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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ALAN THOMPSON,                            :         No. 3192 EDA 2018
                                          :
                         Appellant        :


      Appeal from the Judgment of Sentence Entered September 13, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0002015-2016

BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 13, 2020

        Alan Thompson appeals from the September 13, 2018 aggregate

judgment of sentence of life imprisonment imposed after a jury found him

guilty of first-degree murder and possessing an instrument of crime (“PIC”).1

After careful review, we affirm the judgment of sentence.

        The facts of this case were accurately summarized by the trial court in

its November 14, 2019 opinion and need not be reiterated here. (See trial

court opinion, 11/14/19 at 2-5.) The relevant procedural history of this case,

as gleaned from the certified record, is as follows:      On March 1, 2016,

appellant was charged with first-degree murder and PIC in connection with

the February 2015 shooting death of Jamal Conner (“the victim”) in

Philadelphia. Appellant proceeded to a jury trial on September 11, 2018. At


1   18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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trial, appellant testified in his own defense and acknowledged that he shot the

victim six times, but alleged that he acted in self-defense.             (Notes of

testimony, 9/12/18 at 171-177.) Following a two–day trial, the jury found

appellant guilty of the aforementioned offenses on September 13, 2018. That

same day, the trial court sentenced appellant to an aggregate term of

life-imprisonment.     Appellant did not file any post-sentence motions.       This

timely appeal followed.2

        Appellant raises the following issues for our review:

              [1.]   Did the trial court commit an abuse of discretion
                     by denying appellant’s motion for a mistrial?

              [2.]   Did the trial court commit an abuse of discretion
                     when it overruled an objection to a comment
                     made by the Prosecutor[3] during her closing
                     speech?

Appellant’s brief at 3 (full capitalization omitted).

        Appellant first argues that the trial court abused its discretion in denying

his motion for a mistrial “after the prosecutor openly advised the jury that

appellant was then in custody thereby prejudicing appellant by permitting the

jury to infer that [he] was dangerous.” (Id. at 14.)

              It is well[]settled that the review of a trial court’s
              denial of a motion for a mistrial is limited to

2 On August 6, 2019, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
August 14, 2019, the trial court filed its Rule 1925(a) opinion on
November 14, 2019.

3   Assistant District Attorney Alyssa Shver.


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           determining whether the trial court abused its
           discretion. An abuse of discretion is not merely an
           error of judgment, but if in reaching a conclusion the
           law is overridden or misapplied, or the judgment
           exercised is manifestly unreasonable, or the result of
           partiality, prejudice, bias or ill-will . . . discretion is
           abused. A trial court may grant a mistrial only where
           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
           not necessary where cautionary instructions are
           adequate to overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citations

omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).

     Our supreme court has recognized that “when examining the potential

for undue prejudice, a cautionary jury instruction may ameliorate the

prejudicial effect of the proffered evidence.” Commonwealth v. Hairston,

84 A.3d 657, 666 (Pa. 2014) (citations omitted), cert. denied, 574 U.S. 863

(2014).   Jurors are presumed to follow the trial court’s instructions.

Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013), cert. denied, 574

U.S. 828 (2014).

     During the prosecutor’s cross-examination of appellant, the following

exchange took place:

           Q.      It is 2018. At some point in 2016 you got the
                   paperwork or your attorney did back then and
                   they gave you a copy and you had time to
                   review it, correct?

           A.      Yes, ma’am.




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               Q    And you are in custody with the paperwork the
                    entire time and you can review it and read it at
                    your leisure as often as you like, correct?

Notes of testimony, 9/12/18 at 182.

        Appellant’s counsel immediately requested a sidebar and moved for a

mistrial. (Id. at 182-184.) The trial court denied appellant’s request and –

contrary to appellant’s contention4 – gave the following cautionary instruction

to the jury on the second day of trial:

               You heard information yesterday that [appellant] is in
               custody.   Under the Pennsylvania Constitution, a
               person charged with first[-]degree murder is
               automatically held without bail. You really can’t draw
               any inferences negative to [appellant]. No adverse
               inference can be drawn by the fact that he is in
               custody awaiting trial.

Notes of testimony, 9/13/18 at 91. Appellant’s counsel did not object to this

instruction.

        Following our careful review, we agree with the trial court that a mistrial

was not warranted in this case.       This court has long recognized that “[a]

singular, passing reference to prior criminal activity is usually not sufficient to

show that the trial court abused its discretion in denying the defendant’s

motion for a mistrial.”      Commonwealth v. Parker, 957 A.2d 311, 319

(Pa.Super. 2008) (citations omitted), appeal denied, 966 A.2d 571 (Pa.

2009). On the contrary, a mistrial is only warranted in such an instance where




4   See appellant’s brief at 15.


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“a juror could reasonably infer from the facts presented that the accused had

engaged in prior criminal activity.” Id. (citation omitted; emphasis added).

      Instantly, the record reflects that the prosecutor’s brief reference to the

fact that appellant had the opportunity to review all of the discovery material

while in custody in this matter did not infer any prior criminal conduct on the

part of appellant. (See notes of testimony, 9/12/18 at 182.) Moreover, any

potential prejudice that may have resulted from the prosecutor’s passing

reference to the fact appellant was in custody was cured by the trial court’s

cautionary instruction to the jury.      Accordingly, we discern no abuse of

discretion on the part of the trial court in denying appellant’s motion for a

mistrial.

      Appellant next argues that the trial court abused its discretion in

overruling his objection to comments the prosecutor made during her closing

argument insinuating that appellant’s counsel believed that the victim may

have been involved in criminal activity.         (Appellant’s brief at 19-20.)

Specifically, appellant takes issue with the following comments by the

prosecutor:

              Here is [the victim] in his nice car -- I -- I’ve known
              [appellant’s counsel] for quite a bit of time and I
              certainly hope, I certainly hope, that [appellant’s
              counsel] -- you know maybe he doesn’t live in a
              neighborhood that is like 26th and Cambria -- I’m
              sorry -- Somerset and Lehigh and maybe he
              doesn’t -- maybe to him, the only people that get to
              have nice cars are Jack and Jill from Chestnut Hill. So
              I certainly hope that [appellant’s counsel] isn’t



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           implying that because [the victim] has a nice car and
           he’s a black male

           [Appellant’s counsel]: Objection.

           THE COURT: Overruled.

           [The Prosecutor]: -- that some how he is a bad guy.
           Som[eh]ow there [is] something seedy and
           unsav[or]y. I hope he is not implying that.

Notes of testimony, 9/13/18 at 64-65.

     “Our standard of review for a claim of prosecutorial misconduct is limited

to whether the trial court abused its discretion.” Commonwealth v. Harris,

884 A.2d 920, 927 (Pa.Super. 2005) (citations omitted), appeal denied, 928

A.2d 1289 (Pa. 2007).    Not every unwise remark on a prosecutor’s part,

however, constitutes reversible error. Id. “Prosecutorial misconduct occurs

when the effect of the prosecutor’s comments would be to prejudice the trier

of fact, forming in its mind fixed bias and hostility toward the defendant so

that it could not weigh the evidence objectively and render a true verdict.”

Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa.Super. 2003), appeal

denied, 845 A.2d 816 (Pa. 2004).

           Counsel[’s] remarks to the jury may contain fair
           deductions and legitimate inferences from the
           evidence presented during the testimony.           The
           prosecutor may always argue to the jury that the
           evidence establishes the defendant’s guilt, although a
           prosecutor may not offer his personal opinion as to
           the guilt of the accused either in argument or in
           testimony from the witness stand. Nor may he or she
           express a personal belief and opinion as to the truth
           or falsity of evidence of defendant’s guilt, including
           the credibility of a witness.


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Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa.Super. 2001), appeal

denied, 788 A.2d 372 (Pa. 2001), cert. denied, 535 U.S. 1059 (2002).

      Following our careful review, we agree with the trial court that the

prosecutor’s comments, when read as a whole, were not so prejudicial as to

warrant that a new trial be granted. “A petitioner establishes prejudice when

he demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations and

internal quotation marks omitted). “[A] prosecutor is permitted fairly wide

latitude in advocating for the Commonwealth, including the right to argue all

fair conclusions from the evidence, to respond to defense arguments, and to

engage in a certain degree of oratorical flair.” Harris, 884 A.2d at 931. All

such comments must be reviewed in the context in which they were made.

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005).

      Here, the record reflects that prosecutor’s comments were not the type

that would cause the jury to form a fixed bias or hostility towards appellant

and prevent it from rendering a fair and impartial verdict.       Rather, the

prosecutor’s comments were a fair response to appellant’s counsel’s lengthy

argument during summation alluding to the fact the victim’s “expensive”

550 S class Mercedes was obtained from income he earned as a result of

criminal activity, and not the delicatessen he owned and operated. (See notes

of testimony, 9/13/18 at 20-23.)       Accordingly, we discern no abuse of


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discretion on the part of the trial court in rejecting appellant’s prosecutorial

misconduct claim.

      For all the foregoing reasons, we affirm the September 13, 2018

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/13/20




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