J-S57006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                : IN THE SUPERIOR COURT OF
                                             :      PENNSYLVANIA
                   Appellee                  :
                                             :
             v.                              :
                                             :
SAROEUN CHABB,                               :
                                             :
                   Appellant                 : No. 2031 EDA 2013

             Appeal from the Judgment of Sentence July 9, 2013,
                 Court of Common Pleas, Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0006511-2011,
            CP-51-CR-0006512-2011 and CP-51-CR-0006513-2011

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED OCTOBER 10, 2014

       Saroeun Chhab (“Chhab”) appeals from the judgment of sentence

entered on July 9, 2013 by the Court of Common Pleas of Philadelphia

County, Criminal Division, following his convictions for murder of the third

degree,1 aggravated assault,2 and firearms not to be carried without a

license.3 After careful review, we affirm.

       The trial court summarized the relevant facts of this case as follows:

             Police Officer James Bragg testified that on 4/3/10,
             he responded to 2326 S. 8th Street in Philadelphia at
             2:21 A.M. pursuant to a radio call for a person with a
             gun. He came in contact with an Asian male who was
             lying on the sidewalk bleeding from his chest. He


1
    18 Pa.C.S.A. § 2502(c).
2
    18 Pa.C.S.A. § 2702(a).
3
    18 Pa.C.S.A. § 6106(a)(1).
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          placed him in the back of his police car and
          transported him to Jefferson Hospital where he was
          later pronounced dead.

                              *     *     *

          Sinny Thon testified that on 4/3/10, she lived at
          2326 S. 8th Street with her family. They were having
          a cookout which began at approximately 3:00 – 4:00
          P.M. The decedent (Ranny Thon) was her cousin.
          [Chhab], who she referred to as ‘Jumbo[,’] came to
          the cookout with his girlfriend, Sarim Rin. There was
          an argument between this witness and another
          female, Diane, who was asked to leave but would
          not. [Chhab] threw a bottle at Diane. Diane’s
          boyfriend (Charlie) and [Chhab] became involved in
          a physical altercation which was broken up by Ranny
          Thon, John Ly and Loueb Mak. [Chhab] received a
          bloody lip. The police came to the scene and left.
          [Chhab] accused everyone of trying to ‘jump him[.’]
          He was angry when he left and said he was going to
          come back with a gun. [Chhab] got into a grey Acura
          and threw his girlfriend out of the car. Approximately
          ten (10) minutes later [Chhab] came back and asked
          to speak to his girlfriend. He lifted his shirt and
          flashed a revolver.

          Ms. Thon, Sarim and Ranny came out of the house.
          Ranny was trying to calm [Chhab]. The two shook
          hands and then [Chhab] pulled out the revolver and
          shot Ranny in the chest. Other people tried to
          subdue [Chhab] and get the gun from him but he
          was shooting wildly. Ms. Thon ran into her house,
          lifted her shirt and saw blood from a graze wound on
          her stomach. She was taken to Methodist Hospital
          where she was treated and released.

                              *     *     *

          John Ly testified that he … then jumped on top of
          [Chhab] along with [Loueb] Mak and they were
          trying to grab the gun. A shot rang out and he and
          [Loueb] Mak started running. Mr. Ly ran behind a car



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            and [Chhab] shot him in the back. He also saw
            [Chhab] shoot [Loueb] Mak. He then saw [Chhab]
            shoot into the open door of 2326 S. 8th Street. He
            heard [Chhab]’s gun click as he attempted to fire
            again and saw [Chhab] run to a silver Acura parked
            at 8th and Ritner Streets.

            Mr. Ly was taken to Jefferson Hospital where he was
            treated and released. [Loueb] Mak testified that … a
            bullet hit him in his right arm. Mr. Mak was taken by
            police to Jefferson Hospital where he remained for
            three to five days.

                                *     *     *

            Detective Sean Mellon testified that he is assigned to
            the fugitive unit of the Homicide Division. On 4/6/10
            he was assigned to locate [Chhab]. He developed
            information regarding [Chhab]’s family members and
            various people he might know. He and his partner,
            Detective Walters, went to various addresses
            searching for [Chhab] over the next [11] months
            with no success. On 3/12/11, [Chhab] was stopped
            in a silver Acura sedan in Philadelphia with Sarim
            Rin. He was arrested. The Detective further testified
            that in the beginning of his investigation he
            contacted Immigration and Customs Enforcement
            (ICE) and they pulled their records and said that
            [Chhab] was involved in a possible deportation
            matter. The Court sustained the defense’s objection
            to this testimony.

Trial Court Opinion, 3/21/14, at 1-5 (record citations omitted).

      On March 21, 2013, following four days of trial, the jury found Chhab

guilty of the above-referenced crimes.     On July 9, 2013, the trial court

sentenced Chhab to a total of 25 to 50 years of incarceration. On July 15,

2013, Chhab filed a timely notice of appeal. On October 22, 2013, the trial

court ordered Chhab to file a concise statement of errors complained of on



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appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure.    On October 28, 2013, Chhab timely filed his Rule 1925(b)

statement.

      On appeal, Chhab raises the following two issues for our review:

             1. Did not the lower court err in denying [Chhab]’s
             request for a mistrial after the assistant district
             attorney improperly and impermissibly referenced
             and alluded to [Chhab]’s silence multiple times
             during his closing argument, and did not the failure
             to grant a mistrial shift the burden of persuasion to
             [Chhab] and deprive [him] of his right to due
             process and a fair trial under the Pennsylvania and
             United States Constitutions?

             2. Did not the lower court err in denying [Chhab]’s
             request for a mistrial where Detective Mellon’s
             testimony that [Chhab] was involved in a deportation
             matter was an inadmissible statement of unrelated,
             prior criminal activity which, by virtue of its
             prejudicial impact, required that a mistrial be
             granted, and did not [Chhab] sufficiently preserve
             this claim for appeal?

Chhab’s Brief at 4.

      For his first issue on appeal, Chhab argues that the trial court erred in

denying his motion for a mistrial after the prosecutor referenced Chhab’s

decision to remain silent and not testify during his closing argument.

Chhab’s Brief at 15-20. Chhab maintains that the prosecutor’s reference to

his silence during closing arguments wrongly shifted the burden of

persuasion to Chhab, depriving him of his right to due process and a fair trial

under both the United States and Pennsylvania Constitutions. Id.




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      We begin by acknowledging our standard of review for claims arising

out of a trial court’s decision not to declare a mistrial:

            A motion for a mistrial is within the discretion of the
            trial court. [A] mistrial [upon motion by 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 a mistrial. On appeal, our
            standard of review is whether the trial court abused
            that discretion.

            An abuse of discretion is more than an error of
            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. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008)

(quoting Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super.

2003)). Additionally,

            [o]ur standard of review for a claim of prosecutorial
            misconduct is limited to whether the trial court
            abused its discretion. In considering this claim, our
            attention is focused on whether the defendant was
            deprived of a fair trial, not a perfect one. Not every
            inappropriate remark by a prosecutor constitutes
            reversible error. A prosecutor’s statements to a jury
            do not occur in a vacuum, and we must view them in
            context. Even if the prosecutor’s arguments are
            improper, they generally will not form the basis for a
            new trial unless the comments unavoidably
            prejudiced the jury and prevented a true verdict.




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Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. 2012) (quoting

Commonwealth v. Bedford, 50 A.3d 707, 715-16 (Pa. Super. 2012)),

appeal denied, 62 A.3d 379 (Pa. 2013).

        Our Supreme Court has stated that “[i]t is beyond question that a

defendant      has   an    absolute   right   to   refrain   from      testifying.”

Commonwealth v. Rodriguez, 626 A.2d 141, 144 (Pa. 1993). “It is also

well settled that a prosecutor cannot comment on a defendant’s failure to

take the stand in his own defense.” Id.; see also 42 Pa.C.S.A. § 5941(a).4

A prosecutor must not refer, “even by implication, to a defendant’s failure to

testify.”   Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002).                “A

comment is forbidden if the language used by the prosecutor is intended to

create for the jury an adverse inference from the failure of the defendant to

testify.”    Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008).

However, “[t]his rule is not so broad … as to encompass prosecutorial


4
    Section 5941(a) provides as follows:

              (a) General rule.--Except defendants actually upon
              trial in a criminal proceeding, any competent witness
              may be compelled to testify in any matter, civil or
              criminal; but he may not be compelled to answer any
              question which, in the opinion of the trial judge,
              would tend to incriminate him; nor may the neglect
              or refusal of any defendant, actually upon trial in a
              criminal proceeding, to offer himself as a witness, be
              treated as creating any presumption against him, or
              be adversely referred to by court or counsel during
              the trial.

42 Pa.C.S.A. § 5941(a).


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references to questions logically raised by the evidence or lack thereof, or

fair responses to the assertions of defense counsel[.]” Paddy, 800 A.2d at

317 (citations omitted). “[P]rosecutorial misconduct does not occur 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.” Id. at 316.

      Chhab takes issue with the following portions of the prosecutor’s

closing argument:

            Mr. Lim: […] If this isn’t first degree, then what is it
            because they are not telling you?

            Mr. Goodman: Objection.

            The Court: Sustained.

                                  *     *      *

            Mr. Lim: […] This isn’t first[-]degree murder but they
            aren’t going to tell you what it is. See, murder is
            defined as the killing --

            Mr. Goodman: Objection.

            The Court: Sustained. They don’t have to tell you
            what it is.

                                  *     *      *

            Mr. Lim: […] It is a willful, deliberate, premeditated
            killing, with only one intent, the specific intent to kill.
            He can’t come back now and say what, I was too
            drunk. I was too drunk to understand and appreciate
            what I was doing.



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            Mr. Goodman: Objection.

            The Court: Sustained.

            Mr. Lim: I could, therefore, not formulate the specific
            intent to kill. How can he say that --

            Mr. Goodman: Objection.

            The Court: Let me clarify. The [d]efendant didn’t say
            that and he doesn’t have to say that and that is not
            what was said. So move on, Counsel.

            Mr. Lim: How can we say this is anything --

            Mr. Goodman: Objection. How can he say.

            The Court: You can say Mr. Goodman say or you say
            but stick to that.

N.T., 3/21/13, at 106, 113-16. At the conclusion of the prosecutor’s closing

arguments, Chhab moved for a mistrial because the prosecutor “alluded to

the Defendant’s silence” at several points during his closing argument. Id.

at 121.

      We conclude that the trial court did not abuse its discretion in denying

Chhab’s request for a mistrial. Although Chhab claims that the prosecutor

impermissibly referred to his decision not to testify at his trial multiple times

throughout his closing argument, the record reveals that the prosecutor did

not reference Chhab’s choice to remain silent. See id. at 106, 113-16. We

do not read the prosecutor’s remarks to indicate that he created for the jury

an adverse inference from the defendant’s decision not to testify.          See




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Wright, 961 A.2d 119, 142; see also N.T., 3/21/13, at 106, 113-16. The

prosecutor likewise did not imply that the jury should have held Chhab’s

decision not to testify against him. See N.T., 3/21/13, at 106, 113-16.

     To the contrary, a careful reading of the prosecutor’s closing argument

shows that he was responding to the arguments made by defense counsel

during the defense’s closing argument.     During defense counsel’s closing

argument, he asserted that Chhab was intoxicated and that he did not

possess the specific intent required to commit first-degree murder. See id.

at 85, 94-103. Defense counsel declared, “[t]here is absolutely no way in

the world that this was a first degree murder case given the whole

circumstances.” Id. at 102. Thus, for example, where the prosecutor said

“[t]his isn’t first[-]degree murder but they aren’t going to tell you what it

is[,]” or “[h]e can’t come back now and say what, I was too drunk … I was

too drunk to understand and appreciate what I was doing[,]” the prosecutor

was referring directly to arguments made by defense counsel.      See id. at

113, 115. Therefore, the prosecutor did not reference Chhab’s decision not

to testify, but rather his remarks were fair responses to the assertions made

by defense counsel. See Paddy, 800 A.2d at 317.

     Moreover, our Supreme Court has stated that where a “trial court

gives adequate cautionary instructions, declaration of a mistrial is not

necessary.”   Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).

Here, the trial court sustained each of Chhab’s objections to the portions of



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the prosecutor’s remarks with which Chhab takes issue and provided several

cautionary instructions based on those comments.         N.T., 3/21/13, at 106,

113-116. The trial court also gave the following instructions in its charge to

the jury:

            It is entirely up to the [d]efendant in every criminal
            trial, ladies and gentlemen, whether or not to testify.
            He has an absolute right founded on the Constitution
            to remain silent. You must not draw any inference of
            guilt or any other inference adverse, meaning
            negative, to the [d]efendant from the fact that he
            did not testify.

Id. at 159. Furthermore, the trial court afforded Chhab the opportunity to

supply any further instructions he wished for the court to give to the jury,

which he declined. See id. at 123. Therefore, the trial court did not err in

denying Chhab’s motion for a mistrial.

      For his second issue on appeal, Chhab claims that the trial court erred

in denying his motion for a mistrial following Detective Sean Mellon’s

(“Detective Mellon”) testimony.        Chhab’s Brief at 21-24.   Detective Mellon

stated that while he was investigating Chhab’s whereabouts, he contacted

Immigration and Customs Enforcement (“ICE”) who informed him that

Chhab was involved in a possible deportation matter. N.T., 3/21/13, at 40.

Chhab argues that Detective Mellon’s statements were unduly prejudicial

and “allowed the jury to improperly conclude that [Chhab] was engaged in

prior criminal activity.” Id. at 21.




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      We conclude that Chhab has waived the second issue that he raises on

appeal for failing to make a timely motion for a mistrial. Rule 605(b) of the

Pennsylvania Rules of Criminal Procedure provides that “[w]hen 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 judge may declare a mistrial only for reasons of manifest

necessity.” Pa.R.Crim.P. 605(b). Our Court explained that “in order for a

motion for a mistrial to be timely, it must be made when the alleged

prejudicial event occurs.” Commonwealth v. Boring, 684 A.2d 561, 568

(Pa. Super. 1996).5    In Boring, the defendant’s counsel objected to a

witness’s reference to a polygraph test and the trial court sustained the

objection. Id. The defendant’s counsel, after the prosecutor concluded his

direct examination of the witness, motioned for a mistrial. Id. This Court

held that the “motion for a mistrial was interposed a considerable length of

time after the allegedly prejudicial reference was made” and therefore,

“counsel’s untimely request for a mistrial was not before the court properly

and hence was not a basis for the granting of a mistrial.”     Id.; see also

Commonwealth v. Smith, 410 A.2d 787, 790-91 (Pa. 1980) (request for

mistrial because of witness’s reference to polygraph test was untimely when




5
   Boring implicated Rule 1118(b) of the Pennsylvania Rules of Criminal
Procedure. Rule 1118 was renumbered to Rule 605, effective April 1, 2001.
See Pa.R.Crim.P. 605(b).


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made approximately two or three minutes after the allegedly prejudicial

statement).

      This case is virtually indistinguishable from Boring.         Here, the

challenged statement took place during the prosecutor’s direct examination

of Detective Mellon. See N.T., 3/21/13, at 40. After Detective Mellon made

the allegedly prejudicial remark, Chhab objected and the trial court

sustained his objection. Id. at 40-41. However, Chhab did not request a

mistrial at this point.     See id.     Indeed, the prosecutor proceeded to

complete his direct examination of Detective Mellon, the trial court then

admitted several of the prosecution’s exhibits into evidence, and the

Commonwealth rested. See id. at 41-48. It was at this time that Chhab

requested a mistrial.     Id.   Accordingly, Chhab did not move for a mistrial

when the prejudicial event occurred, and his motion was not properly before

the trial court.   See Pa.R.Crim.P. 605(b); Boring, 684 A.2d at 568.

Therefore, Chhab has waived this issue on appeal.6

      Judgment of sentence affirmed.




6
    We further note that even if not waived, Chhab’s highly attenuated
conclusion that the reference to the possible deportation is the equivalent of
a reference to prior criminal activity would not provide any basis for relief.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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