J-S19011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAEED RASHEED JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 reentered 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 crossexamination.” 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 

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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