J-S50002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES BATTLE                               :
                                               :
                       Appellant               :   No. 945 WDA 2018

          Appeal from the Judgment of Sentence Entered May 31, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0008296-2017


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED OCTOBER 25, 2019

        James Battle appeals from the judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, after a jury convicted him of two

counts of robbery—threatens serious bodily injury1 and one count of

conspiracy.2     Upon careful review, we affirm in part, vacate in part, and

remand for resentencing.

        Battle’s convictions stem from charges relating to the robberies of two

Pittsburgh-area Family Dollar stores.3 On July 20, 2016, Battle entered the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3701(a)(1)(ii).

2   18 Pa.C.S.A. § 903.

3 The Commonwealth brought Battle to trial on four counts of robbery, two of
which were nolle prossed after the jury failed to reach a verdict. The facts
relayed infra concern the crimes underpinning Battle’s convictions.
J-S50002-19



Family Dollar at 3300 Penn Avenue, carrying a pistol and wearing a white

hooded sweatshirt, blue jeans, sneakers, a black cap and dark sunglasses. He

demanded the cashier turn over the contents of the registers. Grace Ellen

Sims, the store’s manager, told Battle her cashier lacked the authority to do

so. She opened the registers herself after Battle laid his Glock and a blue bag

on the counter and threatened to shoot her. While emptying the registers,

Battle stood one to two feet from Sims, where she was able to view him

beneath the sunglasses. Battle then demanded Sims open the store’s safe.

Sims lied and said she could not. In response, Battle demanded cigarettes.

Sims said she did not have the key for the cigarettes. He forced her to the

floor and ordered the cashier to open the cigarette case. Battle left the Family

Dollar with approximately $150 in cash and assorted tobacco products. Sims

called the police as soon as Battle left. Several of the store’s security cameras

captured footage of the robbery.

      On July 22, 2016, between 2:30 p.m. and 4:00 p.m., Battle and an

accomplice entered the Family Dollar at 2020 Spring Garden Avenue. Battle

approached the cashier, Christina Fredley, pointed a gun at her, and

demanded money. Simultaneously, Battle’s accomplice demanded the store’s

patrons get on the floor. Fredley complied with Battle’s demand and turned

over the contents of the cash register. Battle then ordered Fredley to the

ground and told his accomplice to go behind the counter and grab cigarettes.

Fredley was unable to view Battle’s face, which was obscured by a hooded

sweatshirt and sunglasses. Security cameras captured the robbery, including

                                      -2-
J-S50002-19



footage of the perpetrator leaving the Family Dollar. The police culled a still

photograph from this footage and released it on social media in an attempt to

identify the perpetrator.

      Prior to July 22, 2016, Jasmine Goetz gave Battle permission to use her

husband’s Chrysler 200 sedan in exchange for drugs. On July 22, 2016, Goetz

awoke from a drug-induced stupor to discover the Chrysler 200 was missing.

Her husband called demanding the return of his car. Goetz presumed Battle

had the car and called him, but Battle did not answer. Goetz later saw the

still photograph taken from the security footage of the July 22 robbery on

Facebook, recognized Battle, and contacted the police. She told Detective

Stacy Hawthorne she thought that Battle had her husband’s car, that she

believed he was the individual in the Facebook photo, and that she wanted

the car back. Detective Hawthorne instructed Goetz to come to the police

station and Goetz complied, albeit under the influence of drugs.         Goetz

identified Battle from a photographic lineup and stated she believed he had

been driving her husband’s car on July 22, 2016.

      The Pittsburgh Police put out an arrest warrant for Battle, but they were

unable to locate him. Detective Hawthorne later learned Battle was likely with

family in Florida. Consequently, she contacted local authorities and faxed a

copy of Battle’s arrest warrant.       Local police in Florida successfully

apprehended Battle.

      On January 30, 2018, Battle appeared for a three-day jury trial, the

Honorable Donna Jo McDaniel presiding.           At the conclusion of the

                                     -3-
J-S50002-19



Commonwealth’s case, Judge McDaniel granted Battle’s motion for acquittal

regarding charges of terroristic threats and criminal mischief. On February 1,

2018, the jury found Battle guilty of robbery for his conduct on July 20, 2016,

and guilty of robbery and criminal conspiracy for his conduct on July 22, 2016.

At sentencing on April 26, 2018, Battle’s counsel and the Commonwealth

agreed Battle’s prior robbery conviction invoked the second strike provision of

42 Pa.C.S.A. § 9714.         The court, however, stated it was not imposing a

mandatory minimum sentence when it imposed consecutive ten-to-twenty-

year terms of incarceration for Battle’s two robbery convictions and no further

penalty for criminal conspiracy.

       On May 4, 2018, Battle timely filed post-sentence motions, which the

court denied on May 31, 2018. On June 29, 2018, Battle timely filed a notice

of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal.4

       Battle raises the following issues for our review:

       1.     The [t]rial [c]ourt allowed the Commonwealth to present
              identification testimony from Ms. Goetz, who knew Mr.
              Battle for a short time prior to the incident and was “cracked
              out” when she identified Mr. Battle. Did the [t]rial [c]ourt
              commit reversible error by allowing her to identify . . . Battle
              from a surveillance video, despite her not being present at
              any robbery?

____________________________________________


4 Battle received one extension from the trial court in filing his statement of
errors complained of on appeal and two extensions from this Court in filing his
appellate brief.



                                           -4-
J-S50002-19


       2.     The Commonwealth presented testimony from Detective
              Hawthorne that . . . Battle fled Pennsylvania and was
              [a]pprehended in Florida. Where the trial court [ruled5] that
              this evidence could not be offered to show consciousness of
              guilt, did the [t]rial [c]ourt commit reversible error by
              admitting this irrelevant, prejudicial evidence without any
              curative instruction?

       3.     The [t]rial [c]ourt stated that . . . Battle’s sentence was not
              mandatory, despite this being his “second-strike” violent
              offense under 42 Pa.C.S.[A.] § 9714. Did the [t]rial [c]ourt
              abuse its sentencing discretion by not imposing the
              mandatory[ ]minimum sentence here?

       4.     The [t]rial [c]ourt sentenced . . . Battle to an aggregate
              sentence of 20–40 years’ state incarceration. Did the [t]rial
              [c]ourt abuse its sentencing discretion by not considering all
              mitigating evidence, rehabilitative needs of . . . Battle, and
              the need to protect the public, in contravention of the
              Sentencing Code and fundamental norms of sentencing such
              that . . . Battle is entitled to a new sentence?

Brief of Appellant, at 6–7 (re-ordered for clarity).

       Battle’s first two claims concern the court’s decisions to admit or exclude

evidence.    Id. at 34.      Consequently, we evaluate those claims under the

following, well-established standard:

       When reviewing questions regarding the admissibility of evidence,
       our standard of review maintains the admissibility of evidence is
       solely within the discretion of the trial court and will be reversed
       only if the trial court has abused its discretion. An abuse of
       discretion is not merely an error of judgment, but is rather the
       overriding or misapplication of the law, or the exercise of
       judgment that is manifestly unreasonable, or the result of bias,
       prejudice, ill-will or partiality, as shown by the evidence or the
       record. The comment to Rule 403 of the Pennsylvania Rules of
       Evidence defines “unfair prejudice” as “a tendency to suggest

____________________________________________


5Battle’s appellate counsel omitted a word in this space. Brief of Appellant,
at 6. We have guessed at his intended meaning.

                                           -5-
J-S50002-19


       decision on an improper basis or to divert the jury’s attention away
       from its duty of weighing the evidence impartially.”

Commonwealth v. Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004)

(citations and quotations omitted).

       In his first claim, Battle argues the trial court abused its discretion by

allowing the Commonwealth to present Goetz’s identification testimony to the

jury. Brief of Appellant, at 34. He asserts the following: 1) Goetz’s testimony

identifying Battle as the perpetrator of the robbery from the Facebook photo

constituted an impermissible lay opinion; and 2) Goetz testimony was

unreliable owing to her history of drug use and motivation to testify. Id. at

34–43. Battle’s assertions misstate pertinent facts and relevant law.6


____________________________________________


6 We note with deep disfavor Battle’s appellate counsel’s use of United States
v. Shabazz, 564 F.3d 280 (3d Cir. 2009), to argue for this Court’s application
of a four-factor “test for determining if a witness’s general familiarity with an
individual was reliable enough to submit that identification to the jury[.]” Brief
of Appellant, at 36 (citing Shabazz, supra at 287). First, Shabazz is
factually inapposite, as it concerns a participant in a robbery who testified as
a fact witness regarding other participants in that robbery. Shabazz, supra
at 287. More importantly, Shabazz offers no test whatsoever concerning
F.R.E. 701—instead, it merely states F.R.E. 701 applies in federal cases where
witnesses are asked to opine as to the individual in an incriminating photo
based on familiarity with the defendant. See id. (“Rule 701 is typically applied
where a witness is asked to apply the defendant in an incriminating photo or
video based simply on general familiarity with the defendant’s appearance.”)
(emphasis in original). Not only does counsel’s test seem to be a fabrication
cut from whole cloth, were such a test to exist, “this Court is not bound by
decisions of federal courts inferior to the United States Supreme Court, even
though we may look to them for guidance.” Commonwealth v. Huggins,
68 A.3d 962, 968 (Pa. Super. 2013).




                                           -6-
J-S50002-19


       Preliminarily, we note “the division whether testimony constitutes fact

or opinion may be difficult, for there is no litmus test for fact versus opinion.”

Commonwealth v. Palmer, 192 A.3d 85, 100 (Pa. Super. 2018) (quotation

omitted). “Fact testimony may include opinion or inferences so long as those

opinions or inferences are rationally based on the witness’s perceptions and

helpful to a clear understanding of his or her testimony.”        Id. (quotation

omitted).

       We dispute Battle’s assertion that Goetz identified him as the

perpetrator of the robberies;7 rather, Goetz testified to her previous

____________________________________________


7 Goetz recounted identifying Battle in the still photo, in relevant part, as
follows:

       Q. Jasmine [Goetz], what is the photograph that I just showed
       you?

       A. Someone in a hat.

       Q: Okay. You saw this on the news; is that accurate?

                                           ...

       A: It was on . . . the cell phone news.

                                           ...

       Q. You recognized the person in this photo?

       A. Yes.

                                           ...

       Q. What did you say about this picture to Detective Hawthorn?



                                           -7-
J-S50002-19


relationship with Battle, her identification of Battle in the photo police released

on social media, and the circumstances that brought her into contact with the

police. See N.T. Trial, 1/31/18, at 135–36. Contained therein was, what the

trial court characterized as, “testimony . . . that she believed James Battle

was the individual in the photograph . . . that was distributed to the media.”

Pa.R.A.P. 1925(a) Opinion, 1/29/19, at 6 (emphasis added).             This belief

constitutes opinion testimony.        See Commonwealth v. Brown, 134 A.3d

1097, 1105 (Pa. Super. 2016) (deeming witness’s belief as to individual in

security footage to be opinion testimony).

       As Goetz offered a lay opinion regarding the identity of the individual in

the police photograph, we address the admissibility of her statement under

Pa.R.E. 701, which states as follows:

       If a witness is not testifying as an expert, testimony in the form
       of an opinion is limited to one that is:

       (a)    Rationally based on the witness’s perception;



____________________________________________




       A. It resembles James Battle.

N.T. Trial, 1/31/18, at 140–41.

Goetz, in fact, never mentioned the July 22 robbery, except when prompted
to do so on cross-examination. See id. at 145. Even then, Goetz answered
defense counsel’s question about the robbery only insofar as it concerned
whether she saw her husband’s car in the security footage, making no remarks
whatsoever as to whether Battle participated in the robbery. Id.



                                           -8-
J-S50002-19


      (b)   Helpful to clearly understanding the witness’s testimony or
            to determining a fact in issue; and

      (c)   Not based on scientific, technical, or other specialized
            knowledge within the scope of Rule 702.

Pa.R.E. 701.

      “Generally, lay witnesses may express personal opinions related to their

observations on a range of subject areas based on their personal experiences

that are helpful to the factfinder.” Commonwealth v. Berry, 172 A.3d 1, 3-

4 (Pa. Super. 2017). We have previously found it proper for a witness to offer

a lay opinion as to the identity of an individual in security footage when the

witness’s identification is rationally based upon his or her own perception.

Compare Commonwealth v. Palmer, 192 A.3d 85, 100–101 (Pa. Super.

2018) (admitting lay opinion concerning identity of individual in surveillance

videos where “testimony about the [surveillance] videos was based upon [the

witness’s] perception of them, placed his subsequent actions in context, and

was helpful in allowing the jury to reach a clear understanding of all his

testimony.”) with Brown, supra at 1105 (precluding testimony under Rule

701 where witness’s identification of individuals in video was speculative).

      Goetz’s opinion was based on her personal experiences with Battle, her

identification of Battle in the video played a critical role in understanding her

subsequent interactions with the police, and none of her statements involved

scientific or otherwise specialized technical knowledge, rendering her

testimony admissible. Pa.R.E. 701; see also Palmer, supra at 100–101.


                                      -9-
J-S50002-19


Consequently, the court did not err by admitting Goetz’s opinion as to the

identity of the individual in the security photo. See Seilhamer, supra at

1270.

        Battle’s remaining challenges to Goetz’s testimony—that it was

unreliable as a result of her drug use and her underlying motivations to

testify—are challenges to her credibility. See Commonwealth v. Boich, 982

A.2d 102, 111 (Pa. Super. 2009) (“Under Pennsylvania law, a witness’ use of

alcohol and drugs historically implicated the witness’ physical condition and

constituted a matter of credibility for the fact finder[.]”); see also

Commonwealth v. Culmer, 604 A.2d 1090, 1094–95 (Pa. Super. 1992)

(“[T]he jury should have the opportunity to consider information concerning

possible ulterior motives on the part of the witness in order accurately to

assess the witness’ credibility.”).    Battle was afforded the opportunity to

thoroughly cross examine her on both subjects. See N.T. Trial, 1/31/18, at

142–146 (inquiring as to Goetz’s past heroin, Xanax, methadone, marijuana,

and crack use, and desire to find husband’s car as motivation to talk to police).

As it is not for this Court to pass on a witness’ credibility, Battle’s claim

consequently fails. See Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.

Super. 2008) (“[I]t is for the fact-finder to make credibility determinations,

and the finder of fact may believe all, part, or none of a witness’s testimony.”).

        Next, Battle asserts the trial court abused its discretion by allowing the

Commonwealth to “introduce irrelevant hearsay testimony through Detective


                                      - 10 -
J-S50002-19


Hawthorne that . . . Battle had an outstanding warrant, was apprehended in

Florida . . . and was therefore avoiding apprehension by being in Florida.”

Brief of Appellant, at 44.        Additionally, Battle agues, beyond evincing a

consciousness of guilt, evidence of Battle’s arrest was irrelevant. Id. at 48.

      “Relevance     is     the   threshold         of    admissibility     of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015).

Pennsylvania Rule of Evidence 401 provides “[e]vidence is relevant if: (a) it

has any tendency to make a fact more or less probable that it would be without

the evidence; and (b) the fact is of consequence in determining the action.”

Pa.R.E. 401.   Our Supreme Court recently held evidence relevant where it

explained   the   actions    taken   by      police      to   find   a   defendant.    See

Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (finding officer’s

testimony relevant to police action while investigating missing person’s report;

finding limiting instruction cured any prejudice resulting from officer

intimating defendant had previously been in trouble with the law); see also

Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002) (holding

evidence relevant to prove “the chain or sequence of event that formed the

history of the case” or to demonstrate “the natural development of the case.”).

      At trial, Detective Hawthorne stated the authorities apprehended Battle

in Florida. N.T. Trial, 1/31/18, at 171. When the Commonwealth asked how

Detective Hawthorne knew to look for Battle in Florida, she responded by

referencing anonymous calls.         Id.     Trial counsel objected, and the court


                                           - 11 -
J-S50002-19


promptly struck the offending testimony. Id. The Commonwealth continued

to inquire as to how Detective Hawthorne knew Battle was in Florida, after

which Detective Hawthorne opined “Battle knew there was a warrant for him.”

Id. Trial counsel objected to Detective Hawthorne’s testimony, and the court

sustained counsel’s objection,8 prompting the following exchange at sidebar:

       Ms. Werner: Your Honor, the reason for this line of questioning is
       to show consciousness of [flight]. Even though it is hearsay
       testimony it is relevant to know because it explains the course of
       investigation and how—why the detective looked in Florida to find
       the defendant[.]

       The Court: I don’t think she can testify that he knew that there
       was a warrant out for his arrest.

                                           ...

       Mr Munoz: Your Honor, I don’t see how that is relevant. It is
       maybe relevant where he was arrested and how he eventually
       came back to Pittsburgh, but anonymous informants and
       confidential informants and anonymous tips, I don’t see how that
       is admissible.

       The Court: She said she received information that he had family
       in Florida. That’s why she went and looked there.

N.T. Trial, 1/31/18, at 171–72. The court then permitted Detective Hawthorne

to testify that she “received information that James Battle had family in




____________________________________________


8Trial counsel did not state grounds for objecting, nor did the trial court state
grounds for sustaining the objection. N.T. Trial, 1/31/18, at 172. The proper
objection in this instance would have been raised under Pa.R.E. 602, as
speculative testimony violates the requirement that a witness have personal
knowledge of the matter upon which he or she is testifying. See Pa.R.E. 602.


                                          - 12 -
J-S50002-19


Florida[,]” and that she “contacted local authorities,” who subsequently

apprehended Battle. Id. at 173.

       Before   delivering   jury   instructions,   the   court   informed   the

Commonwealth it would not instruct the jury as to “consciousness of [guilt]”

as Detective Hawthorne’s testimony was based on hearsay. N.T. Trial, 2/1/18,

at 224.    Subsequently, the court informed the jury that they “must not

consider any testimony or exhibits to which [the court] sustained an objection

or which [the court] ordered stricken from the record.” Id.

       The court precluded the Commonwealth’s attempt to admit speculative

hearsay testimony.    See N.T. Trial, 1/31/18, at 171. Moreover, the court

instructed the jury as to their responsibility to ignore testimony made

pursuant   to   sustained objection.      See N.T. Trial,     2/1/18, at 224.

Consequently, we cannot find the court permitted the Commonwealth to

“introduce irrelevant hearsay testimony through Detective Hawthorne.” Brief

of Appellant, at 44; see Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa.

Super. 2012) (“Juries are presumed to follow a court’s instructions.”). On the

contrary, the court properly admitted Detective Hawthorne’s testimony

regarding Battle’s arrest in Florida—without allowing reference to potential

hearsay—for the relevant purpose of explaining the course of the police’s

investigation. See Clemons, supra at 474; see also Drumheller, supra at

905.




                                     - 13 -
J-S50002-19


      In his third issue, Battle asserts “the [t]rial [c]ourt erroneously found .

. . Battle’s sentences were not mandatory and consequently did not inform . .

. Battle of the statutory implications of any future crime of violence [requiring

his] sentence . . . be vacated, and he must be sentenced anew in line with the

statutory requirements set forth under 42 Pa.C.S.A. § 9714.”               Brief of

Appellant, at 30.

      Battle claims the trial court failed to provide oral or written notice of

subsequent convictions for crimes of violence under section 9714(a)(2), a

claim implicating the legality of his sentence.        See Commonwealth v.

Taylor, 104 A.3d 479, 490 (Pa. 2014) (“[T]he concept of ‘legality of sentence’

encompasses more than whether a sentence is illegal because it exceeds the

statutory maximum.        Here, where the General Assembly established a

mandatory sequential sentencing scheme that was not followed, we conclude

that Appellant’s challenge implicates the legality of his sentence.”).          Our

review of the record reveals the trial court not only failed to provide Battle

with oral or written notice of the penalties for future convictions, the trial court

inexplicably declined to apply section 9714 to his robbery convictions as

required by law. See Commonwealth v. Infante, 63 A.3d 358, 363 (Pa.

Super. 2013) (permitting reviewing courts to raise issues implicating legality

of sentence sua sponte). We address both issues herein.

      The Commonwealth bears the responsibility for providing notice of its

intent to invoke section 9714 prior to sentencing. 42 Pa.C.S.A. § 9714(d).


                                      - 14 -
J-S50002-19


After the Commonwealth provides notice, the court is required to assess

whether section 9714 applies. See id. (“The applicability of this section shall

be determined at sentencing.”).        If section 9714 applies, the court “shall

impose sentence in accordance with this section.” Id (emphasis added); see

also Commonwealth v. Motley, 177 A.3d 960, 963 (Pa. Super. 2018)

(“[T]he trial court [is] statutorily required to determine, at Appellant’s

sentencing hearing, whether section 9714 is applicable to Appellant and, if so,

to impose the mandatory terms of incarceration required by that provision.”).

Where section 9714(a)(1) is implicated, owing to the presence of a single,

previous crime of violence, “the court shall give the person oral and written

notice of the penalties under this section for a third conviction for a crime of

violence.” 42 Pa.C.S.A. § 9714(a)(1); see Commonwealth v. Henderson,

938 A.2d 1063, 1067 (Pa. Super. 2007) (“the plain language of the statute is

clear . . . notice is required[.]”).

      Prior to sentencing, the Commonwealth provided notice of its intent to

invoke section 9714(a)(1), and Battle’s trial counsel agreed Battle’s prior

robbery conviction required the imposition of a second-strike mandatory

minimum sentence under section 9714. See N.T. Sentencing, 4/26/18, at 3

(“The second strike, Your Honor, as you’re aware, makes this a minimum 10

to 20 year sentence. This [assistant d]istrict [a]ttorney requests that that

[provision] under the statute be invoked. And that’s what we’re doing.”). For

reasons unclear to this Court, Judge McDaniel stated on the record “this is not


                                       - 15 -
J-S50002-19


a mandatory sentence[,]” though she simultaneously imposed ten-year

minimum sentences on both robbery convictions.           Id. at 16.   As Judge

McDaniel believed she was not imposing a mandatory minimum sentence, she

failed to provide Battle with oral or written notice of the penalties associated

with further crimes of violence as required by section 9714(a)(1). See 42

Pa.C.S.A. § 9714(a)(1).        Moreover, the signed orders of sentence indicate

Judge McDaniel did not sentence Battle under section 9714(a)(1) as required

by law. See Order of Sentence, 4/30/18, at 1–2; see also Commonwealth

v. Borrin, 80 A.3d 1219 (Pa. 2013) (“In Pennsylvania, the text of a sentencing

order . . . is determinative of the court’s sentencing intentions and the

sentence imposed.”).

       Accordingly, we vacate Battle’s judgments of sentence for robbery9 and

remand for resentencing consistent with the dictates of section 9714,

specifically requiring: (1) that Battle’s judgment of sentence reflect the fact

that his robbery sentences are imposed pursuant to section 9714(a)(1); and

(2) that Battle be given oral and written notice of the penalties for subsequent

convictions for crimes of violence under section 9714(a)(2).      See Motley,

supra at 963.




____________________________________________


9 Vacating Battle’s judgment of sentence renders moot his fourth claim
regarding the discretionary aspects of his sentence.

                                          - 16 -
J-S50002-19


      Convictions affirmed. Judgments of sentence for robbery vacated;

judgment of sentence for conspiracy affirmed.     Case remanded for

resentencing. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2019




                                    - 17 -
