J-A21014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JOSHUA JEAN,

                          Appellant                  No. 2959 EDA 2015


          Appeal from the Judgment of Sentence Entered July 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013192-2013


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 22, 2016

      Appellant, Joshua Jean, appeals from the judgment of sentence of

three years’ probation, imposed after he was convicted by a jury of

possession with intent to deliver (PWID) and possession of a controlled

substance. Appellant argues on appeal that the trial court erred by failing to

grant his motion for a mistrial, made after a prosecution witness referred to

Appellant’s prior incarceration in an unrelated case. After careful review, we

affirm.

      The trial court summarized the facts of Appellant’s case, as follows:

            On December 4[], 2012, at around 11:45 a.m., Police
      Officer Jason Branyan was conducting surveillance on the 1500
      block of Arrott Street in Philadelphia. Officer Branyan observed
      [Appellant’s] walking up and down the 1500 block of Arrott
      Street multiple times. At about 12:15 p.m., Michael Clark, with
      his hand out, approached the area where [Appellant] had just
      stepped out of view. About thirty seconds later, Clark walked
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      away with his left hand in his pocket towards Penn Street.
      Believing Clark had purchased drugs, Officer Branyan put out
      flash information regarding Clark. Police Officer Andre Hudgens
      stopped Clark less than two blocks away on the 1500 block of
      Foulkrod Street.     Officer Hudgens recovered a Ziploc bag
      containing marijuana from Clark’s front left pocket.

            At about 12:45 p.m., Officer Branyan observed Julia Berry
      have a brief conversation with Rashee Sullivan who was standing
      on the north side of Arrott Street. Sullivan called across the
      street to [Appellant] who was standing on the south side of
      Arrott Street. After [Appellant] crossed the street to where
      Berry and Sullivan were standing, Berry handed an object to
      [Appellant] who walked back across the street. [Appellant]
      returned with his hand in his pocket and handed an object to
      Berry who then walked away. Believing Berry had purchased
      drugs, Officer Branyan transmitted a flash description of Barry
      [sic]. Police Officer Michael Schaffer stopped Berry about two
      blocks away on the 1300 block of Arrott Street. Officer Schaffer
      recovered four Ziploc packets containing marijuana from Berry.

            Pursuant to information received from Officer Branyan,
      Sergeant Michael Cerruti entered an alley located on the south
      side of Arrott Street, just east of 1514 Arrott Street. Along the
      fence in the alley[,] Sergeant Cerruti found a clear plastic bag
      with two Ziploc packets containing marijuana. Sergeant Cerruti
      and Officer Sean Kennelly located [Appellant] and Sullivan in a
      house at the back of the alley. After Officer Sean Kennelly
      confiscated $100 in United States currency from Sullivan, both
      [Appellant] and Sullivan were arrested.

Trial Court Opinion (TCO), 9/23/14, at 2-3 (citations to the record omitted).

      Appellant was charged with PWID (marijuana), 35 P.S. § 780-

113(a)(3), and possession of a controlled substance (marijuana), 35 P.S. §

780-113(a)(16). A jury trial commenced in May of 2014 and, at the close

thereof, Appellant was convicted of both crimes. On July 14, 2014, the court

sentenced Appellant to three years’ probation for PWID, and no further

penalty for his possession offense. Appellant filed a timely notice of appeal,



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and also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.           Herein,

Appellant presents one question for our review:

             Did not the lower court err in denying [A]ppellant’s request
      for a mistrial where Officer Branyan’s trial testimony that
      [A]ppellant had previously been arrested was an inadmissible
      statement of unrelated, prior criminal activity which, by virtue of
      its prejudicial impact, required that a mistrial be granted?

Appellant’s Brief at 3.

      We begin by noting that:

      The standard of review we apply when addressing a motion for
      mistrial is well settled.

         In criminal trials, the declaration of a mistrial serves to
         eliminate the negative effect wrought upon a defendant
         when prejudicial elements are injected into the case or
         otherwise discovered at trial. By nullifying the tainted
         process of the former trial and allowing a new trial to
         convene, declaration of a mistrial serves not only the
         defendant's interests but, equally important, the public's
         interest in fair trials designed to end in just judgments.
         Accordingly, the trial court is vested with discretion to
         grant a mistrial whenever the alleged prejudicial event
         may reasonably be said to deprive the defendant of a fair
         and impartial trial. In making its determination, the court
         must discern whether misconduct or prejudicial error
         actually occurred, and if so, ... assess the degree of any
         resulting prejudice. Our review of the resulting order is
         constrained to determining whether the court abused its
         discretion.

      Commonwealth v. Hogentogler, 53 A.3d 866, 877–878 (Pa.
      Super. 2012) (citation omitted), appeal denied, 620 Pa. 720, 69
      A.3d 600 (2013).

            It is also well established that evidence of other crimes,
      wrongs, or acts may not be presented during trial against a
      criminal defendant as either character or proclivity evidence.
      Pa.R.E. 404(b); Commonwealth v. Padilla, 923 A.2d 1189,

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      1194 (Pa. Super. 2007), appeal denied, 594 Pa. 696, 934 A.2d
      1277 (2007).

         However, mere passing references to prior criminal activity
         will not necessarily require reversal unless the record
         illustrates definitively that prejudice results. Prejudice
         results where the testimony conveys to the jury, either
         expressly or by reasonable implication, the fact of another
         criminal offense. Determining whether prejudice has
         occurred is a fact specific inquiry.

      Padilla, supra at 1194–1195 (citations and quotation marks
      omitted). “If evidence of prior criminal activity is inadvertently
      presented to the jury, the trial court may cure the improper
      prejudice with an appropriate cautionary instruction to the jury.”
      Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.
      2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (2009).

Commonwealth v. Thompson, 106 A.3d 742, 752–53 (Pa. Super. 2014),

appeal denied, 134 A.3d 56 (Pa. 2016).

      We now summarize the context in which prior bad act evidence was

commented on by Officer Branyan at Appellant’s jury trial. During defense

counsel’s cross-examination of Officer Branyan, counsel attempted to

demonstrate that the officer had misidentified Appellant as the person who

sold narcotics.   In this regard, defense counsel suggested that Rashee

Sullivan closely resembles Appellant and was the person that Officer

Branyan saw selling drugs. See N.T. Trial, 5/12/14, at 99 (defense counsel’s

questioning Officer Branyan about the fact that “Sullivan and [Appellant]

look alike”); id. at 100-101 (defense counsel’s asking Officer Branyan about

the similar height, build, facial hair, and race of Sullivan and Appellant).

      On re-direct examination, the Commonwealth sought to show that

Officer Branyan could tell the difference between Appellant and Sullivan


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because he knew Appellant prior to the narcotics transactions in 2012. To

demonstrate this point, the Commonwealth asked the officer: “Outside of

this event that happened on December 4th, 2012, had you had prior contact

with [Appellant]?” Id. at 110. Officer Branyan replied, “I believe we locked

him up.”   Id. (emphasis added).     Defense counsel immediately objected,

and the court sustained the objection and struck the officer’s testimony. Id.

The Commonwealth then continued to question the               officer, eliciting

testimony that the officer had had “contact” with Appellant when he was a

juvenile. Id. at 111.

      Defense counsel subsequently requested a mistrial based on Officer

Branyan’s comment regarding Appellant’s prior incarceration.       Id. at 117.

The court denied that request, but offered to give a curative instruction. Id.

at 118. After conferring with Appellant, defense counsel requested the court

provide the following charge:

      You heard Officer Branyan testify that he had contact with
      [Appellant] when [Appellant] was a juvenile.            This was
      completely improper. You may not consider this testimony as
      accurate in evaluating the merits of this chase [sic]. However,
      you may consider the improper motives of Officer Branyan and
      this deliberate impropriety when assessing his credibility or lack
      thereof.

N.T. Trial, 5/13/14, at 6. The court refused to give this curative instruction,

concluding that “it was inaccurate and misleading,” as Officer Branyan’s

“testimony was truthful and the court had no evidence before it as to any

potential motive for the officer’s testimony.” TCO at 5. However, the court

offered to draft a curative instruction, or to permit defense counsel to

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propose another charge. Id. at 8. Defense counsel declined, stating that if

the court would not give the above-quoted instruction, he did not want any

instruction at all. Id. Consequently, no curative instruction was provided,

and there was no further mention of Officer Branyan’s remark regarding

Appellant’s prior incarceration. At the close of the trial, the court provided a

general jury instruction that Appellant was presumed to be innocent

throughout trial, that his arrest and criminal charges were not evidence of

his guilt, and that the jury must assess, based on the evidence presented at

trial, whether the Commonwealth had met its burden of proving him guilty

beyond a reasonable doubt. Id. at 138-39.

      Now, on appeal, Appellant contends that the court erred by denying

his motion for a mistrial.      First, Appellant challenges the trial court’s

conclusion that the Commonwealth did not intentionally elicit the at-issue

comment by Officer Branyan.        See TCO at 5 (“The statement was not

intentionally elicited by the Commonwealth as the prosecutor was trying to

elicit the fact that Officer Branyan knew the difference between [Appellant]

and Sullivan.”).    Appellant argues that “[t]here is no factual record

supporting [the court’s] post hoc conclusion….” Id. Instead, he maintains

that the record supports a conclusion that the prosecutor intentionally

elicited Officer Branyan’s remark by asking “a question to her police witness

about ‘prior contact’ with [A]ppellant,” which is “practically a term of art

meaning prior arrests in this context.”     Id. at 12-13 (emphasis added).

Appellant insists that, at the very least, the prosecutor “assumed the risk”

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that her question would elicit Officer Branyan’s improper testimony. Id. at

13 (citing Commonwealth v. Gaerttner, 484 A.2d 92, 100 (Pa. Super.

1984) (finding that the prejudicial response by the witness was clearly in

response to the prosecutor’s question and, noting that “[w]hen the question

was asked, the prosecutor either knew what the answer would be, in which

case there was an intentional and improper introduction of evidence of prior

criminal activity, or he did not know what the answer would be and assumed

the risk”).

      We are compelled to agree with Appellant that the prosecutor should

have at least expected that her question could elicit a response from Officer

Branyan about Appellant’s prior arrest or incarceration. The prosecutor was

aware that Officer Branyan had arrested Appellant in 2008 for criminal

trespass.     See N.T. Trial, 5/12/14, at 117-18.    Therefore, her question to

the officer regarding his ‘prior contact’ with Appellant assumed the risk that

he would refer to that 2008 arrest and/or imprisonment.

      Next, we must determine if the prejudice suffered by Appellant due to

the officer’s comment warrants a new trial.         In this vein, the trial court

concludes that defense counsel’s strategic decision to forego a curative

instruction waived Appellant’s ability to plead prejudice on appeal. See TCO

at 6. In support of its decision, the court cites Commonwealth v. Miller,

481 A.2d 1221 (Pa. Super. 1984).        There, a defense witness improperly

commented about Miller’s prior incarceration. Id. at 1222. Defense counsel

moved for a mistrial, which the court denied.         Id.   However, the court

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offered to provide a curative instruction.        Id.   Defense counsel refused,

reasoning that he did not want to “draw further attention to the remark.”

Id. at 1223. On appeal, this Court declared that, “[w]hen counsel chooses

to refuse appropriate curative instructions for this legitimate tactical reason,

the   defense    may    not   plead   prejudice    on    appeal.”    Id.   (citing

Commonwealth v. Quartman, 385 A.2d 429, 432 (Pa. Super. 1978)

(stating that “counsel's decision to forego curative instructions [regarding an

improper reference to the defendant’s post-arrest silence] may prove to

have been a tactical error; it is likewise irremediable. In every case, it is a

tactical decision to be made by defense counsel, and the rendering of an

unfavorable verdict should not entitle a defendant, who did not elect to

protect himself to the maximum [extent] in his first trial, to an automatic

retrial.”)). Based on Miller, the trial court concludes that Appellant cannot

plead prejudice on appeal.

      In response, Appellant argues that he did not waive his right to assert

prejudice, relying primarily on Commonwealth v. Durant, 407 A.2d 1311

(Pa. Super. 1979).     In Durant, a prosecution witness was asked whether

she knew where Durant lived, to which she replied, “Yes, but I didn’t know

he was here in the city. … I didn’t know he was out of jail, really.” Id. at

1311 (emphasis in original). Durant’s counsel moved for a mistrial, which

was denied.     Id.    Counsel then refused the court’s offer of a curative

instruction.    Id.    On appeal, this Court overlooked counsel’s strategic

decision, reasoning that curative instructions would have been inadequate

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“[b]ecause of the nature of the testimonial reference….” Id. at 1312. We

stressed that the prejudice caused to Durant was high, noting that the

comment about Durant’s prior time in jail came from a witness with “a

strong desire … to convict” Durant, and the remark “served only to convey

to the jury that [Durant] had been convicted of a crime in the past.”   Id.

       Our review of Durant convinces us that our decision therein was

limited to the specific facts and circumstances of that case. Nothing in the

language of the Durant decision suggests that we intended to create a

general holding that defense counsel may reject a court’s offer of a curative

instruction, yet plead uncured prejudice on appeal. In any event, Miller was

decided after Durant, and Miller holds, as a general proposition, that

counsel’s decision to forego a cautionary instruction, in the specific context

of improper remarks pertaining to the defendant’s prior bad acts, precludes

the defendant from asserting prejudice on appeal.     Thus, Miller calls into

question Durant’s continued validity.1, 2

____________________________________________


1
  We add that an en banc panel of this Court reiterated the Miller holding in
Commonwealth v. Norman, 549 A.2d 981, 986 (Pa. Super. 1988) (en
banc) (noting, as an alternative basis for affirming Norman’s judgment of
sentence, that the defendant could not plead, on appeal, that he was
prejudiced by a detective’s testimony that he advised the victim that
Norman was “dangerous,” where defense counsel refused a curative
instruction regarding that improper testimony) (quoting Miller, 481 A.2d at
1223) (“When counsel chooses to refuse appropriate curative instructions for
[a] legitimate tactical reason, the defense may not plead prejudice on
appeal.”).




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      Consequently, Appellant’s reliance on Durant is unconvincing, and we

agree with the trial court that under Miller, defense counsel’s decision to

refuse a curative instruction precludes him from arguing, on appeal, that he

suffered uncured prejudice warranting a new trial. Therefore, we ascertain

no abuse of discretion in the court’s decision to deny Appellant’s motion for a

mistrial.

      Judgment of sentence affirmed.

      Judge Dubow joins this memorandum.

      Judge Musmanno joins this memorandum and files a concurring

statement in which Judge Dubow joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




                       _______________________
(Footnote Continued)
2
   Appellant also cites Gaerttner, which discussed Durant, and
Commonwealth v. Laughman, 452 A.2d 548 (Pa. Super. 1982).
However, in both Gaerttner and Laughman, cautionary instructions were
provided following inadvertent comments about the defendants’ prior bad
acts. Thus, neither the Gaerttner nor Laughman panels specifically ruled
on the issue of waiver based on defense counsel’s decision not to have a
cautionary instruction provided to the jury.



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