Com. v. Burris, A ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ADAM BURRIS
Appellant No. 1115 MDA 2020
Appeal from the Judgment of Sentence Entered March 5, 2020
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0000979-2019
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 10, 2021
Appellant, Adam Burris, appeals from the March 5, 2020 judgment of
sentence imposing two years of probation for his conviction as a habitual
offender under 75 Pa.C.S.A. § 6503.1.1
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* Former Justice specially assigned to the Superior Court.
1 Section 6503.1 provides:
A habitual offender under section 1542 (relating to revocation of
habitual offender's license) who drives a motor vehicle on any
highway or trafficway of this Commonwealth while the habitual
offender's operating privilege is suspended, revoked or canceled
commits a misdemeanor of the second degree.
75 Pa.C.S.A. § 6503.1. Section 1542, in turn, defines a habitual offender as
one who commits three or more enumerated offenses within a five-year
period. 75 Pa.C.S.A. § 1542.
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At the conclusion of a January 6, 2020 trial, the jury deadlocked on one
count of Driving Under the Influence (“DUI”), 75 Pa.C.S.A. § 3802(a)(1) and
found Appellant guilty under § 6503.1. The Commonwealth subsequently
nolle prossed the DUI charge. The trial court found Appellant guilty of three
summary offenses: driving on a suspended license, driving without a license,
driving with an expired inspection sticker.2 The license violations merged into
the §6503.1 offense for sentencing purposes, and the trial court imposed a
$25.00 fine for the expired inspection sticker.
The trial court denied Appellant’s timely post-sentence motions by order
of July 24,2020. This timely appeal followed. Appellant raises a single issue:
Did the trial court err in permitting the remarks by the
Commonwealth in its opening statement discussing statistics
relating to impaired drunk driving injuries and deaths, as these
remarks inflamed the passions of the jury against [Appellant] and
were not fair deductions from the evidence sought to be presented
at trial?
Appellant’s Brief at 8.
Because the trial court has “broad powers concerning the conduct of
trial…,” we review this issue for abuse of discretion. Commonwealth v.
Parker, 919 A.2d 943, 949 (Pa. 2007). An abuse of discretion “requires a
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2 75 Pa.C.S.A. §§ 1543, 1501, and 4703(a), respectively. We observe that
our Supreme Court struck down as unconstitutional § 1543(b)(1.1)(i), relating
to sentencing for driving on a license that was suspended after a refusal of a
blood draw. Commonwealth v. Eid, 249 A.3d 1030 (Pa. 2021). That
subsection is not at issue in this case.
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result of manifest unreasonableness, or partiality, prejudice, bias, ill-will, or
such lack of support so as to be clearly erroneous.” Id. at 150.
The purpose of an opening statement is to apprise the jury
how the case will develop, its background and what will be
attempted to be proved; but it is not evidence. […] [A]s a
practical matter the opening statement can oftentimes be the
most critical stage of the trial, because here the jury forms its first
and often lasting impression of the case. The prosecution, as well
as the defense, is afforded reasonable latitude in presenting
opening arguments to the jury. Such latitude is not without limits.
A prosecutor’s statements must be based on evidence that
he plans to introduce at trial, and must not include mere
assertions designed to inflame the jury’s emotions. A prosecutor’s
opening statements may refer to facts that he reasonably believes
will be established at trial.
Id. at 950 (citations and quotation marks omitted). “[P]rosecutorial
misconduct does not occur 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.” Commonwealth v.
Robinson, 877 A.2d 433, 441 (Pa. 2005).
In this case, the prosecutor commenced his opening statement as
follows:
Your Honor, Attorney Ramos, Mr. Burris, members of the
jury, good morning. In the United States, thirty people are killed
every single day because of drunk driving. When we actually do
the math, that equates to roughly one person every –
Mr. Ramos: Your Honor, may we approach, please.
The Court: You may.
(Whereupon, the following discussion was held at sidebar.)
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Mr. Ramos: I would object to the form of this. It’s highly
prejudicial. He’s trying to make an example out of him in front of
the jury. How many people a year are killed by drunk driving is
not relevant. It’s scaring the jury into automatically convicting
him. It’s not appropriate for an opening.
Mr. Stover: I don’t think it’s an automatic conviction at all,
Judge. It just highlights the dangers of drivers that are intoxicated
and the danger they pose to the roadways.
Mr. Ramos: How is that relevant to whether or not Mr.
Burris is capable of safely driving?
The Court: Overruled.
(Whereupon, the discussion held at sidebar concluded).
Mr. Stover: I might as well start over since I was only on
the first sentence. So as I said, in the U.S. thirty people are killed
every day because of drunk driving, which equates out to one
person every 50 minutes.
In 2018, in our state alone, there were 52,636 DUI arrests.
In 2017, 293 people lost their lives just in Pennsylvania because
of inebriated or intoxicated drivers.
Everyone here in some way, shape or form has been
affected by a drunk driver or by intoxicated driving, or you at least
know someone that has been affected. Inebriated drivers
definitely pose a very significant risk to everyone on our
roadways. Because of that, the courts in Pennsylvania have long
recognized every single one of us has vital interests in detecting
and removing intoxicated drivers from our roadways.
N.T. Trial, 1/6/20, at 18-20.
At a minimum, the prosecutor’s opening comments were improper
insofar as they were not a summary of evidence he planned to introduce at
trial. The prosecutor never introduced evidence to support the statistics he
recited in his opening. Moreover, our legislature already has determined that
driving while intoxicated is a serious offense that must be criminalized.
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Arguing to a jury that they have a duty to ferret out offenders that drive while
intoxicated is a policy argument irrelevant to whether the Appellant in this
case was driving while intoxicated. Appellant could only be convicted if he in
fact was proven beyond a reasonable doubt to have been guilty of DUI,
regardless of any statistics regarding the dangers presented by DUI drivers.
Even so, we find no reversible error, as any error on the part of the trial court
was harmless in this case. “Prosecutorial misconduct is evaluated under a
harmless error standard.” Commonwealth v. Judy, 978 A.2d 1015, 1020
(Pa. Super. 2009) (quoting Commonwealth v. Holley, 945 A.2d 241, 250
(Pa. Super. 2008)). “The doctrine of harmless error is a technique of appellate
review designed to advance judicial economy by obviating the necessity for a
retrial where the appellate court is convinced that a trial error was harmless
beyond a reasonable doubt.” Commonwealth v. Allshouse, 36 A.3d 163,
182 (Pa 2012). “Its purpose is premised on the well-settled proposition that
[a] defendant is entitled to a fair trial but not a perfect one.” Id.As noted above, the jury deadlocked on the DUI charge, thus tending to
demonstrate they were not influenced by the prosecutor’s opening remarks.
The Commonwealth subsequently nolle prossed the DUI charge. The jury
convicted Appellant only of a habitual offender violation under § 6503.1. The
Commonwealth’s evidence in support of that conviction could hardly be
controverted. To meet its burden of proving Appellant guilty as a habitual
offender, the Commonwealth introduced a copy of Appellant’s driving record
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(Commonwealth’s Exhibit 1) through the testimony of patrol officer Macy
Neidiegh. N.T. Trial, 1/6/20, at 49. The exhibit, a document to which
Appellant did not object on any basis, evidenced Appellant’s commission of
three offenses enumerated in § 1542 during a five-year period from January
29, 2011 through June 28, 2015. Id. at 51-53. His five-year habitual offender
license revocation was imposed effective January 15, 2017. Id. at 53.
Neidiegh pulled Appellant over on May 23, 2019, while that five-year
suspension was in effect. Id. at 43-44. These facts alone were sufficient to
establish Appellant’s violation of § 6503.1.
The DUI charge, and the prosecutor’s opening argument related thereto,
had no bearing on the evidence establishing Appellant’s guilt of the habitual
offender charge. And given that the jury did not convict Appellant of DUI, we
conclude that any trial court error in overruling defense counsel’s objection to
the prosecutor’s opening statement was harmless beyond a reasonable doubt.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/10/2021
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