Opinion
J-S39035-18 No. 1597 MDA 2017
08-22-2018
COMMONWEALTH OF PENNSYLVANIA v. TOMAS MIGUELE MATTHEWS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 4, 2017 in the Court of Common Pleas of Lancaster County, Criminal Division at No(s): CP-36-CR-0003836-2015 BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Tomas Miguele Matthews ("Matthews") appeals from the judgment of sentence imposed after a jury convicted him of two counts each of unlawful restraint and simple assault, and one count each of intimidation of a witness, aggravated assault, theft by unlawful taking, terroristic threats, rape, sexual assault, and firearms not to be carried without a license. We affirm.
See 18 Pa.C.S.A. §§ 2902(a)(1) and (a)(2), 2701(a)(1) and (a)(3), 4952(a)(1), 2702(a)(1), 3921(a), 2706(a)(1), 3121(a)(2), 3124.1, 6106(a)(1).
The trial court set forth the factual and procedural history underlying this appeal in its Opinion, which we incorporate as though fully set forth herein. See Trial Court Opinion, 12/7/17, at 1-6.
Matthews now presents the following questions for our review:
1. Did the trial court err in admitting the hearsay statements of J[.]R[.] [(hereinafter "the victim")] to Katherine Orell Mummey [("Mummey")], as these statements were not made for medical diagnosis or treatment, but for purposes of evidence collection?Brief for Appellant at 8 (footnote added, emphasis in original).
2. Was [] Matthews'[s] conviction for intimidation of a witness, graded as a first[-]degree felony, illegal, where the verdict slip contained the question: "If guilty, do you find the defendant used force, violence or threatened to employ force or violence upon the victim or another person?", but neither the verdict slip nor any instructions given by the court informed the jury that they were required to find this extra factor, which is an element of the offense, beyond a reasonable doubt?
3. Was [] Matthews improperly sentenced as a second strike offender, pursuant to 42 Pa.C.S. § 9714, where his [prior] conviction for kidnapping in Arizona was not a previous crime of violence[,] as set forth in Section 9714?
Mummey, a registered nurse, performed a sexual assault forensic examination ("SAFE exam") on the victim at the emergency room.
In his first issue, Matthews contends that the trial court committed reversible error when it admitted, over his objection, prejudicial hearsay statements that the victim made to Mummey about the assault during the SAFE exam. See id. at 17-23.
See Pa.R.E. 801(c) (stating that "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); see also Pa.R.E. 802 (providing that hearsay is per se inadmissible except as provided in the Pennsylvania Rules of Evidence or by statute). Pennsylvania Rule of Evidence 803 enumerates various exceptions to the general inadmissibility of hearsay testimony. Commonwealth v. Belknap , 105 A.3d 7, 11 (Pa. Super. 2014).
In these statements, the victim essentially disclosed that she had been beaten and raped. See N.T. (trial), 1/23-27/17, at 305-06. Though the trial court ruled that the victim's statements in question were admissible, it precluded any mention of the identity of the perpetrator who had assaulted the victim. Id. at 299; see also id. at 305-06.
Our standard of review concerning a challenge to the admissibility of evidence is as follows: "[I]n reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Schley , 136 A.3d 511, 515 (Pa. Super. 2016) (citation and ellipses omitted).
Here, the trial court admitted the victim's out-of-court statements to Mummey under Pa.R.E. 803(4), which excludes from the hearsay bar statements made for purposes of medical diagnosis and treatment (the "medical treatment exception"). This exception is met where the statement
(A) is made for - and is reasonably pertinent to - medical treatment or diagnosis in contemplation of treatment; andPa.R.E. 803(4); see also Belknap , 105 A.3d at 11 (stating that "[t]he following two requirements must be satisfied in order for a statement to qualify as a medical treatment exception: (1) the statement must be made for the purpose of receiving medical treatment; and (2) the statement must be necessary and proper for diagnosis and treatment.").
(B) describes medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Matthews contends that the victim's statements to Mummey during the SAFE exam were not admissible under the medical treatment exception "because [] Mummey did not interact with [the victim] for the purpose of medical treatment and diagnosis[.]" Brief for Appellant at 21 (citing Pa.R.E. 803(4)(A)). According to Matthews, "[b]y her own admission, [] Mummey's reason for seeing [the victim] was to exam[ine] her for injury, document them and collect evidence, and [Mummey] saw [the victim] only after she had been medically cleared by treating personnel." Brief for Appellant at 21 (citing, inter alia, N.T., 1/23-27/17, at 327-28 (wherein Mummey testified that part of her job as a SAFE nurse required her to "collect any evidence and examine the patient for any injuries.")). Matthews further points out Mummey's testimony that she could not prescribe treatment for the victim's injuries. Brief for Appellant at 21.
In its Opinion, the trial court addressed Matthews's claim, summarized Mummey's relevant trial testimony, and opined, inter alia, that the victim's statements in question were properly admitted under the medical treatment exception, as they "were made in the emergency room to medical staff for the purpose of medical diagnosis and treatment." Trial Court Opinion, 12/7/17, at 8. Because we agree with the trial court's rationale and determination, we affirm on this basis in rejecting Matthews's first issue, see id. at 7-8, with the following addendum.
We are unpersuaded by Matthews's claim that the victim's statements were not "made for - and [] reasonably pertinent to - medical treatment or diagnosis in contemplation of treatment." Pa.R.E. 803(4)(A). At the time of these statements, the victim was still in the emergency room and Mummey was tasked with examining and evaluating the victim's injuries. Mummey testified that it was part of her job, in performing a SAFE exam, to "interview the patient and ask them what exactly happened," and "take quotes from them and just kind of write exactly what they're telling me." N.T., 1/23-27/17, at 302. The comment to Rule 803(4)(A) explains that "[s]tatements as to causation[, e.g., how a victim sustained the injury,] have been held to be admissible." Pa.R.E. 803(4), cmt.; see also Commonwealth v. Fink , 791 A.2d 1235, 1247 (Pa. Super. 2002) (stating that "a statement comes within [the medical treatment] exception when ... [it] relat[es] to the cause of the injury ... and ... as to how the person sustained the injuries[.]"). Moreover, contrary to Matthews's urging, for the purpose of meeting the medical treatment exception, it is irrelevant that Mummey, a non-physician, was not authorized to "prescribe" treatment. See , e.g., Pa.R.E. 803(4), cmt. (stating that "[t]his rule is not limited to statements made to physicians. Statements to a nurse have been held to be admissible."). Accordingly, the trial court did not err in admitting the evidence in question.
Further, Mummey's statement that she could only begin her examination of the victim after the victim was "cleared" as being stable and ready for a SAFE exam by emergency room trauma physicians is unavailing to Matthews. Relatedly, Matthews fails to acknowledge Mummey's testimony that it wasn't until after Mummey had completed the SAFE exam that the victim's physicians finally cleared her so that she could receive the "sexually transmitted disease prophylactic medication" that is regularly-prescribed in connection with sexual assault incidents. See N.T., 1/23-27/17, at 325-26.
In his second issue, Matthews argues that his conviction of intimidation of a witness, graded as a first-degree felony, is illegal and "must be reduced to a conviction for intimidation of [a] witness, graded as a second-degree misdemeanor." Brief for Appellant at 30. Specifically, Matthews contends that the conviction is illegal,
The provision governing grading of the offense of intimidation of a witness, 18 Pa.C.S.A. § 4952(b), is fully set forth in the trial court's Opinion, which we incorporate herein by reference. See Trial Court Opinion, 12/7/17, at 9.
where the verdict slip contained the question: "If guilty, do you find the defendant used force, violence or threatened to employ force or violence upon the victim or another person?" [(i.e., an element contained in the intimidation of a witness statute regarding the grading of the offense, see 18 Pa.C.S.A. § 4952(b)(1)(i))], but neither the verdict slip nor any instructions given by the court informed the jury that they were required to find this extra factor, which is an element of the offense, beyond a reasonable doubt.Id. at 24 (emphasis in original). According to Matthews, because "the jury was never informed that the use or threat of force or violence was an element of the offen[s]e[,] [] they had no way of knowing that they had to answer the question on the verdict slip beyond a reasonable doubt[.]" Id. at 28.
"The determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary." Commonwealth v. Atanasio , 997 A.2d 1181, 1183 (Pa. Super. 2010) (citation and brackets omitted)). Further, this Court has explained that
[t]he defense has an absolute right to have the jury instructed as to the quantum of proof required to establish guilt. To that end, the trial court must provide the jury with a positive instruction fully and accurately defining that burden, i.e., "beyond a reasonable doubt." See Sullivan v. Louisiana , 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (a constitutionally deficient jury instruction in a criminal case as to the definition of reasonable doubt, for purposes of the prosecution's burden of proving guilt beyond a reasonable doubt, is not amenable to harmless error analysis and will always invalidate a conviction).Commonwealth v. Clark , 683 A.2d 901, 906 (Pa. Super. 1996) (some internal citations omitted).
Initially, we acknowledge that Matthews's counsel never objected at trial to the trial court's jury instruction concerning this offense or the verdict slip that was given to the jury. See Pa.R.Crim.P. 647(C) (providing that "[n]o portions of the charge[,] nor omissions from the charge[,] may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate."); Commonwealth v. Baumhammers , 960 A.2d 59, 73 (Pa. 2008) (emphasizing that "it is axiomatic that issues are preserved when objections are made timely to the error or offense[,]" and "an absence of contemporaneous objections renders an appellant's claims waived." (citations and quotation marks omitted)); see also Commonwealth v. Matty , 619 A.2d 1383, 1387 (Pa. Super. 1993) (holding that the defendant's "failure to contemporaneously object to the jury instructions or the verdict slip ... operates as a waiver."). Nevertheless, as Matthews's issue implicates the legality of his sentence, we will reach its merits. See Commonwealth v. Rivera , 154 A.3d 370, 379 (Pa. Super. 2017) (en banc) (observing that a claim that implicates the legality of a sentence cannot be waived on appeal).
In its Opinion, the trial court addressed and expounded upon Matthews's challenge to the legality of his intimidation of a witness conviction, adeptly set forth the relevant law, and determined that the conviction was lawful and properly graded as a first-degree felony. See Trial Court Opinion, 12/7/17, at 8-11. The trial court's sound analysis is supported by the record and the law, and we agree with its determination. Therefore, we affirm on this basis in rejecting Matthews's second issue. See id.
In his third and final issue, Matthews contends that the trial court imposed an illegal sentence when it sentenced him as a "second-strike" offender pursuant to 42 Pa.C.S.A. § 9714. See Brief for Appellant at 31-43. According to Matthews, his prior 2010 conviction, in Arizona, for kidnapping was not a "crime of violence," as that term is defined in section 9714, and thus, he was not subject to ten-year mandatory minimum sentences, under section 9714, for his convictions of aggravated assault and rape. Id. at 32- 33, 38-42. Matthews contends that there is an "appreciable difference" between Arizona's and Pennsylvania's kidnapping statutes, which are not "substantially identical in nature and definition." See id. at 40-42. Specifically, Matthews argues that although the offense of kidnapping, in Pennsylvania, is defined as a "crime of violence," Arizona's kidnapping statute is not equivalent to Pennsylvania's kidnapping statute, as the latter "requires elements of removing another a substantial distance, or confining another for a substantial period of time in a place of isolation." Id. at 42; see also id. (asserting that Arizona's kidnapping statute is "more general" than Pennsylvania's kidnapping statute).
In its Opinion, the trial court thoroughly addressed Matthews's claim; thoroughly set forth (a) the language of section 9714, (b) the kidnapping statutes of Pennsylvania and Arizona, and (c) the relevant associated law; and determined that the court properly applied section 9714 to this case, as the elements of the kidnapping statutes from both states are equivalent. See Trial Court Opinion, 12/7/17, at 11-18. We agree with the cogent rationale and determination of the trial court, and therefore affirm on this basis in concluding that Matthews's final issue entitles him to no relief. See id.
Accordingly, we affirm Matthews's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 08/22/2018
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