J-S17002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

    JOHN ROBERT SROMOVSKY,

                             Appellant              No. 2365 EDA 2018


         Appeal from the Judgment of Sentence Entered June 7, 2018
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001137-2017


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 05, 2019

       Appellant, John Robert Sromovsky,1 appeals from the judgment of

sentence of 2½-12 months’ incarceration, imposed following his conviction for

simple assault after a second trial. In his appeal, Appellant challenges the

trial court’s determination that his double jeopardy rights did not bar his

second trial, that the court erred (at both trials) by refusing to admit video

evidence depicting events that occurred after the assault, and that the

Commonwealth engaged in prosecutorial misconduct. After careful review,

we affirm.
____________________________________________


1 As Appellant was employed as a Pennsylvania State Trooper, and acting in
that capacity when he committed the offense at issue, we also refer to him as
“Trooper Sromovsky” in this memorandum. News reports indicate that
Appellant was fired by the State Police following his sentencing in this case,
however, that information is not contained in the certified record.
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       The trial court summarized the facts adduced at Appellant’s first trial,2

held on November 15-16, 2017, as follows:

       On the evening of January 27, 2017, Trooper Revels of the
       Pennsylvania State Police made a vehicle stop. He determined
       that the operator[, Lorenzo Lopez,] was impaired and would be
       arrested for DUI. During the handcuffing of [Lopez], he tensed
       his arms causing the trooper and Officer Cavanaugh who was
       acting as backup to use a MODERATE degree of force to pull his
       arms behind his back and cuff him. This entire process was
       captured on Trooper Revels[’] dash mounted camera. Once
       cuffed, [Lopez] became visibly upset and began to cry. When
       Trooper Revels went to place him in his cruiser, [Lopez] went limp
       and was uncooperative[,] requiring Trooper Revels and Officer
       Cavanaugh to … stuff him into the cruiser. At some point during
       the placing [of Lopez] into the cruiser, Trooper Revels said into
       his microphone, “he’s fighting me.” Those words resulted in six
       troopers responding to the scene of the vehicle stop. When they
       arrived, [Lopez] was seated in the front seat of Trooper Revels[’]
       cruiser, was cuffed behind his back, was seat belted and, though
       crying, was otherwise not acting out.1
          1These objective facts were recorded by Trooper Revels[’]
          dashboard camera[,] which he had turned to face [Lopez]
          once [Lopez] was placed in the vehicle.

       When Trooper Sromovsky responded to the scene of the vehicle
       stop, he went immediately to the vehicle where [Lopez] was
       seated. He did not make any inquiry of Trooper Revels as to what
       had prompted the, “he’s fighting me” statement. Upon seeing
       [Lopez], Trooper Sromovsky engaged him verbally[,] and the
       dashboard camera show[ed] that[,] shortly thereafter[,] [Lopez]
       was struck once, and possibly twice in the face.

       Trooper Sromovsky, contrary to Pennsylvania State Police Policy,
       did not report having struck [Lopez]. Neither did any other
       trooper on the scene2 report that [Lopez] had been struck. Once
       Trooper Sromovsky’s supervisors became aware of what had
____________________________________________


2 The trial court did not provide a separate summary of the facts for Appellant’s
second trial in its Pa.R.A.P. 1925(a) opinion, however, there is no indication
in the record, or the parties’ briefs, that the trials differed as to the underlying
facts.

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      occurred[,] they investigated the matter and ultimately charged
      him with [s]imple [a]ssault, [o]fficial [o]ppression, [t]erroristic
      [t]hreats[,] and [h]arassment.
          2The record was unclear as to whether any other trooper
          actually saw the striking.

      A jury trial was held from November 14 to November 16, 2017.
      The jury acquitted Trooper Sromovsky of [o]fficial [o]ppression
      and [t]erroristic [t]hreats. They hung on [s]imple [a]ssault.

      During her closing argument, Assistant District Attorney [Cynthia
      B.] Morgan stated,

          the next thing that everybody talked about was Mr. Lopez
          somehow deserved to get hit, that because he was drunk,
          that because there was marijuana found in a car seat, that
          was a big thing, there was a child’s car seat, so he’s a really
          bad dude, he’s a really bad person, he’s an illegal
          immigrant. We never brought that out, but that was the
          first question on cross-examination. So because he’s an
          illegal immigrant, because there was marijuana in the car
          and because he’s drunk and intoxicated, that he somehow
          deserved to get hit.

      [This satement] prompt[ed] defense counsel to move for a
      mistrial[,] which [the court] denied.

      The Commonwealth … signaled its intent to retry [Appellant] on
      [s]imple [a]ssault and [h]arassment[,] [which] prompt[ed]
      [Appellant to file a] [m]otion to [d]ismiss on double jeopardy
      grounds and/or for prosecutorial misconduct during the
      Commonwealth’s closing argument.

Trial Court Opinion (TCO1), 2/16/18, at 1-2 (citation omitted). The trial court

denied the motion to dismiss by order dated February 16, 2018, as indicated

by the trial court docket; however, that order does not appear in the certified

record.




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       Appellant’s second trial occurred on May 14-16, 2018, at the conclusion

of which the jury found Appellant guilty of simple assault.3 Subsequently, on

June 7, 2018, the trial court sentenced Appellant to 2½-12 months’

incarceration. Appellant filed a timely post-sentence motion, which the trial

court denied on July 31, 2018.

       On August 8, 2018, Appellant filed a timely notice of appeal. He also

filed a timely, court-ordered Pa.R.A.P. 1925(b) statement August 29, 2018.

The trial court issued its Rule 1925(a) opinion on September 26, 2018, which

substantially incorporates its February 16, 2018 opinion.

       Appellant now presents the following questions for our review:

                                         Trial I

         i.   Did the trial court err and abuse its discretion by denying
              [Appellant]’s post-verdict motion to dismiss the indictment
              on the grounds that re-prosecuting [him] would violate the
              provisions of the Double Jeopardy Clause of the Fifth
              Amendment to the United States Constitution and the
              Constitution of the Commonwealth of Pennsylvania?

        ii.   Did the trial court err and abuse its discretion by denying
              [Appellant]’s request to play the entirety of the MVR video
              and take evidence from troopers and officers which depicted
              Mr. Lopez acting violently towards the arresting officers
              shortly after he was struck by [Appellant]?

                                         Trial II

       iii.   Did the trial court err and abuse its discretion by denying
              [Appellant]’s request to play the entirety of the MVR video
              and take evidence from troopers and officers which depicted


____________________________________________


3The trial did not include the charge of harassment, which the Commonwealth
withdrew on June 7, 2018.

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              Mr. Lopez acting violently towards the arresting officers
              shortly after he was struck by [Appellant]?

      iv.     Did the trial court err and abuse its discretion in denying
              [Appellant]’s post-sentence motion to dismiss the
              indictment based upon prosecutorial misconduct?

Appellant’s    Brief   at   3-4   (unnecessary   capitalization   omitted,   issues

renumbered).

      We begin by addressing Appellant’s double jeopardy claims, issues (i)

and (iv). Appellant “argues that he cannot be re-tried [for simple assault]

without being put twice in jeopardy for the same act and injury sustained by

Mr. Lopez.” Id. at 18. The trial court rejected this claim, reasoning that: “As

the elements of [s]imple [a]ssault are not identical to those of [o]fficial

[o]ppression, and as each require proof of an element the other does not

require, retrial on the charge[] of [s]imple [a]ssault [is] not barred on double

jeopardy grounds.” TCO1 at 4-5. We agree with the trial court.

      “The Double Jeopardy Clause, applicable to the States through the
      Fourteenth Amendment, provides that no person shall ‘be subject
      for the same offense to be twice put in jeopardy of life or limb.’”
      Commonwealth v. Decker, … 664 A.2d 1028, 1029 ([Pa.
      Super.] 1995) (citing U.S. CONST. amend. 5). “Furthermore, the
      Double Jeopardy Clause … protects against a second prosecution
      for the same offense after acquittal. It protects against a second
      prosecution for the same offense after conviction. And it protects
      against multiple punishments for the same offense.” Id.

      “To determine whether a defendant’s protection against multiple
      punishments for the same offense has been violated, this
      Commonwealth applies the test set forth in Blockburger v. U.S.,
      284 U.S. 299 … (1932).” Commonwealth v. Beckwith, … 674
      A.2d 276, 279 ([Pa. Super.] 1996).

      The U.S. Supreme Court explained this test as follows:




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         In both the multiple punishment and multiple prosecution
         contexts, this Court has concluded that where the two
         offenses for which the defendant is punished or tried cannot
         survive the “same-elements” test, the double jeopardy bar
         applies. The same-elements test, sometimes referred to as
         the “Blockburger” test, inquires whether each offense
         contains an element not contained in the other; if not, they
         are the “same offence” and double jeopardy bars additional
         punishment and successive prosecution.

      United States v. Dixon, 509 U.S. 688, 696 … (1993).

      We note that “the ‘same-elements’ test of Blockburger has long
      been followed in this Commonwealth” and its application “requires
      a comparison of the elements of the offenses to determine
      whether each offense requires proof of a fact which the other does
      not.” Commonwealth v. Caufman, 541 Pa. 299, 303 … ([Pa.]
      1995) (citations omitted). When making such a comparison,
      overlap in proof between the two prosecutions does not establish
      a double jeopardy violation. Beckwith, 674 A.2d at 279.

Commonwealth v. Jackson, 10 A.3d 341, 344–45 (Pa. Super. 2010). The

statues in question are defined, in pertinent part, as follows:

                             Official Oppression

      A person acting or purporting to act in an official capacity or taking
      advantage of such actual or purported capacity commits a
      misdemeanor of the second degree if, knowing that his conduct is
      illegal, he:

         (1) subjects another to arrest, detention, search, seizure,
         mistreatment, dispossession, assessment, lien or other
         infringement of personal or property rights; or

         (2) denies or impedes another in the exercise or enjoyment
         of any right, privilege, power or immunity.

18 Pa.C.S. § 5301.

                                Simple Assault

      []Except as provided under section 2702 (relating to aggravated
      assault), a person is guilty of assault if he:


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         (1) attempts to cause or intentionally, knowingly or
         recklessly causes bodily injury to another; …

18 Pa.C.S. § 2701.

      Instantly, Appellant does not cite to any controlling authority holding

that simple assault and official oppression contain the same elements under

the   Blockburger    test.    Rather,   he   offers   a   novel   argument   that

“mistreatment” under the official oppression statute, 18 Pa.C.S. § 5301,

constitutes the same conduct that is proscribed by the simple assault statute,

18 Pa.C.S. § 2701; therefore, he contends that simple assault is essentially a

lesser-included offense of official oppression. See Appellant’s Brief at 21-23.

In support of this claim, Appellant directs our attention to Commonwealth

v. Manlin, 411 A.2d 532 (Pa. Super. 1979), citing the following passage from

that opinion:

      The evidence of record in this case shows that [the] appellant
      struck and kicked three inmates of Lehigh County Prison without
      justification or excuse in the course of disciplinary hearings
      conducted by appellant in his official capacity as Deputy Warden
      of that prison. Examining the challenged statute in the light of
      the conduct with which appellant was charged, … it is obvious that
      [the] appellant should reasonably have understood that his
      conduct was proscribed by the statutory prohibition of
      “mistreatment.”      “Mistreatment” is clearly an ascertainable
      standard; it is in common usage, is equated with abuse, and has
      a commonly understood meaning.

Id. at 533-34. Appellant argues that Manlin establishes that “mistreatment”

and “abuse” are synonymous, and that the only “abuse” that occurred in this

case was the striking of Mr. Lopez, which was the same conduct underlying

his simple assault charge. Notably, the Manlin Court was dealing with the



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question of notice under the void-for-vagueness doctrine; it was not

addressing whether simple assault is a lesser-included offense of official

impression.   Accordingly, Manlin is off-point, and provides no support for

Appellant’s claim.

      Applying the Blockburger test, the official oppression statute clearly

includes elements not present in the simple assault statute. For instance, the

official oppression statute requires the accused be a “person acting or

purporting to act in an official capacity or taking advantage of such actual or

purported capacity[,]” 18 Pa.C.S. § 5301, whereas the simple assault statute

does not have such a requirement. A conviction for official oppression also

requires that the accused know that his conduct is illegal, whereas the simple

assault statute does not.    The provision of the simple assault statute in

question, by contrast, requires that the accused attempt or cause bodily

injury, whereas, nothing in the official oppression statute requires proof of

bodily injury or an attempt to cause bodily injury.

      That the same conduct violated two statutes does not establish that

double jeopardy bars prosecution and punishment for both offenses.

Beckwith, 674 A.2d at 279 (“Mere overlap in proof between the two

prosecutions doesn’t establish a double jeopardy violation.”). Accordingly, we

conclude that the Commonwealth’s prosecution of Appellant for simple assault




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at his second trial was not precluded by double jeopardy principles following

his acquittal for official oppression at his first trial.4

       Alternatively, even assuming that simple assault is a lesser-included

offense of official oppression as Appellant contends,5 Appellant’s second trial

should not have been barred by his double jeopardy rights. As astutely noted

by the Commonwealth, see Commonwealth’s Brief at 10-12, because

Appellant was tried for both offenses at his first trial, and because the jury

acquitted him of the ostensibly greater-included offense, but failed to reach a

verdict on the ostensibly lesser-included offense, his second trial for the

lesser-included offense was not barred by his double jeopardy rights.


____________________________________________


4 Indeed, it is not surprising, especially in the context of this case, why a jury
could arrive at different conclusions with regard to Appellant’s guilt under each
statute. Appellant admitted that he struck Mr. Lopez, and, in any event, the
video evidence was conclusive as to that fact. However, Appellant stated his
belief that his conduct was not illegal:

       Q. Having now reviewed the totality of the circumstances policies
       and the use of force policies, sir, do you believe today, as you did
       that evening, that your use of force with this individual was
       reasonable and necessary to effectuate the lawful arrest?

       A. Yes.

N.T., 11/15/17, at 153. Thus, if the jury found his testimony credible, it could
not have convicted Appellant for official oppression. However, that specific
defense was not applicable to the crime of simple assault. Indeed, although
the first jury acquitted Appellant of official oppression, it could not reach a
decision as to simple assault.

5 “A comparison of the above noted statutes ([o]fficial [o]ppression and
[s]imple [a]ssault) reveals that [s]imple [a]ssault is indeed a lesser-included
offense of [o]fficial [o]ppression.” Appellant’s Brief at 21.

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      An   analogous     circumstance     occurred    in   Commonwealth         v.

Buffington, 828 A.2d 1024 (Pa. 2003). In that case, the Commonwealth

tried Buffington for both rape and the lesser-included offense of sexual

assault. Id. at 1026. The jury acquitted him of rape, but failed to reach a

verdict on sexual assault. The trial court then granted Buffington’s motion to

bar retrial on double jeopardy grounds. Id. at 1027. On appeal, the Superior

Court reversed that decision, and our Supreme Court affirmed the reversal,

reasoning that:

      Application of the double jeopardy bar is frequently addressed in
      the context of greater[-] and lesser[-]included offenses. For
      example, courts have held that, where a jury has not been
      charged on lesser[-]included offenses, an acquittal on the crime
      charged necessarily implies an acquittal on all lesser offenses
      encompassed by that charge, and, accordingly, double jeopardy
      would bar a second trial on a lesser included offense. This result
      [is] not obtained, however, in instances in which lesser-included
      offenses were expressly put before the jury, but the jury was
      unable to reach a verdict on those offenses. In such instances,
      the ordinary rule is that retrial on the lesser[-]included offense is
      constitutionally permissible.

Id. at 1029–30 (citations omitted).

      Thus, even if Appellant is correct that simple assault is a lesser-included

offense of official oppression, he is not entitled to relief, because he was tried

for both offenses in his first trial and, despite returning a verdict of not-guilty

on the charge of official oppression, the jury failed to reach a verdict on the

charge of simple assault. Accordingly, Buffington is controlling in this case,

and Appellant’s retrial for an ostensibly lesser-included offense is not barred

by double jeopardy principles.


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       We next address Appellant’s second double jeopardy claim, in which he

argues that his second trial should have been barred due to the

Commonwealth’s alleged prosecutorial misconduct in its closing argument

during Appellant’s first trial. In this regard, Appellant argues that the

“prosecutor improperly and prejudicially injected race and Mr. Lopez’s status

as an illegal immigrant into the case in her closing argument….”6 Appellant’s

Brief at 33.     Appellant contends that that the prosecutor’s conduct was

intended to deprive him of a fair trial and, therefore, that his second trial was

barred by double jeopardy.

       The Double Jeopardy Clauses of the Fifth Amendment to the
       United States Constitution and Article 1, § 10 of the Pennsylvania
       Constitution prohibit retrial where prosecutorial misconduct during
       trial provokes a criminal defendant into moving for a mistrial.
       However, Article 1, § 10 of the Pennsylvania Constitution offers
       broader protection than its federal counterpart in that the double
       jeopardy clause of the Pennsylvania Constitution prohibits retrial
       of a defendant not only when prosecutorial misconduct is intended
       to provoke the defendant into moving for a mistrial, but also when
       the conduct of the prosecutor is intentionally undertaken to
       prejudice the defendant to the point of the denial of a fair trial.

       Pennsylvania has adopted a strict remedy for intentional
       prosecutorial misconduct: Under Pennsylvania jurisprudence, it is
       the intentionality behind the Commonwealth’s subversion of the

____________________________________________


6 Appellant also argues that the Commonwealth made similar comments
during his sentencing hearing. However, Appellant did not present a separate
sentencing claim in his brief, in his statement of the questions presented, nor
in his Rule 1925(b) statement, despite having raised a sentencing issue in his
post-sentence motion concerning the Commonwealth’s comments at the
sentencing hearing.     Accordingly, any sentencing claim related to the
prosecutor’s comments at Appellant’s sentencing hearing are waived.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”).

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     court process, not the prejudice caused to the defendant, that is
     inadequately remedied by appellate review or retrial. By and
     large, most forms of undue prejudice caused by inadvertent
     prosecutorial error or misconduct can be remedied in individual
     cases by retrial. Intentional prosecutorial misconduct, on the
     other hand, raises systematic concerns beyond a specific
     individual’s right to a fair trial that are left unaddressed by retrial.

Commonwealth v. Lynn, 192 A.3d 194, 199–200 (Pa. Super. 2018)

(cleaned up).

     However, because of the compelling societal interest in
     prosecuting criminal defendants to conclusion, our Supreme Court
     has recognized that dismissal of charges is an extreme sanction
     that should be imposed sparingly and only in cases of blatant
     prosecutorial misconduct. A mere finding of willful prosecutorial
     misconduct will not necessarily warrant dismissal of charges.

Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa. Super. 2016) (citation

omitted).

     Again, in the Commonwealth’s closing argument during the first trial,

the prosecutor stated:

     The next thing that everybody talked about was Mr. Lopez
     somehow deserved to get hit, that because he was drunk, that
     because there was marijuana found in a car seat, that was a big
     thing, there was a child’s car seat, so he’s a really bad dude, he’s
     a really bad person, he’s an illegal immigrant. We never brought
     that out, but that was the first question on cross-examination. So
     because he’s an illegal immigrant, because there was marijuana
     in the car and because he’s drunk and intoxicated, that he
     somehow deserved to get hit.

N.T., 11/16/17, at 64.      Appellant claims he immediately objected and

requested a mistrial, however, the record suggests Appellant’s account of

events is inaccurate.     Appellant’s trial counsel immediately interjected:

“Objection, your Honor. I would ask the jury be instructed. This is an



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outrageous argument. It has never been argued that his status as an illegal

immigrant [was the] reason for the use of force in this case. It’s outrageous.”

Id. (emphasis added).     Thus, Appellant requested a curative instruction

immediately after the prosecutor’s comment, not a mistrial.

      However, Appellant did request a mistrial at the end of the

Commonwealth’s argument, at which time the following exchange occurred:

      [Defense Counsel]: [] I have a motion for mistrial.            The
      outrageous statement made during the closing argument by the
      Commonwealth attorney that somehow my client operated upon
      the fact Mr. Lopez was an illegal immigrant and sought to injure
      him in light of that status is not only outrageous, it’s unfounded
      in the record.

      What’s worse is the Commonwealth filed with you a request to
      admit the fact that Mr. Lopez was an illegal immigrant and to
      establish on the record during this trial his status as an illegal
      immigrant. I opposed that exactly for the reason that was just
      argued to this jury, that the admission of that evidence would be
      irrelevant and highly prejudicial. This [c]ourt allowed it to come
      in.

      I assumed on the request of the Commonwealth, and at this point
      to have suggested to the jury with no basis in fact or law, that my
      client operated on that assumption to cause that man harm is so
      outrageous it can’t be cured by an instruction.

      And secondly, should this [c]ourt grant the motion to [re]-try the
      case, I would ask that because of the intentional outrageous
      conduct of the prosecution [that] you preclude re-prosecution of
      Trooper Sromovsky.

      [Prosecutor]: Your Honor, Mr. Hoey’s first cross-examination
      question of that witness was you’re an illegal immigrant. That fact
      came out from the defense. That’s what I pointed out to the jury.
      That fact is on the record. Mr. Lopez was an illegal immigrant.
      He was Spanish speaking. He was sitting in the custody of the
      trooper and this was brought out that he somehow deserved to be
      punched in the face because of his dangerous and his threatening
      conduct, which was not the case throughout the course of the trial.

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      [Defense Counsel]: Regrettably for the Commonwealth, it was
      never established that my client knew at any point in time, if we’re
      parsing this out the way we have done it, in a test tube, that he
      has no idea what this fellow’s status was when he approached
      him. Zero. To suggest otherwise compounds the outrageousness.

      [Prosecutor]: Your Honor, I never said that Trooper Sromovsky
      knew that he was an illegal immigrant. I talked about the cross-
      examination of Mr. Lopez was to belittle him, bring out his
      immigration, and to talk about his civil suit. That is what I talked
      about.

      [Defense Counsel]: Well, if that were the case, then why would
      the Commonwealth have asked you to introduce that evidence?
      Secondly, that’s not what the Government argued.           The
      Government argued if you are allowing somebody to beat
      somebody up because they’re an illegal immigrant, you’re
      condoning this behavior.

      They never proved he knew that Lopez was an illegal immigrant
      or operated under that assumption to cause this man harm.

Id. at 72-74. The trial court did not explicitly deny Appellant’s motion for a

mistrial. However, the trial court did include the following instruction to the

jury before they retired to deliberate:

      Now, also during the closing arguments there were objections by
      both sides as to, well, they didn’t say this and they didn’t say that.
      And I told you when we began on Tuesday that when you went to
      the jury room, it was your recollection, and your recollection
      alone, that was going to control everything. And I also told you
      before counsel argued that it was your recollection of the facts
      that controlled. So what they remember is not relevant. It’s what
      you remember and what you pulled out as the credible, believable
      evidence that you are going [to] make your decision based upon.

      So to the extent that they argued factors that you don’t find to
      exist in the record, you simply ignore it. If you find that they
      argued something not in accordance with your recollection, you
      ignore it. If they argued something that does not directly bear on
      the facts of this case, that is, the interaction between the
      defendant and Mr. Lopez, you don’t consider that.



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     Again, whether somebody should be treated in one manner
     or not because they are an immigrant has got absolutely
     nothing to do with the case. It’s what occurred in the car
     between the defendant and Mr. Lopez. That’s what we’re
     looking to resolve. We’re not sending any messages or anything
     else. We are deciding that fact pattern.

     In addition to the testimony of the witnesses, you’ve heard the
     arguments of counsel. They are not part of the evidence and
     should not be considered as such. Again, they’re there as an aide
     to help you in deciding the factual issues that you have to decide,
     having in mind that they argued in a way that favors the side they
     represent. Again, I remind you that it is the answers of the
     witnesses who appeared and testified before you and whose
     answers you found credible and believable that you are going to
     base your factual decision upon.

Id. at 91-92 (emphasis added).

     Following the verdict, Appellant filed a post-verdict motion seeking to

dismiss the indictment (and therefore bar retrial) based on the allegation of

prosecutorial misconduct discussed above.    In its opinion accompanying the

order denying the motion, the trial court reasoned:

     Unfortunately, when [the prosecutor] responded to defense
     counsel’s argument[,] she made reference to Mr. Lopez’s status
     as an “illegal immigrant.” His status was NOT relevant to ANY
     issue in the case. While Mr. Lopez was questioned as to his
     immigration status by defense counsel …, it was NOT commented
     upon by defense counsel in his closing. It should not have been
     touched upon in the Commonwealth’s closing. However, an
     improper reference in an otherwise permissible closing hardly
     evidences the egregious and pervasive conduct that is necessary
     to bar a retrial.

TCO1 at 5-6.

     We agree with the trial court that the improper reference to Mr. Lopez’s

immigration status did not warrant the remedy of precluding a second trial as

sought by Appellant. First, there was only a single, isolated reference to Mr.


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Lopez’s status during the Commonwealth’s closing. Second, it was Appellant,

not the Commonwealth, who first revealed Mr. Lopez’s immigration status to

the jury. See N.T., 11/15/17, at 68. Indeed, during Appellant’s counsel’s

cross-examination of Mr. Lopez, multiple questions were asked about his

immigration status and related deportation proceedings.         Id.   Third, the

prosecutor’s comment was not clearly referencing Appellant’s intent at all.

The comment could easily be read, as the prosecutor claimed, to have been

commentary on what the prosecutor believed to be the attempted

assassination of the victim’s character, or victim-blaming, that Appellant’s

attorney ostensibly engaged in while cross-examining Mr. Lopez.

      In the alternative, even if interpreted as a comment on Appellant’s

intent, rather than on Appellant’s legal defense, the use of oratorical flair to

suggest a motive for a crime is rarely grounds for a new trial, let alone grounds

for the extreme remedy of barring retrial. “It is well settled that a prosecutor

has considerable latitude during closing arguments and his arguments are fair

if they are supported by the evidence or use inferences that can reasonably

be derived from the evidence.” Commonwealth v. Holley, 945 A.2d 241,

250 (Pa. Super. 2008). While Appellant suggested his motive for striking Mr.

Lopez was merely to assert control, the jury was free to reject his testimony,

and to find another motive for his actions.         While proof of Appellant’s

knowledge of the victim’s immigration status was not ironclad, there was at

least some evidence that Appellant could have been acting on that belief, since

Mr. Lopez was speaking in a mix of Spanish and broken English and had a

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Latino   appearance,    combined    with   Appellant’s   otherwise   inexplicable

aggression toward a defenseless victim.

      Fourth, the trial court’s instructions to the jury strongly suggested to

them that they should ignore any references to the victim’s immigration

status. Combined with the fact that Appellant first brought that status to the

jury’s attention, and the fact that the prosecutor’s comment was brief and

isolated, the prejudice suffered by Appellant was minimal. Accordingly, for

these reasons, we conclude that the prosecutor’s comment was neither

intended to provoke Appellant into seeking a mistrial, nor was it intentionally

made to to deprive Appellant of a fair trial, and that barring a retrial was far

too extreme of a remedy in the circumstances of this case.

      Finally, we address Appellant’s remaining two claims, which present an

identical issue.   Appellant asserts that the trial court abused its discretion

when it refused to permit him to introduce video evidence of Mr. Lopez’s

conduct that occurred after Appellant struck him. This matter arose when the

Commonwealth filed a motion in limine to exclude all post-assault video

evidence. See Commonwealth’s Motion in Limine, 11/13/17, at 1-2.             The

trial court granted the motion. Appellant now argues that he

      was precluded from publishing to the jury that portion of the MVR
      [video] which records Mr. Lopez’s violent and confrontational
      interactions with five (5) Pennsylvania State Troopers and one (1)
      Parkesburg Borough Police Officer that were required to utilize
      extensive force in bringing Mr. Lopez from [] Trooper Revels’
      vehicle to the caged State Trooper vehicle waiting nearby. That
      segment of the MVR lasts approximately ninety (90) seconds and
      immediately commences after Mr. Lopez was struck by Appellant.
      As such, it is temporally related to the instant offense and serves

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      to reiterate and confirm the fears that Appellant had at the time
      he encountered, argued with and struck Mr. Lopez, moments
      before Lopez violently confronted six (6) law enforcement officers
      during the transfer of his person to a caged vehicle. It is
      respectfully argued that the trial court abused its discretion by
      failing to permit the jury to view the approximately two minutes
      worth of video footage/audio footage of the Revels[’] MVR which
      commenced immediately after Mr. Lopez was struck by Appellant.

Appellant’s Brief at 24.

      The trial court did not admit that portion of the video, reasoning that:

      [Appellant] wished to show that after Mr. Lopez had been struck,
      that he, Mr. Lopez, resisted the troopers who were removing him
      from Trooper Revels’ vehicle. [Appellant]’s theory being that this
      conduct … corroborated his … belief that Mr. Lopez required the
      use of force against him while seated in Trooper Revels’ vehicle.

      I ruled that what occurred after [Appellant] struck Mr. Lopez was
      irrelevant. It was irrelevant as the issue before the jury was what
      [he] knew from the radio communications he heard and what he
      observed upon arriving at the location of the stop through the
      moment he struck Mr. Lopez. Fortunately, all of this was
      OBJECTIVELY KNOWN by virtue of the audio and video played for
      the jury. What Mr. Lopez’s behavior was subsequently neither
      proved nor disproved any of the facts the jury was to consider in
      determining the charges against [Appellant]. As such, it was
      clearly inadmissible.

Trial Court Opinion, 9/26/18, at 3.

      We ascertain no abuse of discretion in the trial court’s decision to grant

the Commonwealth’s motion in limine. At both trials, the jury was able to

view video evidence corroborating Appellant’s claim that force was required

to detain Mr. Lopez before Appellant struck him.        However, Mr. Lopez’s

conduct after that event was plainly irrelevant to Appellant’s intent, as he

could not possibly have been aware of Mr. Lopez’s future conduct when he

struck him.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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