J-S22013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LAWRENCE VICTOR LARSEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1267 WDA 2022

Appeal from the Judgment of Sentence Entered July 19, 2022

In the Court of Common Pleas of Clarion County Criminal Division at 

No(s): CP-16-CR-0000188-2020

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY OLSON, J.: FILED: October 11, 2023

Appellant, Lawrence Victor Larsen, appeals from the judgment of 

sentence entered on July 19, 2022, following his jury trial conviction for 

terroristic threats.1 We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. On March 13, 2020, police were called to the Infusion Bar in Clarion 

County about a disturbance involving Appellant. During a two-day jury trial 

commencing on June 9, 2022, investigating police officers, the 

bartender/assistant manager, as well as the security guard for Infusion Bar 

testified. The bartender testified that when a woman fell off a barstool, he 

approached a group of people nearby and asked if everything was okay. 

Appellant asked the bartender if he had a problem, then stated that he was a 

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1 18 Pa.C.S.A. § 2706(a)(1). 
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member of the Aryan Brotherhood and threatened to “knife [the bartender] in 

the neck.” The bartender asked Appellant to leave and summoned bar 

security to speak with Appellant. Appellant again told the security guard that 

he was a member of the Aryan Brotherhood and that he was “going to burn 

the bar down” and “gut him like a fish.” Appellant picked up a pool cue stick,

but the security guard warned him not to use it, called the police, and escorted

Appellant outside. Other patrons called the police as well. The police arrived 

within five minutes and arrested Appellant. The security guard testified that 

he had banished many people from Infusion Bar for drunken conduct, but that 

Appellant’s threatening behavior was different, and the guard, as well as 

several patrons, were concerned that others inside the establishment might 

be harmed. The jury ultimately found Appellant guilty of the aforementioned 

crime.2 On July 19, 2022, the trial court sentenced Appellant to 14 to 60 

months of incarceration for terroristic threats with a consecutive term of 90 

days of incarceration for public drunkenness. 

On July 29, 2022, Appellant filed a timely post-sentence motion 

requesting, inter alia, that the trial court modify his sentence for public 

drunkenness because it unlawfully omitted a minimum term of incarceration. 

In its response to Appellant’s post-sentence motion filed on September 2, 

2022, the Commonwealth conceded that the trial court failed to impose both 

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2

 In a separate bench trial, the trial court also found Appellant guilty of the 

summary offense of public drunkenness, 18 Pa.C.S.A. § 5505. He does not 

challenge that determination.
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a minimum and maximum sentence for public drunkenness pursuant to 42 

Pa.C.S.A. § 9756(b)(1) (“The court shall impose a minimum sentence of 

confinement which shall not exceed one-half of the maximum sentence 

imposed”). On September 14, 2022, the trial court held a hearing on 

Appellant’s post-sentence motion. Counsel for the parties was present but 

Appellant was not present at the proceeding. On September 29, 2022, the 

trial court entered an order and opinion modifying Appellant’s sentence to 

include a minimum sentence of 45 days for public drunkenness but denied 

Appellant’s remaining post-sentence contentions.

3

 

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3 Generally, a “defendant shall be present at every stage of the trial 

[including] imposition of sentence.” See Pa.R.Crim.P. 602. Mindful of Rule 

602, however, we note that the trial court was permitted to amend its 

sentencing order without conducting a new sentencing hearing because the 

original sentencing order had an obvious, patent mistake which rendered that 

sentence illegal. As we previously determined:

Generally, a court “may modify or rescind any order within 30 

days after its entry, if no appeal has been taken.” 

Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001) 

(citing 42 Pa.C.S.A. § 5505). However, the court has “inherent 

powers to amend its records, to correct mistakes of the clerk or 

other officer[s] of the court, inadvertencies of counsel, or supply 

defects or omissions in the record, even after the lapse of the 

[thirty day] term.” Id. (citations omitted). Included among these 

exceptional circumstances to Section 5505's jurisdictional time 

limits [are instances] where the court sua sponte corrects an 

illegal sentence originally imposed, even after the defendant has

begun serving the original sentence. Commonwealth v. 

Santone, 757 A.2d 963 (Pa. Super. 2000); Commonwealth v. 

Quinlan, 639 A.2d 1235, 1239 (Pa. Super. 1994) (recognizing 

respective challenges of an illegal, patently contradictory, or 

fraudulently procured sentence as excepted from the jurisdictional 

(Footnote Continued Next Page)
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This timely appeal resulted.4 On appeal, Appellant presents the 

following issue for our review:

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time limit imposed by Section 5505). See also In the Interest 

of K.R.B., 851 A.2d 914 (Pa. Super. 2004) (finding an amended 

order subject to Section 5505's time limits because it added a 

penalty that was discretionary, rather than mandatory, under 

statute).

If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. Commonwealth v. 

Randal, 837 A.2d 1211 (Pa. Super. 2003).

Commonwealth v. Baio, 898 A.2d 1095, 1099 (Pa. Super. 2006). “[A] claim 

that a flat sentence should have instead had minimum and maximum terms 

goes to the legality of the sentence, and such issues are non-waivable.” 

Commonwealth v. Postie, 110 A.3d 1034, 1043 (Pa. Super. 2015) (citation 

omitted). Finally, we note that this Court has also determined that “[i]n cases 

where the sentencing court clearly intended to impose the maximum 

sentence, we may amend the sentence by including a minimum term equal to 

one-half the maximum.” Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. 

Super. 1994). For all of the foregoing reasons, we conclude that it was proper 

for the trial court to amend its sentencing order outside the Appellant’s 

presence.

4

 Appellant filed a counseled, timely notice of appeal on October 25, 2022. 

While Appellant purports to appeal from the subsequently amended 

sentencing order, Appellant’s appeal actually lies from the original judgment 

of sentence entered on September 29, 2022. See Commonwealth v. 

Wentzel, 248 A.3d 540 (Pa. Super. 2021) (appeal is from the original 

sentencing order “as amended” by subsequent orders); see also 

Commonwealth v. Santiago, 2020 WL 2537229 (Pa. Super. 2020) (appeal 

is from judgment of sentence rather than order granting in part and denying 

in part Santiago’s post-sentence motion). Hence, we have changed the 

caption accordingly. See Commonwealth v. Shamberger, 788 A.2d 408, 

410 n.2 (Pa. Super. 2001) (en banc) (correcting caption to reflect that the 

appeal properly lies from judgment of sentence). On October 27, 2022, the 

trial court entered an order directing Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Appellant 

complied timely. The trial court issued an opinion pursuant to Pa.R.A.P. 

1925(a) on November 30, 2022, relying largely upon its earlier opinion 

denying Appellant’s post-sentence motion entered on September 29, 2022. 
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1. Whether the trial court abused its discretion in denying 

[Appellant’s] motion for mistrial when a Commonwealth 

witness testified in front of the jury about [Appellant’s] 

association with police and probation in contravention of a 

[pre-trial motion in limine granted by the trial court]?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

On this issue, Appellant avers, in sum:

[A]ppellant filed a pre-trial motion in limine seeking to, “to 

preclude any evidence or testimony that shows or tends to show 

that [Appellant] was on state parole, or any other evidence that 

would indicate that he had recently been incarcerated as the result 

of prior cases.” This [m]otion was agreed to by the 

Commonwealth, and [the trial court] issued a pre-trial [o]rder 

precluding any such testimony at [] trial. On direct examination, 

one of the main Commonwealth witnesses testified as follows: 

“[Appellant] came in, introduced himself, asked me if I was the 

bouncer. I explained to him that I was. We were talking a little 

bit. He asked me if the police or probation comes in here a lot, 

and I said no, not really.” [Defense c]ounsel immediately objected

and after a conversation at sidebar moved for a mistrial. The [trial 

c]ourt denied [defense] counsel’s motion, and instead ordered 

that the jury disregard the prejudicial remarks, and allowed the 

witness to testify.

Id. at 9 (record citations omitted). Appellant contends this Court’s decision 

in Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super. 2007) controls. 

Id. at 10-11. Appellant maintains that in Padilla, a Commonwealth witness 

testified that “[a]pparently [Padilla] had just got out of jail” and this Court

“held that the witness’ statement imputed clear prejudice due to [the] 

implication of Padilla’s recent incarceration, and that the [trial court’s] 

instruction to the jury was insufficient to undo the prejudice.” Id. at 10. 

Accordingly, Appellant argues that he is entitled to a new trial. Id. at 12.
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Our standard of review for the denial of a motion for mistrial is as 

follows:

The denial of a motion for a mistrial is assessed on appellate 

review according to an abuse of discretion standard. The central 

tasks confronting the trial court upon the making of the motion 

were to determine whether misconduct or prejudicial error 

actually occurred, and if so, to assess the degree of any resulting 

prejudice.

Additionally, when dealing with a motion for mistrial due to a 

reference to past criminal behavior, the nature of the reference 

and whether the remark was intentionally elicited by the 

Commonwealth are considerations relevant to the determination 

of whether a mistrial is required.

Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007) (internal 

citations, quotations, and brackets omitted).

As we previously explained:

The “controlling question” in cases raising this issue “is whether 

or not a juror could reasonably infer from the facts presented that 

the accused had engaged in prior criminal activity.” 

Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972). If 

such an inference is created, then a mistrial must be granted. 

However, the Pennsylvania Supreme Court stated in 

Commonwealth v. Nichols, 400 A.2d 1281, 1282 (Pa. 1979) 

that “(not) all references which may indicate prior criminal activity 

warrant reversal.” Mere “passing references” to prior criminal 

activity do not warrant reversal unless the record illustrates that 

prejudice resulted from the reference. Ibid. As [] stated in 

Commonwealth v. Colon, 399 A.2d 1068, 1071 (Pa. Super. 

1979), there is “no per se rule requiring a new trial for every 

reference (to prior criminal conduct). The decision whether to 

declare a mistrial when faced with these situations is addressed 

to the sound discretion of the trial judge.”

Commonwealth v. Bowermaster, 444 A.2d 115, 118 (Pa. Super. 1982).

“Prejudice results where the testimony conveys to the jury, either expressly 
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or by reasonable implication, the fact of another criminal offense.” Padilla, 

923 A.2d at 1195.

Finally, our Supreme Court has “never ascribed to the view that all 

improper references to prior criminal activities necessarily require the award 

of a new trial as the only effective remedy.” Commonwealth v. Richardson, 

437 A.2d 1162, 1165 (Pa. 1981) (citation omitted). Instead, our Supreme 

Court has stated that “there are situations where the taint, resulting from an 

improper reference to an unrelated criminal act, may be expunged without 

resort to the extreme remedy of aborting an otherwise fair trial.” Id. (citation 

omitted). “In a criminal case, the possible prejudicial effect of a witness's 

reference to prior criminal conduct of the defendant may, under certain 

circumstances, be removed by an immediate cautionary instruction to the 

jury.” Id. (citation omitted). “It is well-settled that the jury is presumed to 

follow the trial court's instructions[.]” Commonwealth v. Cash, 137 A.3d 

1262, 1280 (Pa. 2016) (citation omitted).

Here, the trial court denied Appellant’s request for a mistrial because 

the aforementioned statement was “not so prejudicial as to require a new trial 

because it was a passing remark, and it was not intentionally elicited by the 

Commonwealth.” Trial Court Opinion, 9/28/2022, at 7. The trial court further 

determined that “any prejudice that may have resulted from [the] utterance 

was ameliorated by the court’s curative instruction to completely disregard 

the improper evidence.” Id. Finally, the trial court noted that “there was 

overwhelming evidence of [Appellant’s] guilt which rendered harmless any 
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potential prejudice from [the] passing remark.” Id. at 7-8. Accordingly, the 

trial court determined that Appellant was not entitled to relief.

Upon review of the certified record and applicable law, we agree with 

the trial court’s decision to deny Appellant’s motion for mistrial. At trial, the 

Commonwealth asked the witness at issue to describe the incident at Infusion 

Bar as it unfolded. N.T., 6/9/2022, at 41-42. Thereafter, the Commonwealth 

asked the witness, “[H]ad you seen [Appellant] earlier in the bar?” Id. at 42. 

The witness replied, “I did. He came in, introduced himself, asked me if I was 

a bouncer. I explained to him that I was. We were talking a little bit. He 

asked if the police or probation comes in here a lot, and I said no, not really.” 

Id. Here, the Commonwealth never questioned the witness about state parole 

or otherwise attempted to illicit a response that Appellant was recently 

incarcerated. The Commonwealth merely asked the witness if he had seen 

Appellant earlier. The witness spontaneously volunteered that Appellant 

asked if law enforcement regularly visited the establishment. Examining the 

nature of the reference, we recognize that the statement did not expressly 

implicate Appellant in prior criminal activity. Accordingly, we reject 

Appellant’s reliance on Padilla because the witness in that case made “a direct 

reference to [Padilla’s] recent incarceration.” Padilla, 923 A.2d at 1196. 

Finally, we note that the remark in this case did not communicate to the jury 

Appellant’s involvement in another criminal offense by reasonable implication. 

The witness’ passing reference suggested that Appellant was concerned with 

whether there was a police presence at the location, but did not reveal that 
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Appellant was on probation, parole, or otherwise had a criminal past. 

Accordingly, we conclude that the Commonwealth did not engage in 

misconduct. Moreover, following the defense’s objection to the statement and 

a sidebar discussion, the trial court instructed the jury as follows:

Members of the jury, I am instructing you to completely disregard 

the last statement that the witness gave. That’s not part of the 

evidence in this case and not for your consideration so you are to 

disregard the last testimony by this witness. It’s not part of the 

evidence and not for you to consider.

N.T., 6/9/2022, at 44-45. We presume that the jury followed the trial court’s 

instructions. Based upon all of the foregoing, we discern no abuse of 

discretion in denying Appellant’s motion for a mistrial based upon alleged 

prosecutorial misconduct. Accordingly, Appellant’s sole appellate issue lacks 

merit.

Judgment of sentence affirmed.

 10/11/2023