Com. v. Jean, J. ( 2016 )

J-A21014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA JEAN,
Appellant No. 2959 EDA 2015
Appeal from the Judgment of Sentence Entered July 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013192-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 22, 2016
Appellant, Joshua Jean, appeals from the judgment of sentence of
three years’ probation, imposed after he was convicted by a jury of
possession with intent to deliver (PWID) and possession of a controlled
substance. Appellant argues on appeal that the trial court erred by failing to
grant his motion for a mistrial, made after a prosecution witness referred to
Appellant’s prior incarceration in an unrelated case. After careful review, we
affirm.
The trial court summarized the facts of Appellant’s case, as follows:
On December 4[], 2012, at around 11:45 a.m., Police
Officer Jason Branyan was conducting surveillance on the 1500
block of Arrott Street in Philadelphia. Officer Branyan observed
[Appellant’s] walking up and down the 1500 block of Arrott
Street multiple times. At about 12:15 p.m., Michael Clark, with
his hand out, approached the area where [Appellant] had just
stepped out of view. About thirty seconds later, Clark walked
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away with his left hand in his pocket towards Penn Street.
Believing Clark had purchased drugs, Officer Branyan put out
flash information regarding Clark. Police Officer Andre Hudgens
stopped Clark less than two blocks away on the 1500 block of
Foulkrod Street. Officer Hudgens recovered a Ziploc bag
containing marijuana from Clark’s front left pocket.
At about 12:45 p.m., Officer Branyan observed Julia Berry
have a brief conversation with Rashee Sullivan who was standing
on the north side of Arrott Street. Sullivan called across the
street to [Appellant] who was standing on the south side of
Arrott Street. After [Appellant] crossed the street to where
Berry and Sullivan were standing, Berry handed an object to
[Appellant] who walked back across the street. [Appellant]
returned with his hand in his pocket and handed an object to
Berry who then walked away. Believing Berry had purchased
drugs, Officer Branyan transmitted a flash description of Barry
[sic]. Police Officer Michael Schaffer stopped Berry about two
blocks away on the 1300 block of Arrott Street. Officer Schaffer
recovered four Ziploc packets containing marijuana from Berry.
Pursuant to information received from Officer Branyan,
Sergeant Michael Cerruti entered an alley located on the south
side of Arrott Street, just east of 1514 Arrott Street. Along the
fence in the alley[,] Sergeant Cerruti found a clear plastic bag
with two Ziploc packets containing marijuana. Sergeant Cerruti
and Officer Sean Kennelly located [Appellant] and Sullivan in a
house at the back of the alley. After Officer Sean Kennelly
confiscated $100 in United States currency from Sullivan, both
[Appellant] and Sullivan were arrested.
Trial Court Opinion (TCO), 9/23/14, at 2-3 (citations to the record omitted).
Appellant was charged with PWID (marijuana), 35 P.S. § 780-
113(a)(3), and possession of a controlled substance (marijuana), 35 P.S. §
780-113(a)(16). A jury trial commenced in May of 2014 and, at the close
thereof, Appellant was convicted of both crimes. On July 14, 2014, the court
sentenced Appellant to three years’ probation for PWID, and no further
penalty for his possession offense. Appellant filed a timely notice of appeal,
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and also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Herein,
Appellant presents one question for our review:
Did not the lower court err in denying [A]ppellant’s request
for a mistrial where Officer Branyan’s trial testimony that
[A]ppellant had previously been arrested was an inadmissible
statement of unrelated, prior criminal activity which, by virtue of
its prejudicial impact, required that a mistrial be granted?
Appellant’s Brief at 3.
We begin by noting that:
The standard of review we apply when addressing a motion for
mistrial is well settled.
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.
Commonwealth v. Hogentogler, 53 A.3d 866, 877–878 (Pa.
Super. 2012) (citation omitted), appeal denied, 620 Pa. 720, 69
A.3d 600 (2013).
It is also well established that evidence of other crimes,
wrongs, or acts may not be presented during trial against a
criminal defendant as either character or proclivity evidence.
Pa.R.E. 404(b); Commonwealth v. Padilla, 923 A.2d 1189,
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1194 (Pa. Super. 2007), appeal denied, 594 Pa. 696, 934 A.2d
1277 (2007).
However, mere passing references to prior criminal activity
will not necessarily require reversal unless the record
illustrates definitively that prejudice results. Prejudice
results where the testimony conveys to the jury, either
expressly or by reasonable implication, the fact of another
criminal offense. Determining whether prejudice has
occurred is a fact specific inquiry.
Padilla, supra at 1194–1195 (citations and quotation marks
omitted). “If evidence of prior criminal activity is inadvertently
presented to the jury, the trial court may cure the improper
prejudice with an appropriate cautionary instruction to the jury.”
Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.
2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (2009).
Commonwealth v. Thompson, 106 A.3d 742, 752–53 (Pa. Super. 2014),
appeal denied, 134 A.3d 56 (Pa. 2016).
We now summarize the context in which prior bad act evidence was
commented on by Officer Branyan at Appellant’s jury trial. During defense
counsel’s cross-examination of Officer Branyan, counsel attempted to
demonstrate that the officer had misidentified Appellant as the person who
sold narcotics. In this regard, defense counsel suggested that Rashee
Sullivan closely resembles Appellant and was the person that Officer
Branyan saw selling drugs. See N.T. Trial, 5/12/14, at 99 (defense counsel’s
questioning Officer Branyan about the fact that “Sullivan and [Appellant]
look alike”); id. at 100-101 (defense counsel’s asking Officer Branyan about
the similar height, build, facial hair, and race of Sullivan and Appellant).
On re-direct examination, the Commonwealth sought to show that
Officer Branyan could tell the difference between Appellant and Sullivan
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because he knew Appellant prior to the narcotics transactions in 2012. To
demonstrate this point, the Commonwealth asked the officer: “Outside of
this event that happened on December 4th, 2012, had you had prior contact
with [Appellant]?” Id. at 110. Officer Branyan replied, “I believe we locked
him up.” Id. (emphasis added). Defense counsel immediately objected,
and the court sustained the objection and struck the officer’s testimony. Id.
The Commonwealth then continued to question the officer, eliciting
testimony that the officer had had “contact” with Appellant when he was a
juvenile. Id. at 111.
Defense counsel subsequently requested a mistrial based on Officer
Branyan’s comment regarding Appellant’s prior incarceration. Id. at 117.
The court denied that request, but offered to give a curative instruction. Id.
at 118. After conferring with Appellant, defense counsel requested the court
provide the following charge:
You heard Officer Branyan testify that he had contact with
[Appellant] when [Appellant] was a juvenile. This was
completely improper. You may not consider this testimony as
accurate in evaluating the merits of this chase [sic]. However,
you may consider the improper motives of Officer Branyan and
this deliberate impropriety when assessing his credibility or lack
thereof.
N.T. Trial, 5/13/14, at 6. The court refused to give this curative instruction,
concluding that “it was inaccurate and misleading,” as Officer Branyan’s
“testimony was truthful and the court had no evidence before it as to any
potential motive for the officer’s testimony.” TCO at 5. However, the court
offered to draft a curative instruction, or to permit defense counsel to
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propose another charge. Id. at 8. Defense counsel declined, stating that if
the court would not give the above-quoted instruction, he did not want any
instruction at all. Id. Consequently, no curative instruction was provided,
and there was no further mention of Officer Branyan’s remark regarding
Appellant’s prior incarceration. At the close of the trial, the court provided a
general jury instruction that Appellant was presumed to be innocent
throughout trial, that his arrest and criminal charges were not evidence of
his guilt, and that the jury must assess, based on the evidence presented at
trial, whether the Commonwealth had met its burden of proving him guilty
beyond a reasonable doubt. Id. at 138-39.
Now, on appeal, Appellant contends that the court erred by denying
his motion for a mistrial. First, Appellant challenges the trial court’s
conclusion that the Commonwealth did not intentionally elicit the at-issue
comment by Officer Branyan. See TCO at 5 (“The statement was not
intentionally elicited by the Commonwealth as the prosecutor was trying to
elicit the fact that Officer Branyan knew the difference between [Appellant]
and Sullivan.”). Appellant argues that “[t]here is no factual record
supporting [the court’s] post hoc conclusion….” Id. Instead, he maintains
that the record supports a conclusion that the prosecutor intentionally
elicited Officer Branyan’s remark by asking “a question to her police witness
about ‘prior contact’ with [A]ppellant,” which is “practically a term of art
meaning prior arrests in this context.” Id. at 12-13 (emphasis added).
Appellant insists that, at the very least, the prosecutor “assumed the risk”
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that her question would elicit Officer Branyan’s improper testimony. Id. at
13 (citing Commonwealth v. Gaerttner, 484 A.2d 92, 100 (Pa. Super.
1984) (finding that the prejudicial response by the witness was clearly in
response to the prosecutor’s question and, noting that “[w]hen the question
was asked, the prosecutor either knew what the answer would be, in which
case there was an intentional and improper introduction of evidence of prior
criminal activity, or he did not know what the answer would be and assumed
the risk”).
We are compelled to agree with Appellant that the prosecutor should
have at least expected that her question could elicit a response from Officer
Branyan about Appellant’s prior arrest or incarceration. The prosecutor was
aware that Officer Branyan had arrested Appellant in 2008 for criminal
trespass. See N.T. Trial, 5/12/14, at 117-18. Therefore, her question to
the officer regarding his ‘prior contact’ with Appellant assumed the risk that
he would refer to that 2008 arrest and/or imprisonment.
Next, we must determine if the prejudice suffered by Appellant due to
the officer’s comment warrants a new trial. In this vein, the trial court
concludes that defense counsel’s strategic decision to forego a curative
instruction waived Appellant’s ability to plead prejudice on appeal. See TCO
at 6. In support of its decision, the court cites Commonwealth v. Miller,
481 A.2d 1221 (Pa. Super. 1984). There, a defense witness improperly
commented about Miller’s prior incarceration. Id. at 1222. Defense counsel
moved for a mistrial, which the court denied. Id. However, the court
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offered to provide a curative instruction. Id. Defense counsel refused,
reasoning that he did not want to “draw further attention to the remark.”
Id. at 1223. On appeal, this Court declared that, “[w]hen counsel chooses
to refuse appropriate curative instructions for this legitimate tactical reason,
the defense may not plead prejudice on appeal.” Id. (citing
Commonwealth v. Quartman, 385 A.2d 429, 432 (Pa. Super. 1978)
(stating that “counsel's decision to forego curative instructions [regarding an
improper reference to the defendant’s post-arrest silence] may prove to
have been a tactical error; it is likewise irremediable. In every case, it is a
tactical decision to be made by defense counsel, and the rendering of an
unfavorable verdict should not entitle a defendant, who did not elect to
protect himself to the maximum [extent] in his first trial, to an automatic
retrial.”)). Based on Miller, the trial court concludes that Appellant cannot
plead prejudice on appeal.
In response, Appellant argues that he did not waive his right to assert
prejudice, relying primarily on Commonwealth v. Durant, 407 A.2d 1311(Pa. Super. 1979). In Durant, a prosecution witness was asked whether
she knew where Durant lived, to which she replied, “Yes, but I didn’t know
he was here in the city. … I didn’t know he was out of jail, really.” Id. at
1311 (emphasis in original). Durant’s counsel moved for a mistrial, which
was denied. Id. Counsel then refused the court’s offer of a curative
instruction. Id. On appeal, this Court overlooked counsel’s strategic
decision, reasoning that curative instructions would have been inadequate
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“[b]ecause of the nature of the testimonial reference….” Id. at 1312. We
stressed that the prejudice caused to Durant was high, noting that the
comment about Durant’s prior time in jail came from a witness with “a
strong desire … to convict” Durant, and the remark “served only to convey
to the jury that [Durant] had been convicted of a crime in the past.” Id.Our review of Durant convinces us that our decision therein was
limited to the specific facts and circumstances of that case. Nothing in the
language of the Durant decision suggests that we intended to create a
general holding that defense counsel may reject a court’s offer of a curative
instruction, yet plead uncured prejudice on appeal. In any event, Miller was
decided after Durant, and Miller holds, as a general proposition, that
counsel’s decision to forego a cautionary instruction, in the specific context
of improper remarks pertaining to the defendant’s prior bad acts, precludes
the defendant from asserting prejudice on appeal. Thus, Miller calls into
question Durant’s continued validity.1, 2
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1
We add that an en banc panel of this Court reiterated the Miller holding in
Commonwealth v. Norman, 549 A.2d 981, 986 (Pa. Super. 1988) (en
banc) (noting, as an alternative basis for affirming Norman’s judgment of
sentence, that the defendant could not plead, on appeal, that he was
prejudiced by a detective’s testimony that he advised the victim that
Norman was “dangerous,” where defense counsel refused a curative
instruction regarding that improper testimony) (quoting Miller, 481 A.2d at
1223) (“When counsel chooses to refuse appropriate curative instructions for
[a] legitimate tactical reason, the defense may not plead prejudice on
appeal.”).
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Consequently, Appellant’s reliance on Durant is unconvincing, and we
agree with the trial court that under Miller, defense counsel’s decision to
refuse a curative instruction precludes him from arguing, on appeal, that he
suffered uncured prejudice warranting a new trial. Therefore, we ascertain
no abuse of discretion in the court’s decision to deny Appellant’s motion for a
mistrial.
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
Judge Musmanno joins this memorandum and files a concurring
statement in which Judge Dubow joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
_______________________
(Footnote Continued)
2
Appellant also cites Gaerttner, which discussed Durant, and
Commonwealth v. Laughman, 452 A.2d 548 (Pa. Super. 1982).
However, in both Gaerttner and Laughman, cautionary instructions were
provided following inadvertent comments about the defendants’ prior bad
acts. Thus, neither the Gaerttner nor Laughman panels specifically ruled
on the issue of waiver based on defense counsel’s decision not to have a
cautionary instruction provided to the jury.
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