J-S67003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRYAN BROWN-CAMP                          :
                                           :
                    Appellant              :   No. 2773 EDA 2017

           Appeal from the Judgment of Sentence August 2, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003503-2015


BEFORE:    OTT, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY OTT, J.:                             FILED JANUARY 24, 2019

      Bryan Brown-Camp appeals from the judgment of sentence imposed

August 2, 2017, in the Philadelphia County Court of Common Pleas. The trial

court sentenced Brown-Camp to an aggregate term of 22½ to 45 years’

imprisonment following his conviction of third-degree murder and criminal

conspiracy to commit robbery, for his role in the April 22, 2013, shooting death

of Tevan Patrick.    On appeal, Brown-Camp challenges the weight of the

evidence supporting his conviction, the discretionary aspects of his sentence,

the trial court’s denial of a motion for mistrial, and three evidentiary rulings.

For the reasons below, we affirm.

      The facts underlying Brown-Camp’s arrest and conviction are well known

to the parties, and aptly summarized in the trial court’s opinion. See Trial

Court Opinion, 1/16/2018, at 3-10. Accordingly, we need not reiterate them

herein. In summary, Brown-Camp and co-defendant Maurice Smith, lured the

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S67003-18



victim into their car to ostensibly commit a robbery, but later killed him. The

Commonwealth’s case was based on circumstantial evidence that Brown-

Camp and Smith were with the victim at the time of his death. Brown-Camp

was charged with murder, robbery, criminal conspiracy to commit murder and

robbery, possession of a firearm without a license, possession of a firearm on

a public street in Philadelphia, and possession of an instrument of crime. 1

Following a jury trial, Brown-Camp was convicted of third-degree murder and

conspiracy to commit robbery. The jury found him not guilty of the remaining

charges.

        On August 2, 2017, the trial court sentenced Brown-Camp to a term of

20 to 40 years’ imprisonment for third-degree murder and a consecutive term

of two and one-half to five years’ imprisonment for conspiracy. On August 7,

2017,     Brown-Camp        filed   a    timely   post-sentence   motion   seeking

reconsideration of his sentence and challenging the sufficiency and weight of

the evidence supporting his convictions. However, before the court ruled on

the post-sentence motion, Brown-Camp filed a notice of appeal on August 29,




____________________________________________


1 See 18 Pa.C.S. §§ 2502, 3701(a)(1)(i), 903, 6106(a)(1), 6108, and 907,
respectively.




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2017.2    Thereafter, on December 6, 2017, his post-sentence motion was

denied by operation of law.3

       Brown-Camp’s first issue on appeal challenges the weight of the

evidence supporting his convictions. He argues there “were no eyewitnesses

or direct evidence linking [him] with the murder or the other charges.” Brown-

Camp’s Brief at 15.           Rather, Brown-Camp insists the Commonwealth

“presented a series of unsavory witnesses, who were not credible an[d]/or

had a reason to present evidence that was favorable to the Commonwealth.”

Id. at 18. Moreover, he contends the evidence derived from his, the victim’s

and the co-defendant’s cell phone records, particularly the locations where

messages were sent/received, was “inherently unreliable.” Id. at 19.



____________________________________________


2 On September 18, 2017, the trial court ordered Brown-Camp to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Brown-Camp complied with the court’s directive, and filed a concise statement
on October 17, 2017. Although it does not appear in the certified record, a
time-stamped copy of the concise statement is appended to Brown-Camp’s
brief, and the trial court refers to and quotes from the statement in its opinion.
See Brown-Camp’s Brief, Appendix; Trial Court Opinion, 1/16/2018, at 1-3.

3 We note Brown-Camp’s notice of appeal was filed prematurely, before the
court had ruled upon his post-sentence motion or when it was denied by
operation of law. Nevertheless, pursuant to Pa.R.A.P. 905(a)(5), “[a] notice
of appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.” Accordingly, we will consider Brown-Camp’s appeal to have
been filed on December 6, 2017, the day his post-sentence motion was denied
by operation of law.




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       Our review of a challenge to the weight of the evidence supporting the

verdict is well-settled:4

       The weight of the evidence is a matter exclusively for the finder
       of fact, who is free to believe all, part, or none of the evidence
       and to determine the credibility of the witnesses. A new trial is
       not warranted because of a mere conflict in the testimony and
       must have a stronger foundation than a reassessment of the
       credibility of witnesses. Rather, the role of the trial judge is to
       determine that notwithstanding all the facts, certain facts are so
       clearly of greater weight that to ignore them or to give them equal
       weight with all the facts is to deny justice. On appeal, our purview
       is extremely limited and is confined to whether the trial court
       abused its discretion in finding that the jury verdict did not shock
       its conscience. Thus, appellate review of a weight claim consists
       of a review of the trial court’s exercise of discretion, not a review
       of the underlying question of whether the verdict is against the
       weight of the evidence. An appellate court may not reverse a
       verdict unless it is so contrary to the evidence as to shock one’s
       sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc) (citation omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

       Here, the trial court reviewed the evidence presented by the

Commonwealth at trial and concluded there was “overwhelming circumstantial

evidence that [Brown-Camp] lured the decedent, his childhood friend, from

the state of Delaware to Southwest Philadelphia to set him up for a robbery,

which culminated in his murder.” Trial Court Opinion, 1/16/2018, at 11. See

id. at 12-13 (reviewing testimony that: (1) Brown-Camp asked his girlfriend,

the victim’s cousin, for the victim’s new cell phone number on the afternoon


____________________________________________


4Brown-Camp properly preserved his weight claim in a post-sentence motion.
See Pa.R.Crim.P. 607(A)(3).

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of the murder; (2) both she and the co-defendant’s girlfriend placed Brown-

Camp and the co-defendant in a grey four-door sedan that day; (3) the victim

was last seen entering a silver four-door sedan; (4) Brown-Camp’s cousin

testified that he admitted to her he “set up” the victim; (5) another witness

saw Brown-Camp and the co-defendant with a .22 caliber bullet, the same

type that killed the victim; and (6) the triangulation of cell phone pings placed

the phones belonging to Brown-Camp, the co-defendant, and the victim near

the same cell phone towers for an hour leading up to the alleged time of the

murder). Finding no abuse of discretion on the part of the trial court, we

conclude Brown-Camp is entitled to no relief on this claim.

      Next, Brown-Camp argues the trial court abused its discretion when it

ordered his sentence for criminal conspiracy to run consecutively to his

sentence for third-degree murder. See Brown-Camp’s Brief at 20. He insists

the combined sentences “essentially result in close to a life sentence” for

crimes that “were committed as part of the same offense and involved a single

victim.” Id. at 21.

      This issue concerns a challenge to the discretionary aspects of Brown-

Camp’s sentence, and, accordingly, is not appealable as of right, but “must be

considered a petition for permission to appeal.” Commonwealth v. Best,

120 A.3d 329, 348 (Pa. Super. 2015) (quotation omitted). To reach the merits

of a discretionary issue, this Court must determine:
      (1) whether the appeal is timely; (2) whether Appellant preserved
      [the] issue; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with


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      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Brown-Camp complied with the procedural requirements for this appeal

by filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether he has raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   Here, Brown-Camp’s sole challenge to his sentence is

based upon the trial court’s imposition of a consecutive term of imprisonment

for his conviction of criminal conspiracy.

      Long standing precedent of this Court recognizes that 42 Pa.C.S.A.
      [§] 9721 affords the sentencing court discretion to impose its
      sentence concurrently or consecutively to other sentences being
      imposed at the same time or to sentences already imposed.
      Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367,
      1373 (1995); see also Commonwealth v. Perry, 883 A.2d 599,


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        2005 Pa.Super. Lexis 2892 (Pa. Super. August 10, 2005), and the
        cases cited therein.     Any challenge to the exercise of this
        discretion ordinarily does not raise a substantial question.
        Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa. Super.
        2005); see also Commonwealth v. Hoag, 445 Pa. Super. 455,
        665 A.2d 1212, 1214 (1995) (explaining that a defendant is not
        entitled to a “volume discount” for his or her crimes).

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005). A limited

exception to this rule was recognized in Commonwealth v. Dodge, 957 A.2d

1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009), where a

panel of this Court concluded the defendant’s aggregate sentence of 58½ to

128 years’ imprisonment was excessive and clearly unreasonable, when the

trial court imposed 37 consecutive, standard range sentences for receiving

stolen property, much of which consisted of costume jewelry.        See id. at

1199-1201.

        The facts in the present case are not similar to those in Dodge. Brown-

Camp was convicted of only two crimes, for which the court imposed

consecutive terms of imprisonment. His claim that the imposition of a two

and one-half year minimum sentence for conspiracy consecutive to his 20-

year minimum sentence for third-degree murder amounted to an excessive

sentence is specious. Accordingly, we find Brown-Camp has failed to raise a

substantial question for our review.

        Brown-Camp’s next three claims involve the trial court’s admission of

evidence.5     It is well settled that “[a] trial court has broad discretion to
____________________________________________


5   We have reordered Brown-Camp’s remaining issues for ease of disposition.



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determine whether evidence is admissible, and [its] ruling regarding the

admission of evidence will not be disturbed on appeal unless that ruling

reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or

such lack of support to be clearly erroneous.” Commonwealth v. Rosser,

135 A.3d 1077, 1087 (2016) (en banc) (citation and some punctuation

omitted), appeal denied, 168 A.3d 1237 (Pa. 2017).

      First, Brown-Camp asserts the trial court erred when it permitted

Reginald Tyler to testify regarding the contents of a text message he claimed

he had received from the victim on the night of the murder which stated, “[i]f

anything fishy happened to me, B-Y did it.” N.T., 2/23/2017, at 158. B-Y was

identified by Tyler, and members of the victim’s family, as Brown-Camp.

Significantly, the Commonwealth was not able to produce the actual text

message, since it had been deleted from Tyler’s cell phone.

      By way of background, the Commonwealth planned to introduce the

substance of this text message in two ways.         First, as noted above, Tyler

testified regarding the text of the message he received.             Second, the

Commonwealth had obtained a screenshot of a similar text, purportedly

written by the victim on the night of his murder, which was forwarded to the

victim’s mother by an unidentified female friend. The message read, “if some

fishy shit happen, I was wit B-Y.” N.T. 2/23/2017, at 7. Brown-Camp filed a

pretrial motion in limine seeking to exclude the writing “[b]ecause there is no

evidence authenticating the writing in question as being written and sent by”

Brown-Camp. Motion in Limine, 2/20/2017, at 1-2.

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      During argument on the motion, the parties discussed both Tyler’s

proposed testimony and the screenshot of the message received by the

victim’s mother. After the court expressed its reservation about permitting

the screenshot to be introduced as evidence since its sender was unidentified,

the following exchange took place:

           [Commonwealth]: I think it would come in under Mr. Tyler,
      who actually received the message. Although he didn’t save the
      message, he is the one who physically saw it. He can testify to
      what he saw and what he read on his phone that night.

            THE COURT: Yes, he can testify to it even though he doesn’t
      have it anymore and you would have to explain why he would
      erase that[.]

            [Brown-Camp’s counsel]: To me, Your Honor, there is the
      best evidence rule. That is a writing that he must produce. There
      is a best evidence rule with regard to that and there are things
      they could have done to get this available.

            First of all, if the victim’s mother is the one who received it
      from the friend, you can’t get a screenshot without having their
      phone number and find out their identity through social media.

            THE COURT: The decedent’s mother can’t testify that she
      received it from the female. She can’t. That does not come in.

N.T., 2/23/2017, at 9-10. Despite further argument by the attorney for the

Commonwealth, the court did not alter its ruling regarding the text forwarded

to the victim’s mother. However, the court explained:

      You have another way of getting it in. You can get it in through
      the witness who says I saw it and deleted it. Even though it is not
      the best evidence, I will allow that and the jury can make the
      decision.

Id. at 14.     Counsel for Brown-Camp’s co-defendant emphasized the

importance of the best evidence rule, particularly where, as here, the message


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Tyler said he received was different than the message contained on the

screenshot.6 See id. at 14-15. Counsel further argued: “[W]ithout having

the actual message, he can’t testify to its contents because we don’t have it

to cross-examine him on it to show whether or not, in fact, it was sent from

[the victim], the time it is sent and exactly what the exact wording is[.]” Id.

at 15.    Nevertheless, the trial court stated counsel could “cross-examine

[Tyler] on it.” Id. Brown-Camp’s counsel then clarified that Tyler would have

to testify from memory, which the court agreed. See id. Counsel ended the

discussion by stating, “Just note my objection, Judge.” Id. at 16. There was

no further objection by either Brown-Camp or his co-defendant when Tyler

recalled the message he received during his direct testimony. See id. at 158.

       It is evident from our review of the motion in limine, as well as the

argument before trial, that Brown-Camp’s objection to Tyler’s testimony was

based on the best evidence rule, i.e., claiming Tyler’s testimony regarding the

content of the text message he allegedly received should have been precluded

because he could not produce the actual message.          However, on appeal,

Brown-Camp focuses on the inadmissibility of the testimony as hearsay. See

Brown-Camp’s Brief at 23-25. He argues the statement does not meet the

“indicia of reliability” required for an exception to the hearsay rule, nor does

it fall within either of the hearsay exceptions referred to by the trial court in

its opinion. Id. at 25.
____________________________________________


6Tyler’s message stated, “B-Y did it,” while the other message stated, “I was
wit B-Y.” See N.T., 2/23/2017, at 7.

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       The Commonwealth, however, insists Brown-Camp’s hearsay objection

is waived. See Commonwealth’s Brief at 23. We agree.

       In order to preserve an evidentiary objection for purposes of
       appellate    review,   a    party    must   interpose    a    timely
       and specific objection in the trial court. “The rule is well settled
       that a party complaining, on appeal, of the admission
       of evidence in the [c]ourt below will be confined to
       the specific objection there made.”          Commonwealth v.
       Cousar, 593 Pa. 204, 928 A.2d 1025, 1041 (2007),
       quoting Commonwealth v. Boden, 399 Pa. 298, 159 A.2d 894,
       900 (1960).

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018)

(emphasis supplied). Furthermore, this Court will not overlook waiver simply

because     the   trial   court   addressed    the   issue   in   its   opinion.   See

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287-1289 (Pa.

Super. 2004) (en banc) (defendant’s failure to object to admissibility of

inflammatory photographs before or during trial waived issue for review on

appeal, despite the fact the defendant raised the claim in Pa.R.A.P. 1925(b)

statement and court addressed it in opinion).            Therefore, Brown-Camp is

entitled to no relief on this claim.7

       As noted above, Brown-Camp raises two additional evidentiary

challenges. First, related to his last claim, Brown-Camp argues the trial court
____________________________________________


7  We note, too, that Brown-Camp did not object to Tyler’s testimony as
hearsay in his Pa.R.A.P. 1925(b) statement. Rather, he simply recited the
trial court’s ruling that “Mr. Tyler is limited to testifying from memory about
the message because the exact device is lost/unavailable/unknown.” 1925b,
10/17/2017, at ¶ 5. Accordingly, we could find this claim waived on that basis
as well. See Pa.R.A.P. 1925(b)(4).


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erred when it permitted a detective to identify the aforementioned screenshot

of the text message forwarded to the victim’s mother by an unidentified friend.

See Brown-Camp’s Brief at 30.

        As explained supra, the trial court precluded the Commonwealth from

introducing the unauthenticated screenshot into evidence. During the lead

detective’s cross-examination, counsel for Brown-Camp asked the detective

about a missing person’s report, prepared by another police department,

which indicated a family member of the victim had received a text from the

victim that stated he was with “B-K” at the time of his murder.           N.T.,

2/27/2017, at 172. “B-K” was identified by family members as someone other

than Brown-Camp.8 See id. The next day, Brown-Camp called to the stand

the police sergeant who generated the missing person’s report. See N.T.,

2/28/2017, at 22. He then questioned the sergeant about his report, which

referred to a text received by a family member that stated, “I’m with B-K and

if anything happens, that’s who I am with.” Id. at 27. The Commonwealth

later recalled the detective on rebuttal, and asked him to identify the

screenshot provided by the victim’s family in which the victim stated he was

with “B-Y.” See id. at 51-54.

        Brown-Camp insists the trial court erred in admitting the text message,

which he maintains was “double hearsay.”           Brown-Camp’s Brief at 30.


____________________________________________


8   As noted supra, Brown-Camp’s nickname was “B-Y.”



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However, as the trial court noted, the evidence “was only admissible for a very

limited purpose; for use as rebuttal evidence to show why [the detective]

focused on B-Y rather than B-K in his investigation.”9 Trial Court Opinion,

1/16/2018, at 22. This Court has recognized “a litigant opens the door to

inadmissible evidence by presenting proof that creates a false impression

refuted by the otherwise prohibited evidence.” Commonwealth v. Powell,

171 A.3d 294, 299 (Pa. Super. 2017), appeal denied, 183 A.3d 975 (Pa.

2018).10 Because we agree that, here, Brown-Camp opened the door to this

evidence, we find he is entitled to no relief.

       Brown-Camp’s remaining evidentiary issue asserts “the trial court

impermissibly allowed the Commonwealth to question [witness Melissa

Palmer] regarding a document prepared by the police tip line, and that she

refused to adopt.” Brown-Camp’s Brief at 28. He contends the document

should have been excluded because he was unable “to cross-examine the

individual who prepared the tip line report.”      Id. at 29.   Accordingly, he



____________________________________________


9 The trial court also found the text message screenshot was “properly
authenticated” by the testimony regarding the “historical cell tower analysis.”
Trial Court Opinion, 1/16/2018, at 22-23. However, it is well-settled that we
may affirm the ruling of a trial court on any basis. Commonwealth v. Reed,
107 A.3d 137, 144 (Pa. Super. 2014).

10See id. at 300 (finding no error when accomplice was permitted to testify
that she and defendant had participated in a prior robbery when defendant
opened the door to the testimony by “creat[ing] the false impression that he
had no relationship with” the accomplice).


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maintains the court violated his constitutional right to confront witnesses

against him. See id. at 28.

      The trial court summarized Palmer’s trial testimony as follows:

             Melissa Palmer, [Brown-Camp’s] cousin, testified that she
      received a message from [him] on either April 24th or 25th of 2013
      telling her to contact him about something important. Palmer
      testified on the stand that she was taking Percocet, Xanax, and
      had just been released from an inpatient mental health facility and
      could not remember dates or details she had told the detective
      during her statement.       She was then impeached with her
      statement wherein she told detectives that she knew the decedent
      and that [Brown-Camp] told her that he and the decedent were
      involved in drug activity together.        [Brown-Camp] made
      connections for the decedent to buy weed and cocaine in
      Philadelphia to sell in Delaware. A few days after receiving the
      message that [Brown-Camp] wanted to speak to her, Palmer and
      [Brown-Camp] arranged to meet at the Belmont Plateau in
      Fairmount Park in Philadelphia. [Brown-Camp] and [his] co-
      defendant were together as [Brown-Camp] spoke with Palmer.
      [He] asked [her] questions about her boyfriend who had been
      convicted of murder. [Brown-Camp] told Palmer that he was
      being blamed for the decedent’s death. He admitted that he, “set
      Tev up, that him and the other guy picked Tev up in Delaware and
      they brought him to Southwest Philly by saying that they were
      going to rob a drug dealer[.]” [Brown-Camp] then told Palmer
      that he was not the shooter, but that he was the one who set up
      the decedent.

             The defense attempted to impeach Palmer with a letter
      purportedly written by her stating that the detectives told her
      what to say in her statement. Palmer denied writing the letter but
      testified that the police just “popped up” and took her to the
      homicide division to give a statement. On re-direct, Palmer was
      confronted with a call she made to the tip line on June 15, 2013,
      three (3) days before she gave her statement to homicide
      detectives. Palmer’s call to the tip line was redacted and was only
      admitted to show that it was Palmer who initiated contact with the
      police.

Trial Court Opinion, 1/16/2018, at 5-6 (record citations omitted).


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        In addressing this claim, the court explained that the tip line printout

was admitted as a prior inconsistent statement.

               Pa.R.E. 613 provides that a witness may be examined
        concerning a prior inconsistent statement made by the witness to
        impeach the witness’s credibility. Unless the interests of justice
        otherwise require, extrinsic evidence of a witness’s prior
        inconsistent statement is admissible only if, during the
        examination of the witness, (1) the statement, if written, is shown
        to, or if not written, its contents are disclosed to, the witness; (2)
        the witness is given an opportunity to explain or deny the making
        of the statement; and (3) an adverse party is given an opportunity
        to question the witness. Pa.R.E. 613(a) and (b).

               The defense attempted to impeach Palmer with a letter
        purportedly written by her, stating that the detectives told her
        what to say in her statement. Palmer denied writing the letter but
        testified that the police just “popped up” and took her to the
        homicide division to give a statement. On redirect Palmer was
        confronted with a printout of a call she made to the police tip line
        on June 15, 2013, three (3) days before she gave her statement
        to homicide detectives. Palmer’s call to the tip line was redacted
        and was only admitted to show that it was Palmer who initiated
        contact with the police. Ultimately, Palmer agreed that she called
        the tip line.[11]

             The trial court, in its discretion and under Pa.R.E. 613,
        properly allowed the admission of the printout for the purpose of
        impeaching Palmer with her prior inconsistent statement.

Id. at 21.

        We agree with the analysis of the trial court, and rest on its well-

reasoned basis. Furthermore, we note that because the information in the tip

line printout was not offered for its truth, but rather, as a prior inconsistent

statement by the witness, it does not constitute hearsay; accordingly, Brown-

____________________________________________


11   See N.T., 2/24/2017, at 122-123.


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Camp’s    Confrontation    Clause   rights    were   not   implicated.     See

Commonwealth v. Estepp, 17 A.3d 939, 945 (Pa. Super. 2011) (finding no

error in permitting police officer to testify to out-of-court statement by

confidential informant; the evidence was “used solely to explain [the officer’s]

course of conduct”), appeal dismissed as improvidently granted, 54 A.3d 22

(Pa. 2012). Therefore, this claim, too, warrants no relief.

      Lastly, Brown-Camp contends the trial court abused its discretion when

it denied his motion for a mistrial after Tyler “referenced that [Brown-Camp]

was allegedly known as a serial robber around the neighborhood.” Brown-

Camp’s Brief at 26.       He maintains the testimony was impermissible as

evidence of his prior bad acts, and “could not be corrected by a curative

instruction” particularly because he was charged with and convicted of

conspiracy to commit robbery. Id. at 27.

      When considering a ruling on a motion for a mistrial, we must bear in

mind that “[i]t is within the discretion of the trial court to determine whether

a defendant has been prejudiced by misconduct or impropriety to the extent

that a mistrial is warranted.” Commonwealth v. Johnson, 668 A.2d 97,

103 (Pa. 1995), cert. denied, 519 U.S. 827 (1996).         “[A] mistrial is only

warranted where the incident upon which the motion is based is of such a

nature as to deny the defendant a fair trial.” Id. (citation omitted).

      Brown-Camp’s claim is based on the following exchange, after Tyler

identified the person referred to as “B-Y” in the text as Brown-Camp:

      [Commonwealth]: How did you know B-Y?

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      [Tyler]: I knew him as the boy from Philly that be robbing
      everybody.

            [Co-Defendant’s counsel]: Objection, Your Honor.

            [Brown-Camp’s counsel]: Objection.

            THE COURT: Sustained. You didn’t grow up with him?

            [Tyler]: No, I didn’t. That is how I knew him.

           THE COURT:         Just disregard that about his hearsay
      knowledge of –

            [Tyler]: Hearsay?

            THE COURT:      Sir, never answer me back.        Answer her
      questions.

            [Tyler]: Yes, ma’am.

           THE COURT:       Just do what you are supposed to do.        Go
      ahead.

N.T., 2/23/2017, at 159-160.       Shortly thereafter, Brown-Camp’s counsel

asked to see the court at sidebar, where he moved for a mistrial. Counsel

argued: “The Commonwealth is alleging this is a robbery and the first thing

out of the witness’ mouth is I know him to be a robber.” Id. at 161. Counsel

also insisted the testimony was prejudicial, and could not be cured by a

curative instruction.     The court offered to provide additional curative

instructions to the jury, which counsel did not accept, but denied the motion

for a mistrial. See id.

      The trial court addressed this issue in its opinion as follows:

            Review of a trial court’s denial of a motion for a mistrial “is
      limited to determining whether the trial court abused its
      discretion.” Commonwealth v. Fortenbaugh, 69 A.3d 191, 193
      (2013) (internal quotation marks omitted). 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

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     the defendant of a fair trial by preventing the jury from weighing
     and rendering a true verdict.” Commonwealth v Simpson, 562
     Pa. 255, 754 A.2d 1264, 1272 (2000). A mistrial “is not necessary
     where cautionary instructions are adequate to overcome
     prejudice.” Com[monwealth] v. Cash, 137 A.3d 1262, 1273
     (2016[,] citing Commonwealth v. Chamberlain, 612 Pa. 107,
     30 A.3d 381,422 (2011).

           A trial court may remove a purported taint through curative
     instructions. Commonwealth v. Stilley, 689 A.2d 242, 250 (Pa.
     Super. 1997) (citations omitted). In most instances, a curative
     instruction to the jury regarding the potentially prejudicial event
     is presumed to be sufficient to overcome the potential prejudice
     to the defendant from the event.          Com[monwealth] v.
     Thornton, 791 A.2d 1190, 1193 (2002).                   See e.g.
     Commonwealth v. Johnson, 846 A.2d 161, 167 (Pa. Super.
     2004) (curative instruction to jury adequate to obviate prejudice
     from remark made by witness). See also Commonwealth v.
     Dennis, 715 A.2d 404, 410 (1998) (citing Commonwealth v.
     English, 699 A.2d 710 (1997) (“It is well -established that juries
     are presumed to follow the trial court’s instructions[”]). See
     Commonwealth v. Bronshtein, 691 A.2d 907, 916 n.16 (1997);
     Commonwealth v. Jones, 668 A.2d 491, 503-04 (1995) (citing
     Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672
     (1992).").

           The jury is presumed to follow the court’s instructions.
     Here, the curative instruction was to disregard the comment made
     by the witness, which presumably the jury was able to follow.
     Counsel made a strategic decision not to highlight this testimony
     further with an additional curative instruction.

          Therefore, the trial court did not err when it denied the
     defense motion for a mistrial.

Trial Court Opinion, 1/16/2018, at 19-20. Here, we find no basis to disagree

with the trial court’s determination that Tyler’s passing reference to Brown-

Camp’s alleged prior bad acts, coupled with the court’s immediate instruction

to the jury to disregard the statement, did not prejudice Brown-Camp to the




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extent he was denied a fair trial. See Johnson, supra. Therefore, we again

rest upon the well-reasoned decision of the trial court.

      Because we conclude Brown-Camp is not entitled to relief on any of the

claims raised in his direct appeal, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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