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Com. v. Johnson, S.

Court: Superior Court of Pennsylvania
Date filed: 2020-09-15
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J-S19011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SAEED RASHEED JOHNSON                   :
                                         :
                   Appellant             :   No. 1313 EDA 2019

        Appeal from the Judgment of Sentence Entered April 1, 2019
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004742-2018


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 15, 2020

     Saeed Rasheed Johnson appeals from the aggregate judgment of

sentence of ten to twenty years of imprisonment imposed after he was

convicted of robbery and possessing an instrument of crime (“PIC”). Although

we affirm Appellant’s convictions, we are constrained to vacate Appellant’s

judgment of sentence and remand for resentencing.

     The trial court summarized the factual history as follows:

            On July 15, 2018[,] Jorge Rosas was working the [7:00]
     p.m. to 7:00 a.m. shift as a cashier at the Sunoco A-Plus store on
     West 9th Street in Chester. At about 7:45 p.m. a customer
     approached the cashier’s counter with a bag of chips. Mr. Rosas
     asked for twenty-five cents for the chips and the man dropped the
     money to the floor and “pulled” a gun. Mr. Rosas warned him not
     to “play” unless he wanted to go to jail and advised him that there
     were cameras in the store. The man left the store with the chips
     and Mr. Rosas followed him demanding payment. The man re-
     entered the store, put the chips back on the counter, told Mr.
     Rosas that he “made a mistake,” he didn’t want the chips and he
     left.
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             Mr. Rosas did not call the police but the next morning when
      his manager, Annis Kahn, came in he reported the robbery to him.
      The two men viewed the security camera video that captured the
      robbery and went back to work. Later in the day, at about 7:00
      p.m. as they were working the man who committed the robbery
      entered the store. The man came into the store, grabbed a soda,
      made eye-contact with Mr. Kahn, left the soda on the counter and
      left the store. Mr. Kahn recognized him as the same man who
      was in the video that the men viewed earlier. After the man left
      the store[,] Mr. Kahn and Mr. Rosas viewed the video from the
      previous minutes and Mr. Rosas confirmed that it was the person
      who had robbed him. Mr. Kahn called the police.

             Within five or ten minutes Officer Joshua Mann of the
      Chester Police Department arrived at the A-Plus. Officer Mann
      viewed the video of the man who just left the store, noted what
      he was wearing and sent out a “flash” including a description of
      the individual and what he was wearing. Officer Mann then left
      the store to search the neighborhood himself. Within fifteen
      minutes of leaving the store, about four city blocks away, he came
      upon [Appellant]. Officer Mann recognized [Appellant’s] clothing
      and his face as the same as the man he saw in the video. Officer
      Mann detained [Appellant] and Mr. Rosas and Mr. Kahn were
      separately transported to the scene of the stop. Each man
      identified [Appellant].

Trial Court Opinion, 8/20/19, at 3-4.

      Appellant was arrested and charged with the aforementioned crimes.

Appellant proceeded to a jury trial, and on February 12, 2019, he was

convicted of both charges. On April 1, 2019, Appellant was sentenced to a

mandatory minimum term of ten to twenty years of imprisonment for the

robbery conviction, after the trial court determined it was a “second strike

offense.” See 42 Pa.C.S. § 9714. A New Jersey aggravated assault conviction

was the predicate offense.    A concurrent term of six to twelve months of

incarceration was imposed for the PIC conviction. Appellant did not file a post-


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sentence motion, but did file a timely notice of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

trial court thereafter authored its Rule 1925(a) opinion.

      Appellant presents the following issues, which we have reordered for

ease of disposition:

      1.    Whether the trial court erred when it abused its discretion
            by limiting cross-examination of Commonwealth eyewitness
            Jorge Rosas? The trial court did not allow Appellant to
            impeach Rosas’[s] testimony that he’d never encountered a
            like situation before. Defense counsel was prepared to
            introduce that Rosas was working at the same store when
            the store owner was killed in 2011, and that Rosas was
            present in the store when there was shooting in the store
            parking lot in 2012.

      2.    Whether the trial court erred when it abused its discretion
            by allowing the Commonwealth to operate a video replay
            requested by the jury several times? The Commonwealth’s
            attorney stopped and restarted the video on commands
            from the jurors.

      3.    Whether the ten to twenty year sentence on robbery is
            illegal because the underlying New Jersey statute defines
            aggravated assault as attempting or causing significant
            bodily injury whereas the Pennsylvania statute calls for
            serious bodily injury?

Appellant’s brief at 7 (unnecessary capitalization omitted).

      In his first issue, Appellant contends that the trial court improperly

limited his cross-examination of Mr. Rosas, the victim and eyewitness to

Appellant’s robbery of the convenience store.      The trial court has broad

discretion regarding “both the scope and permissible limits of cross-

examination.” Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011); see


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also Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa.Super. 2016) (en

banc) (explaining that the trial court may place reasonable limits on defense

counsel’s cross-examination of a prosecution witness in order to avoid

harassment, prejudice, confusion of the issues, the witness’s safety, or

interrogation that is repetitive or only marginally relevant.) Accordingly, we

will not reverse the trial court’s judgment in setting cross-examination limits

absent a “clear abuse of that discretion, or an error of law.” Id.

      Mr. Rosas testified that he did not immediately call the police after the

incident because “for the moment, I a little scared. I tell you the truth. I get

a little nervous. Nobody put a gun to me like this.” N.T. Jury Trial, 2/12/19,

at 50-51.   The Commonwealth then asked whether Mr. Rosas had “ever

encountered that situation before,” to which Mr. Rosas replied he had not. Id.

at 52-53. On cross-examination trial counsel sought to counter Mr. Rosas’s

testimony with evidence that he had previously witnessed two shootings while

working at the store. Id. at 76-80. Mr. Rosas conceded that, in 2011, he was

present when Mr. Muhammad Fareed was shot and killed in the parking lot of

the convenience store. Id. Trial counsel attempted to ascertain whether Mr.

Rosas was inside or outside of the store at the time of the 2011 incident. Id.

Eventually, the Commonwealth objected, arguing that the line of questioning

had gone beyond the scope of the direct examination.          Id. at 77.    The

objection, prompted the following discussion between the court, trial counsel,

the Commonwealth, and Mr. Rosas:


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     THE COURT:               Where are you going with this, counsel?

     TRIAL COUNSEL:           He says this situation has never happened
                              before.

     MR. ROSAS:               No.

     THE COURT:               Well, the situation –

     MR. ROSAS:               To me.

     THE COURT:               Where he personally got robbed. You’re
                              talking about something different.

     MR. ROSAS:               Yes, that’s something different, yeah.

     THE COURT:               Where somebody else was shot and killed
                              apparently - -

     COMMONWEALTH:            And he’s asking - -

     TRIAL COUNSEL:           But he was - -

     COMMONWEALTH:            - a question about what the police said at
                              the time about the shooting.

     TRIAL COUNSEL:           -- present at – during a time that the
                              owner of the store was killed.

     THE COURT:               Okay. You made that point. He said he
                              was.

Id. at 77-78.

     Next, trial counsel asked about a 2012 shooting in the convenience store

parking lot. Id. at 78. However, the Commonwealth repeated its objection.

Id. At side-bar, the trial court again stated that trial counsel had “made his

point” and limited the scope of trial counsel’s remaining cross-examination to

questions regarding whether Rosas himself, had ever been the victim of a


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robbery before. Id. at 78-80. After the side-bar, trial counsel concluded this

line of questioning, asking Mr. Rosas if he had ever been personally involved

in a robbery at the store. Id. at 80. Mr. Rosas responded that he had not.

Id. at 80-81.

      On appeal, Appellant alleges that the trial court erred when it restricted

the scope of his cross-examination because, by doing so, it improperly allowed

Mr. Rosas’s credibility to go “untested.” Appellant’s brief at 15. The trial court

disagreed. In its Rule 1925(a) opinion the trial court gave a more detailed

explanation for its ruling, as follows:

      This line of questioning was marginally relevant. Trial counsel
      sought to elicit testimony that demonstrated only that six or seven
      years earlier Mr. Rosas had witnessed two events where other
      individuals were shot outside the store. Those incidents had no
      connection to any material fact in this case. Evidence concerning
      these prior shootings would have been collateral to the issues at
      hand and would not have served to impeach Mr. Rosas’s
      testimony. He freely admitted that he was in the store in [2011]
      when Mr. Fareed was killed outside and then testified he had never
      been the victim or target of a robbery at the store. [Appellant]
      suffered no prejudice by the limitation imposed on this line of
      questions.

Trial Court Opinion, 8/20/19, at 7 (citation omitted).

      We find that the trial court properly exercised its discretion in denying

Appellant’s challenge to this evidentiary ruling. Mr. Rosas testified that he

had never personally been the victim of a robbery at gunpoint, not that he

had never witnessed a violent crime. To the extent that this distinction was

unclear, Mr. Rosas clarified it on cross-examination and the jury was made

aware that Mr. Rosas had witnessed a murder before.           Therefore, further

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questions regarding what violent crimes Mr. Rosas had witnessed were not

relevant to his credibility and would have been cumulative of the testimony

already elicited. Accordingly, no relief is due.

      Next, Appellant alleges that the trial court erred when it responded to a

jury question by replaying surveillance footage of the robbery for the jury.

See Appellant’s brief at 15-16. The decision to allow the jury to refresh their

recollection by re-watching a video shown to them at trial is a matter within

the discretion of the trial court. Commonwealth v. Antidormi, 84 A.3d 736,

755 (Pa.Super. 2014). Accordingly, we review such decisions for an abuse of

discretion. Id.

      While the trial court possesses great discretion when contemplating

which exhibits to allow the jury to review, its discretion is not absolute. See

Pa.R.Crim.P. 646. Rule 646 prohibits juries from utilizing certain enumerated

categories of exhibits during their deliberations, as follows:

      (A) Upon retiring, the jury may take with it such exhibits as the
      trial judge deems proper, except as provided in paragraph (C).

      ....

      (C) During deliberations, the jury shall not be permitted to have:

         (1) a transcript of any trial testimony;

         (2) a copy of any written or otherwise recorded confession
         by the defendant;

         (3) a copy of the information or indictment; and

         (4) except as provided in paragraph (B), written jury
         instructions.

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Pa.R.Crim.P. 646(A), (C). Importantly,

      The underlying reason for excluding certain items from the jury's
      deliberations is to prevent placing undue emphasis or credibility
      on the material, and de-emphasizing or discrediting other items
      not in the room with the jury. If there is a likelihood the
      importance of the evidence will be skewed, prejudice may be
      found; if not, there is no prejudice per se and the error is
      harmless.

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa.Super. 2012). Therefore,

should we find that the trial court erred, such error does not constitute

prejudice per se. See Commonwealth v. Williams, 959 A.2d 1272, 1285–

86 (Pa.Super. 2008).     “[T]his inquiry requires us to determine whether

providing the [evidence] to the jury was prejudicial: ‘If there is a likelihood

the importance of the evidence will be skewed, prejudice may be found; if not,

there is no prejudice per se and the error is harmless.’ ” Id. at 1285–86

(quoting Commonwealth v. Dupre, 866 A.2d 1089, 1103 (Pa.Super. 2005)).

      At trial, the jury was shown the surveillance footage three times, during

the testimony of Officer Mann, Mr. Kahn, and Appellant’s testimony. See N.T.

Jury Trial, 2/11/19, at 59-61; N.T. Jury Trial, 2/12/19, at 21, 114-19. During

Appellant’s testimony, the video was paused in multiple places while Appellant

highlighted differences he perceived between himself and the person in the

video. N.T. Jury Trial, 2/12/19, at 114-19. During deliberations, the jury

asked to review surveillance footage of the robbery “up close,” and to be able

to “freeze frame it at certain points.” N.T. Jury Trial, 2/12/19, at 176. When

the trial court asked for clarification as to where the jury wished to “freeze


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frame,” one juror responded “where it was paused earlier.” Id. at 179. The

trial court agreed to allow the jury to review the video in its entirety, but in

open court and with both sides present. Id. at 178.

      In open court, the Commonwealth operated the video footage. When it

was apparent to the trial court that the jurors were having difficulty viewing

the screen, the projector was moved closer to the group. Id. at 179-81. The

trial court then instructed the jury foreman to signal when the points were

reached in the video where they wished to “freeze frame.” Id. Also before

the playback began, the trial court instructed the jurors to not make any

comments or engage in any deliberations until they returned to the

deliberation room.   Id. at 183-84. The Commonwealth stopped the video

twice based on the jury foreman’s signal. Id. at 179-90. Appellant objected

to the entire procedure, citing Pa.R.Crim.P. 646 and arguing that by replaying

the video the court was improperly assisting the Commonwealth with its

burden of proof. Id. at 177.

      In explaining the reasons it permitted the jury to view the video in open

court, the trial court relevantly indicated the following:

            The prosecutor presented the video and stopped it only at
      the direction of the jury foreman. Identification was a material
      issue in this case and after seeing the video three times in open
      court it asked to review pertinent portions from a closer vantage
      point and with two frames “frozen” as they were, without
      objection, during trial.

            In Commonwealth v. Antidormi, 84 A.3d 736, 755
      (Pa.Super. 2014)[,] the Superior Court considered whether a
      replay of an audio recording of prior testimony to a jury in the

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      midst of deliberations resulted in prejudice to the defendant. The
      [c]ourt concluded that the mere replay of previous testimony in
      open court falls within the ambit of the trial court’s discretion and
      where the defendant does not demonstrate prejudice no relief is
      warranted. Notably, as in the case sub judice the jury “did not
      hear new or different testimony in private, out of the presence of
      [appellant]. Instead, the jury merely heard a verbatim recording
      of exactly what transpired in open court . . . . As such, the jury
      did not hear any accusations or testimony that did not take place
      in open court – and [appellant] was not accused of anything in
      secret.” Similarly, in this case the jurors re-viewed the video-tape
      in open court having viewed it three times during the evidentiary
      portion of the trial. The jury asked that the frame be “frozen”
      twice. This followed [Appellant’s] narration of the video where he
      stopped and started the video to show inter alia, differences that
      he suggested existed between the tattoos that were displayed on
      the individual in the video and his own.                Under these
      circumstances no prejudice existed. The jury saw a verbatim
      repeat of the video as it was presented by [Appellant] at trial.
      Accordingly, this claim has no merit.

Trial Court Opinion, 8/20/19, at 8-9.

      We discern no abuse of discretion in the well-reasoned explanation of

the trial court as to why it did not violate Pa.R.Crim.P. 646. Even assuming,

arguendo, that the trial court's treatment of the video replay did violate the

Pennsylvania Rules of Criminal Procedure, Appellant’s scant analysis does not

suffice to establish prejudice. In his brief, Appellant baldly asserts that he

suffered prejudice without any development of his assertion. See Appellant’s

brief at 16.   Accordingly, Appellant’s claim challenging the replay of the

surveillance footage fails.

      In his final issue, Appellant alleges that the trial court erred when it

imposed a “second strike” minimum sentence. Appellant’s brief at 12-13. A

challenge to the application of a mandatory minimum sentence is a pure

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question of law impacting the legality of the sentence. See Commonwealth

v. Shiffler, 879 A.2d 185, 188–89 (Pa. 2005). Thus, we will consider it de

novo, despite the fact that Appellant failed to preserve this issue below.

Commonwealth v. Shaw, 744 A.2d 739, 742 (Pa. 2000).

      Pursuant to section 9714(a)(1),

      Any person who is convicted in any court of the Commonwealth of
      a crime of violence shall, if at the time of the commission of the
      current offense the person had previously been convicted of a
      crime of violence, be sentenced to a minimum sentence of at least
      ten years of total confinement. . . .

42 Pa.C.S. § 9714(a)(1).      Section 9714(g) lists the crimes that qualify as

“crimes of violence” under § 9714(a)(1), including, in relevant part:

      As used in this section, the term “crime of violence” means . . .
      aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2)
      (relating to aggravated assault), . . . or an equivalent crime in
      another jurisdiction.

42 Pa.C.S. § 9714(g).

      In order to determine whether a foreign offense qualifies as a prior

“crime of violence” under § 9714, we consider “the elements of the foreign

offense in terms of classification of the conduct proscribed, its definition of the

offense, and the requirements for culpability.” Commonwealth v. Northrip,

985 A.2d 734, 740 (Pa. 2009) (quoting Commonwealth v. Shaw, 744 A.2d

739, 743 (Pa. 2000) (internal quotation marks omitted)). “The focus is not

on the facts underlying the conviction, but rather on the statute that triggered

the conviction.” Id. at 741. Additionally, underlying public policy behind the

two criminal statutes is relevant to our analysis, though not controlling.

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Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa.Super. 2004).

Importantly, “the offenses do not identically have to mirror each other, but

must be substantially equivalent to invoke operation of 42 Pa.C.S. § 9714.”

Id.

      In 2010, Appellant was convicted of third-degree aggravated assault in

New Jersey. New Jersey defines third-degree aggravated assault as when a

person: “Attempts to cause significant bodily injury to another or causes

significant bodily injury purposely or knowingly or, under circumstances

manifesting extreme indifference to the value of human life recklessly causes

such significant bodily injury.”   N.J.S.A. 2C:12-1(b)(7) (emphases added).

The New Jersey Code of Criminal Justice defines “significant bodily injury” as:

“bodily injury which creates a temporary loss of function of any bodily member

or organ or temporary loss of any one of the five senses. N.J.S.A. 2C:11-1.

      Pursuant to § 9714(g), aggravated assault constitutes a “crime of

violence” under Pennsylvania law if a person:

      (1) attempts to cause serious bodily injury to another, or
      causes such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life;

      (2) attempts to cause or intentionally, knowingly or recklessly
      causes serious bodily injury to any of the officers, agents,
      employees or other persons enumerated in subsection (c) or to an
      employee of an agency, company or other entity engaged in public
      transportation, while in the performance of duty;

18 Pa.C.S. § 2702(a)(1)-(2) (emphases added).        The Pennsylvania crimes

code defines “serious bodily injury” as “bodily injury which creates a

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substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S. § 2301.

       Appellant contends that his prior conviction for aggravated assault does

not qualify as “crime of violence” because the New Jersey aggravated assault

elements “contemplate a less serious crime than the Pennsylvania aggravated

assault statute” sections that satisfy § 9714.          Appellant’s brief at 13.

Therefore, the trial court erred when it imposed the “second strike” mandatory

minimum. Id. Since the elements of the two crimes are not the same, we

are constrained to agree.1

       A review of § 9714 reveals that the Pennsylvania legislature carefully

crafted the definition section of a crime of violence so that its reach would be

targeted and specific.        Specifically, § 9714(g) lists single subsections of

particular crimes, most of which are first-degree felonies. For example, with

aggravated assault, the legislature chose to include only two of the seven

subsections. The remaining five subsections were excluded. This deliberate

distinction makes it clear that the legislature intended to directly limit this

statute’s application to only the most serious aggravated assault crimes, those


____________________________________________


1 Accord United States v. Martinez-Florez, 720 F.3d 293, 295-96 (5th Cir.
2016) (Finding that third degree aggravated assault in New Jersey is not a
‘crime of violence,’ warranting a federal sentencing enhancement. In doing
so the court reasoned that the third degree assault’s “significant bodily injury”
element did not fit within the model penal code definition of aggravated
assault, which requires a higher showing of “serious bodily injury.”).

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which require the Commonwealth to show that the actor either attempted to

cause, or did cause, “serious bodily injury.” 42 Pa.C.S. § 9714(g).

      In contrast, Appellant’s New Jersey aggravated assault statute plainly

proscribes a lesser degree of bodily injury than the qualifying Pennsylvania

crimes. Specifically, a “significant bodily injury” targets temporary losses of

bodily function, whereas a “serious bodily injury” pertains to permanent or

protracted losses of bodily function. See N.J.S.A. § 2C: 12-1(b)(7). Notably,

the New Jersey legislature enacted § (b)(7) in response to a concern that

assaults involving injury more severe than a simple assault, but not rising to

the level of serious bodily injury, were not being punished appropriately. See

State v. James, 777 A.2d 1035, 1037 (N.J. Super. 2001). Accordingly, the

New Jersey legislature intended for § (b)(7) to encompass intermediate levels

of assault, bridging the gap between simple assault and aggravated assault.

Id. (citing to Assembly Judiciary, Law and Public Safety Committee,

“Statement to Senate, No. 504 [L.1995, c. 307, § 2] (April 12, 1995)).

      Since we find that Appellant’s 2010 New Jersey aggravated assault

conviction was not a “crime of violence” as defined in Pennsylvania, he did not

qualify for an enhanced sentence under § 9714. Accordingly, we must vacate

Appellant’s sentence and remand for resentencing.        However, we do not

disturb Appellant’s underlying convictions.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2020




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