J-S61035-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
                   v.                    :
                                         :
DEREK SHERMAN JOHNSON,                   :
                                         :
                    Appellant            :     No. 278 MDA 2015

   Appeal from the Judgment of Sentence Entered September 15, 2014,
             in the Court of Common Pleas of Bradford County,
           Criminal Division, at No(s): CP-08-CR-0000117-2014

BEFORE:    PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 30, 2015

     Derek Sherman Johnson (Appellant) appeals from the judgment of

sentence entered after he was convicted by a jury of recklessly endangering

another person (REAP) and hit and run, and by the trial court of driving

while license suspended, DUI related (DUS). We affirm.

     The trial court summarized the facts of this case as follows.

           As [Appellant] was backing out of his parking spot at a
     mini-mart in Towanda, Bradford County, Pennsylvania, his
     vehicle struck another vehicle that was parked at the gasoline
     pumps. [Appellant] exited his vehicle and spoke to the other
     driver, but did not provide information. [Appellant] returned to
     his vehicle and proceeded to back up. The passenger of the
     other vehicle, victim herein, attempted to stop [Appellant] by
     waving his hands in the air and approaching [Appellant’s]
     vehicle. As victim approached [Appellant’s] vehicle, [Appellant]
     moved his vehicle forward and did not stop. The victim moved
     quickly to the side and had to use his hands to push himself
     away from the vehicle to avoid being run over. The entire
     incident was caught on the mini-mart’s security video.
     [Appellant] was identified and arrested.

*Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 5/31/2015, at 1-2.

        Appellant was convicted of the aforementioned offenses on August 4,

2014.1 On September 15, 2014, Appellant was sentenced to an aggregate

term of 12 to 36 months of incarceration plus 60 days. Appellant timely filed

post-sentence motions, which were denied by operation of law on February

11, 2015. Appellant timely filed a notice of appeal. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

        On appeal, Appellant sets forth one issue for our review: “Whether the

court’s cautionary instruction was insufficient to cure the unfair prejudice

arising from the unexpected testimony of [victim] alleging that [Appellant]

was intoxicated at the time of the offense, thus depriving [Appellant] of a

fair trial on the count of reckless endangerment?” Appellant’s Brief at 8.

        We set forth our standard of review to a challenge of the denial of a

mistrial.   “Absent an abuse of discretion, the trial court’s decision not to

grant a motion for mistrial will not be disturbed. A mistrial is warranted only

when the incident upon which the motion is based is of such a nature as to

deny the defendant a fair trial by preventing the jury from weighing and

rendering a true verdict.” Commonwealth v. Robinson, 670 A.2d 616, 621

(Pa. 1995) (citations omitted). Furthermore, “[a] mistrial is not necessary

where cautionary instructions are adequate to overcome any possible

1
    The jury acquitted Appellant of simple assault.



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prejudice.” Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa. Super.

2001).

      At trial, the victim testified about this incident. He stated:

      [W]e pulled up to the gas pump and about the time we pulled up
      to the gas pump, we got out of the car and no later than we get
      out of the car, I want to say like a [B]lazer type thing backed
      right into my dad’s [J]eep, and we looked at it, and the guy
      [got] out of the car and he was stumblin’ all over the place, and
      I was like, somebody needs to call the cops, he was drunk of
      course, and about the time I said somebody needs to call the
      cops, he jumped back in the vehicle, and I went around and as I
      was goin’ around, I like threw my hands up and he just kept
      goin’, I shoved myself off the car before I got hit.

N.T., 8/6/2014, at 26.

      Counsel for Appellant asked for a sidebar immediately.           She argued

that victim’s witness statement did not include anything about Appellant

being drunk and is “extremely prejudicial.” Id. She requested a mistrial. Id.

The Commonwealth responded: “I just heard it myself and I never

interviewed the witness….” Id.      The trial court denied the motion for a

mistrial, but struck the statement and instructed the jury not to consider it

by providing the following:

      Ladies and gentlemen of the Jury, you just heard a statement
      made by this witness regarding [Appellant’s] gait at the time
      that he saw him. And that he felt that the - felt that [Appellant]
      was intoxicated, I think he used the word, drunk, and I’m
      striking that testimony. In other words, it’s testimony that
      you’re not going to consider, it is not part of the case, and so
      you are not going to consider any of that evidence as if it was
      not even testified to.

Id at 27.



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         Instantly, Appellant contends that the curative instruction offered by

the trial court was insufficient to overcome the prejudice caused by victim’s

unsolicited statement. Appellant’s Brief at 13. The Commonwealth responds

that, because the jury was able to view a video of this incident, Appellant did

not suffer prejudice from victim’s statement. Commonwealth’s Brief at 2.

         Upon review of the record, including the brief nature of the comments,

counsel’s immediate objection, and the thorough cautionary instruction, we

conclude the denial of a mistrial was not an abuse of discretion.            See

Commonwealth v. Schoellhammer, 454 A.2d 576, 581 (Pa. Super. 1982)

(holding that “sole and inadvertent statement was insufficient to prejudice

appellant by connecting him with drug addiction or alcoholism” where the

“trial    judge   appropriately   instructed   the   jury   to   disregard   the

characterization;” thus, “the prejudice, if any, did not rise to a level which

would mandate the declaration of a mistrial or the subsequent grant of a

new trial”); see also Commonwealth v. Johnson, 846 A.2d 161 (Pa.

Super. 2004) (holding that testimony about driving under the influence in a

homicide by vehicle case did not warrant a mistrial where the reference was

brief, the court offered a prompt instruction, and that instruction was

sufficient to overcome prejudice).

         Accordingly, Appellant is not entitled to relief, and we affirm the

judgment of sentence.

         Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2015




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