J-A06009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA WEST                                :
                                               :
                       Appellant               :   No. 721 MDA 2018

             Appeal from the Judgment of Sentence March 26, 2018
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005204-2016


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 02, 2019

        Joshua West appeals from the judgment of sentence imposed on March

26, 2018. On January 10, 2018, a jury found West guilty of one count of

involuntary deviate sexual intercourse, two counts of aggravated sexual

assault, and one count of sexual assault.1 The trial court sentenced West to

serve an aggregate term of 4 to 8 years’ imprisonment. On appeal, West

challenges the denial of his motion for a mistrial. Based upon the following,

we affirm.

        As the parties are well acquainted with the facts and procedural history

of this case, we do not restate them. We briefly note that, in mid-February

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.A. §§ 3123(a)(3), 3125(a)(1), 3125(a)(4), and 3124.1,
respectively.
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2016, West, a close brother-like friend of the victim, was spending the

weekend at her apartment in Lancaster, Pennsylvania. As the apartment was

crowded, the two shared a bed. Nothing happened the first two nights. At

approximately 8:00 a.m., Monday morning, the victim woke up to find that

West had removed her shorts and was penetrating her vagina with his tongue

and fingers. On the day of the assault, and in the following days, the victim

reported the assault to several people, some of whom testified at trial.

Moreover, she texted West, and, in a series of texts, he admitted to the

assault, apologized, but claimed that he was not aware that she was sleeping

and believed she had consented to the sexual contact.

       Following the Commonwealth’s closing argument, on January 9, 2018,

West moved for a mistrial, claiming prosecutorial misconduct.        N.T. Trial,

1/09/2018, at 249. The trial court denied the motion but offered to give a

cautionary instruction. Id. at 251. The trial court then gave the instruction.

See id. at 253. When asked, defense counsel did not have any objections to

the court’s instruction and did not seek any additional relief. Id. at 274.

       As noted above, on January 10, 2018, the jury found West guilty of the

aforementioned charges and the trial court sentenced him on March 26, 2018.

The instant, timely appeal followed.2



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2 On May 15, 2018, in response to the trial court’s order, West filed a concise
statement of errors complained of on appeal. On August 9, 2018, the trial
court issued an opinion.

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     In his only claim, West contends that the trial court erred in denying his

motion for a mistrial, made twice during closing arguments. We disagree.

     Our standard of review is as follows:

     We review the trial court’s decision to deny a mistrial for an abuse
     of discretion. A mistrial is necessary only when the incident upon
     which the motion is based is of such a nature that its unavoidable
     effect is to deprive the defendant of a fair trial by preventing the
     jury from weighing and rendering a true verdict. A mistrial is
     inappropriate where cautionary instructions are sufficient to
     overcome any potential prejudice.

Commonwealth v. Bedford, 50 A.3d 707, 712–713 (Pa. Super. 2012)

(citations and internal quotation marks omitted), appeal denied, 57 A.3d 65

(Pa. 2012).

     Moreover,

     [t]he legal principles relevant to a claim of prosecutorial
     misconduct are well established.

              Comments by a prosecutor constitute reversible error
              only where their unavoidable effect is to prejudice the
              jury, forming in [the jurors’] minds a fixed bias and
              hostility toward the defendant such that they could
              not weigh the evidence objectively and render a fair
              verdict.

     While it is improper for a prosecutor to offer any personal opinion
     as to the guilt of the defendant or the credibility of the witnesses,
     it is entirely proper for the prosecutor to summarize the evidence
     presented, to offer reasonable deductions and inferences from the
     evidence, and to argue that the evidence establishes the
     defendant’s guilt. In addition, the prosecutor must be allowed to
     respond to defense counsel’s arguments, and any challenged
     statement must be viewed not in isolation, but in the context in
     which it was offered. [The] prosecutor must be free to present


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     his or her arguments with logical force and vigor, and comments
     representing mere oratorical flair are not objectionable.

Commonwealth v. Thomas, 54 A.3d 332, 337–338 (Pa. 2012) (citations

and internal quotation marks omitted), cert. denied, 571 U.S. 868 (2013).

     Here,    the   record   reveals   the   following   occurred   during   the

Commonwealth’s closing argument:

     Let’s talk about consent. Again, the first thing I talked to you
     about was this idea of consent. I asked you to use your common
     sense and life’s experience. One way to think about consent is, is
     there a willingness to engage in this act and is there an expression
     of that willingness somehow?

     If you remember when I said, I said here’s an example of consent:
     I want this to happen to my body. It’s interesting, the focal point
     of the defendant’s opening remarks was about this idea of
     consent. This idea of blurred lines, this idea, well, this is what
     college kids get up to. If you remember, he actually said,
     whenever have you heard, you, when have you ever heard
     somebody say, I want this to happen to my body.

     I don’t know where he’s hearing things from. I was born and
     raised here and I live here, which all of you do. I work
     here. I do every day, most of my nights, child protection and
     sexual assaults. I was raised to understand that it’s not ridiculous
     that a female, a woman tells you, expresses what they want to
     happen to their body. It’s not ridiculous at all. I was raised to
     respect what a female says, what their wishes are.

     What I would submit to you as a member of this community and
     using your life experiences, what is ridiculous is that he sees these
     signs and waits until someone is asleep, and then decides you are
     going to do what you want to them when they’re asleep. That is
     not how consent works.

                                   ****

     Not once did you hear anybody get up here and say, no, she told
     me a different version of that sexual assault, that is not what she
     said. No inconsistencies about the story. You remember how

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      many people she told you she told and you heard from some of
      them.

      Consistent statements. Now, I can’t always give you every
      single time she was consistent. You did hear from some of
      these people. You heard from Honoria, who she told right
      afterwards. You heard from both police officers involved in the
      case, who she told approximately six days and ten days after this
      occurred. It was the exact same sorry [sic] she told you.

N.T. Trial, 1/09/2018, at 237-238, 245 (emphases added).

      During his opening argument, defense counsel made remarks to the

effect that, under current community mores, it was not reasonable to expect

verbal consent and that consent by body language was sufficient. See N.T.

Trial, 1/08/2018, at 67-68.     With respect to the first statement, that the

prosecutor resided in the same community as the jury, the trial court found it

to be a fair response to the argument made by defense counsel in his opening.

See Trial Court Opinion, 8/09/2018, at 4-5.

      With respect to the second statement about not being able to present

all of the witnesses to whom the victim told of the assault, the trial court found

that the statement “may have been irrelevant” but did not deprive West of a

fair trial. Trial Ct. Op., at 5. Our review of the record demonstrates that it

was an appropriate commentary on the evidence presented at trial. During

her testimony, the victim listed the names of many people that she told about

the assault; however, the Commonwealth did not present all of them as

witnesses. See N.T. Trial, 1/09/2018, at 94-96, 129-194.




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     Thus, based upon our review, we agree with the trial court’s

determinations. The “Commonwealth is entitled to comment during closing

arguments on matters that might otherwise be objectionable or even outright

misconduct, where such comments constitute fair response to matters raised

by the defense, or where they are merely responsive to actual evidence

admitted during a trial.” Commonwealth v. Culver, 51 A.3d 866, 876 (Pa.

Super. 2012).     Viewing the prosecutor’s comments in context, they were

either in response to matters raised by the defense in its opening as to

community standards regarding consent and/or fair comments on the

evidence presented at trial. Therefore, we conclude the prosecutor’s remarks

during closing arguments did not so prejudice the jury that they could not

weigh the evidence objectively. See Bedford, supra at 712-713.

     Furthermore, our Supreme Court has stated “a mistrial is not necessary

where the [trial court’s] cautionary instructions are adequate to overcome any

possible prejudice.”     Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa.

2007) (citation omitted), cert. denied, 552 U.S. 1316 (2008).               The “law

presumes   that    the   jury   will   follow   the   instructions   of   the   court.”

Commonwealth v. Miller, 819 A.2d 504, 513 (Pa. 2002), cert. denied, 540

U.S. 827 (2003). Our Supreme Court has also indicated that a party’s failure

to object to an instruction, or seek further instructions, “indicate[s] his

satisfaction with the instruction.” Commonwealth v. Jones, 668 A.2d 491,

504 (Pa. 1995), cert. denied, 519 U.S. 826 (1996).


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       Here, West requested and a received a cautionary instruction.3       N.T.

Trial, 1/09/2018, at 253-254. When asked, defense counsel did not object or

offer any additions to the instructions. Id. at 278. Thus, West by his conduct

demonstrated that he was satisfied with the instruction.      Jones, supra at

504. West’s claim that the trial court erred by denying his motion for a mistrial

fails. See Rega, supra at 1016; Bedford, supra at 712-713.

       For all the foregoing reasons, we affirm West’s judgment of sentence.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2019




____________________________________________


3While the record is not entirely clear, it appears that either defense counsel
or counsel for both parties drafted the instructions. N.T. Trial, 1/09/2018, at
253.

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