312-13, 321.




       9
        SAFE nurses use a sexual assault kit to proceed with a particular protocol for gathering
evidence from patients who have indicated that they have been sexually assaulted. N.T., Trial
at 302-03.

                                               7
           The admission of the victim's out-of-court statements was proper as the victim in

     this case was experiencing a medical emergency. The victim's statements were made

     in the emergency room to medical staff for the purpose of medical diagnosis and

     treatment. As such, there was no violation of the hearsay rule by the admission of the

     victim's statements to Nurse Mummey, pursuant to Rule of Evidence 803(4).

           Assuming, arguendo, that the victim's statements were improperly admitted

     hearsay evidence, Matthews is not entitled to relief. The purpose of the hearsay rule is

     to prevent the admission of unreliable and untrustworthy testimony that is not subject to

     cross examination. Commonwealth v. Bean, 677 A.2d 842, 844 (Pa. Super. 1996). In

     this case, Matthews had the opportunity to confront and cross examine Nurse Mummey

     regarding the victim's statements. N.T., Trial at 327-335, 337-38. Moreover, the victim

     testified at trial and was also subject to defense counsel's cross-examination. Id. at

     192-208, 218-20. Hence, Matthews' first issue on appeal is without merit.


            B.     Grading of Intimidation of a Witness Conviction


            Next, Matthews argues "[his] conviction for intimidation of a witness, graded as a

     first degree felony, was illegal." Statement of Errors at 112. The crime of intimidation

     of a witness or victim is defined, in relevant part, as follows:

            A person commits an offense if, with the intent to or with the knowledge
            that his conduct will obstruct, impede, impair, prevent or interfere with
            the administration of criminal justice, he intimidates or attempts to
            intimidate any witness or victim to:
            (1) Refrain from informing or reporting to any law enforcement officer,
            prosecuting official or judge concerning any information, document or
            thing relating to the commission of a crime.



                                                    8



.'
18 Pa.C.S.A. § 4952(a)(1 ). The grading of the offense of intimidation of a witness or

victim is controlled by subsection (b):

       (1) The offense is a felony of the degree indicated in paragraphs (2)
       through (4) if:

              (i) The actor employs force, violence or deception, or threatens
              to employ force or violence, upon the witness or victim or, with
              the requisite intent or knowledge upon any other person.
              ***
       (2) The offense is a felony of the first.degree if a felony of the first
       degree or murder in the first or second degree was charged in the
       case in which the actor sought to influence or intimidate a witness or
       victim as specified in this subsection.
       (3) The offense is a felony of the second degree if a felony of the
       second degree is the most serious offense charged in the case in
       which the actor sought to influence or intimidate a witness or victim
       as specified in this subsection.
       (4) The offense is a felony of the third degree in any other case in
       which the actor sought to influence or intimidate a witness or victim
       as specified in this subsection.
       (5) Otherwise the offense is a misdemeanor of the second degree.

18 Pa.C.S.A. § 4952(b)(1)(i), (2)-(5). Pursuant to this statute, the grading of the offense

begins as a second degree misdemeanor. 18 Pa.C.S.A. § 4952(b)(5). Subsection

(b)(1)(i) provides that where the defendant used "force, violence or deception, or

threatens to employ force or violence," the offense is elevated to a felony. 18 Pa.C.S.A.

§ 4952(b)(1)(i). The crime is further elevated to a first degree felony if the underlying

case in which the witness or victim was involved was also a felony of the first degree or

if the case involved a charge of murder. 18 Pa.C.S.A. § 4952(b)(2). Commonwealth

v. Johnson, 961 A.2d 877, 883 (Pa. Super. 2008).

       Applying these principles to Matthews' case, because Matthews was charged

with aggravated assault, rape by forcible compulsion, and IDSI by forcible compulsion



                                             9
as first-degree felonies, the grading of the intimidation of a witness charge was also as

a first-degree felony, pursuant to subsection 4952{b){2). See Commonwealth v.

Felder, 75 A.3d 513, 516 {Pa. Super. 2013). Matthews contends, however, that

because of trial court error his conviction for intimidation of a witness may only be

graded as a second degree misdemeanor.

       Although the verdict slip contained the question: 'If guilty, do you
       find the defendant used force, violence or threatened to employ
       force or violence upon the victim or another person?', neither the
       verdict slip nor any instructions given by the court informed the jury
       that they were required to find beyond a reasonable doubt that this
       extra factor, which is an element of the offense, was present.
       Without a finding of the factor set forth in Section 4952{b){1){i)
       beyond a reasonable doubt, Mr.- Matthews' conviction for intimidation
       of a witness may only be graded as a second degree misdemeanor.

Id. (emphasis in oriqlnal).'?

       The jury convicted Matthews of intimidation of his girlfriend, J.R. The jury

specifically found that Matthews threatened or employed force or violence in his

intimidation of J.R. Thus, upon the jury's specific finding, the grade of the offense of

intimidation of a witness was elevated toa first degree felony.

       This Court instructed the jury in accordance with the Pennsylvania Suggested

Standard Jury Instruction (Crim), 15.4952, for the offense of intimidation of witness or

victim, and explicitly stated that each element of the offense had to be proven "beyond

a reasonable doubt."     N.T., Trial at 672. See Pa.S.S.J.I. (Crim) 15.4952. This Court



       10Appellate   counsel commented in a footnote that she did not have a copy of the verdict
slip, and that this verdict slip should be made part of the record. See Statement of Errors at 1J 2
n.1. The original verdict slip was found by my staff in the official file ·maintained by the Clerk of
Courts; however, it was not time-stamped and did not appear to have been entered on the
docket. This has been remedied.

                                                 10
further reiterated the jury's duty to find guilt beyond a reasonable doubt no less than 16

other times during the jury charge. Id. at 657, 659-60, 666-73; 675, 677, 679, 681-82.

At no time was the jury instructed as to any lesser standard of proof, nor could it be.

For, as our Supreme Court has explained:

       There are three standards of proof typically used in Pennsylvania
       jurisprudence: a preponderance of the evidence, clear and
       convincing evidence, and proof beyond a reasonable doubt. A
       preponderance of the evidence is 'a more likely than not inquiry,'
       supported by the greater weight of the evidence; something a
        reasonable person would accept as sufficient to support a
        decision. Clear and convincing evidence requires proof 'that is
        so clear, direct, weighty, and convincing as to enable the trier of
       fact to come to a clear conviction, without hesitancy, of the truth
        of the precise facts in issue.' Both of these standards are
        traditionally applicable in civil matters.

       Proof beyond a reasonable doubt, on the other hand, is a criminal
       standard and carries the highest evidentiary burden. This standard
       impresses on the trier of fact the necessity of reaching a subjective
       state of certitude of the facts in issue.

Commonwealth v. Batts, - Pa.-. 163 A.3d 410. 453-54 (2017) (citations, internal

quotations. and footnote omitted) (emphasis added).

       Matthews' conviction for intimidation of a witness was properly graded as a first

degree felony. Accordingly, this second issue on appeal lacks merit and should be

denied.


       C.      Second Strike Offender


        Lastly, Matthews claims his sentence as a second-strike offender is illegal. He

argues that this Court erred in sentencing him as a second-strike offender pursuant to

42 Pa.C.S.A. § 9714, where his conviction for kidnapping in Arizona was not a previous


                                             11
"crime of violence" as set forth in Section 9714. Pennsylvania's recidivist sentencing

statute provides, in pertinent part, as follows:

       § 9714. Sentences for second and subsequent offenses
       (a) Mandatory sentence. -                                             .
       (1) Any person who is convicted in any court of this Commonwealth of
       a crime of violence shall, if at the time of the commission of the current
       offense the person had previously been convicted of a crime of violence,
       be sentenced to a minimum sentence of at least ten years of total
       confinement[.]

42 Pa.C.S.A. § 9714(a)(1).11

       Subsection (g) of the statute defines "crime of violence" as, intera/ia, "kidnapping

... or an equivalent crime in another jurisdiction." 42 Pa.C.S.A. § 9714(g). Because

Matthews' prior conviction for kidnapping is from Arizona, a determination had to first be

made as to whether there is an equivalent Pennsylvania statute for this Arizona crime.

"An equivalent offense is that which is substantially identical in nature and definition [to]

the out-of-state or federal offense when compared [to the] Pennsylvania offense."

Commonwealth v. Shaw, 560 Pa. 296, 304, 744 A.2d 739, 743 (2000) (quoting

Commonwealth v. Bolden, 367 Pa. Super. 333, 338-39, 532 A.2d 1172, 1175-76

(1987)).12 See a/so Commonwealth v. Spenny, 128 A.3d 234, 250 (Pa. Super. 2015)

("[W]hen determining the Pennsylvania equivalent statute for a prior, out-of-state



         "secnon 9714(a)(2) provides for a 25-year mandatory minimum when the defendant
had previously been convicted of "two or more such crimes of violence arising from separate
criminal transactions[.]" 42 Pa.C.S.A. § 9714(a)(2). As noted above, the Commonwealth
originally proceeded under subsection (a)(2), but later conceded that Matthews' prior
convictions for aggravated robbery and aggravated assault in Arizona did not constitute
equivalent crimes of violence under subsection 9714(9).
        12
          0ur Supreme Court adopted the Bolden test in Commonwealth v. Northrip, 603 Pa.
544, 985 A.2d 734 (2009), to determine the Pennsylvania equivalent offense for a prior, out-of-
state conviction under the "Three Strikes Law," 42 Pa.C.S.A. § 9714.

                                               12
conviction for prior record score purposes, courts must identify the elements of the

foreign conviction and on that basis alone, identify the Pennsylvania statute that "is

substantially identical in nature and definition" to the out-of-state offense.").

        The Commonwealth argued that Matthews' 2010 Arizona kidnapping conviction

was equivalent to the Pennsylvania kidnaping statute, and this Court agreed. Although

Matthews did not challenge this ruling in his post sentence motion, he now disputes that

his prior Arizona kidnapping conviction was a crime of violence as set forth in Section

9714.

        On March 2, 2010, Matthews was convicted of kidnapping and aggravated

assault in Maricopa County, Arizona.13 The elements of kidnapping required by Arizona

are:

        A person commits kidnapping by knowingly restraining another person
        with the intent to:



        13Theprobable cause statement for the arrest provides as follows:
      On 7/27/2009 between the hours of 0100-0800, Matthews held [the victim]
      against her will not allowing her to leave the apartment. She attempted to
      escape running out of the apartment, Matthews chased her down and
      grabbed her hair pulling her back inside and punching her. [The victim)
      stated that Matthews pushed the couch against the door which is the only
      entry/exit for the one bedroom upstairs apartment. Matthews assaulted
      her numerous times using his hands to chock [sic) her around the neck.
      (The victim] stated that she passed out from lack of oxygen 3 separate
      times. Matthews bit her right cheek leaving teeth marks and causing her
      cheek to swell. [The victim] told me that Matthews punched her numerous
      times in the face, arms, shoulders, chest, and back causing severe
      swelling and bruising. She stated that Matthews made her take all her
      clothes off so she couldn't run out. [The victim) said that he used an
      electrical cord from a hair press to wrap around her neck and chock (sic]
      and threaten her. Matthews told her that if the Police come to the door
      that he will KILL her before they get inside. He told her that he has no
      problem going back to prison but he will ensure she is dead before
      anyone can help her.
See Commonwealth's Sentencing Memorandum, Appendix "A" at p. 34 (emphasis in original).

                                              13
       3. [i]nflict death, physical injury or a sexual offense on the victim, or
       to otherwise aid in the commission of a felony; or
       4. [p]lace the victim or a third person in reasonable apprehension of
       imminent physical injury to the victim or the third person ....

Ariz. Rev. Stat. Ann. (A.RS.A.)§ 13-1304(A)(3), (4). See also State v. Richter, 243

Ariz. 131, 402 P.3d 1016, 1025-26 (2017).

       "Restrain," as defined by the Arizona legislature, means "to restrict a person's

movements without consent, without legal authority, and in a manner which interferes

substantially with such person's liberty, by either moving such person from one place to

another or by confining such person." A.RS.A.§ 13-1301(2). "Restraint is without

consent if it is accomplished by ... [p]hysical force, intimidation or deception." Id. at§

13-1301(2)(a). Thus, the three elements of kidnapping in Arizona are: (1) knowingly

restraining the movement of another person; (2) by force, intimidation or deception, and

in a manner that interferes with the other person's movements; and (3) with the intent to

inflict death or physical injury upon the other person. See State v. Latham, 223 Ariz.

70, 73, 219 P.3d·280, 283 (2009); State v. Styers, 177 Ariz. 104, 112, 865 P.2d 765,

773 (1993).

       Section 2901 (a) of the Pennsylvania Crimes Code defines the offense of

kidnapping as follows:

       [A] person is guilty of kidnapping if he unlawfully removes another a
       substantial distance under the circumstances from the place where
       he is found, or- if he unlawfully confines another for a substantial
       period in a place of isolation, with any of the following intentions:
               (1) To hold for ransom or reward, or as a shield or hostage.
               (2) To facilitate commission of any felony or flight thereafter.
               (3) To inflict bodily injury on or to terrorize the victim or
               another.                                  ·


                                             14
                (4) To interfere with the performance by public officials of
                any governmental or political function.

 18 Pa.C.S.A. § 2901(a). Thus, the three elements of kidnapping in Pennsylvania are:

 (1) the defendant unlawfully removed a person a substantial distance under the

 circumstances from the place where he is found, or if the defendant unlawfully confined

· a person for a substantial period in a place of isolation; (2) the removal or confinement

 was accomplished by force, threat, or deception; and (3) the defendant did so with the

 intent to obtain a ransom or reward, or to use the victim as a shield or a hostage, or to

 facilitate the commission of another felony, or to inflict bodily injury on or to terrorize the

 victim or another. Id. See also Commonwealth v. Green, 149 A.3d 43, 48 (Pa. Super.

 2016).

          This Court made a legal determination that the elements of the kidnapping

 statutes from both states are equivalent. The first element of the Arizona statute,

 knowingly restraining the movement of another person, is present in the first and

 second elements of the Pennsylvania statute, which require that the defendant

 unlawfully controls the victim's movements by moving the victim, or by isolating the

 victim. The second element of the Arizona kidnapping statute, the use of force,

 intimidation or deception to accomplish the crime, is present in the second element of
                                            .                                            .
 the Pennsylvania kidnapping statute, which requires that the removal or confinement be

 accomplished by force, threat, or deception. The third element of the Arizona

 kidnapping statute, the intent to inflict death or physical injury, is present in the

 Pennsylvania kidnapping statute in subsection 2901 (a)(3), as the intent to inflict bodily

 injury on the victim.


                                                15
        Matthews argues, however, that there are "appreciable differences?" between

the statutes because Arizona has no element requiring the removal of another any

distance, nor an element requiring the confinement or restraint to occur for a substantial

period of time, nor an element regarding where the confinement must take place, i.e., a

place of isolation, as does Pennsylvania. Matthews claims these "appreciable

differences" make the Arizona statute more general than Pennsylvania's kidnapping

statute.

       In Pennsylvania, there are two distinct means of showing criminal culpability for

purposes of kidnapping: unlawful removal for a substantial distance or unlawful

confinement for a substantial period in a place of isolation. With respect to the element

of removal for a substantial distance, our Supreme Court has noted:

       For purposes of the kidnapping statute, a substantial distance is
       not limited to a defined linear distance or a certain time period.
       The determination of whether the victim was moved a substantial
       distance is evaluated under the circumstances of the incident.
       Further, the guilt of an abductor cannot depend upon the fortuity
       of the distance he has transported his victim nor the length of
       time elapsed.

Commonwealth v. Malloy, 579 Pa. 425, 446, 856 A.2d 767, 779 (2004) (citations and

internal quotation marks omitted). Our Superior Court has found that "a sensible

interpretation [of the words "substantial distance"] is one that views a substantial

distance as one that isolates the victim and exposes the victim to an increased risk of

harm." In re T.G., 836 A.2d 1003 (Pa. Super. 2003) (quoting Commonwealth v.

Campbell, 353 Pa. Super. 178, 509 A.2d 394, 397 (1986)).


        14
          See Shaw, 560 Pa. at 306-07, 744 A.2d at 744-45 (noting that where there is "an
appreciable difference in the elements of the in-state and out-of-state offenses at issue," a
finding that the offenses are "equivalent" is precluded).

                                                16
       In In re T.G., the Superior Court concluded the defendant unlawfully removed a

victim a "substantial" distance where the victim was playing outside of the house

located next to defendant's house when defendant grabbed the victim and took her

inside of his house. 836 A.2d at 1006-07. The Court found that, under the

circumstances, the movement of the victim placed the victim "in a completely different

environmental setting removed from the security of familiar surroundings" such that the

statutory definition of kidnapping was met. Id. at 1006. Consequently, Pennsylvania's

element of "substantial distance" can be satisfied by movement of just mere feet.

       With respect to the elements of confinement for a substantial period of time in a

place of isolation, our Superior Court has stated:

       [W]hat is a substantial period in time can depend on the mental state
       of the victim. The fright that can be engendered in 30 minutes can
       have the same debilitating effect on one person as 30 hours may have
       on another. When considering what qualifies as confinement in a
       place of isolation, this Court has held:
              the concept is not geographic isolation, but rather effective
               isolation from the usual protections of society. One's own
              apartment in the city can be a place of isolation, if detention is·
              under the circumstances which make discovery or rescue
              unlikely. The requirement that the victim be confined in a place
              of isolation does not require that the victim be left alone; the
              fact that other people are present does not necessarily negate
              the victim's isolation from the usual protections of society.

Green, 149 A.3d at 49 (quoting In re T.G., 836 A.2d at 1008) (internal quotation marks,

brackets and citations omitted). Accordingly, our Commonwealth's courts have

concluded the place-of-isolation requirement was met when the victims were bound and

not able to leave their own residence (see Commonwealth v. Rushing, 627 Pa. 59, 99

A.3d 416 (2014)), when the victim was bound and gagged and left alone in the living



                                            17
     room of a trailer, even though located in a busy trailer park (see Commonwealth v.

     Housman, 604 Pa. 596, 986 A.2d 822 (2009)), and when an elderly grandmother and

     her grandson were held at knifepoint inside the grandmother's home and the victims

     were unreachable and locked inside the house (see Commonwealth           v, Jenkins, 455
     Pa. Super. 152, 687 A.2d 836 (Pa. Super. 1996)).

            The Arizona statute requires "substantial interference with a person's liberty,"

     which the legislature has defined as "either moving such person from one place to

     another or by confining such person." See A.RS.A.§ 13-1301(2); Latham, 223 Ariz. at

     73, 219 P.3d at 283. This element of "substantial interference with the victim's

·"   movements" in Arizona's statute is consistent with Pennsylvania's requirement of

     "unlawful removal for a substantial distance," or "confinement or restraint for a

     substantial period of time." Therefore, Matthews' kidnapping conviction from Arizona is

     a conviction of a prior crime of violence and a valid basis for the imposition of a

     mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714.


     Ill.   Conclusion


            For the reasons noted above, Matthews' judgment of sentence should be

     affirmed and his appeal dismissed.

            Accordingly, I enter the following:




                                                  18
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                          CRIMINAL


COMMONWEALTH OF PENNSYLVANIA

                   v.                                   No. 3836 - 2015(8)

    TOMAS MIGUELE MATTHEWS


                                         ORDER


      AND NOW, this     7th   day of December, 2017, the Court hereby submits this

Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.




Copies to:   Susan E. Moyer, Assistant District Attorney
             MaryJean Glick, Senior Assistant Public Defender
