Com. v. Horsey, R.

J. S14035/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT HORSEY, : No. 1756 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, January 18, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007124-2014
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020
Robert Horsey appeals from the January 18, 2018 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after a jury
convicted him of one count each of rape by forcible compulsion, involuntary
deviate sexual intercourse by forcible compulsion, unlawful contact with
minor, endangering welfare of children, and corruption of minors.1 The trial
court imposed an aggregate sentence of three to six years of incarceration,
followed by six years of reporting probation. We affirm.
The record reflects that appellant’s convictions stem from several
incidents during which appellant sexually abused the victim, his stepdaughter.
On two occasions when the victim was 14 years old, appellant forced her to
1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 4304(a)(1), and
6301(a)(1)(ii), respectively.
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perform oral sex on him. In another incident when the victim was also
14 years old, appellant forcibly penetrated her vagina with his penis. When
the victim was 16 years old, appellant again forcibly penetrated her vagina
with his penis. The final incident of forced oral sex occurred when the victim
was 16 years old.
Sometime prior to the victim’s turning 16 years old, she first disclosed
the sexual abuse to two of her siblings. Shortly thereafter, the victim told her
mother. The victim’s mother called appellant at his workplace and an
argument ensued. She then called the police, but the victim never spoke with
the police, and appellant continued to live at the family home. When the
victim was 16 years old, she again told her mother about the sexual abuse.
The victim’s mother did nothing. The victim then left home and moved in with
her paternal grandfather. While living there, the victim disclosed the abuse
to her aunt, paternal grandfather, and father. The victim’s father called the
police, which led to a criminal investigation and appellant’s arrest.
Following his convictions and imposition of sentence, appellant filed a
timely post-sentence motion, which the trial court denied. Appellant then filed
a timely notice of appeal. The trial court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant requested two extensions of time, which the trial court granted.
Appellant then timely filed his Rule 1925(b) statement. Thereafter, the trial
court filed its Rule 1925(a) opinion.
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Appellant raises the following issue for our review:
Did several inappropriate and prejudicial comments
made by the prosecutor during closing arguments
amount to prosecutorial misconduct and deprive
appellant of a fair trial?
Appellant’s brief at 2 (full capitalization omitted).
The standard for granting a new trial because of the
comments of a prosecutor is a high one. Generally, a
prosecutor’s arguments to the jury are not a basis for
the granting of a new trial unless the unavoidable
effect of such comments would be to prejudice the
jury, forming in their minds fixed bias and hostility
towards the accused which would prevent them from
properly weighing the evidence and rendering a true
verdict. This standard permits us to grant a new trial
based on the comments of a prosecutor only if the
unavoidable effect of the comments prevented the
jury from considering the evidence. A prosecutor
must have reasonable latitude in fairly presenting a
case to the jury and must be free to present his or her
arguments with logical force and vigor.
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)
(citation omitted).
We are further mindful of the following:
In determining whether the prosecutor
engaged in misconduct, we must keep in
mind that comments made by a
prosecutor must be examined within the
context of defense counsel’s conduct. It
is well settled that the prosecutor may
fairly respond to points made in the
defense closing. Moreover, prosecutorial
misconduct will not be found where
comments were based on the evidence or
proper inferences therefrom or were only
oratorical flair.
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Commonwealth v. Judy, 978 A.2d 1015, 1019-1020
(Pa.Super. 2009) (quotations, quotation marks, and
citations omitted). See Commonwealth v.
Ragland, 991 A.2d 336 (Pa.Super. 2010).
Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa.Super. 2012),
appeal denied, 69 A.3d 600 (2013).
Appellant first directs our attention to a portion of the prosecutor’s
closing argument wherein she discussed the Commonwealth’s nolle pros
power. Appellant contends that because the prosecutor knew the jury would
decide the case on credibility, the following comments constituted
prosecutorial misconduct because they were an “explicit endorsement” of the
victim’s credibility:2
[THE COMMONWEALTH]: . . . I also hold the power
to nolle pros a case. That means, if I don’t think he
did it, if I don’t believe the victim, if I don’t have
enough evidence, if something bad happened with the
police investigation and the police did something they
shouldn’t have done --
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[THE COMMONWEALTH]: It’s called a “nolle prosse.”
She’s not stuck here because it says Commonwealth
of Pennsylvania vs. [appellant]. You didn’t hear that
she had to be drug [sic] in and told, You have to come
here. You’re getting a bench warrant. Nobody made
her do this. She did this for herself because she
deserves justice and she deserves to be told that
touching your stepdaughter is wrong.
2 Appellant’s brief at 6.
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Notes of testimony, 2/13/17 at 124-125; see also appellant’s brief at 6.
Appellant then contends that the above comments coupled with the
following comments had the cumulative effect of denying him a fair trial:
[THE COMMONWEALTH:] Next, it was because [the
victim] didn’t tell her mom, her brother, the detective,
and maybe the doctor about the blood that she saw
[in her underwear the first time appellant forcibly
penetrated the victim’s vagina with his penis]. Well,
that’s not surprising that a prepubescent teen didn’t
want to tell her little brother that when she [wiped]
herself that there was blood. Mom didn’t even believe
her and did nothing. The detective, he actually didn’t
ask her to describe the very first incident of sexual
abuse, so why would that be included in there if it
happened the first time?
[The Commonwealth’s expert in child physical and
sexual abuse] said that’s actually not a common
question that we ask. So, again, not surprised it’s not
in the records. But you can bet that when she sat in
that witness stand, that wasn’t the first time that she
told someone that she [wiped] herself and there was
blood. Because [defense counsel], as the skilled
attorney that she is, she would have stood up and
yelled at [the victim] and said, This is the first time
you’re telling anyone about this, right?
[DEFENSE COUNSEL]: Objection.
[THE COMMONWEALTH]: But that didn’t happen.
That’s why [the assistant district attorney formerly
assigned to this case] sat with [the victim] and asked
her to describe every single incident.
Notes of testimony, 2/13/17 at 136-137.
Following closing arguments, the trial court heard oral argument on
appellant’s objections to the above comments. With respect to the comments
regarding the Commonwealth’s power to nolle pros, the trial court denied
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appellant’s request for a curative instruction. (Id. at 152.) The trial court
explained that it did so because those statements rebutted defense counsel’s
suggestion that once the victim made sexual abuse allegations against
appellant and charges were filed, the victim could not take the allegations
back. (Trial court opinion, 2/26/19 at 8.) Indeed, the record reflects that
defense counsel made the following statements during her closing argument:
Now, [the Commonwealth] argued in [its] opening,
What motive does [the victim] have for making this
up? Now, I used to be in federal law enforcement and
I used to carry a gun and I used to pray every day
that I didn’t shoot that gun because once you pull that
trigger and the bullet goes out, you could never take
that back. That’s kind of the same thing of making an
allegation about your stepfather. Once you say that,
you can take that back. Once [the victim’s]
grandfather and [aunt] called [the Department of
Human Services] and the police got involved, the case
became Commonwealth vs. [appellant]. It’s not the
same as when you tell [your brother] and your mom.
Now it’s Commonwealth vs. [appellant].
Notes of testimony, 2/13/17 at 117.
It is well settled that a prosecutor may respond fairly to arguments
made by the defense in its closing. See Commonwealth v. Clancy, 1924
A.3d 44, 62 (Pa. 2018). Here, the challenged comments fairly responded to
comments that defense counsel made in her closing argument.
With respect to the latter comments, the trial court granted defense
counsel’s request for a curative instruction, and instructed the jury as follows:
In the outset of [the Commonwealth’s] closing
argument, she argued that the defense attorney
would have impeached [the victim] if [the victim]
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would not have mentioned blood in her underwear
before. I’m going to direct you to disregard that
statement.
Notes of testimony, 2/13/17 at 153.
In his brief, appellant acknowledges the curative instruction, and then
in a one-sentence argument baldly asserts that “the cumulative effect of the
prosecutor’s improper statements constituted prosecutorial misconduct and
thereby deprived him of a fair trial.” (Appellant’s brief at 8.) Notwithstanding
our conclusion that the comments regarding the Commonwealth’s power to
nolle pros did not rise to the level of prosecutorial misconduct, appellant
entirely fails to explain how the unavoidable effect of the challenged
comments was to prejudice the jury so as to form in their minds a fixed bias
towards him and to impede the jury’s ability to objectively weigh the evidence
and render a true verdict. See Commonwealth v. Begley, 780 A.2d 605,
626 (Pa. 2001) (reiterating that relief for prosecutorial misconduct granted
only where unavoidable effect was to prejudice jury to form in their minds a
fixed bias toward accused and impede jury’s ability to objectively weigh
evidence and render true verdict). Moreover, juries are presumed to follow
the trial court’s instructions, and curative instructions are presumed to be
sufficient to cure any prejudice. See Commonwealth v. Thornton, 791 A.2d
1190, 1193 (Pa.Super. 2002). Here, appellant offers no argument to rebut
the presumption.
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Our review of the record compels the conclusion that appellant failed to
show that the prosecutor’s conduct deprived him of a fair trial. Therefore, no
relief is due.
Judgment of sentence affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 6/23/2020
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