Com. v. Fluellen, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES S. FLUELLEN
Appellant No. 2819 EDA 2015
Appeal from the Judgment of Sentence August 20, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006373-2014
BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 06, 2016
Appellant, James S. Fluellen, appeals from the August 20, 2015
aggregate judgment of sentence of 12 to 24 years’ incarceration, plus 5
years’ probation, imposed after a jury convicted him of robbery, possessing
an instrument of a crime (PIC), and terroristic threats.1 After careful review,
we vacate and remand for re-sentencing.
The trial court detailed the relevant facts of record as follows.
On Thursday, September 18, 2014, Brittany
Draughon, the assistant manager of the Dollar Tree
store in Sharon Hill, and Diane Peters, a cashier,
were working the closing shift. At about 8:30 p.m.,
Ms. Draughon was prepared to close the store for the
evening. She collected trash near the register and
took it to a crowded stock room that was located at
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1
18 Pa.C.S.A. §§ 3701, 907, and 2706, respectively.
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the rear of the store. Ms. Draughon was occupied
with her task among the boxes and shopping carts in
the storeroom. When she looked up from her work
she saw [Appellant] slowly emerge from an adjacent
bathroom with a gun in his hand. His head was
hooded and a black bandana covered his face. Ms.
Draughon froze. [Appellant] asked her whether
there was a man in the store. She told him there
was not and he asked whether there was anyone
else in the store and also asked, “where’s the
money?” Ms. Draughon told him that it was in a safe
in the front of the store and [Appellant] walked her
through the store to the front where the safe was
located. As Ms. Draughon walked to the front of the
store with [Appellant] close behind her, she passed
her co-worker Ms. Peters and she whispered to her
in an effort to get her attention.
When they reached the safe, [Appellant] put
the gun to Ms. Draughon’s back and said, “open the
safe or I’ll blow your head off.” At this point Ms.
Peters approached and Ms. Draughon testified that,
“she looked at me, because nobody is supposed to
be at the safe unless it’s just a manager. She
walked up. I pretty much gave her the look like, you
know, something’s going on, like the look, right?”
[Appellant] looked at Ms. Peters and said, “hey, how
you doing.” Ms. Draughon looked directly at
[Appellant] when he engaged in the conversation
with Ms. Peters and “tried to ID his face.” He was
standing less than an arm’s distance away from her
and at this point his hood was still up but his face
was no longer covered. Ms. Draughon testified that
she looked at [Appellant’s] “full face” purposefully so
that she would be able to identify him.
After [Appellant] took the money, in accord
with Dollar Tree procedure, Ms. Draughon locked the
door and called “911.” Meanwhile, unbeknownst to
Ms. Draughon, Ms. Peters had also called 911 and
reported a robbery. Police officers arrived before Ms.
Draughon completed her 911 call and she gave them
a description of the robber.
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About two weeks later, Detective Richard
Herron of the Sharon Hill Police Department went to
the Dollar Tree store with a photo array. In less
than a minute, Ms. Draughon picked a photo of
[Appellant] from the array and identified him as the
robber.
Diane Peters, a Dollar Tree cashier, testified
that she was working at the Sharon Hill Dollar Tree
store when it was robbed. After 8:00 p.m. she saw a
man enter the store. He was wearing a hoodie with
the hood up over his head and he was carrying a
bag. Ms. Peters thought this was strange because
the weather was warm. Because he was carrying a
bag, she suspected him of shoplifting. She followed
him throughout the store, ending up by the safe
where he stood with Ms. Draughon. Ms. Peters
testified that she knew “something was wrong”
because store protocol is that no one, except an
employee or manager is allowed near the safe. Ms.
Peters testified that she and Ms. Draughon looked at
each other and that “the look in [Ms. Draughon’s]
eyes was like fear.” After the man said “hi” to her,
Ms. Peters walked down the aisle, pulled out her cell
phone and called 911.
On cross-examination, trial counsel reviewed
Ms. Peter’s direct testimony. Drawing his cross-
examination to an end, trial counsel asked Ms. Peters
whether she was ever asked to make an
identification. She replied, “No.” Next, he asked:
“And I think at one point you might even have told
either the detective or the DA you don’t think you
could identify anybody?” Ms. Peters replied: I
probably did because it was a quick glance.”
On re-direct, the prosecutor noted that Ms.
Peters appeared to have been cut short in her reply:
Q: Was there any explanation you wanted
to make in response to that question by
[Appellant’s counsel]?
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A: I said if I ever – I did see his face. And if
I [saw] it again, and that is him sitting over
there. I mean, at the time I wasn’t like – I
looked at his face and stuff, but I just wasn’t
asked to identify him because like I caught the
end of it. [Ms. Draughon] had more contact
than I did. But that is him.
Trial counsel did not object to this testimony.
Instead, on re-cross, he continued and elicited
further testimony which ended with the witness’s
statement that she was “100 percent positive” that
[Appellant] was the man who robbed the Dollar
Tree[.]
…
Only after this exchange did trial counsel move for a
mistrial. In support, he argued that he had
withdrawn a pre-trial motion for Ms. Peters to appear
for a line-up when the Commonwealth represented
that Ms. Peters would not be called to identify
[Appellant] at trial. Trial counsel claimed further,
that Ms. Peters identified [Appellant] “at the
Commonwealth’s prompting.” The prosecutor
responded that she did not ask for identification but
asked the witness to clarify her response to trial
counsel’s question. She stated further that she did
not know that Ms. Peters was going to identify
[Appellant], that it “seemed [Ms. Peters] seemed she
wanted to say something additional before he
finished his questions.” The motion for a mistrial
was denied.
…
[In addition,] Detective Herron testified that he
responded to the reported armed robbery at the
Dollar Tree on September [1]8, 2014. He arrived
sometime after 8:00 p.m. Upon his arrival,
Detective Herron met both Ms. Draughon and Ms.
Peters and he took a written statement from Ms.
Draughon, including a description of the robber. The
store was not outfitted with security video cameras
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and no fingerprints were found on the safe. Ms.
Draughon’s description of the robber was transmitted
to local police departments and through a press
release the description appeared in the Delaware
County Daily Times. On September 30, 2014
[Detective Herron] received a tip that [Appellant]
was possibly the man he was searching for.
Detective Herron secured a picture of [Appellant] via
a computer search and used that photo to prepare a
photo array. [Ms. Draughon identified Appellant as
the robber from the photo array.]
Trial Court Opinion, 10/29/15, at 2-6, 10 (internal citations and footnote
omitted).
After the two-day trial, the jury rendered its guilty verdict on June 3,
2015. The trial court originally sentenced Appellant on July 16, 2015.
Appellant filed a motion for reconsideration of sentence on July 22, 2015,
and asserted that his sentence was “excessive” and “exceeded the statutory
maximum as allowed by law.” The trial court vacated the July 16, 2015
judgment of sentence, and on August 20, 2015, entered an amended
sentence of 12 to 24 years’ incarceration for the robbery and PIC
convictions, with 5 years of consecutive probation for the terroristic threats
conviction. Appellant filed a timely notice of appeal on September 17,
2015.2
On appeal, Appellant presents three issues for our review.
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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I. Whether the [trial] court erred in denying
defense counsel’s motion for mistrial based on
the prejudicial event that occurred when
Commonwealth witness, Detective Richard
Herron testified about a tip he received that
[Appellant] was involved in the robbery at
issue[?]
II. Whether the [trial] court erred in denying
defense counsel’s motion for a mistrial based
on the prejudicial event that occurred when
Commonwealth witness, Diane Peters identified
[Appellant] as the individual who carried out
the robbery at issue, after the defense was
expressly assured by the Commonwealth on
multiple occasions that she would not be
making an in-court identification of [Appellant]
[?]
III. The sentence of five years consecutive
probation imposed for the terroristic threats
conviction is illegal since that charge should
have merged with the robbery conviction for
purposes of sentencing.
Appellant’s Brief at 7-8.
In his first and second issues, Appellant claims that the trial court
erred by denying his requests for a mistrial. Our standard of review is as
follows.
The trial court is in the best position to assess the
effect of an allegedly prejudicial statement on the
jury, and as such, the grant or denial of a mistrial
will not be overturned absent an abuse of discretion.
A mistrial may be granted only where the incident
upon which the motion is based is of such a nature
that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from
weighing and rendering a true verdict. Likewise, a
mistrial is not necessary where cautionary
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instructions are adequate to overcome any possible
prejudice.
Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014) (citation
omitted). Furthermore, a mistrial is an “extreme remedy” that is only
required where the challenged event deprived the accused of a fair and
impartial trial. Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010)
(citation omitted).
Consistent with the foregoing, we find no abuse of discretion by the
trial court in denying Appellant’s requests for the remedy of a mistrial with
respect to the testimony of Detective Herron and the testimony of Ms.
Peters. In his first issue, Appellant asserts that Detective Herron’s testimony
concerning his receipt of an anonymous tip prejudiced Appellant and
deprived him of a fair and impartial trial. Appellant’s Brief at 13.
Specifically, Appellant claims his “theory of defense in this case was
predicated entirely on the notion of mistaken identity,” such that “the
disclosure of the content of the anonymous tip by Detective Herron was
plainly an extra-judicial statement which had an undeniable effect on the
jury. They were essentially told by the investigator that [Appellant] was
definitely the person who forced the [Ms. Draughon] at gun point to open
the safe and give up the money.” Id. at 18.
In response, the Commonwealth counters that Detective Herron’s
testimony that he received an anonymous tip that Appellant was the robber
constituted permissible hearsay because it was not offered for the truth of
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the matter asserted; rather, it was offered so Detective Herron could explain
“his investigation and subsequent placement of [Appellant’s] photograph into
the photo array.” Commonwealth’s Brief at 9. Appellant registered his
objection at trial. N.T., 6/2/15, at 95. The Commonwealth notes that the
trial court provided a cautionary instruction “informing the jury the evidence
was only admitted to explain the officer’s course of conduct. Even if the
court abused its discretion in admitting the evidence, the error was harmless
in light of the overwhelming evidence.” Commonwealth’s Brief at 9.
Upon review, we agree with the Commonwealth, and incorporate the
trial court’s rationale as follows.
To the extent [Appellant] claims this testimony was
inadmissible hearsay it may be summarily dismissed.
The Rule Against Hearsay precludes the admission of
out-of-court statements that are offered to prove the
truth of the matter asserted. See Pa.R.E. 801 &
802. Detective Herron’s statement was not offered
to prove the veracity or accuracy of the tip he
received. In fact, aside from [Appellant’s] name,
details concerning the tip were not included in his
testimony. The testimony was offered only to
explain Detective Herron’s course of conduct.
Specifically, it explained why [Appellant’s] picture
was included in a photo array. “It is well established
that certain out-of-court statements offered to
explain the course of police conduct are admissible
because they are offered not for the truth of the
matters asserted but rather to show the information
upon which police acted.” Commonwealth v.
Chmiel, 889 A.2d 501, 532 (Pa. 2005). See also
Commonwealth v. Weiss, 81 A.3d 767, 806 (Pa.
2013) (Trooper’s testimony that he had received an
anonymous telephone call informing him that
appellant was with the victim before her murder
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offered to explain circumstance that prompted his
interview with appellant was not hearsay).
Trial Court Opinion, 10/29/15, at 11. As we find the trial court’s reasoning
persuasive, we discern no abuse of discretion in its denial of a mistrial
relative to Trooper Herron’s testimony.
Similarly, we discern no abuse of discretion with regard to the
identification testimony of Ms. Peters. Appellant asserts that the “back story
to this prejudicial event begins with multiple pre-trial requests to have Miss
Peters submit to a lineup procedure in order to determine her ability to
positively identify [Appellant] prior to seeing him in the courtroom setting.”
Appellant’s Brief at 20. Appellant states that he “was assured” that Ms.
Peters would not be testifying as to the identity of Appellant as the individual
who held up the Dollar Tree Store. Id. Appellant contends that he “was
blindsided when the witness affirmatively identified him to the jury,” and
although “the Commonwealth does not appear to be complicit in the
shocking turn of events, the resulting unfairness nonetheless tangibly
handicapped the only theory of defense in play, i.e., that of mistaken
identity.” Id. at 29.
Conversely, the Commonwealth responds that, at trial, “the defense
was trying to take advantage of the Commonwealth’s belief that Ms. Peters
could not identify [Appellant]. The defense was trying to advance the
inference that Ms. Peters could not identify [Appellant]. [Appellant’s]
overreach is not the fault of the Commonwealth. The prosecutor only asked
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the witness to finish an answer to defense counsel’s question.”
Commonwealth’s Brief at 23.
Again, we find the trial court’s comprehensive analysis of Appellant’s
claim to be dispositive. The trial court explained as follows.
[Ms. Peters’] identification [of Appellant] was not
solicited by the prosecutor and when the statement
was made, the prosecutor immediately ended her
line of questioning. Trial counsel did not object and
he did not move for a mistrial. He chose instead, in
an effort to undermine Ms. Peters’ unsolicited
identification, to launch a line of questioning that
ended with testimony that resulted from his own
leading question: “Q: And you’re sure of that, right?
As you look, you’re positive, 100 percent – A: I’m
positive, yes, positive. Q: 100 percent, right? A:
100 percent positive. Q: Okay.”
Under these circumstances, it must be
concluded the motion for a mistrial was untimely.
The Commonwealth did not elicit an identification
when Ms. Peters testified on direct. Rather, the
unexpected testimony came only after, on cross
examination, trial counsel attempted to impugn Ms.
Peters’ ability to make an identification at all, an
issue that had little if any relevance given the fact
that her testimony was not offered for that purpose.
Further, the motion for a mistrial was not made
when the witness first identified [Appellant] on re-
direct, but only after trial counsel elicited far
more problematic testimony. Had trial counsel
made an appropriate and timely objection and/or
motion, a simple curative instruction would have
eliminated any possible prejudice given the facts of
this case. See generally Commonwealth v.
Boring, [684 A.2d 561 (Pa. Super. 1996)]. The
objectionable identification was brief, unsolicited,
unexpected and was not of “such a nature that its
unavoidable effect is to deprive the defendant of a
fair and impartial trial by preventing the jury from
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weighing and rendering a true verdict,” and
accordingly the motion for a mistrial was properly
denied.
Additionally, the prosecutor’s clarifying
question was allowable under the fair response
doctrine. [Appellant] attempted to leave the jury
with the impression that Ms. Peters was unable to
make identification because her observations during
the robbery were brief and because her interaction
with [Appellant] was limited. … However, when
given the opportunity, she explained that she was
never asked previously to make identification but
that in court she recognized [Appellant] as the man
who spoke to her during the robbery. The
Commonwealth’s request for clarification, under
these circumstances, where [Appellant] has created
an inference to himself that is favorable to him is
permissible. See Commonwealth v. Roots, 306
A.2d 873, 876 (Pa. 1973); Commonwealth v.
Rush, 121 A. 111 (Pa. 1923). Cf Commonwealth
v. Molina, 104 A.3d 430, 451 (Pa. 2014) (right
against self-incrimination prohibits use of a
defendant’s pre-arrest silence as substantive
evidence of guilt, unless it falls within an exception
such as impeachment of a testifying defendant or in
fair response to an argument of the defense);
Commonwealth v. Saxton, 532 A.2d 352, 357 (Pa.
1987) (exception to the prohibition against admitting
evidence of prior crime exists where such evidence is
offered by the Commonwealth to rebut statements
which create inferences favorable to the accused).
Finally, this evidence was cumulative. About a
week and half after the robbery, Ms. Draughon
picked [Appellant’s] picture from a photo array in
less than a minute. At trial, Ms. Draughon explained
that [Appellant’s] face was one she would never
forget. N.T., 6/2/15 p. 37. She identified
[Appellant] again at trial and her identification was
unshakable under cross examination. She explained
that employer training included “how to handle a
robbery,” and she testified on direct that “when a
robbery occurs, you’re pretty much supposed to stay
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calm, not to give the person too much eye contact,
try to get a description without actually physically
looking at them directly. You know, you’re supposed
to give them all the money, whatever they ask for,
whatever they want. Don’t try to play hero. Once –
once the perpetrator leaves, you’re supposed to lock
the door, call 911, call your store manager, call your
district manager, call loss prevention.” Id. at 34.
On direct and cross-examination, Ms. Draughon
reiterated that, in accord with her training, she
purposefully looked at [Appellant’s] face without him
noticing and that she took note of his facial features.
Id. at pp. 29, 44. The observations made during the
robbery allowed Ms. Draughon to identify [Appellant]
without hesitation. Ms. Draughon’s unwavering
identification rendered the testimony of Ms. Peters
merely cumulative given the facts of this case.
Trial Court Opinion, 10/29/15, at 8-10 (emphasis added).
Based on the foregoing, we find no abuse of discretion by the trial
court in denying Appellant’s two requests for a mistrial. Our review confirms
that Appellant was not deprived of a fair and impartial trial, and in neither
instance of Detective Herron or Ms. Peters’ testimony was the “extreme
remedy” of a mistrial warranted. Laird, supra.
Finally, in his third issue, Appellant challenges his probationary
sentence for terroristic threats, and argues that his conviction for terroristic
threats should have merged with his robbery conviction. Appellant cites 42
Pa.C.S.A. § 9765, which provides, “[n]o crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
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the other offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.”
Appellant was convicted of robbery, defined as follows.
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the
course of committing a theft, he:
…
(ii) threatens another with or
intentionally puts him in fear of
immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii).
Appellant was also convicted of terroristic threats, defined as follows.
§ 2706. Terroristic threats
(a) Offense defined.--A person commits the crime
of terroristic threats if the person communicates,
either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to
terrorize another[.]
18 Pa.C.S.A. § 2706(a)(1).
Appellant asserts that “the only threatening words and deeds
employed during the robbery of the Dollar Store were those actions of …
pointing the gun at [Ms. Draughon] and directing her to ‘open the safe or I’ll
blow your head off.’” Appellant’s Brief at 32, citing Commonwealth v.
Walls, 449 A.2d 690 (Pa. Super. 1982) (terroristic threats merged with
robbery where there were no additional facts supporting the terroristic
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threats charge that was “part and parcel” of the robbery). Appellant thus
concludes that “the terroristic threats of which [Appellant] was found guilty
of making were ‘part and parcel’ of the theft of the money from the store
safe.” Id. The Commonwealth and the trial court agree. Commonwealth
Brief at 24-26; Trial Court Opinion, 10/29/15, at 12-13 (requesting remand
for resentencing). As the record supports this consensus, we vacate
Appellant’s judgment of sentence and remand for re-sentencing. See
Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996) (noting
that while this Court has the option of amending an illegal sentence directly
or remanding it to the trial court for re-sentencing, “[i]f a correction by this
[C]ourt may upset the sentencing scheme envisioned by the trial court, the
better practice is to remand”). We specifically vacate the entire judgment of
sentence, including Appellant’s convictions of robbery and PIC, and remand
to the trial court for further sentencing proceedings on all three convictions.
See, e.g., Commonwealth v. Moody, 441 A.2d 371, 375 (Pa. Super.
1982) (noting that “where a conviction on one count may have influenced
sentencing on other counts, all sentences should be vacated and the case
remanded for resentencing”).
Judgment of sentence vacated. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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