July 22, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
BRANDON LEE STIMER, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
BRANDON LEE STIMER, Appellant
Appeal from the Judgment of Sentence June 28, 2012 In the Court of Common Pleas of Centre County Criminal Division at Nos. CP-14-CR-0001983-2011, CP-14-CR-0001910-2011
BEFORE: BOWES, WECHT, and PLATT, [*] JJ.
Brandon Lee Stimer appeals from the judgment of sentence of five to ten years imprisonment imposed after a jury convicted him of simple assault, endangering the welfare of a child, and reckless endangerment.We affirm.
While Appellant does not contest the sufficiency of the evidence supporting his convictions, we briefly summarize their factual basis. On the evening of August 14, 2009, Appellant's wife Crystal Stimer was changing the diaper of their four-week-old son in their Centre County home. The infant started to cry when she moved his left leg, and he continued to exhibit this behavior when his left leg was moved. On Monday, August 17, 2009, she took the baby to a pediatrician's appointment that she already arranged for one of her other two children. The baby's leg was swollen, and the pediatrician ordered x-rays, which revealed that the leg had three fractures. N.T.Trial, 3/10/12, at 101. Ms. Stimer then took her son to Geisinger Medical Center ("Geisinger") for treatment of the injuries.
Dr. Paul Bellino, a child abuse evaluator for the health system in Danville, Pennsylvania, was the attending physician at Geisinger. He was qualified as an expert witness in pediatrics and in child abuse. Id. at 91. Given the infant's history, Dr. Bellino opined that the injuries to the left leg were caused by "significant physical trauma." Id. at 98. Dr. Bellino concluded that the mechanism that caused two of the fractures was traumatic force while the third one was caused by either a direct blow or a twisting motion. Id. at 101-02. All the fractures would have caused significant pain to the infant. Dr. Bellino related that to break a baby's femur, an eighty-pound object would have to be dropped on the leg while it is "hanging over the edge of a table." Id. at 109.
Based on the observed injuries, Dr. Bellino ordered a skeletal survey, which is a series of about fourteen x-rays of a baby's entire body that reveals more detail of the bones. That survey uncovered more injuries to the victim. There was an injury to the right ankle "where the bottom portion of the bone had been ripped off of the main portion of the tibia in the ankles." Id. at 111. This trauma would have been caused by forceful pulling. There was a similar injury in the left arm radius bone, where it was connected to the thumb. Finally, there was a "buckle fracture in the left ulna, which is the outside of the arm." Id. at 111. A buckle fracture is caused when a bone is "bent but not broken and then allowed to go back into place." Id. at 11-12. The physician related that the month-old infant displayed five different bone fractures, none of which would have been caused by normal activities associated with his care.
The matter was reported to The Centre County Children and Youth Services ("CYS"), and that agency immediately removed the three children from the Stimers' home. After investigation, CYS concluded that Mr. Stimer caused the injuries and made an indicated finding of abuse as to him. Id. At 231. Since it also concluded that Mrs. Stimer was not the cause of the fractures, the three Stimer children were returned to her care.
Mrs. Stimer, who subsequently divorced Appellant, testified as follows. Her two older children were never alone with her newborn son. When she was released from the hospital after giving birth to the victim, she went to her parents' house for two weeks so that they could help her with the three children. She eventually returned to her home with Appellant. Mrs. Stimer, who denied harming her child, and Appellant were the only two people who had access to the infant between the time she returned home and when the infant was injured.
Appellant went to Geisinger with Mrs. Stimer, but he left after about thirty minutes, even though the boy was going to be at that facility for three days. When Mrs. Stimer learned about the extent of the injuries discovered by the skeletal survey, she telephoned Appellant. When asked how Appellant responded to the test results, Mrs. Stimer responded, "He was angry. He told me they were making it up." Id. at 178. During the child's in-hospital treatment, Appellant never visited and never called to check upon his well-being.
After the victim was released, he was remanded to the care of the relatives who were caring for the other two children while CYS investigated who abused the victim. Mrs. Stimer returned to the home that she shared with Appellant. She and Appellant were alone, and, while drinking alcohol, conversed about what happened. Mrs. Stimer related that, "[Appellant] had a gun at our house that he went and got and had it loaded and he put it up to his head and told me—and kept saying, I may have done this. He could have did this." Id. at 180.
Based on this evidence, on May 11, 2012, a jury acquitted Appellant of aggravated assault and convicted him of simple assault, recklessly endangering another person, and endangering the welfare of a child. Appellant was sentenced consecutively to the statutory maximum sentence of two and one-half to five years imprisonment on both the simple assault and the endangerment charges, each of which was graded as a first degree misdemeanor. This appeal followed denial of his post-sentence motion. Appellant raises these contentions:
[1.] Whether the sentencing court violated defendant's due process protections and otherwise abused its discretion by relying on factors not supported by the record in imposing sentences in excess of the aggravated range.
[2.] Whether the trial court erred in denying a defense request for a mistrial when a Commonwealth witness testified that defendant was incarcerated.
[3.] Whether the trial court erred in denying a defense request for a mistrial when the Commonwealth's attorney committed prosecutorial misconduct in its closing argument by telling the jury to send a message with its verdict.
Appellant's brief at 8.
Appellant would be entitled to the grant of a new trial if either of his latter two issues were meritorious, which would render the sentencing claim moot. Therefore, we address the second and third contentions before the first one. The second and third allegations concern the trial court's refusal to grant Appellant's requests for a mistrial, which rulings we examine under the following standards:
In criminal trials, the declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interests but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion.
The remedy of a mistrial is an extreme remedy required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-78 (Pa.Super. 2012) (citation and quotation marks omitted).
Appellant avers a new trial is mandated due to a remark made by the person from CYS who was responsible for its investigation, Tara Peters. Specifically, the Commonwealth asked Ms. Peters "were there any decisions made relative to returning the three children" to Appellant. N.T. Trial, 5/10/12, at 231. She responded, "We did not return the children to him. We had filed a petition with the court so that [Appellant] . . . ended up incarcerated." Id.
Appellant requested a mistrial due to this reference to his imprisonment. He argued that this evidence violated the terms of a pretrial ruling that evidence of his prior criminal behavior was inadmissible. The court concluded that that prior ruling was not implicated since Ms. Peter's comments created the impression that Appellant was incarcerated due to the present charges rather than prior criminal activity. Id. at 238 (The Court: "I am 99.9 percent sure that the jury – if they heard that reference of incarceration, I believe that they are relating that incarceration to this offense.") It therefore declined to award Appellant a new trial. Therefore, in accordance with Appellant's request, the court disseminated a curative instruction:
Members of the jury, there was a –some testimony from Ms. Peters that indicated that [Appellant] may have been incarcerated at a time that she was questioning I believe one of the other witnesses. I am asking you to completely disregard that statement. There should be no negative inference drawn from that statement.
Is there anyone in the jury box that cannot disregard that statement and completely eliminate it from your thoughts? I see no responses.
Id. at 245.
On appeal, Appellant maintains that "Generally, any references to a defendant being in prison are per se unfairly prejudicial toward a defendant, and should result in a mistrial." Appellant's brief at 24. He contends that the reference to his incarceration clearly implicated him in other criminal activity and mandated the grant of a new trial. As we noted in Commonwealth v. Guilford, 861 A.2d 365, 370 (Pa.Super. 2004) (citation omitted), "Not all references which may indicate prior criminal activity require reversal. Mere passing references to criminal activity will not require reversal unless the record indicates that prejudice resulted from the reference." We examine the "nature of the reference and whether the remark was intentionally elicited by the Commonwealth" in deciding whether the court abused its discretion in failing to award a new trial. Id. (citation omitted).
Herein, the comment was not intentionally elicited nor was it exploited to any extent by the Commonwealth. Furthermore, while Appellant may have been jailed for other criminal activity, the context of the sentence, as observed by the trial court, clearly created the impression that Appellant's incarceration during the CYS investigation was the result of the present charges. Finally, the trial court instructed the jury to ignore that statement. Given the nature of the reference, the fact that it was non-responsive to the Commonwealth's question, and the dissemination of a curative instruction, the incident was not of such a nature that its unavoidable effect was to deprive Appellant of a fair and impartial tribunal. Hence, we conclude that the trial court did not abuse its discretion in declining to award a mistrial.
Appellant also claims entitlement to a new trial based upon closing remarks from the Commonwealth:
With specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that in reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial.
It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.
[P]rosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
Hogentogler, supra at 878.
In this case, Appellant objects to the fact that the prosecutor asked the jury to send a message with its verdict. He maintains that the comment was prejudicial, removed the presumption of innocence, and created malice toward him. Appellant's brief at 30. The full remarks were as follows:
That baby screamed in pain, cried when that leg was moved. Every time that diaper was changed, every time he was dressed, every time he was undressed, every time he was placed in a car seat, or that leg was manipulated in a way that was not proper, he felt pain and he couldn't tell us. That baby didn't have the ability to lay still like an adult. That baby had to be moved. He had no control over that and every time he had that significant pain. The result of the actions from that Defendant. That baby had no voice to tell. No voice at all.
Ladies and gentlemen, be that voice for Shane Stimer. Speak your voice today and send a message. Give him that voice that he didn't have in 2009. Find the Defendant guilty.
N.T. Trial, 5/11/12, at 91. After Appellant asked for a mistrial on the basis that the "send a message" phrase constituted improper argument, the trial court instructed the jury:
I don't want to make too big of a deal of this because it's really not that big of a deal but there may have been a statement in the closing that you are to send a message with a conviction, and I would ask that you completely disregard that statement, as well as that sentiment that is behind that statement. This is not a message that is sending to the community. I'm asking you to fairly and impartially judge the evidence and render a fair and impartial verdict. That's all we're asking you to do.
Id. at 93.
Our Supreme Court noted in Commonwealth v. Patton, 985 A.2d 1283, 1287 (Pa. 2009), that, while a "send a message" argument in a non- capital case is not per se prejudicial, it "has stridently condemned prosecutorial statements urging a criminal jury to 'send a message' to the community or the criminal justice system" by rendering a guilty verdict. Such argument is improper because it invites a jury to base its determination of guilt or innocence on a reason other rather than the evidence presented at trial, which is the sole proper consideration. Id.; see also Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997); Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995).
Thus, in the case that Appellant relies upon, Commonwealth v. Poplawski, 852 A.2d 323 (Pa.Super. 2004), we affirmed the PCRA court's award of a new trial due to trial counsel's ineffectiveness in failing to object to numerous prosecutorial comments that invited the jury, by its conviction of the defendant, to send a message to the community that gun violence would not be tolerated. The district attorney in that case essentially turned the matter into a referendum on whether guns should be brought into the community. Thus, the jury in Poplawski was encouraged to decide the defendant's guilt based on its sentiment about the presence of guns where they lived rather than the evidence presented, in violation of the precepts of LaCava.
However, if a jury is not asked to premise its deliberations on the extraneous consideration of sending a message to the community or justice system, but, instead, is urged to send a message in the context of the evidence presented at trial, such a comment is permissible. Thus, in Patton, supra, at 1288, our Supreme Court observed that a district attorney can ask the jury to "send a message" to the defendant, "rather than the community or criminal justice system, " because such a remark does not "invite consideration of extraneous matters" and does not constitute misconduct. Additionally, the Patton Court declined to award the defendant a new trial when the prosecutor requested that the jury, through its verdict, send a message to a witness who had been reluctant to cooperate in the prosecution. The Court observed that the comment invited the jurors to send a message to a particular person whose recalcitrance was examined during the trial rather than a "wider segment of the community." Id. The Supreme Court concluded that the remark about the message to the witness "did not incite prejudice against [the defendant] or deny him a fair trial." Id. at 1289.
Similarly, in this case, the district attorney did not ask that the jury send a message to the community or judicial system and did not ask the jury to convict based on an extraneous matter. Indeed, the trial court specifically instructed that body it was not permitted to send a message to the community but had to reach its verdict on the facts presented at trial. The district attorney's argument suggested that the jury should send a message to Appellant on behalf of the victim, who suffered in silence due to his inability to speak. In this case, the prosecutor in no way urged the jury to base its verdict on anything other than the evidence at hand. The trial court confirmed that the jury's function was not to send a message to the community. Hence, a new trial is not required.
We now address Appellant's challenge to the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not guarantee an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Prisk, 13 A.3d 526, 532 -533 (Pa.Super. 2011) (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006)).
Herein, the appeal is timely, the issue was presented in a post-sentence motion, and Appellant's brief contains a Pa.R.A.P. 2119(f) statement. Appellant's brief at 17-19. Appellant argues that review is appropriate since the sentence was above the recommended guideline ranges and the court did "not give sufficient record" support for the reason why "it deemed this outside-of-the-guideline sentence was necessary." Id. at 18. An allegation that the sentencing court failed to support a sentence exceeding the guidelines has long been held to raise a substantial question. E.g., Commonwealth v. Garcia-Rivera, 983 A.2d 777 (Pa.Super. 2009); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super. 2007); Commonwealth v. Rodda, 723 A.2d 212 (Pa.Super. 1999) (en banc). Hence, we will examine the merits of Appellant's contention.
In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme Court observed that the parameters of this Court's review of the discretionary aspects of a sentence is confined by the dictates of 42 Pa.C.S. § 9781(c) and (d). Section 9781(c) states in relevant part that we may "vacate the sentence and remand the case to the sentencing court with instructions" if we find that "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S. § 9781(c)(3). Section 9781(d) provides that when reviewing a sentence, we must consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3)The findings upon which the sentence was based.
(4)The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The Walls Court noted that the term "unreasonable" generally means a decision that is either irrational or not guided by sound judgment. It held that a sentence can be defined as unreasonable either upon review of the four elements contained in § 9781(d) or if the sentencing court failed to take into account the factors outlined in 42 Pa.C.S. § 9721(b).
The record in the instant case reflects that the sentencing court considered a presentence report and the sentencing guidelines in fashioning Appellant's sentence. The sentencing court also acknowledged its consideration of the arguments of Appellant's counsel. The parties stipulated that reckless endangerment and simple assault merged for sentencing purposes, and the Commonwealth asked for a statutory maximum consecutive sentence as to each remaining offense. The maximum sentences were above the recommended guidelines ranges.
In electing to deviate above the guidelines, the court noted that Appellant's criminal history included acts of violence against his former wife, and that his punishment for that domestic violence "apparently didn't seem to work because [domestic violence] happened again" in the present case. N.T. Sentencing, 6/28/12, at 8. The court continued that, when Appellant was incarcerated in connection with attacks on his former wife, he was "given opportunities to equip [himself] with the tools that are necessary to avoid this kind of conduct and turn [his] life around, but Appellant chose to ignore them by consistently committing probation and parole violations and failing to complete anger management classes." Id. at 22. All of these circumstances proved to the court that Appellant was not capable of rehabilitation.
The sentencing court also relied upon the fact that Appellant was in a position of trust with the infant whom he harmed with more than one act. Additionally, the court observed that Appellant applied either significant force or a "focused action" of twisting on the infant's bones in order to break them because a "baby's bones are not brittle like ours." Id. At 19. Additionally, the court supported the departure because Appellant "pretended to not know anything about the injuries, " allowing his son to suffer. Id. at 20. The court observed that the boy must have been in excruciating pain, and it characterized Appellant's "conscious decision to not" seek medical attention after inflicting the injuries, as "an extremely heinous act." Id.
On appeal, Appellant claims that since he was acquitted of aggravated assault, the trial court improperly considered that he "deliberately and heinously attacked his child." Appellant's brief at 18. He maintains these two conclusions were "contradicted by the record, " id., and speculative. He argues that there was no evidence of record that he committed separate, intentional acts. Id. at 21. He concludes that the sentence was unreasonable since the court "ignored the jury's findings as to the defendant's intent and was based on the court's own speculation of how the child's injuries were sustained." Id. at 23.
We strongly disagree with Appellant's position. The fact that the jury concluded that Appellant did not commit aggravated assault does not compel a finding that the inflicted injuries were not caused deliberately. Dr. Bellino testified unequivocally that a significant amount of force was applied in order to break the baby's leg. He stated that either traumatic blows or significant twisting motions were used to cause the fractures. There were five fractures described at trial; thus Dr. Bellino's testimony clearly supported that Appellant committed five different deliberate actions to harm the child. Furthermore, Appellant performed the actions on a four-week-old infant in his care and allowed that child to suffer. We concur with the sentencing court's assessment that this conduct was heinous. Hence, we categorically reject Appellant's position in this appeal that the sentencing court's characterization of his actions with respect to the victim were not supported by the record.
We also conclude that the sentencing court presented concise and compelling reasons for its decision to sentence outside the guidelines. Since the court had the benefit of a presentence report, we are required to conclude that it properly considered all of the sentencing factors. Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). We also have examined: 1) the horrific nature of the offense; 2) Appellant's history of domestic abuse and inability to rehabilitate despite being given opportunities to do so; 3) the court's opportunity to observe Appellant; 4) the findings upon which the sentence was based; and 5) that the guidelines do not account for the age of the victim, Appellant's position of trust, and Appellant's decision not to seek medical attention for his son after inflicting the injuries, thus allowing the infant to suffer. Thus, the sentence was neither irrational nor unguided by sound judgment. Hence, we conclude that, even though the sentencing court sentenced outside the sentencing guidelines, the sentence is not unreasonable due to the sentencing court's stated justifications for its decision. Walls, supra.
Judgment of sentence affirmed.