Com. v. Ecklund, S.

J-S32002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN LOUIS ECKLUND
Appellant No. 1665 WDA 2012
Appeal from the Judgment of Sentence August 3, 2012
In the Court of Common Pleas of Venango County
Criminal Division at No(s): C.R. No.m. 852-2011
CP-61-CR-0000852-2011
BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.
MEMORANDUM BY PANELLA, J.: FILED AUGUST 5, 2014
Appellant, Shawn Louis Ecklund, appeals from the judgment of
sentence entered August 3, 2012, by the Honorable H. William White, Jr.,
Court of Common Pleas of Venango County. We affirm.
Following a four-day jury trial, on June 22, 2012, Ecklund was
convicted of Aggravated Assault – Serious Bodily Injury Attempted,1
Intimidation of Witness,2 Endangering the Welfare of Children,3 Terroristic
Threats,4 and Simple Assault.5 On August 3, 2012, the trial court sentenced
____________________________________________
1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. § 4952(a)(1).
3
18 Pa.C.S. § 4304(a)(1).
4
18 Pa.C.S. § 2706(a)(1).
5
18 Pa.C.S. § 2701(a)(1).
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Ecklund to an aggregate term of eight to twenty years’ incarceration,
followed by five years’ probation. The trial court denied Ecklund’s post-
sentence motion requesting a new trial on August 10, 2012. This timely
appeal followed.
On appeal, Ecklund raises the following issues for our review:
I. Whether or not, due to prosecutorial misconduct, the
appellant was denied due process and a fair trial under the
5th and 14th Amendments of the United States Constitution
and Article, Section 8 of the Pennsylvania Constitution?
II. Whether or not the trial court abused its discretion in
failing to grant a mistrial based upon the actions of the
assistant district attorney?
Appellant’s Brief at 4.
Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion. See
Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012) (citation
omitted), appeal denied, 51 A.3d 838 (Pa. 2012). “To constitute a due
process violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant's right to a fair trial.”
Commonwealth v. Chmiel, 30 A.3d 1111, 1181 (Pa. 2011) (citation
omitted). “The touchstone is the fairness of the trial, not the culpability of
the prosecutor.” Id.A prosecutor may make fair comment on the admitted evidence
and may provide fair rebuttal to defense arguments. Even an
otherwise improper comment may be appropriate if it is in fair
response to defense counsel's remarks. Any challenge to a
prosecutor’s comment must be evaluated in the context in which
the comment was made. …
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Not every unwise, intemperate, or improper remark made by a
prosecutor mandates the grant of a new trial:
Reversible error occurs only when the unavoidable effect of
the challenged comments would prejudice the jurors and
form in their minds a fixed bias and hostility toward the
defendant such that the jurors could not weigh the
evidence and render a true verdict.
Id. at 1181-1182 (internal citations omitted).
In the argument portion of his brief, Ecklund first recites our standard
for reviewing claims of prosecutorial misconduct and then proceeds to
outline 14 alleged instances of misconduct. Many of these allegations are
not misconduct at all, but, for example, descriptions of trial court rulings.
See, e.g., Appellant’s Brief at 11 ¶ d. (“The result of the pretrial hearing was
favorable for Ecklund….”). In the instances of misconduct categorized in the
brief, Ecklund is quick to vilify the prosecutor’s “talent for lying and
misleading the court, as well as his inability to follow court orders” or his
“arrogance for verifications and certificate’s [sic] of service, as well as his
overall disregard in the filing and handling of court related documents.” Id.
at 10, 11. Ecklund even goes so far as to provide a section devoted to “past
and/or previous conduct” of the prosecutor in cases other than that before
the Court in this case. Id. at 15-16. Notably absent from Ecklund’s
argument is any detailed discussion or analysis of how the prosecutor’s
alleged misconduct in this case prejudiced his right to a fair trial below or
otherwise prejudiced the jurors such that they “could not weigh the evidence
and render a true verdict.” Chmiel, supra. Indeed, Ecklund fails to provide
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any meaningful legal analysis of his individual claims and his argument
neglects to set forth a discussion of relevant case law as to whether the
prosecutor’s actions even amount to misconduct.
In a tacit acknowledgment of this omission, Ecklund urges that “[i]f
you look at the objections, as isolated incidents in a vacuum, then Ecklund
and his counsel would agree with the trial court [that Ecklund received a fair
trial].” Appellant’s Brief at 17. Ecklund continues that, “[h]owever, it is [the
prosecutor’s] course of conduct that is in question and it is this course of
conduct that denied Ecklund the opportunity for a fair trial in this matter.”
Id.
We note it is well settled that “no number of failed claims may
collectively attain merit if they could not do so individually.” Chmiel, 30
A.3d at 1186 (citation omitted). Here, because Ecklund has failed to
establish that any of his claims of prosecutorial misconduct merit relief
individually, he cannot do so on a cumulative basis.
As Ecklund has failed to establish he was denied the right to a fair trial
as a result of the prosecutor’s actions when taken individually, we are
constrained to find that Ecklund’s claims of prosecutorial misconduct do not
warrant relief. Consequently, we also find no abuse of discretion in the trial
court’s refusal to declare a mistrial.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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