Com. v. Sromovsky, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN ROBERT SROMOVSKY,
Appellant No. 2365 EDA 2018
Appeal from the Judgment of Sentence Entered June 7, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001137-2017
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 05, 2019
Appellant, John Robert Sromovsky,1 appeals from the judgment of
sentence of 2½-12 months’ incarceration, imposed following his conviction for
simple assault after a second trial. In his appeal, Appellant challenges the
trial court’s determination that his double jeopardy rights did not bar his
second trial, that the court erred (at both trials) by refusing to admit video
evidence depicting events that occurred after the assault, and that the
Commonwealth engaged in prosecutorial misconduct. After careful review,
we affirm.
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1 As Appellant was employed as a Pennsylvania State Trooper, and acting in
that capacity when he committed the offense at issue, we also refer to him as
“Trooper Sromovsky” in this memorandum. News reports indicate that
Appellant was fired by the State Police following his sentencing in this case,
however, that information is not contained in the certified record.
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The trial court summarized the facts adduced at Appellant’s first trial,2
held on November 15-16, 2017, as follows:
On the evening of January 27, 2017, Trooper Revels of the
Pennsylvania State Police made a vehicle stop. He determined
that the operator[, Lorenzo Lopez,] was impaired and would be
arrested for DUI. During the handcuffing of [Lopez], he tensed
his arms causing the trooper and Officer Cavanaugh who was
acting as backup to use a MODERATE degree of force to pull his
arms behind his back and cuff him. This entire process was
captured on Trooper Revels[’] dash mounted camera. Once
cuffed, [Lopez] became visibly upset and began to cry. When
Trooper Revels went to place him in his cruiser, [Lopez] went limp
and was uncooperative[,] requiring Trooper Revels and Officer
Cavanaugh to … stuff him into the cruiser. At some point during
the placing [of Lopez] into the cruiser, Trooper Revels said into
his microphone, “he’s fighting me.” Those words resulted in six
troopers responding to the scene of the vehicle stop. When they
arrived, [Lopez] was seated in the front seat of Trooper Revels[’]
cruiser, was cuffed behind his back, was seat belted and, though
crying, was otherwise not acting out.1
1These objective facts were recorded by Trooper Revels[’]
dashboard camera[,] which he had turned to face [Lopez]
once [Lopez] was placed in the vehicle.
When Trooper Sromovsky responded to the scene of the vehicle
stop, he went immediately to the vehicle where [Lopez] was
seated. He did not make any inquiry of Trooper Revels as to what
had prompted the, “he’s fighting me” statement. Upon seeing
[Lopez], Trooper Sromovsky engaged him verbally[,] and the
dashboard camera show[ed] that[,] shortly thereafter[,] [Lopez]
was struck once, and possibly twice in the face.
Trooper Sromovsky, contrary to Pennsylvania State Police Policy,
did not report having struck [Lopez]. Neither did any other
trooper on the scene2 report that [Lopez] had been struck. Once
Trooper Sromovsky’s supervisors became aware of what had
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2 The trial court did not provide a separate summary of the facts for Appellant’s
second trial in its Pa.R.A.P. 1925(a) opinion, however, there is no indication
in the record, or the parties’ briefs, that the trials differed as to the underlying
facts.
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occurred[,] they investigated the matter and ultimately charged
him with [s]imple [a]ssault, [o]fficial [o]ppression, [t]erroristic
[t]hreats[,] and [h]arassment.
2The record was unclear as to whether any other trooper
actually saw the striking.
A jury trial was held from November 14 to November 16, 2017.
The jury acquitted Trooper Sromovsky of [o]fficial [o]ppression
and [t]erroristic [t]hreats. They hung on [s]imple [a]ssault.
During her closing argument, Assistant District Attorney [Cynthia
B.] Morgan stated,
the next thing that everybody talked about was Mr. Lopez
somehow deserved to get hit, that because he was drunk,
that because there was marijuana found in a car seat, that
was a big thing, there was a child’s car seat, so he’s a really
bad dude, he’s a really bad person, he’s an illegal
immigrant. We never brought that out, but that was the
first question on cross-examination. So because he’s an
illegal immigrant, because there was marijuana in the car
and because he’s drunk and intoxicated, that he somehow
deserved to get hit.
[This satement] prompt[ed] defense counsel to move for a
mistrial[,] which [the court] denied.
The Commonwealth … signaled its intent to retry [Appellant] on
[s]imple [a]ssault and [h]arassment[,] [which] prompt[ed]
[Appellant to file a] [m]otion to [d]ismiss on double jeopardy
grounds and/or for prosecutorial misconduct during the
Commonwealth’s closing argument.
Trial Court Opinion (TCO1), 2/16/18, at 1-2 (citation omitted). The trial court
denied the motion to dismiss by order dated February 16, 2018, as indicated
by the trial court docket; however, that order does not appear in the certified
record.
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Appellant’s second trial occurred on May 14-16, 2018, at the conclusion
of which the jury found Appellant guilty of simple assault.3 Subsequently, on
June 7, 2018, the trial court sentenced Appellant to 2½-12 months’
incarceration. Appellant filed a timely post-sentence motion, which the trial
court denied on July 31, 2018.
On August 8, 2018, Appellant filed a timely notice of appeal. He also
filed a timely, court-ordered Pa.R.A.P. 1925(b) statement August 29, 2018.
The trial court issued its Rule 1925(a) opinion on September 26, 2018, which
substantially incorporates its February 16, 2018 opinion.
Appellant now presents the following questions for our review:
Trial I
i. Did the trial court err and abuse its discretion by denying
[Appellant]’s post-verdict motion to dismiss the indictment
on the grounds that re-prosecuting [him] would violate the
provisions of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and the
Constitution of the Commonwealth of Pennsylvania?
ii. Did the trial court err and abuse its discretion by denying
[Appellant]’s request to play the entirety of the MVR video
and take evidence from troopers and officers which depicted
Mr. Lopez acting violently towards the arresting officers
shortly after he was struck by [Appellant]?
Trial II
iii. Did the trial court err and abuse its discretion by denying
[Appellant]’s request to play the entirety of the MVR video
and take evidence from troopers and officers which depicted
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3The trial did not include the charge of harassment, which the Commonwealth
withdrew on June 7, 2018.
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Mr. Lopez acting violently towards the arresting officers
shortly after he was struck by [Appellant]?
iv. Did the trial court err and abuse its discretion in denying
[Appellant]’s post-sentence motion to dismiss the
indictment based upon prosecutorial misconduct?
Appellant’s Brief at 3-4 (unnecessary capitalization omitted, issues
renumbered).
We begin by addressing Appellant’s double jeopardy claims, issues (i)
and (iv). Appellant “argues that he cannot be re-tried [for simple assault]
without being put twice in jeopardy for the same act and injury sustained by
Mr. Lopez.” Id. at 18. The trial court rejected this claim, reasoning that: “As
the elements of [s]imple [a]ssault are not identical to those of [o]fficial
[o]ppression, and as each require proof of an element the other does not
require, retrial on the charge[] of [s]imple [a]ssault [is] not barred on double
jeopardy grounds.” TCO1 at 4-5. We agree with the trial court.
“The Double Jeopardy Clause, applicable to the States through the
Fourteenth Amendment, provides that no person shall ‘be subject
for the same offense to be twice put in jeopardy of life or limb.’”
Commonwealth v. Decker, … 664 A.2d 1028, 1029 ([Pa.
Super.] 1995) (citing U.S. CONST. amend. 5). “Furthermore, the
Double Jeopardy Clause … protects against a second prosecution
for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” Id.“To determine whether a defendant’s protection against multiple
punishments for the same offense has been violated, this
Commonwealth applies the test set forth in Blockburger v. U.S.,
284 U.S. 299 … (1932).” Commonwealth v. Beckwith, … 674
A.2d 276, 279 ([Pa. Super.] 1996).
The U.S. Supreme Court explained this test as follows:
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In both the multiple punishment and multiple prosecution
contexts, this Court has concluded that where the two
offenses for which the defendant is punished or tried cannot
survive the “same-elements” test, the double jeopardy bar
applies. The same-elements test, sometimes referred to as
the “Blockburger” test, inquires whether each offense
contains an element not contained in the other; if not, they
are the “same offence” and double jeopardy bars additional
punishment and successive prosecution.
United States v. Dixon, 509 U.S. 688, 696 … (1993).
We note that “the ‘same-elements’ test of Blockburger has long
been followed in this Commonwealth” and its application “requires
a comparison of the elements of the offenses to determine
whether each offense requires proof of a fact which the other does
not.” Commonwealth v. Caufman, 541 Pa. 299, 303 … ([Pa.]
1995) (citations omitted). When making such a comparison,
overlap in proof between the two prosecutions does not establish
a double jeopardy violation. Beckwith, 674 A.2d at 279.
Commonwealth v. Jackson, 10 A.3d 341, 344–45 (Pa. Super. 2010). The
statues in question are defined, in pertinent part, as follows:
Official Oppression
A person acting or purporting to act in an official capacity or taking
advantage of such actual or purported capacity commits a
misdemeanor of the second degree if, knowing that his conduct is
illegal, he:
(1) subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien or other
infringement of personal or property rights; or
(2) denies or impedes another in the exercise or enjoyment
of any right, privilege, power or immunity.
18 Pa.C.S. § 5301.
Simple Assault
[]Except as provided under section 2702 (relating to aggravated
assault), a person is guilty of assault if he:
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(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another; …
18 Pa.C.S. § 2701.
Instantly, Appellant does not cite to any controlling authority holding
that simple assault and official oppression contain the same elements under
the Blockburger test. Rather, he offers a novel argument that
“mistreatment” under the official oppression statute, 18 Pa.C.S. § 5301,
constitutes the same conduct that is proscribed by the simple assault statute,
18 Pa.C.S. § 2701; therefore, he contends that simple assault is essentially a
lesser-included offense of official oppression. See Appellant’s Brief at 21-23.
In support of this claim, Appellant directs our attention to Commonwealth
v. Manlin, 411 A.2d 532 (Pa. Super. 1979), citing the following passage from
that opinion:
The evidence of record in this case shows that [the] appellant
struck and kicked three inmates of Lehigh County Prison without
justification or excuse in the course of disciplinary hearings
conducted by appellant in his official capacity as Deputy Warden
of that prison. Examining the challenged statute in the light of
the conduct with which appellant was charged, … it is obvious that
[the] appellant should reasonably have understood that his
conduct was proscribed by the statutory prohibition of
“mistreatment.” “Mistreatment” is clearly an ascertainable
standard; it is in common usage, is equated with abuse, and has
a commonly understood meaning.
Id. at 533-34. Appellant argues that Manlin establishes that “mistreatment”
and “abuse” are synonymous, and that the only “abuse” that occurred in this
case was the striking of Mr. Lopez, which was the same conduct underlying
his simple assault charge. Notably, the Manlin Court was dealing with the
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question of notice under the void-for-vagueness doctrine; it was not
addressing whether simple assault is a lesser-included offense of official
impression. Accordingly, Manlin is off-point, and provides no support for
Appellant’s claim.
Applying the Blockburger test, the official oppression statute clearly
includes elements not present in the simple assault statute. For instance, the
official oppression statute requires the accused be a “person acting or
purporting to act in an official capacity or taking advantage of such actual or
purported capacity[,]” 18 Pa.C.S. § 5301, whereas the simple assault statute
does not have such a requirement. A conviction for official oppression also
requires that the accused know that his conduct is illegal, whereas the simple
assault statute does not. The provision of the simple assault statute in
question, by contrast, requires that the accused attempt or cause bodily
injury, whereas, nothing in the official oppression statute requires proof of
bodily injury or an attempt to cause bodily injury.
That the same conduct violated two statutes does not establish that
double jeopardy bars prosecution and punishment for both offenses.
Beckwith, 674 A.2d at 279 (“Mere overlap in proof between the two
prosecutions doesn’t establish a double jeopardy violation.”). Accordingly, we
conclude that the Commonwealth’s prosecution of Appellant for simple assault
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at his second trial was not precluded by double jeopardy principles following
his acquittal for official oppression at his first trial.4
Alternatively, even assuming that simple assault is a lesser-included
offense of official oppression as Appellant contends,5 Appellant’s second trial
should not have been barred by his double jeopardy rights. As astutely noted
by the Commonwealth, see Commonwealth’s Brief at 10-12, because
Appellant was tried for both offenses at his first trial, and because the jury
acquitted him of the ostensibly greater-included offense, but failed to reach a
verdict on the ostensibly lesser-included offense, his second trial for the
lesser-included offense was not barred by his double jeopardy rights.
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4 Indeed, it is not surprising, especially in the context of this case, why a jury
could arrive at different conclusions with regard to Appellant’s guilt under each
statute. Appellant admitted that he struck Mr. Lopez, and, in any event, the
video evidence was conclusive as to that fact. However, Appellant stated his
belief that his conduct was not illegal:
Q. Having now reviewed the totality of the circumstances policies
and the use of force policies, sir, do you believe today, as you did
that evening, that your use of force with this individual was
reasonable and necessary to effectuate the lawful arrest?
A. Yes.
N.T., 11/15/17, at 153. Thus, if the jury found his testimony credible, it could
not have convicted Appellant for official oppression. However, that specific
defense was not applicable to the crime of simple assault. Indeed, although
the first jury acquitted Appellant of official oppression, it could not reach a
decision as to simple assault.
5 “A comparison of the above noted statutes ([o]fficial [o]ppression and
[s]imple [a]ssault) reveals that [s]imple [a]ssault is indeed a lesser-included
offense of [o]fficial [o]ppression.” Appellant’s Brief at 21.
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An analogous circumstance occurred in Commonwealth v.
Buffington, 828 A.2d 1024 (Pa. 2003). In that case, the Commonwealth
tried Buffington for both rape and the lesser-included offense of sexual
assault. Id. at 1026. The jury acquitted him of rape, but failed to reach a
verdict on sexual assault. The trial court then granted Buffington’s motion to
bar retrial on double jeopardy grounds. Id. at 1027. On appeal, the Superior
Court reversed that decision, and our Supreme Court affirmed the reversal,
reasoning that:
Application of the double jeopardy bar is frequently addressed in
the context of greater[-] and lesser[-]included offenses. For
example, courts have held that, where a jury has not been
charged on lesser[-]included offenses, an acquittal on the crime
charged necessarily implies an acquittal on all lesser offenses
encompassed by that charge, and, accordingly, double jeopardy
would bar a second trial on a lesser included offense. This result
[is] not obtained, however, in instances in which lesser-included
offenses were expressly put before the jury, but the jury was
unable to reach a verdict on those offenses. In such instances,
the ordinary rule is that retrial on the lesser[-]included offense is
constitutionally permissible.
Id. at 1029–30 (citations omitted).
Thus, even if Appellant is correct that simple assault is a lesser-included
offense of official oppression, he is not entitled to relief, because he was tried
for both offenses in his first trial and, despite returning a verdict of not-guilty
on the charge of official oppression, the jury failed to reach a verdict on the
charge of simple assault. Accordingly, Buffington is controlling in this case,
and Appellant’s retrial for an ostensibly lesser-included offense is not barred
by double jeopardy principles.
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We next address Appellant’s second double jeopardy claim, in which he
argues that his second trial should have been barred due to the
Commonwealth’s alleged prosecutorial misconduct in its closing argument
during Appellant’s first trial. In this regard, Appellant argues that the
“prosecutor improperly and prejudicially injected race and Mr. Lopez’s status
as an illegal immigrant into the case in her closing argument….”6 Appellant’s
Brief at 33. Appellant contends that that the prosecutor’s conduct was
intended to deprive him of a fair trial and, therefore, that his second trial was
barred by double jeopardy.
The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article 1, § 10 of the Pennsylvania
Constitution prohibit retrial where prosecutorial misconduct during
trial provokes a criminal defendant into moving for a mistrial.
However, Article 1, § 10 of the Pennsylvania Constitution offers
broader protection than its federal counterpart in that the double
jeopardy clause of the Pennsylvania Constitution prohibits retrial
of a defendant not only when prosecutorial misconduct is intended
to provoke the defendant into moving for a mistrial, but also when
the conduct of the prosecutor is intentionally undertaken to
prejudice the defendant to the point of the denial of a fair trial.
Pennsylvania has adopted a strict remedy for intentional
prosecutorial misconduct: Under Pennsylvania jurisprudence, it is
the intentionality behind the Commonwealth’s subversion of the
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6 Appellant also argues that the Commonwealth made similar comments
during his sentencing hearing. However, Appellant did not present a separate
sentencing claim in his brief, in his statement of the questions presented, nor
in his Rule 1925(b) statement, despite having raised a sentencing issue in his
post-sentence motion concerning the Commonwealth’s comments at the
sentencing hearing. Accordingly, any sentencing claim related to the
prosecutor’s comments at Appellant’s sentencing hearing are waived.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”).
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court process, not the prejudice caused to the defendant, that is
inadequately remedied by appellate review or retrial. By and
large, most forms of undue prejudice caused by inadvertent
prosecutorial error or misconduct can be remedied in individual
cases by retrial. Intentional prosecutorial misconduct, on the
other hand, raises systematic concerns beyond a specific
individual’s right to a fair trial that are left unaddressed by retrial.
Commonwealth v. Lynn, 192 A.3d 194, 199–200 (Pa. Super. 2018)
(cleaned up).
However, because of the compelling societal interest in
prosecuting criminal defendants to conclusion, our Supreme Court
has recognized that dismissal of charges is an extreme sanction
that should be imposed sparingly and only in cases of blatant
prosecutorial misconduct. A mere finding of willful prosecutorial
misconduct will not necessarily warrant dismissal of charges.
Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa. Super. 2016) (citation
omitted).
Again, in the Commonwealth’s closing argument during the first trial,
the prosecutor stated:
The next thing that everybody talked about was Mr. Lopez
somehow deserved to get hit, that because he was drunk, that
because there was marijuana found in a car seat, that was a big
thing, there was a child’s car seat, so he’s a really bad dude, he’s
a really bad person, he’s an illegal immigrant. We never brought
that out, but that was the first question on cross-examination. So
because he’s an illegal immigrant, because there was marijuana
in the car and because he’s drunk and intoxicated, that he
somehow deserved to get hit.
N.T., 11/16/17, at 64. Appellant claims he immediately objected and
requested a mistrial, however, the record suggests Appellant’s account of
events is inaccurate. Appellant’s trial counsel immediately interjected:
“Objection, your Honor. I would ask the jury be instructed. This is an
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outrageous argument. It has never been argued that his status as an illegal
immigrant [was the] reason for the use of force in this case. It’s outrageous.”
Id. (emphasis added). Thus, Appellant requested a curative instruction
immediately after the prosecutor’s comment, not a mistrial.
However, Appellant did request a mistrial at the end of the
Commonwealth’s argument, at which time the following exchange occurred:
[Defense Counsel]: [] I have a motion for mistrial. The
outrageous statement made during the closing argument by the
Commonwealth attorney that somehow my client operated upon
the fact Mr. Lopez was an illegal immigrant and sought to injure
him in light of that status is not only outrageous, it’s unfounded
in the record.
What’s worse is the Commonwealth filed with you a request to
admit the fact that Mr. Lopez was an illegal immigrant and to
establish on the record during this trial his status as an illegal
immigrant. I opposed that exactly for the reason that was just
argued to this jury, that the admission of that evidence would be
irrelevant and highly prejudicial. This [c]ourt allowed it to come
in.
I assumed on the request of the Commonwealth, and at this point
to have suggested to the jury with no basis in fact or law, that my
client operated on that assumption to cause that man harm is so
outrageous it can’t be cured by an instruction.
And secondly, should this [c]ourt grant the motion to [re]-try the
case, I would ask that because of the intentional outrageous
conduct of the prosecution [that] you preclude re-prosecution of
Trooper Sromovsky.
[Prosecutor]: Your Honor, Mr. Hoey’s first cross-examination
question of that witness was you’re an illegal immigrant. That fact
came out from the defense. That’s what I pointed out to the jury.
That fact is on the record. Mr. Lopez was an illegal immigrant.
He was Spanish speaking. He was sitting in the custody of the
trooper and this was brought out that he somehow deserved to be
punched in the face because of his dangerous and his threatening
conduct, which was not the case throughout the course of the trial.
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[Defense Counsel]: Regrettably for the Commonwealth, it was
never established that my client knew at any point in time, if we’re
parsing this out the way we have done it, in a test tube, that he
has no idea what this fellow’s status was when he approached
him. Zero. To suggest otherwise compounds the outrageousness.
[Prosecutor]: Your Honor, I never said that Trooper Sromovsky
knew that he was an illegal immigrant. I talked about the cross-
examination of Mr. Lopez was to belittle him, bring out his
immigration, and to talk about his civil suit. That is what I talked
about.
[Defense Counsel]: Well, if that were the case, then why would
the Commonwealth have asked you to introduce that evidence?
Secondly, that’s not what the Government argued. The
Government argued if you are allowing somebody to beat
somebody up because they’re an illegal immigrant, you’re
condoning this behavior.
They never proved he knew that Lopez was an illegal immigrant
or operated under that assumption to cause this man harm.
Id. at 72-74. The trial court did not explicitly deny Appellant’s motion for a
mistrial. However, the trial court did include the following instruction to the
jury before they retired to deliberate:
Now, also during the closing arguments there were objections by
both sides as to, well, they didn’t say this and they didn’t say that.
And I told you when we began on Tuesday that when you went to
the jury room, it was your recollection, and your recollection
alone, that was going to control everything. And I also told you
before counsel argued that it was your recollection of the facts
that controlled. So what they remember is not relevant. It’s what
you remember and what you pulled out as the credible, believable
evidence that you are going [to] make your decision based upon.
So to the extent that they argued factors that you don’t find to
exist in the record, you simply ignore it. If you find that they
argued something not in accordance with your recollection, you
ignore it. If they argued something that does not directly bear on
the facts of this case, that is, the interaction between the
defendant and Mr. Lopez, you don’t consider that.
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Again, whether somebody should be treated in one manner
or not because they are an immigrant has got absolutely
nothing to do with the case. It’s what occurred in the car
between the defendant and Mr. Lopez. That’s what we’re
looking to resolve. We’re not sending any messages or anything
else. We are deciding that fact pattern.
In addition to the testimony of the witnesses, you’ve heard the
arguments of counsel. They are not part of the evidence and
should not be considered as such. Again, they’re there as an aide
to help you in deciding the factual issues that you have to decide,
having in mind that they argued in a way that favors the side they
represent. Again, I remind you that it is the answers of the
witnesses who appeared and testified before you and whose
answers you found credible and believable that you are going to
base your factual decision upon.
Id. at 91-92 (emphasis added).
Following the verdict, Appellant filed a post-verdict motion seeking to
dismiss the indictment (and therefore bar retrial) based on the allegation of
prosecutorial misconduct discussed above. In its opinion accompanying the
order denying the motion, the trial court reasoned:
Unfortunately, when [the prosecutor] responded to defense
counsel’s argument[,] she made reference to Mr. Lopez’s status
as an “illegal immigrant.” His status was NOT relevant to ANY
issue in the case. While Mr. Lopez was questioned as to his
immigration status by defense counsel …, it was NOT commented
upon by defense counsel in his closing. It should not have been
touched upon in the Commonwealth’s closing. However, an
improper reference in an otherwise permissible closing hardly
evidences the egregious and pervasive conduct that is necessary
to bar a retrial.
TCO1 at 5-6.
We agree with the trial court that the improper reference to Mr. Lopez’s
immigration status did not warrant the remedy of precluding a second trial as
sought by Appellant. First, there was only a single, isolated reference to Mr.
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Lopez’s status during the Commonwealth’s closing. Second, it was Appellant,
not the Commonwealth, who first revealed Mr. Lopez’s immigration status to
the jury. See N.T., 11/15/17, at 68. Indeed, during Appellant’s counsel’s
cross-examination of Mr. Lopez, multiple questions were asked about his
immigration status and related deportation proceedings. Id. Third, the
prosecutor’s comment was not clearly referencing Appellant’s intent at all.
The comment could easily be read, as the prosecutor claimed, to have been
commentary on what the prosecutor believed to be the attempted
assassination of the victim’s character, or victim-blaming, that Appellant’s
attorney ostensibly engaged in while cross-examining Mr. Lopez.
In the alternative, even if interpreted as a comment on Appellant’s
intent, rather than on Appellant’s legal defense, the use of oratorical flair to
suggest a motive for a crime is rarely grounds for a new trial, let alone grounds
for the extreme remedy of barring retrial. “It is well settled that a prosecutor
has considerable latitude during closing arguments and his arguments are fair
if they are supported by the evidence or use inferences that can reasonably
be derived from the evidence.” Commonwealth v. Holley, 945 A.2d 241,
250 (Pa. Super. 2008). While Appellant suggested his motive for striking Mr.
Lopez was merely to assert control, the jury was free to reject his testimony,
and to find another motive for his actions. While proof of Appellant’s
knowledge of the victim’s immigration status was not ironclad, there was at
least some evidence that Appellant could have been acting on that belief, since
Mr. Lopez was speaking in a mix of Spanish and broken English and had a
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Latino appearance, combined with Appellant’s otherwise inexplicable
aggression toward a defenseless victim.
Fourth, the trial court’s instructions to the jury strongly suggested to
them that they should ignore any references to the victim’s immigration
status. Combined with the fact that Appellant first brought that status to the
jury’s attention, and the fact that the prosecutor’s comment was brief and
isolated, the prejudice suffered by Appellant was minimal. Accordingly, for
these reasons, we conclude that the prosecutor’s comment was neither
intended to provoke Appellant into seeking a mistrial, nor was it intentionally
made to to deprive Appellant of a fair trial, and that barring a retrial was far
too extreme of a remedy in the circumstances of this case.
Finally, we address Appellant’s remaining two claims, which present an
identical issue. Appellant asserts that the trial court abused its discretion
when it refused to permit him to introduce video evidence of Mr. Lopez’s
conduct that occurred after Appellant struck him. This matter arose when the
Commonwealth filed a motion in limine to exclude all post-assault video
evidence. See Commonwealth’s Motion in Limine, 11/13/17, at 1-2. The
trial court granted the motion. Appellant now argues that he
was precluded from publishing to the jury that portion of the MVR
[video] which records Mr. Lopez’s violent and confrontational
interactions with five (5) Pennsylvania State Troopers and one (1)
Parkesburg Borough Police Officer that were required to utilize
extensive force in bringing Mr. Lopez from [] Trooper Revels’
vehicle to the caged State Trooper vehicle waiting nearby. That
segment of the MVR lasts approximately ninety (90) seconds and
immediately commences after Mr. Lopez was struck by Appellant.
As such, it is temporally related to the instant offense and serves
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to reiterate and confirm the fears that Appellant had at the time
he encountered, argued with and struck Mr. Lopez, moments
before Lopez violently confronted six (6) law enforcement officers
during the transfer of his person to a caged vehicle. It is
respectfully argued that the trial court abused its discretion by
failing to permit the jury to view the approximately two minutes
worth of video footage/audio footage of the Revels[’] MVR which
commenced immediately after Mr. Lopez was struck by Appellant.
Appellant’s Brief at 24.
The trial court did not admit that portion of the video, reasoning that:
[Appellant] wished to show that after Mr. Lopez had been struck,
that he, Mr. Lopez, resisted the troopers who were removing him
from Trooper Revels’ vehicle. [Appellant]’s theory being that this
conduct … corroborated his … belief that Mr. Lopez required the
use of force against him while seated in Trooper Revels’ vehicle.
I ruled that what occurred after [Appellant] struck Mr. Lopez was
irrelevant. It was irrelevant as the issue before the jury was what
[he] knew from the radio communications he heard and what he
observed upon arriving at the location of the stop through the
moment he struck Mr. Lopez. Fortunately, all of this was
OBJECTIVELY KNOWN by virtue of the audio and video played for
the jury. What Mr. Lopez’s behavior was subsequently neither
proved nor disproved any of the facts the jury was to consider in
determining the charges against [Appellant]. As such, it was
clearly inadmissible.
Trial Court Opinion, 9/26/18, at 3.
We ascertain no abuse of discretion in the trial court’s decision to grant
the Commonwealth’s motion in limine. At both trials, the jury was able to
view video evidence corroborating Appellant’s claim that force was required
to detain Mr. Lopez before Appellant struck him. However, Mr. Lopez’s
conduct after that event was plainly irrelevant to Appellant’s intent, as he
could not possibly have been aware of Mr. Lopez’s future conduct when he
struck him.
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J-S17002-19
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/19
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