J-S39008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    FRANK ARCHIE                               :
                                               :
                       Appellant               :       No. 749 EDA 2018

           Appeal from the Judgment of Sentence February 15, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005148-2015


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED SEPTEMBER 06, 2019

       Appellant, Frank Archie, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his jury trial

convictions for possession with the intent to deliver a controlled substance

(“PWID”), criminal conspiracy to commit PWID, persons not to possess

firearms, firearms not to be carried without a license, and carrying a firearm

on public streets or public property in Philadelphia.1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

Around midnight on January 14, 2015, Officers William Nagy and Jose Hamoy

responded to a radio call concerning an activated burglar alarm at a store in

Philadelphia. Upon their arrival at the scene, the officers did not hear a burglar

____________________________________________


1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903, 6105(a)(1), 6106(a)(1),
and 6108, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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alarm or detect any signs of forced entry. As the officers returned to their

patrol car, however, they noticed the potent chemical odor of phencyclidine

(“PCP”), which the officers suspected was emanating from a nearby vehicle

occupied by Appellant and his girlfriend (“Co-Defendant”).        Officer Nagy

approached Co-Defendant in the front passenger seat, while Officer Hamoy

approached Appellant in the driver’s seat. Co-Defendant lowered the front

passenger window as Officer Nagy approached, and the smell of PCP became

stronger. Officer Nagy asked Co-Defendant to step out of the vehicle, at which

time the officer observed a vial containing a brownish liquid of suspected PCP

in the front pocket of her sweatshirt. Co-Defendant was searched, and the

officers recovered a second vial of suspected PCP tucked in her bra.

      Officer Hamoy also asked Appellant to exit the vehicle. Officer Hamoy

sent Appellant to the rear of the vehicle with Officer Nagy, while Officer Hamoy

walked to the front passenger side of the car. Once there, Officer Hamoy

observed a black handgun on the floor of the vehicle, leaning against the

center console.    Officer Hamoy alerted Officer Nagy of his discovery,

conducted a search of the immediate area for additional weapons, and

discovered two amber pill bottles in the center console of the vehicle. One

bottle contained eighty-two (82) blue pills, later identified as Xanax, a

Schedule IV narcotic. The other bottle contained thirty-two (32) peach pills,

later identified as amphetamine with dextroamphetamine, a Schedule II

narcotic.   Appellant was arrested, and a search of his person uncovered


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several containers of marijuana, as well as $605.00. When asked, Appellant

denied the firearm belonged to him. Rather, Co-Defendant claimed ownership

of the gun but admitted she did not have a permit to carry it.

      A jury trial commenced on November 30, 2016. At trial, Officer Nagy

testified he doubted Co-Defendant’s claim that the gun belonged to her. The

following exchange took place on redirect examination by the assistant district

attorney of Officer Nagy:

         Q: Officer, did you believe [Co-Defendant] when she told
         you that it was her gun?

         A: No.

         Q: Why not?

         A: After running her, I saw that she had no—well, at least
         from our system, she had no prior arrest record.

(N.T. Trial, 11/30/16, at 48.) In response to this line of questioning, Appellant

objected and a brief conversation was held at sidebar. Following sidebar, the

assistant district attorney continued:

         Q: Officer, you were explaining why you didn’t believe [Co-
         Defendant] when she said it was…her gun.

         A: [Co-Defendant] did not have a previous record. It was
         her first time being arrested, whereas—

(Id.) Appellant immediately objected, and the court cut off Officer Nagy’s

testimony and instructed him to wait for the next question. The court later

addressed Appellant’s objection, stating:

         For the record, I recognize [Appellant’s] objection to the
         direction in which [the assistant district attorney] was taking

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         the witness as far as the prior record for [Co-Defendant],
         and it didn’t get any further than that because it was very
         suggestive possibly.

         But, [Appellant], your objection is noted for the record. I
         believe we escaped a little bit of a problem, but your
         objection was noted and was timely made….

(Id. at 50.)

      Later, following both Co-Defendant’s and Officer Hamoy’s testimony, the

court addressed further objections by Appellant, as well as Appellant’s request

for a mistrial based on statements made by Co-Defendant. The court stated:

         The record should reflect objections made at sidebar, but
         were not recorded at the time, I did not want to get in the
         way of the testimony.

         Number one, [Appellant’s] objection to testimony by [Co-
         Defendant] with respect to some statements that she made,
         which could possibly have caused the jury to look [askance]
         at [Appellant]. There was a motion for a mistrial, timely
         made, with respect to anything that [Co-Defendant] said in
         saying that she told police or she knew she had no prior
         record, and at that, would let her take the case.

         Number one, I didn’t think it was too far to the edge to
         reflect upon [Appellant]. And number two, we can control
         what the police say at the time about who said what to
         whom as a civilian, not quite as much control. So whatever
         comes out of her mouth regarding why she might be “taking
         the case” for [Appellant], I felt was not enough to grant a
         mistrial.

(Id. at 104-105.)

      At the conclusion of trial, after additional testimony from Co-Defendant’s

cousin and a narcotics expert, Appellant again moved for a mistrial, stating,

“[T]here were multiple witnesses via police officers that testified that [Co-


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Defendant] did not have or the lack of a record, therefore insinuating that

[Appellant] did have a record.” (N.T. Trial, 12/1/16, at 15.) The court denied

the request, explaining:

         Well, I understand by suggestion that the police officer said,
         well, we checked her and because she didn’t have a record—
         there’s a way I could have heard that and it would’ve
         bothered me, but in this case it didn’t for some reason.

         But I think we headed it off and [Appellant] made the proper
         objection at the right time. And I think we got the officer in
         the right direction to cover that.

         [Appellant], you made a timely objection covered by the
         record and your mistrial motion is denied.

(Id. at 16.)

      On December 1, 2016, the jury convicted Appellant of the offenses. The

court sentenced Appellant on February 15, 2018, to an aggregate five (5) to

ten (10) years’ imprisonment, followed by 5 years’ probation. Appellant timely

filed a notice of appeal on March 13, 2018.      On April 30, 2018, the court

ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b); Appellant complied.

      Appellant raises the following issue for our review:

         DID NOT THE [TRIAL] COURT ERR IN DENYING
         APPELLANT’S MOTION FOR A MISTRIAL AFTER THE POLICE
         OFFICER TESTIFIED THAT HE DID NOT BELIEVE THE
         FEMALE CO-DEFENDANT WHEN SHE SAID THE FIREARM
         WAS HERS BECAUSE “SHE HAD NO PRIOR ARREST
         RECORD,”   A   STATEMENT   WHICH    CLEARLY   AND
         IMPERMISSIBLY BROADCAST TO THE JURY THAT HER CO-
         DEFENDANT, APPELLANT, DID HAVE A PRIOR ARREST
         RECORD; AND WAS NOT THIS ERROR COMPOUNDED
         WHEN,   AFTER   THE   ORIGINAL    OBJECTION,   THE

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         PROSECUTOR WENT ON TO ELICIT FROM THE OFFICER
         THAT THE FEMALE CO-DEFENDANT “DID NOT HAVE A
         PREVIOUS RECORD. IT WAS HER FIRST TIME BEING
         ARRESTED…,”  WHERE    SUCH  TESTIMONY  DENIED
         APPELLANT HIS PENNSYLVANIA AND UNITED STATES
         CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR
         TRIAL?

(Appellant’s Brief at 3).

      Appellant argues he was prejudiced by Officer Nagy’s testimony that he

did not believe Co-Defendant owned the gun, because she had no prior arrest

record. Appellant alleges this testimony, both individually and in conjunction

with testimony from the other police officers regarding their disbelief of Co-

Defendant, impermissibly broadcast to the jury that Appellant did have an

arrest history.   Appellant asserts this testimony was so prejudicial that it

denied him his constitutional right to due process, particularly his rights to a

presumption of innocence and a fair trial. Appellant maintains the trial court

abused its discretion in denying his request for a mistrial. Appellant concludes

this Court must vacate the judgment of sentence and remand for a new trial.

We disagree.

      Appellate review of the denial of a motion for mistrial implicates the

following:

         A motion for mistrial is within the discretion of the trial
         court. A mistrial upon motion of one of the parties is
         required only when an incident is of such a nature that its
         unavoidable effect is to deprive the appellant of a fair and
         impartial trial. It is within the trial court’s discretion to
         determine whether a defendant was prejudiced by the
         incident that is the basis of a motion for mistrial. On appeal,
         our standard of review is whether the trial court abused that

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         discretion.

         An abuse of discretion is more than an error in judgment.
         On appeal, the trial court will not be found to have abused
         its discretion unless the record discloses that the judgment
         exercised by the trial court was manifestly unreasonable, or
         the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003) (internal

citations and quotation marks omitted).          See also Commonwealth v.

Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa.Super. 2004) (en banc).

      The Pennsylvania Rules of Criminal Procedure Rule 605 in pertinent part

provides:

         Rule 605.      Mistrial

                                   *    *    *

         (B) When an event prejudicial to the defendant occurs
         during trial only the defendant may move for a mistrial; the
         motion shall be made when the event is disclosed.
         Otherwise, the trial court may declare a mistrial only for
         reasons of manifest necessity.

                                   *    *    *

Pa.R.Crim.P. 605(B). Pursuant to this rule, a motion for a mistrial is timely if

it is “made when the alleged prejudicial event occurs.” Commonwealth v.

Boring, 684 A.2d 561, 568 (Pa.Super. 1996), appeal denied, 547 Pa. 723,

689 A.2d 230 (1997). “When an event prejudicial to a defendant occurs at

trial, he may either object, requesting curative instructions, or move for a

mistrial.”   Id. (emphasis added).     An allegedly prejudicial event at trial

requires a prompt objection from the defense and a request for a mistrial to


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preserve the issue for appellate review. Commonwealth v. Rhone, 619 A.2d

1080 (Pa.Super. 1993), appeal denied, 534 Pa. 653, 627 A.2d 731 (1993). If

a defendant fails to move for a mistrial contemporaneously with the allegedly

prejudicial incident at trial, “any potential claim is waived and the defendant

is entitled to relief only if the trial judge finds a new trial to be a ‘manifest

necessity.’” Commonwealth v. Montalvo, 641 A.2d 1176, 1188 (Pa.Super.

1994). “Reviewing courts use no mechanical formula in determining whether

a trial court had a manifest need to declare a mistrial. Rather, ‘…varying and

often unique situations aris[e] during the course of a criminal trial...[and] the

broad discretion reserved to the trial judge in such circumstances has been

consistently reiterated….’” Commonwealth v. Leister, 712 A.2d 332, 335

(Pa.Super. 1998), appeal denied, 557 Pa. 627, 732 A.2d 613 (1998) (quoting

Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d

425 (1973)) (edits in original).

      Additionally, “[i]ssues not raised in the [trial] court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “[I]ssues

are preserved when objections are made timely to the error or offense.”

Commonwealth v. Baumhammers, 599 Pa. 1, 23, 960 A.2d 59, 73 (2008),

cert. denied, 558 U.S. 821, 130 S.Ct. 104, 175 L.Ed.2d 31 (2009). “[A] party

may not remain silent and afterwards complain of matters which, if erroneous,

the court would have corrected.” Commonwealth v. Strunk, 953 A.2d 577,

579 (Pa.Super. 2008) (quoting Commonwealth v. Clair, 458 Pa. 418, 423,


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326 A.2d 272, 274 (1974)). See e.g. Commonwealth v. Burns, 765 A.2d

1144 (Pa.Super. 2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001)

(holding appellant waived his argument regarding trial court’s decision to

strike prospective juror because appellant failed to object on record).

      Instantly, Officers Nagy and Hamoy arrested Appellant and Co-

Defendant when the officers smelled PCP emanating from Appellant’s nearby

vehicle. In the course of the interaction, Officer Hamoy discovered a handgun

on the floor of the front passenger seat. Appellant denied ownership of the

firearm while Co-Defendant claimed it belonged to her.       At trial, however,

Officer Nagy testified that he did not believe Co-Defendant owned the weapon

because she “did not have a previous [arrest] record. It was her first time

being arrested, whereas—.”     (See N.T. Trial, 11/30/16, at 48.)     Appellant

objected, and the court cut off Officer Nagy’s testimony before it implicated

Appellant.

      Later, after both Co-Defendant and Officer Hamoy testified, Appellant

requested a mistrial. The court described Appellant’s request for a mistrial as

one made “with respect to anything that [Co-Defendant] said in saying that

she told police or she knew she had no prior record, and at that, would let her

take the case.” (See id. at 105.) Appellant’s initial request for a mistrial was

therefore based on Co-Defendant’s testimony, not Officer Nagy’s. Appellant

did not seek a mistrial based on Officer Nagy’s testimony (the sole complaint

on appeal) until after closing arguments. Thus, Appellant’s claim for a mistrial


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based on Officer Nagy’s testimony is waived, because Appellant failed to

request a mistrial contemporaneously with his objection to Officer Nagy’s

testimony at trial. See Pa.R.Crim.P. 605(B); Montalvo, supra; See also

Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984) (holding

trial court properly denied motion for mistrial made day after allegedly

prejudicial event). Moreover, to the extent Appellant challenges testimony

from police officers other than Officer Nagy, those claims are waived as

counsel objected only to Officer Nagy’s testimony at trial.     See Pa.R.A.P.

302(a); Baumhammers, supra; Strunk, supra.

      Furthermore, even if properly preserved, Appellant’s claim merits no

relief in any event.   Appellant’s objection prevented Officer Nagy from

implicating Appellant. The court interjected and instructed Officer Nagy to

wait for the next question. As a result, Officer Nagy had no opportunity to

suggest Appellant’s arrest record. Appellant was therefore not deprived of a

fair and impartial trial on this ground.       Thus, the court properly denied

Appellant’s request for a mistrial.    See Tejeda, supra.      Accordingly, we

affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




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