J-S69016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RANDY LEE CHRISTOFANO                      :
                                               :   No. 291 WDA 2017
                       Appellant

            Appeal from the Judgment of Sentence December 1, 2016
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0000965-2016


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 12, 2018

        Appellant, Randy Lee Christofano, appeals from the judgment of

sentence, imposed December 1, 2016, following a jury trial resulting in his

conviction for driving under the influence (“DUI”), accident involving damage

to unattended vehicle or property, and required financial responsibility.1 We

affirm.

        In February 2016, Shane Gilliland was working at his grandfather’s

garage on Center Avenue, Butler County, when he heard a vehicle drive down

the alley behind the garage. Notes of Testimony (N.T.), 9/21/2016, at 23.

Mr. Gilliland heard tires spinning, an engine revving, and then heard the

“unmistakable sound of something getting crunched.” Id. Mr. Gilliland exited

the garage to see that his grandfather’s truck had been struck while parked
____________________________________________


1   75 Pa.C.S §§ 3802(c), 3745(a), and 1786(f), respectively.


*    Former Justice specially assigned to the Superior Court.
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in the alley. Id. He saw a black truck at the stop sign half way down the alley

of Pepper Street and ran after the truck. Id. Mr. Gilliland followed the truck

to nearby Hickory Street, where the truck backed over the curb while parallel

parking. Id. at 24. Mr. Gilliand testified that as Appellant, the driver of the

truck, exited the vehicle, Appellant had trouble walking straight. Id at 27.

Upon speaking with Appellant, Mr. Gilliland noted that Appellant was “slurring

his words and not putting sentences together very well.” Id. Mr. Gilliland

opined that Appellant was “lit” when he got out of his truck, which he defined

to mean, “unable to operate [oneself] in a stable manner[;] [] really drunk or

really messed up on something.” Id. at 28-29. Defense counsel objected to

Mr. Gilliland’s lay opinion on Appellant’s intoxication. Id. The objection was

overruled. Id.

      Mr. Gilliland provided a written statement of his observations

surrounding the incident to police; however, this statement was not provided

to the Commonwealth until the morning of trial. Id. at 33-34. Appellant first

learned of Mr. Gilliland’s statement during Mr. Gilliland’s cross-examination,

and defense counsel moved for a mistrial as the Commonwealth did not

furnish a copy of the statement during discovery. Id. The trial court denied

Appellant’s motion and forbade the Commonwealth from using the statement

in direct examination. Id. at 34.

      At trial, Appellant conceded that he had hit the truck.      Id. at 100.

Appellant testified that while driving from the house of Kenneth Rose, his

employer, he dropped a cigarette in his car, went to pick it up, and unwittingly

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spun into the truck of Mr. Gilliland’s grandfather.         Id.   Appellant further

testified that he panicked and drove to his home, where he drank several shots

of “Yager.”2    Id. at 102-05.       When police arrived at Appellant’s home, he

complied with responding Officer Miles Bizub’s request for an insurance card

and was taken into custody.          Id. at 42-43, 54-55.    At the police station,

Appellant submitted to a breath test, which revealed that his blood alcohol

level was 0.231. Id. at 66-67. Appellant did not make a statement to police.

Id. at 55.

        In its closing argument, the Commonwealth argued that the timeline of

events contained a window of unaccounted for time wherein Appellant could

have stopped at the Monroe Hotel, a local restaurant and bar he had to pass

on his travel home, and imbibed alcohol prior to the accident. Id. at 115.3

The Commonwealth also argued that:

        [Appellant] didn’t volunteer to the police that he had just drank a
        whole bunch when he got home. He had the opportunity to do so
        when he blew in to the breathalyzer test. He could have explained
        it away. But he didn’t. His mom had the opportunity to go to the
        police. All the way from back in February. It is now September.
        She had seven months to go to the police station and get these
        charges dropped by explaining this. And she didn’t. Ladies and
        gentlemen of the jury, use your own common sense in this case.
____________________________________________


2   Jägermeister is a liqueur.

3 Mr. Rose testified that Appellant left his house around 9:00 P.M. or later,
and estimated that the duration of the drive between the two homes takes
less than ten minutes. Id. at 86-87. Mr. Rose further testified that the Monroe
Hotel is located between the two homes. Additionally, Officer Bizub testified
that he received notification of the incident around 9:49 P.M., and he arrived
on the scene less than five minutes later. Id. at 37.

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Id. at 115. At the end of the closing argument, defense counsel objected to

the Commonwealth’s statement about the Monroe Hotel, reasoning that the

comment called for speculation. Id. at 116-17. Defense counsel also objected

to the Commonwealth’s commentary on Appellant’s right to remain silent,

arguing that the observations were an improper implication in violation of

Appellant’s Fifth Amendment right.             Id. at 117.   Defense counsel did not

request any remedy in conjunction with these objections. Id. The trial court

noted Appellant’s objections and explained that it was “not going to say

anything to the jury.” Id.

       Following trial, the jury found Appellant guilty of the aforementioned

charges. Appellant was sentenced initially in December 2016; however, the

trial court granted Appellant’s motion to modify sentence, and Appellant was

resentenced to sixty months of intermediate punishment on the DUI, subject

to several stipulations.4 Appellant timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued an opinion.

       Appellant presents the following questions for our review:

       1.    Whether the trial court erred by overruling a defense
       objection to a Commonwealth witness, Shane Gilliland, rendering
       an opinion as to whether the Appellant was drunk or sober when
       he was confronted?


____________________________________________


4 Appellant was to serve forty days’ incarceration; followed by sixty days of
house arrest with electronic monitoring; Appellant was ordered complete a
drug and alcohol program; and the remaining period was to be served in
restorative sanctions. See Order of the Court, 1/11/2017; Motion to Modify
Sentence, 12/12/2016.

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      2.     Whether the trial court erred by denying Appellant’s motion
      for mistrial where the Commonwealth failed to provide the defense
      with a copy of a statement of a Commonwealth witness, Shane
      Gilliland, that was in the possession of the police?

      3.    Whether the trial court erred by overruling Appellant’s
      objection to the prosecuting attorney speculating, in her closing
      argument, as to whether Appellant may have stopped at a bar,
      namely the Monroe Hotel, on his way home from his boss’ house?

      4.    Whether the trial court erred by overruling Appellant’s
      objection to the prosecuting attorney commenting, in her closing
      argument, on Appellant’s silence when confronted by the police?

Appellant’s Brief at 12.

      In Appellant’s first claim, he argues that the court improperly admitted

opinion testimony of a lay witness as to Appellant’s sobriety at the time

Appellant exited his vehicle. Appellant’s Brief at 23. Specifically, Appellant

avers that Mr. Gilliland’s observations did not establish a sufficient basis for

him to render an opinion on Appellant’s intoxication. Id. at 24. We disagree.

      Our standard of review of a trial court’s admission of evidence is well

settled:

      A trial court has broad discretion to determine whether evidence
      is admissible and a trial court's ruling on an evidentiary issue will
      be reversed only if the court abused its discretion. Accordingly, a
      ruling admitting 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. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citations

and internal quotations omitted). Additionally, our scope of review is plenary,

as the appellate court may review the entire record in making its decision.

Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa. 2004).

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      The admission of opinion testimony by a lay witness is limited to an

opinion that is:

      (a) rationally based on the witness's perception;
      (b) helpful to clearly understanding the witness's testimony or to
      determining a fact in issue; and
      (c) not based on scientific, technical, or other specialized
      knowledge within the scope of Rule 702.

Pa.R.E. 701.   “A lay person may testify to distinct facts observed by him

concerning the apparent physical condition or appearance of another.”

Commonwealth v. Monarch, 165 A.3d 945, 949 (Pa. Super. 2017) (citing

Commonwealth v. Counterman, 719 A.2d 284, 301 (Pa. 1998)).

      Intoxication is a matter of common knowledge, and opinions given
      by lay people are permissible on the issue. However, the lay
      witness must have sufficient facts on which to base his opinion
      before he can express an opinion on another's intoxication. The
      court also looks to the witness' personal knowledge and
      observation.

Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super. 1993) (internal

citations omitted).

      In the instant case, Mr. Gilliland’s lay opinion was permissible, as he

testified to numerous observations of Appellant’s behavior that led to his

conclusion that Appellant was intoxicated. Mr. Gilliland testified that Appellant

was not “walking very straight[;] … having trouble walking, to say the least.”

N.T., 9/21/2016, at 27. Mr. Gilliland also noted that Appellant was slurring

his words and having difficulty putting sentences together. Id. Mr. Gilliland

also outlined his personal knowledge of the effects of intoxication, stating that

he had seen intoxicated people before, had himself been intoxicated before,


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and noted the differences between the speech and gait of sober persons and

intoxicated persons. Id. at 28. Mr. Gilliland had sufficient factual basis to

conclude Appellant was intoxicated, and we discern no abuse of discretion in

the trial court’s admission of this opinion testimony. Bowser, 624 A.2d at

133; Huggins, 68 A.3d at 966.

      In his second issue, Appellant claims that the trial court erred in denying

Appellant’s motion for mistrial when the Commonwealth failed to provide a

copy of Mr. Gilliland’s statement as was previously requested in discovery.

Appellant’s Brief at 25-27. Appellant argues that the Commonwealth’s failure

to furnish the statement prejudiced Appellant and deprived him of a fair trial.

Id. We conclude that Appellant suffered no prejudice and discern no error by

the trial court.

      “A mistrial is an extreme remedy that must be granted only when an

incident is of such a nature that its unavoidable effect is to deprive defendant

of a fair trial.” Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super.

2003) (internal citations omitted).

      Pennsylvania Rule of Criminal Procedure 573 titled, “Pretrial Discovery

and Inspection,” outlines that:

      Before any disclosure or discovery can be sought under these rules
      by either party, counsel for the parties shall make a good faith
      effort to resolve all questions of discovery, and to provide
      information required or requested under these rules as to which
      there is no dispute.

Pa. R. Crim. P. 573(A). Additionally, where a defendant files a motion for

pretrial discovery, it is within the discretion of the trial court to order the

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Commonwealth to provide access to a witness’ statement.            Pa.R.Crim.P.

573(B)(2)(a)(ii).   The Rule provides that the Commonwealth is under a

continuing duty to “promptly notify the opposing party or the court” if “prior

to or during trial, [it] discovers additional evidence or material previously

requested or ordered to be disclosed by it, which is subject to discovery or

inspection under this rule[.]” Pa.R.Crim.P. 573(D). Rule 573 further provides:

      If a discovery violation occurs, the court may grant a trial
      continuance or prohibit the introduction of the evidence or may
      enter any order it deems just under the circumstances.
      Pa.R.Crim.P. 573(E)[ ]. The trial court has broad discretion in
      choosing the appropriate remedy for a discovery violation. Our
      scope of review is whether the court abused its discretion in not
      excluding evidence pursuant to Rule 573(E). A defendant seeking
      relief from a discovery violation must demonstrate prejudice. A
      violation of discovery does not automatically entitle appellant to a
      new trial. Rather, an appellant must demonstrate how a more
      timely disclosure would have affected his trial strategy or how he
      was otherwise prejudiced by the alleged late disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003), appeal

denied, 848 A.2d 927 (Pa. 2004) (case citations and quotation marks

omitted).

      In its informal discovery request, Appellant specifically requested inter

alia any written or recorded statements of any witnesses.        See Informal

Request for Discovery Letter, 7/12/2016. Here, the Commonwealth received

Mr. Gilliland’s statement from Officer Bizub on the morning of trial and did not

provide this requested statement to Appellant. N.T. 9/21/2016 at 34. This

constituted a discovery violation. The trial court utilized one of the remedies

outlined in Rule 573(E) and prohibited the Commonwealth’s use of Mr.


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Gilliland’s statement.   Id. We determine that the trial court’s remedy was

appropriate as the contents of Mr. Gilliland’s statement were never presented

to the jury for consideration.

      Moreover, the single paragraph of argument in Appellant’s brief fails to

explain how the late revelation of the existence of this statement affected his

trial strategy or how he was otherwise prejudiced by the late disclosure. See

Appellant's Brief, at 26-27.     Therefore, because Appellant has failed to

establish that he was prejudiced by the Commonwealth's late disclosure of the

statement; we conclude that the trial court properly denied his motion for a

mistrial. See Causey, 833 A.2d at 171. We discern no abuse of discretion.

      The Appellant next claims that the trial court erred by overruling his

objection to the prosecutor’s supposition in closing argument that Appellant

may have stopped at a bar on his way home.          Appellant’s Brief at 27-29.

Appellant avers that this statement was not a reasonable inference based on

the evidence presented at trial. Id. at 29. Upon a review of the record, we

disagree.

      In the context of prosecutorial misconduct during closing arguments, we

note the following:

      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. Further, prosecutorial misconduct does not
      take place unless the unavoidable effect of the comments at issue
      was to prejudice the jurors by forming in their minds a fixed bias
      and hostility toward the defendant, thus impeding their ability to
      weigh the evidence objectively and render a true verdict.


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      Prosecutorial misconduct is evaluated under a harmless error
      standard.

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (internal

citations and quotations omitted). “Moreover, prosecutorial misconduct will

not be found where comments were based on the evidence or proper

inferences therefrom or were only oratorical flair.” Commonwealth v. Judy,

978 A.2d 1015, 1020 (Pa. Super. 2009) (citing Commonwealth v. Chmiel,

889 A.2d 501, 544 (Pa. 2005) (internal citations and quotations omitted)).

      In its closing argument, the Commonwealth argued that, between 9:00

P.M. and 9:45 P.M., Appellant could have stopped at the bar on his route home

and imbibed alcohol prior to the accident. Id. at 115. This argument was a

reasonable inference based on the evidence elicited at trial. The timeline of

events were established by the testimony of both Mr. Rose and Officer Bizub.

Id. at 37, 86-87.   Mr. Rose explained that (1) Appellant did not consume

alcohol in his presence, (2) it took less than ten minutes to drive from his

home to Appellant’s home, and (3) confirmed that the Monroe Hotel was on

the way to Appellant’s house.    Id. at 86-87.   Coupled with Mr. Gilliland’s

opinion that Appellant was intoxicated upon exiting the truck, it was a

reasonable and permissible argument that Appellant may have consumed

alcohol at some point in the time leading up to the accident. Thus, we discern

no misconduct.

      In his fourth claim, Appellant asserts that the trial court committed

reversible error by overruling his objection to the prosecutor’s impermissible



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commentary on his silence at the time of arrest. See Appellant’s Brief at 29-

35. We are constrained to find this claim waived.

       This Court has previously observed:

       [The protection afforded by a defendant’s right to remain silent]
       is implicated when there is commentary or a question that
       highlights that a defense or explanation offered at trial could have
       been proffered earlier, but was not. As stated in Doyle v.
       Ohio, 96 S. Ct. 2240, 2245 (1976), “it would be fundamentally
       unfair and a deprivation of due process to allow the arrested
       person's silence to be used to impeach an explanation
       subsequently offered at trial.

Commonwealth v. Johnson, 788 A.2d 985, 988 (Pa. Super. 2001); see

also    Commonwealth        v.   DiPietro,     648   A.2d   777    (Pa.   1994);

Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982); and Commonwealth

v. Dulaney, 295 A.2d 328 (Pa. 1972).

       However, “even where a defendant objects to specific conduct, the

failure to request a remedy such as a mistrial or curative instruction is

sufficient to constitute waiver.” Commonwealth v. Sandusky, 77 A.3d 663,

670 (Pa. Super. 2013), see also Commonwealth v. Brown, 134 A.3d 1097,

1107 (Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016) (finding

appellant’s prosecutorial misconduct claim waived following defense counsel’s

failure to request any further action on the part of the court upon lodging a

timely objection to comments by the prosecutor); Commonwealth v.

Jones, 460 A.2d 739, 741 (Pa. 1983) (finding prosecutorial misconduct claim




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waived where defense counsel immediately objected to the prosecutor's

conduct but failed to request mistrial or curative instructions).

      Here, Appellant objected to the prosecutor’s comments that Appellant

failed to volunteer that he drank when he got home and could have explained

the incident away upon taking the breath analysis test while in police custody.

N.T., 9/21/2016, at 115-17. Appellant has not properly preserved this claim

for appellate review, as he failed to move for a mistrial or request a curative

instruction. Sandusky, 77 A.3d at 670.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018




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