J   -S04018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                     1   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JEFFREY PAUL SMITH, JR.

                            Appellant                     No. 593 EDA 2016


           Appeal from the Judgment of Sentence December 14, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0000637-2015

BEFORE:        SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                    FILED APRIL 06, 2017

        Jeffrey Paul Smith, Jr., appeals from the judgment of sentence

imposed December 14, 2015, in the Bucks County Court of Common Pleas.

The trial court sentenced Smith to      a   term of five to 10 years' incarceration

following his jury conviction of aggravated assault' for        a   December 2014

attack on his father. On appeal, Smith argues the trial court erred       in   failing

to grant   a   mistrial when the Commonwealth elicited testimony regarding his

post -arrest silence, and challenges the discretionary aspects of his sentence.

For the reasons below, we affirm.




*   Former Justice specially assigned to the Superior Court.

'   18 Pa.C.S. § 2702(a)(1).
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        The facts underlying Smith's conviction are aptly summarized by the

trial court as follows:

              The victim   in   this matter   isJeffrey Paul Smith, Sr.
        [(hereinafter "the victim")] age 53.       On the afternoon of
        December 15, 2014, [the victim] was assaulted in his home by
        [Smith], his 28 -year -old son. The evidence, viewed in the light
        most favorable to the Commonwealth as verdict winner,
        established that on the date of the assault, the victim and his
        wife had a verbal argument. After the argument, the victim
        retreated to the den of his home. Shortly thereafter, [Smith]
        entered the den and began to beat the victim with a long,
        cylindrical object. When the victim raised him arm to block a
        blow to his head, he was struck twice on his left forearm.
        [Smith] then struck the victim multiple times on his head, neck,
        collarbone, shoulder blade and left leg. The attack ended when
        the victim was able to get to his feet and run from the room.
        Pursued by [Smith], the victim ran to the garage, got into his
        truck and fled his residence. When [Smith] was questioned by
        police, he admitted he assaulted the victim, but claimed that he
        only hit the victim twice and that he struck the victim with a
        frying pan rather than the object the victim described. [Smith]
        did not report that he had acted in defense of his mother.

               Immediately after the assault, the victim was treated at
        Grand View Hospital where it was determined that his left
        forearm was broken into more than three fragments.              His
        shoulder blade was also fractured.        Dr. John Minnich, an
        orthopedic surgeon with Upper Bucks Orthopedics, testified that
        he performed surgery on the victim's arm, inserting rods and
        pins down the length of his forearm to stabilize the fractures and
        to allow the bone to heal. The external apparatus that held the
        victim's arm in place was later removed. The victim continued
        to see multiple medical professionals following his surgeries for
        purposes of physical therapy and long-term pain management.
        At the time of trial, the victim had limited use of his left arm,
        was unable to life heavy objects and was still undergoing
        physical therapy. Dr. Minnich testified that he could not predict
        how much functionality the victim would regain in his left arm.
Trial Court Opinion, 6/15/2016, at 1-2.



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         Smith was arrested and charged with aggravated assault, simple

assault and harassment.2 On July 9, 2015,         a   jury returned      a   verdict of guilty

on all charges.   The trial court ordered both        a   mental health and drug and

alcohol evaluation.    During   a   preliminary sentencing hearing conducted on

September 22, 2015, Smith testified both he and his mother had been

abused by the victim in the past, noting specifically that his kidney condition

was the result of his father having thrown        a   television at him when he was

three years old, and claiming the police had been called to the home several

times.    See N.T., 9/22/2015, at 25-26, 31-32, 38-39.                   Consequently, the

court continued the hearing for the completion                      of   a   pre -sentencing

investigation report ("PSI") in order to learn the "specifics" about the

purported "violence within that household."        Id. at     41.

         A second sentencing hearing was held on December 14, 2015, at

which time the court was provided with       a   detailed PSI.3 At the conclusion of

the hearing, the trial court sentenced Smith to           a   term of five to 10 years'

imprisonment for the charge of aggravated assault. No further punishment



2   See 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), and 2709(a)(1), respectively.

3  The probation/parole officer who completed the PSI spoke with the
physician who treated Smith's nephrotic condition.       The doctor stated
Smith's condition was idiopathic, and was not caused by an injury. See
Presentence Investigation, 12/7/2015, at 17-18. The officer was also able to
confirm that police were called to Smith's home several times for domestic
disturbances, several times when his father was listed as the victim and
several times when his mother was listed as the victim. See id. at 12-13.


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was imposed on the remaining convictions.           Smith filed   a   timely petition for

reconsideration of his sentence, asserting the sentence was excessive and

imposed in the aggravated range of the guidelines despite his lack of             a   prior

criminal record. See Petition for Reconsideration of Sentence, 12/17/2015,

at 1. Following   a   hearing on January 19, 2016, the trial court denied Smith's

petition. This timely appeal follows.4

        Before we proceed to an examination of the issues raised on appeal,

we note that Smith's appellate brief was filed late, despite having been

granted two extensions of time. See Order, 7/26/2016; Order, 9/28/2016.

Indeed, the second order explicitly stated:          "NO further extensions will be

granted absent extraordinary circumstances. Appellant's Brief shall be filed

on or before October 31, 2016."            Order, 9/28/2016.      Subsequently, Smith

filed his appellate brief on November 2, 2016.

        Pennsylvania Rule of Appellate Procedure 2188 provides, in relevant

part, that an appellee "may move for dismissal of the matter" when an

appellant fails to file his brief in   a   timely manner.      Pa.R.A.P. 2188.        Here,

however, the Commonwealth has not sought dismissal of the appeal or

otherwise protested Smith's late filing.           Absent an objection from the

appellee, this Court has overlooked an appellant's "non-compliance with Rule



4   On February 18, 2016, the  trial court ordered Smith to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Smith complied with the court's directive, and filed a concise statement on
March 10, 2016.


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2185 pursuant to our discretion under Pa.R.A.P. 105(a)," and addressed the

substantive claims on appeal.             AmerisourceBergen Corp. v. Does,              81

A.3d 921, 923 (Pa. Super. 2013), appeal denied, 97 A.3d 742 (Pa. 2014).

We likewise do so in the present case.

        In his first issue, Smith contends the trial court failed to grant                 a

mistrial when the Commonwealth elicited testimony regarding his post -

arrest silence.

        Our review of     a    trial court's ruling denying   a   defendant's motion for   a

mistrial   is well -settled:

        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." Commonwealth v. Cottam, 420 Pa.Super. 311,
        616 A.2d 988, 997 (1992); Commonwealth v. Gonzales, 415
        Pa.Super. 564, 609 A.2d 1368, 1370-71 (1992). 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." Commonwealth v. Vazquez,
        421 Pa.Super. 184, 617 A.2d 786, 787-88 (1992) (citing
        Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603
        (Pa.1986), and Commonwealth v. Brinkley, 505 Pa. 442, 480
        A.2d 980 (Pa.1984)).
Commonwealth v. Manley, 985 A.2d 256, 266                             (Pa.   Super.   2009)

(quotation omitted), appeal denied, 996 A.2d 491 (Pa. 2010).

        While   a   defendant may be questioned regarding his pre -arrest silence

when he testifies in his own defense at trial,5        "[i]n general, after a defendant


5See Commonwealth v. Fischere, 70 A.3d 1270, 1276 (Pa. Super. 2013),
appeal denied, 83 A.3d 167 (Pa. 2013).



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has been given Miranda[6] warnings, the defendant's post -arrest silence

may not be used against him to impeach an explanation subsequently

offered at trial." Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa.

1998), cert.      denied, 528 U.S. 830 (1999).                         Nevertheless, "where       a

prosecutor's reference to        a    defendant's silence       is a   fair response to   a   claim

made by defendant or his counsel at trial, there is no violation of the Fifth

Amendment privilege against self-incrimination." Id. (citation omitted).

        Here, Smith testified that, on the night of the incident, he told the

responding state trooper the victim kept             a   firearm in the garage. See N.T.,

7/8/2015, at 241-242.           He later clarified       that he told this to the trooper

"[b]oth   on the deck [of the home] and in the squad car."                     Id. at 250.     The

next day, the Commonwealth recalled Pennsylvania State Trooper Guy

Meltser and asked him, "When was the first time you heard anything about

an    alleged    gun?"       N.T.,        7/9/2015, at 15.         The       trooper responded,

"Yesterday." Id. The Commonwealth then asked Trooper Meltser if Smith

said anything about      a   firearm when they were         in   the squad car, to which the

trooper responded, "He did not." Id. Smith's counsel immediately objected

and    requested to approach the bench.                   See id.            During the sidebar

discussion that followed, counsel requested                 a    mistrial, explaining:        "The

position of the defense              is    that [the trooper]          is   commenting on the




6   Miranda v. Arizona, 384 U.S. 436 (1966).


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defendant's right to remain silent."       Id. at       16. The trial court overruled the

objection finding that Smith had "opened the door" during his testimony.

Id.
        We find no reason to disturb the trial court's ruling.                   First, Smith's

argument on this issue     is   lacking.           He   simply summarizes the parties'

position on this issue, and cites to the Supreme Court's decision in

Copenhefer, supra. See Smith's Brief at 9-10. However,                      in   that case, the
Court determined      the defendant's rights were not violated when the

Commonwealth referred to the defendant's, post -Miranda, invocation of

silence as to some, but not all, of the questions posed to him by the police,

after the defendant testified at trial that he had told them "Everything." See

Copenhefer, supra, 719 A.2d at 251-252.                              The   Court    held   "the

prosecutor's comments were       a   'fair response to         a   claim made by defendant

or his counsel[.]"'   Id. at 252. Smith fails           to explain how the Copenhefer

decision supports his claim for relief.             See Pa.R.A.P. 2119(a) (requiring

argument section in appellate brief include "such discussion and citation to

authorities as deemed pertinent.").

        Second, here, like in Copenhefer, the Commonwealth's subsequent

questioning of Trooper Meltser was arguably               a   fair response to claim made

by Smith. Indeed, Smith testified that he told the trooper about the victim's

gun both before (on the deck) and after (in the squad car) he was arrested

for the assault. The Commonwealth then recalled Trooper Meltser to rebut

Smith's testimony on direct examination.                      As   the Copenhefer Court

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explained:       "The protective shield of the Fifth Amendment may not be

converted into     a   sword that cuts back on an area of legitimate inquiry and

comment by the prosecutor on the relevant aspects of the defense case."

Copenhefer, supra, 719 A.2d at 251.
         Third, even if we were to determine that the reference to Smith's post -

arrest silence was improper, we would find any error was harmless.

         "Harmless error exists where: (1) the error did not prejudice the
         defendant or the prejudice was de minimis; (2) the erroneously
         admitted evidence was merely cumulative of other untainted
         evidence which was substantially similar to the erroneously
         admitted evidence; or (3) the properly admitted and
         uncontradicted evidence of guilt was so overwhelming and the
         prejudicial effect of the error was so insignificant by comparison
         that the error could not have contributed to the verdict."
         Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350
         (1999).
Com. v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002), cert. denied, 540 U.S.

858 (2003).

         Here, Smith testified that he told the responding state trooper, on two

occasions, that the victim had       a   gun   -   while on the deck, before his arrest,

and      in   the squad    car,   after his arrest.           Accordingly,   even   if   the

Commonwealth's reference to Smith's post -arrest silence was improper, it

was permitted to elicit testimony from Trooper Meltser that Smith did not tell

the officers about the gun before his arrest, and his statement was

identical. Any error, therefore, was so insignificant in light of the testimony

as a whole,      that it was harmless, and Smith         is   entitled to no relief on this

claim.


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        Next, Smith challenges the discretionary aspects of his sentence.

Specifically, he contends the aggravated range sentence imposed by the trial

court was clearly unreasonable, particularly in light of the county sentence

recommended in the PSI, and that the sentence was not supported by

aggravated circumstances. See Smith's Brief at 12.

        It   is   well -established that "[a] challenge to the discretionary aspects of

a    sentence must be considered         a   petition for permission to appeal, as the

right to pursue such         a   claim is not absolute."       Commonwealth v. Hoch,
936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted).                       Here, Smith

complied with the procedural requirements for this appeal by filing                   a   timely

post -sentence motion for modification of sentence and subsequent notice of

appeal, and by including in his appellate brief            a   statement of reasons relied

upon for appeal pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa. 1987), and Pa.R.A.P. 2119(f).            See Commonwealth v. Edwards, 71

A.3d 323, 329-330 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa.

2013).        Therefore, we must determine whether he raised                 a   substantial

question justifying our review.

        A substantial question exists when an appellant sets             forth "a colorable

argument that the sentence imposed                is   either inconsistent with   a   specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d

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1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).            In the present case, Smith's contention that the court

imposed      a   clearly unreasonable aggravated range sentence, unsupported by

sufficient aggravating circumstances, raises                 a    substantial question that the

sentence         imposed       was    inconsistent with           Section    9781(c)(2)    of    the

Sentencing Guidelines.'              See 42 Pa.C.S.      §   9781(c)(2) (mandating         a    court

vacate   a       sentence if it finds "the sentencing court sentenced within the

sentencing guidelines but the case involves circumstances where the

application         of       the   guidelines    would           be     clearly   unreasonable");

Commonwealth v. Fullin, 892 A.2d 843, 849-850                                 (Pa.    Super. 2006)

(allegation that, in imposing aggravated range sentence, court failed to

consider mitigating factors and failed to place sufficient reasons on the

record, raises substantial question).

        Preliminarily, we note "[s]entencing             is a         matter vested   in the sound

discretion of the sentencing judge, and              a   sentence will not be disturbed on

appeal absent            a    manifest abuse of discretion."                Commonwealth v.

7  We note the Commonwealth asserts this claim is waived as a result of
Smith's failure to include it in his concise statement. See Commonwealth's
Brief at 18. While we agree Smith did not explicitly state his sentence was
clearly unreasonable in his concise statement, he did assert the trial court
"erred in imposing a sentence more severe than recommended by the
Sentencing Guidelines" and "by rejecting the recommendation of Bucks
County Adult Probation and Parole for a county sentence[.]" Statement of
Matters Complained of on Appeal, 3/10/2016, at 1. Therefore, we decline to
find this claim waived.



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McLa ine, 150 A.3d 70, 75 (Pa. Super. 2016) (quotation omitted). Here, the

trial court provided substantial reasons on the record for the aggravated

range sentence imposed:8

        There are some cases that are very easy and there are some
        cases that are not. This is not an easy case because there are
        so many things involved. The extent of the injury is obviously
        beyond serious. The number of surgeries that are required to
        correct what you did here caused additional trauma and pain and
        risk.
               At the same time, you have a household that is
        dysfunctional, to say the least. The dysfunction, however, is not
        one person. You seem to see this as a one person dysfunction,
        that being your father. There is at least three, if not five,
        depending on brothers, dysfunctional people in that house. Your
        mother is dysfunctional. If what you tell me is true, she allowed
        you to be abused.       Or what you told me is not true, it's
        frightening.
               This should be easy. I should be able to see the pre -
        sentence investigation, take [the mental health] reports and say,
        "This is easy. He has never been involved in the criminal justice
        system before, I don't anticipate he will be involved again," and
        we all walk out of here and it's over. That's what should happen
        if you look at this just on paper.
               But you have no remorse whatsoever, none. You didn't
        have it that night and you don't have it now. You are still
        justifying what you did to him. You'd do it again. You'd do it
        tomorrow.     Your reaction when the police responded was
        unbelievably cold. Your reaction, your statements to the pre -
        sentence investigator are unbelievably cold. You have no feeling
        for your father whatsoever. You have no remorse. You feel no
        empathy for what you did to him, none. And you don't now.



8 The Sentencing Guidelines for Smith's crime called for a standard range
sentence of 36 to 54 months' imprisonment, and an aggravated range
sentence of 66 months. See Smith's Brief at 11. Therefore, Smith's
sentence of five to 10 years' fell within the middle of the aggravated range.
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            I was really hoping you would stand up and say something
     like an act - and act like a human being, because I really wanted
     to put you in the County facility. But you are not acting like a
     human being. You are acting like a robot, all intellect and no
     emotion, one that feels justified in acting out whenever you feel
     like it because you are right and they are wrong and so,
     therefore, you are allowed to act.
           Your statement that you should have killed him in any
     other context from any other defendant I would disregard that
     statement as emotional lashing out. But you are not responding
     emotionally. You are responding intellectually.
            I don't know what is going on in that head of yours, but for
     you to stand in front of me and blame him for a medical illness,
     a medical illness, it's like blaming him for cancer.   And what's
     frightening is you believe it. You will go to your grave believing
     he made you - he gave you this disease. You will be telling
     everybody for the rest of your life that this man gave you this
     disease. And he didn't and you know he didn't.
            You are obsessed with him.        And I don't - I don't
     understand it because you won't tell him. I don't understand
     your relationship with your mother. I don't understand your
     relationship with your brothers. I don't know why you have the
     relationship you do with your father. All I know is that it's made
     you hate him and hurt him without any sorrow or remorse or
     understanding or empathy or sympathy.
           Taking into account the serious, serious, serious injury that
     you inflicted, your misrepresentations concerning your past, your
     misconduct and game playing in prison, you seem to be
     confused by that. Tattooing at the prison and lying about it is a
     game. You think this is some kind of chess game. If you do this
     and do that and do this and do that, "everybody will say it's okay
     and now I can go home."

            You don't need anger management.         You control your
     anger. You aren't out of control. You were perfectly controlled.
     You acted out of hatred. If this was - if you had any prior record
     at all, I would have given you [the] maximum sentence.
            I will take into account that you have no prior record. I
     also take into account there is no basis or excuse or justification
     for what you did that night.


                                   - 12 -
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               So, therefore, on [the charge of aggravated assault,] you
        shall undergo imprisonment for five to ten years.


               I note for the record that that is a sentence in the
        aggravated range of the guidelines. And as I said, the basis for
        that is - is the severity of the injury, the length and time, the
        time that he has had to undergo treatment. Your statements
        regarding killing him or misconduct in the prison, your blame,
        and your complete lack of remorse justified a sentence in the
        aggravated range.
N.T., 12/14/2015, at 14-19.

         Our review of the record reveals no abuse of discretion on the part of

the trial court.    Indeed, the court conducted two sentencing hearings to

ensure it had all       pertinent information regarding Smith,       his   medical

conditions, and his family history.          The court's comments during the

hearings reveal that it considered all the evidence presented by both the

Commonwealth and Smith before concluding an aggravated range sentence

was appropriate. Contrary to Smith's contention, the court did not ignore or

disregard any of the information provided to it. See Smith's Brief at 15.

        Further,   during   the   reconsideration   hearing, the   Commonwealth

provided the court with     a   taped telephone conversation between Smith and

his mother, which had occurred on September 18, 2015, four days before

his first sentencing hearing.9 In addition to unfounded accusations by Smith




9The recording was played for the court during the reconsideration hearing,
and later transcribed and incorporated into the certified record. See N.T.,
1/19/2016, at 24.


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that the sentencing court was under federal investigation and that the victim

had sexual intercourse with the prosecutor, the recording reflected Smith's

anger toward his family and his failure to take responsibility for any of his

actions. See N.T., 1/19/2016, at 33-34. As the court explained:

               [Smith] says anything without basis. He accuses people of
        outrageous and horrific conduct [without] regard for the emotion
        or reactions of other people. He has continued to demonstrate
        that he has no compassion for anybody else, anybody. It is -
        his sole focus I thought was on his father. His sole purpose is on
        himself. His failure, he had to blame on everybody else....


                He made it more than clear  that his mind is dominated by
        his hatred for his father, his hatred for his family. He says he
        hates his family more than anyone. His family destroyed his life.
        He takes no responsibility. No responsibility for his own abuse of
        drugs. No responsibility for his own abusive behavior. He has
        made it clear that he will hurt somebody when given the chance.
        He has made it clear in talking about his mother and his father
        that he does it because they take it, they tolerate it, and that
        means he does it because he can.
               The only way to prevent him from continuing this conduct
        is to remove him from - is to prevent him physically from being
        able to carry it out.

Id. at 33-35. Accordingly,            because we find the trial court's rationale for

imposing an aggravated range sentence                is   fully supported by the record,

Smith   is   entitled to no relief.

        Judgment of sentence affirmed.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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