Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA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. EDA 2016 Appeal from the Judgment of Sentence December 14, 2015 In the Court of Common Pleas Bucks County Criminal Division at No(s): CP-09-CR-0000637-2015 BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.* FILED APRIL 06, 2017
MEMORANDUM BY OTT, J.: Jeffrey Paul Smith, Jr., appeals from the judgment of sentence imposed December Bucks County Court of Common Pleas. sentenced term of five to years' incarceration following jury conviction of aggravated assault' for December 2014 attack on his father. On appeal, Smith argues the erred failing grant mistrial when the Commonwealth elicited testimony regarding his post -arrest silence, challenges the discretionary aspects sentence. For reasons below, we affirm.
* Former Justice specially assigned the Superior Court.
' 18 Pa.C.S. § 2702(a)(1).
The facts underlying Smith's conviction are aptly summarized the as follows: in this matter Jeffrey Paul Smith, Sr.
The victim [(hereinafter "the victim")] age 53. On the afternoon of December [the victim] was assaulted in his home by [Smith], his 28 -year -old son. The evidence, viewed in the light the Commonwealth verdict winner, most favorable to established that the date of the assault, the victim and his wife had 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 victim, but claimed that he only hit victim twice that he struck victim with a frying pan rather than the object the victim described. [Smith] not report that he had acted defense of his mother.
Immediately after assault, the victim was treated at Grand View Hospital where it was determined his left forearm was broken into more than three fragments. His fractured. Dr. John Minnich, an shoulder blade was also orthopedic surgeon with Upper Bucks Orthopedics, testified that he performed surgery victim's arm, inserting rods and pins down the length of his forearm stabilize the fractures and allow the bone to heal. The external apparatus held victim's arm place was later removed. victim continued see multiple medical professionals following surgeries for purposes of physical therapy long-term pain management. At the time trial, victim limited use left arm, unable to life heavy objects still undergoing physical therapy. Dr. Minnich testified could predict how much functionality the victim would regain left arm. Trial Court Opinion, 6/15/2016, at 1-2.
Smith was arrested and charged with aggravated assault, simple assault and harassment.2 On July 9, 2015, a jury returned a verdict of guilty all charges. The ordered both a mental health and drug and alcohol evaluation. During a preliminary sentencing hearing conducted on September 2015, Smith testified both he and his mother had been abused by the victim the past, noting specifically his kidney condition was the result of father having thrown television at him when was three years old, claiming the police been called to home several times. See N.T., 9/22/2015, at 25-26, 31-32, 38-39. Consequently, the court continued for the completion of pre -sentencing hearing investigation report ("PSI") order to learn "specifics" about the purported "violence within household." Id. at 41.
A second sentencing hearing was held December 2015, at which time court was provided with detailed PSI.3 At the conclusion of the hearing, the sentenced term five 10 years' imprisonment the charge of aggravated assault. No further punishment 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 2709(a)(1), respectively. The probation/parole officer who completed the PSI spoke with physician who treated Smith's nephrotic condition. The doctor stated Smith's condition idiopathic, was caused injury. See Presentence Investigation, 12/7/2015, 17-18. officer also able to confirm police were called Smith's home several times domestic disturbances, several times when father was listed as victim and several times when mother was listed victim. See id. at 12-13. was imposed on the remaining convictions. Smith filed a timely petition for reconsideration of his sentence, asserting the sentence excessive and imposed the aggravated range of the guidelines despite lack of a prior criminal record. See Petition Reconsideration of Sentence, 12/17/2015, 1. Following hearing on January 19, 2016, the denied Smith's petition. This timely appeal follows.4
Before we proceed to an examination of the issues raised on appeal, we note Smith's appellate brief filed late, despite having been granted two extensions of time. 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 filed on or before October 31, 2016." Order, 9/28/2016. Subsequently, Smith filed appellate brief November 2016.
Pennsylvania Rule Appellate Procedure 2188 provides, relevant part, an appellee "may move dismissal of the matter" when an appellant fails file brief timely manner. Pa.R.A.P. 2188. Here, however, the Commonwealth has sought dismissal of the appeal or otherwise protested Smith's late filing. Absent an objection from the appellee, this Court has overlooked appellant's "non-compliance with Rule On February 2016, the ordered Smith file concise statement errors complained of appeal pursuant Pa.R.A.P. 1925(b). Smith complied with the court's directive, filed concise statement on March 10, 2016.
2185 pursuant our discretion under Pa.R.A.P. 105(a)," addressed substantive claims 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 the present case.
In his first issue, Smith contends the failed grant a mistrial when the Commonwealth elicited testimony regarding post arrest silence.
Our review of a court's ruling denying a defendant's motion for a mistrial is well -settled: decision declare a mistrial is within sound discretion
of the will not be reversed absent a "flagrant abuse of discretion." Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 997 (1992); Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368, 1370-71 (1992). A mistrial an "extreme remedy ... [that] ... must be granted only when an incident such nature its unavoidable effect to deprive defendant of 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), Commonwealth v. Brinkley, 505 Pa. 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 defendant may questioned regarding pre -arrest silence when testifies own defense at trial,5 "[i]n general, after defendant Commonwealth v. Fischere, 70 A.3d 1270, 1276 (Pa. Super. 2013), appeal denied, A.3d 167 (Pa. 2013).
has been given Miranda[6] warnings, the defendant's post -arrest silence may not 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 defendant's silence is a fair response to a claim made defendant or counsel at trial, there violation of the Fifth Amendment privilege against self-incrimination." Id. (citation omitted).
Here, testified that, the night of the incident, he told the responding state trooper victim kept firearm the garage. See N.T., 7/8/2015, at 241-242. He later clarified told this trooper "[b]oth deck [of the home] squad car." Id. at 250. The next day, the Commonwealth recalled Pennsylvania State Trooper Guy Meltser asked him, "When first time you heard anything about alleged gun?" N.T., 7/9/2015, 15. The trooper responded, "Yesterday." Id. Commonwealth then asked Trooper Meltser if Smith said anything about firearm when they were squad car, to which the trooper responded, "He not." Id. Smith's counsel immediately objected requested to approach the bench. id. During the sidebar discussion followed, counsel requested mistrial, explaining: "The that [the trooper] commenting on position of the defense Miranda v. Arizona, U.S. 436 (1966). defendant's right to remain silent." Id. at 16. The overruled the objection finding that "opened the door" during testimony. Id.
We find reason to disturb the court's ruling. First, Smith's argument on this issue lacking. He simply summarizes the parties' position this issue, cites to the Supreme Court's decision in Copenhefer, supra. See Smith's Brief at 9-10. However, case, the the defendant's rights were not violated when Court determined Commonwealth referred the defendant's, post -Miranda, invocation of silence as some, but not all, of the questions posed to him by police, after the defendant testified trial he had told them "Everything." See Copenhefer, supra, 719 A.2d at 251-252. The Court held "the prosecutor's comments were 'fair response to claim made by defendant or counsel[.]"' Id. at 252. Smith fails explain how Copenhefer decision supports claim relief. Pa.R.A.P. 2119(a) (requiring argument section appellate brief include "such discussion citation to authorities deemed pertinent.").
Second, here, like Copenhefer, the Commonwealth's subsequent questioning Trooper Meltser arguably fair response to claim made Smith. Indeed, Smith testified he told the trooper about the victim's gun both before (on deck) after (in squad car) arrested assault. Commonwealth then recalled Trooper Meltser to rebut Smith's testimony direct examination. As Copenhefer Court explained: "The protective shield of the Fifth Amendment may not be converted into sword that cuts back on an area 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 other untainted evidence which was substantially similar to the erroneously admitted evidence; or properly admitted and (3) uncontradicted evidence of guilt was so overwhelming the prejudicial effect of the error was so insignificant comparison that error could have contributed to verdict." Commonwealth v. Robinson, 554 Pa. 721 A.2d 344, 350 (1999).
Com. v. Hutchinson, 811 A.2d (Pa. 2002), cert. denied, 540 U.S. (2003).
Here, Smith testified that told the responding state trooper, on two occasions, victim gun while deck, before arrest, squad car, after arrest. Accordingly, even if and in Commonwealth's reference Smith's post -arrest silence was improper, it was permitted elicit testimony from Trooper Meltser Smith not tell the officers about the gun before arrest, and his statement was identical. Any error, therefore, so insignificant light of the testimony whole, it harmless, entitled relief this claim.
Next, Smith challenges the discretionary aspects of sentence. Specifically, he contends the aggravated range sentence imposed by trial clearly unreasonable, particularly light the county sentence recommended PSI, the sentence not supported by aggravated circumstances. See Smith's Brief at 12.
It is well -established that "[a] challenge to discretionary aspects of a sentence must considered a petition permission appeal, right to pursue such a claim absolute." Commonwealth v. Hoch, 936 A.2d 515, (Pa. Super. 2007) (citation omitted). Here, Smith complied with the procedural requirements for this appeal by filing timely post -sentence motion for modification sentence subsequent notice of appeal, including appellate brief statement of reasons relied upon appeal pursuant Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Commonwealth v. Edwards, 71 A.3d 329-330 (Pa. Super. 2013), appeal denied, A.3d 75 (Pa. 2013). Therefore, we must determine whether raised substantial question justifying our review.
A substantial question exists when appellant sets forth "a colorable argument the sentence imposed either inconsistent with specific provision of the Sentencing Code or contrary fundamental norms underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted). In the present case, Smith's contention court imposed a clearly unreasonable aggravated range sentence, unsupported by sufficient aggravating circumstances, raises a substantial question the inconsistent with Section 9781(c)(2) of sentence imposed was 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 the guidelines would be clearly unreasonable"); application of Commonwealth v. Fullin, 892 A.2d 849-850 (Pa. Super. 2006) (allegation that, in imposing aggravated range sentence, failed to consider mitigating factors failed to place sufficient reasons the record, raises substantial question).
Preliminarily, we note "[s]entencing a matter vested sound discretion of the sentencing judge, a sentence will not disturbed on appeal absent manifest abuse discretion." Commonwealth v. We note the Commonwealth asserts this claim waived result of Smith's failure to include it concise statement. See Commonwealth's Brief at 18. While we agree did explicitly state sentence was clearly unreasonable concise statement, assert the trial court "erred in imposing sentence more severe than recommended Sentencing Guidelines" "by rejecting the recommendation Bucks County Adult Probation and Parole county sentence[.]" Statement of Matters Complained of Appeal, 3/10/2016, 1. Therefore, we decline to find this claim waived.
McLa ine, 150 A.3d 70, 75 (Pa. Super. 2016) (quotation omitted). Here, provided substantial reasons on record 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 surgeries that are required to correct what you did here caused additional trauma and pain and risk.
At same time, you have household that is dysfunctional, to say least. The dysfunction, however, is not one person. You seem to see this one person dysfunction, being your father. There is at least three, if not five, depending brothers, dysfunctional people house. Your mother dysfunctional. If what you tell me is true, she allowed you to be abused. Or what you told me true, it's frightening.
This should be easy. I should be able to see pre - sentence investigation, take [the mental health] reports and say, "This easy. He has never been involved the criminal justice system before, I don't anticipate will involved again," and we all walk out here it's over. That's what should happen if you look this just paper.
But you have no remorse whatsoever, none. You didn't have it night 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 police responded was unbelievably cold. Your reaction, your statements to pre sentence investigator are unbelievably cold. You have no feeling for your father whatsoever. You have remorse. You feel no empathy for what you him, none. And you don't now.
[8] Sentencing Guidelines for Smith's crime called standard range sentence of 36 54 months' imprisonment, aggravated range sentence of months. See Smith's Brief at 11. Therefore, Smith's sentence of five years' fell within the middle of the aggravated range.
I was really hoping you would stand up and say something like act - and act like human being, because I really wanted put you in the County facility. But you are not acting like a human being. You are acting like 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 emotional lashing out. But you are not responding emotionally. You are responding intellectually.
I don't know what is going that head of yours, but for you to stand front of me and blame him for medical illness, medical illness, it's like blaming him cancer. And what's frightening is you believe it. You will go your grave believing he made you - he gave you this disease. You will telling everybody the rest of your life that this man gave you this disease. And didn't and you know he didn't. I don't - I don't
You are obsessed with him. And 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 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 prison, you seem be confused that. Tattooing at the prison lying about it a game. You think this some kind chess game. If you do this and do and do this do that, "everybody will say it's okay now I can go home."
You don't need anger management. You control your anger. You aren't out control. You were perfectly controlled. You acted out of hatred. If this - if you any prior record at all, I would have given you [the] maximum sentence.
I will take into account you have no prior record. I also take into account there basis or excuse or justification for what you night.
So, therefore, on [the charge of aggravated assault,] you shall undergo imprisonment for five to ten years.
I note record that that sentence the aggravated range of the guidelines. And I said, basis for - severity of the injury, the length and time, the time has had undergo treatment. Your statements regarding killing him or misconduct the prison, your blame, and your complete lack of remorse justified sentence the aggravated range.
N.T., 12/14/2015, at 14-19.
Our review of the record reveals abuse discretion the part of court. Indeed, the court conducted two sentencing hearings to it had all pertinent information regarding Smith, his medical ensure conditions, and family history. The court's comments during the hearings reveal it considered all the evidence presented by both Commonwealth Smith before concluding aggravated range sentence appropriate. Contrary Smith's contention, court 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 taped telephone conversation between Smith and mother, which occurred September four days before first sentencing hearing.9 In addition unfounded accusations Smith recording was played during the reconsideration hearing, later transcribed incorporated into the certified record. N.T., 1/19/2016, 24.
that the sentencing court under federal investigation that 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. N.T., 1/19/2016, at 33-34. As the court explained:
[Smith] says anything without basis. He accuses people of outrageous horrific conduct [without] regard for the emotion or reactions of other people. He has continued to demonstrate It is - that he has no compassion for anybody else, anybody. his sole focus I thought on his father. His sole purpose is on himself. His failure, he to blame everybody else....
He made it more than clear his mind is dominated by his hatred his father, his hatred his family. He says he hates his family more than anyone. His family destroyed his life. He takes no responsibility. No responsibility for own abuse of drugs. No responsibility for own abusive behavior. He has made it clear he will hurt somebody when given the chance. He has made it clear talking about mother and his father he does it because they take it, they tolerate it, that means does it because he can. only way to prevent him from continuing this conduct remove him from - is prevent him physically from being
able to carry it out. Id. 33-35. Accordingly, because we find court's rationale for imposing aggravated range sentence fully supported the record, entitled relief.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
