J-S27024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RALPH W. SUMMERS, JR.                      :
                                               :
                       Appellant               :   No. 3419 EDA 2017

           Appeal from the Judgment of Sentence September 7, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0006926-2016


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 26, 2018

        Ralph W. Summers, Jr., appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County. Following a jury trial,

Summers was convicted of the following offenses: Person not to Possess a

Firearm,1 Firearms Without License,2 Possession of a Firearm with an Altered

Serial Number,3 Possession of an Instrument of Crime-Weapon,4 Possession

of a Controlled Substance,5 Possession with Intent to Deliver a Controlled
____________________________________________


1   18 Pa.C.S. § 6105.

2   18 Pa.C.S. § 6106(a)(1).

3   18 Pa.C.S. § 6110.2.

4   18 Pa.C.S. § 907(b).

5   35 P.S. § 780-113(a)(16).
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Substance,6 and Possession of Drug Paraphernalia.7           After our review, we

affirm.

        On September 13, 2016, at approximately 6:30 p.m., officers from the

Upper and Lower Chichester Police Departments responded to a report of a

shooting at Willowbrook Apartments.            Sergeant Larry Moore of the Lower

Chichester Police Department and Officer Michael Molineux of the Upper

Chichester Police Department both participated in a security sweep of the

buildings. During the sweep, Sergeant Moore found Summers crouched down

in a laundry room, appearing to put something inside an open bench. When

ordered to stop, Summers shut the bench lid. Officer Molineux, hearing the

interaction, joined Sergeant Moore in the laundry room and placed Summers

in handcuffs. Inside the bench, the officers found a red cooler and a black

plastic shopping bag. Inside the cooler, the officers found two firearms and

112.34 grams of marijuana in two plastic bags. Inside the black plastic bag

the officers found a digital scale, rolling papers and small baggies with an

apple design. Upon further investigation, the officers determined that one of

the firearms was a toy gun, painted black; the other was a loaded Taurus .40-

caliber semi-automatic.

        Following his arrest, Summers was tried before a jury, the Honorable

James P. Bradley presiding, and convicted. The court sentenced Summers,

____________________________________________


6   35 P.S. § 780-113(a)(30).

7   35 P.S. § 780-113(a)(32).

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who had prior robbery and burglary convictions, to an aggregate term of

imprisonment of 121-242 months. Summers filed a notice of appeal. Both

Summers and the trial court have complied with Pa.R.A.P. 1925. Summers

raises the following issues for our review:

         1. The trial court erred in preventing Juror #2 of the jury panel
            from answering the question from defense counsel
            regarding the credibility of police officers compared to other
            individuals.

         2. The trial court erred in denying the motion for a mistrial by
            defense counsel after a testifying witness for the
            Commonwealth used the name of defendant improperly with
            hearsay testimony.

Appellant’s Brief, at 5.

      Summers first argues the court erred during individual voir dire when it

ruled that a prospective juror did not have to answer a specific question from

defense counsel.     Summers claims this denied him further questioning

regarding the prospective juror’s impartiality with respect to the credibility of

a police officer as compared to that of a civilian.

      That the scope of voir dire is in the discretion of the trial court is
      well-settled Pennsylvania law. The opportunity to observe the
      demeanor of the prospective juror and the tenor of the juror’s
      answers is indispensable to the judge in determining whether a
      fair trial can be had in the community. Claims of impartiality by
      prospective jurors are subject to scrutiny for credibility and
      reliability as is any testimony, and the judgment of the trial court
      is necessarily accorded great weight. Decisions of the trial judge
      concerning voir dire will therefore not be reversed in the absence
      of palpable error.

Commonwealth v. Ellison, 902 A.2d 419, 423-24 (Pa. 2006) (internal



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citations and quotations omitted).

       Here, prior to voir dire, prospective jurors completed the standard jury

questionnaire required under Pa.R.Crim.P. 632(H).8 The prospective juror in

question, Juror #2, answered in the affirmative to question number 8, which

read: “Would you be more likely to believe the testimony of a police officer

or any other law enforcement officer because of his or her job?”

       Jury selection was held on July 11, 2017, and during voir dire the court

asked the panel several questions, including those relative to potential

prejudices of individual jurors.       In particular, the court inquired about the

panel members’ beliefs in the credibility of police officers. The court stated

that for a response indicating a panelist was more or less likely to find a police

officer credible than another individual, “neither a yes or a no would disqualify

you in this particular case.”       N.T. Voir Dire, 7/11/17, at 20-21 (emphasis

added). The court added:

       [Y]ou have to keep in mind that as a juror you have to evaluate
       every single witness that testifies. The mere fact that somebody
       is a police officer does not make him automatically, right, or
       automatically wrong. You have to listen to their testimony. And
       if you feel that it makes sense, then you will take that into
       consideration. If, however, you feel he is either mistaken or
       making this up or whatever I don’t believe him[,] that is fine. But
       it is not the fact that he is wearing a badge that counts. It is the
       quality of his testimony. And you, members of the jury, have the
       ability to decide whether he is credible, whether anybody is
____________________________________________


8 Rule 632 requires that, prior to voir dire in any criminal case, the prospective
jurors, including prospective alternate jurors, must complete the
questionnaire, and that the “trial judge and attorneys must automatically be
given copies of the completed questionnaires in time to examine them before
voir dire begins.” Pa.R.Crim.P. 632 - Comment-

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      credible. That is your job . . . . Is there anybody that feels
      that they would be unable to honor that or feel because
      they are so pro-police or anti-police, they simply could not
      fairly and impartially sit as a juror in this case? If so, if that
      is the case I would ask you to please rise.

Id. (emphasis added). No panel member rose.

      Thereafter, the court asked defense counsel and the assistant district

attorney if there was anything either wanted to address on individual voir dire

or to the panel. Defense counsel stated, “I have a number of people and it is

more strikes than I will be able to use that have answered. I know you have

given your instruction, but they would be more likely to believe the testimony

of a police officer.”   Id. at 24.      Defense counsel requested individual

questioning of Juror #2 because Juror #2 had a close friend in law

enforcement and, as defense counsel opined, was therefore “more likely to

believe the testimony of a police officer.” Id. at 34.

      The court questioned Juror #2 as follows:

      THE COURT:         Juror #2 please. Good afternoon ma’am. You
      indicated in your questionnaire that you have a relative, a close
      relative, who is a law enforcement person?

      JUROR #2:         It is just friends.

      THE COURT:         You also indicated that you would be more likely
      to believe a police officer who testified, correct?

      JUROR #2:          I did, I thought about it and then you explained
      it. I feel as though I would be able to do it.

      THE COURT:          In other words if you heard a police officer
      testify and it didn’t sound accurate or it didn’t sound honest, would
      you disregard it?

      JUROR #2:         I would.


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      THE COURT:         Questions?

      MR. WRIGHT:        I guess my question is you have two different
      people saying the same thing or something different. One is a
      police officer and one isn’t, are you giving more credence to the
      police officer[?]

      THE COURT:         I am not going to permit her to answer that
      question. It is too speculative. Any other questions?

      MR. WRIGHT:         Your Honor I would ask the Court to note my
      objection. I think that is what the question is asking are you more
      likely to believe the testimony—

      THE COURT:        I have asked the question. But you want to get
      into what if, what if both of them testified equally and I am not
      going to permit that.

Id. at 34 (emphasis added). The court determined that Juror #2’s response

with respect to her ability to evaluate impartially a police officer’s testimony

sufficiently addressed this issue.

      In support of his argument, Summers cites to Commonwealth v.

Penn, 132 A.3d 498 (Pa. Super. 2016).         There, Penn was charged with

possession of a controlled substance in the City of Pittsburgh. During voir

dire, Penn challenged for cause a prospective juror, R.Z., who indicated that

she would be more likely to believe the testimony of a police officer. R.Z.

stated that she currently worked as a security officer for a casino. She also

stated that she previously worked for the California University of Pennsylvania

Police Department for two years, had served two years in the United States

Marshals’ apprenticeship program, had completed an internship with the

Bethel Park Police Department, and that her boyfriend is a police officer in a




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borough that surrounds the City of Pittsburgh. She acknowledged that she

was “pretty steeped in law enforcement.” Id. at 500.

      The assistant district attorney asked R.Z. whether, if she were instructed

by the judge “that you can’t give them any more weight or credibility[,] do

you think you could follow the instruction and not raise them up because of

their position?” Id. R.Z. responded, “Yes.” Id. She also stated that, despite

her boyfriend’s position, she would be able to be fair and impartial. Id.     The

questioning continued:

      [APPELLANT’S ATTORNEY]: Well, when you—well, when you say
      you think so, I mean, basically the entire Commonwealth case is
      going to be testimony from the police officers. Would it be difficult
      for you to just not believe them because of your experience? I
      mean, you've been a police officer, you've worked with police,
      you’re dating a police officer. I presume you have a certain
      attachment to this profession.

            A: Correct.

      [APPELLANT’S ATTORNEY]: I'm not going to offend you in any way
      if I am—I apologize, but would it be difficult to not—kinship to the
      police to cause for you not to be able—

            A: I think it all comes down to evidence, testimony. So as
      long as I’d—

      [APPELLANT’S ATTORNEY]: If they got up there and said, we don’t
      know anything and we didn’t see anything, I would understand,
      but if they testify to facts which you believe would be enough to
      convict, would it be hard for you not to believe them because of
      your experience? Would you, as you said before, you would be
      inclined to believe them?

            A: (Nods head [in the affirmative].)

      [APPELLANT’S ATTORNEY]: I know it’s based on the evidence.

            A: Right.


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      [APPELLANT’S ATTORNEY]: But there would be an inclination on
      your part, because of your experience, to be more likely to credit
      their testimony?

           A: I mean—again, I think it comes down to the evidence
      though.

Id. (citing N.T. Jury Selection, 5/5/14, at 36-40).

      The court denied defense counsel’s challenge for cause, forcing counsel

to use a peremptory challenge to strike R.Z. The jury convicted Penn and, on

appeal, Penn argued the trial court erred when it denied his challenge to

excuse R.Z. for cause, thus forcing him to use his peremptory challenges. This

Court agreed, stating:

       [I]n this case, R.Z. initially indicated that she was incapable of
      “rendering a fair, impartial and unbiased verdict.” Specifically, in
      the case at bar, the Commonwealth’s entire case rested upon the
      credibility of the police officers, given that the Commonwealth’s
      only two witnesses at trial were City of Pittsburgh Police
      detectives. . . . R.Z. answered “yes” to the written question
      “[w]ould you be more likely to believe the testimony of a police
      officer or any other law enforcement officer because of his or her
      job?”—and R.Z. then unequivocally testified during voir dire that
      she “would be more likely to believe the testimony of a police
      officer,” thus indicating that R.Z. was biased in favor of the police
      and     the    Commonwealth.        Further,   as   was     true   in
      [Commonwealth v.]Johnson, [445 A.2d 509 (Pa. Super.
      1982),] R.Z.'s admitted bias in favor of the police rested on a firm
      bedrock, given that R.Z. testified: she currently works as a
      security officer for a casino; she previously worked in the
      California University of Pennsylvania Police Department for two
      years, while she was a student in college; she previously served
      two years in the United States Marshals’ apprenticeship program;
      she previously completed an internship with the Bethel Park Police
      Department; and, her boyfriend is a police officer in a borough
      that surrounds the City of Pittsburgh. Finally, as in Johnson, R.Z.
      eventually testified that she would be able to follow the trial
      court’s instructions and render a “fair and impartial” decision.
      However, in the case at bar, almost immediately after R.Z.


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      testified that she would be able to “be fair and impartial,” R.Z.
      again testified that, “because of [her] experience[,] ... [she]
      would be inclined to believe” the police. Therefore, as we held in
      Johnson, we hold in the case at bar that “[R.Z.'s] eventual
      assurance to the [trial] court that [she] would ‘be fair’ did not
      dispel the force of [her] admissions” of bias. We are thus
      constrained to conclude that the trial court abused its discretion
      when it denied Appellant’s challenge to excuse R.Z. for cause.
      Moreover, we must conclude that the error was not harmless:
      “[w]here, as here, a defendant is forced to use one of his
      peremptory challenges to excuse a prospective juror who should
      have been excused for cause, and then exhausts his peremptories
      before the jury is seated, a new trial will be granted.” Johnson,
      445 A.2d at 514.

Id. at 504-05 (emphasis added) (some citations omitted).

      We agree with the Commonwealth that Summers’ reliance on Penn is

misplaced. First, we note that here, unlike in Penn, defense counsel did not

challenge Juror #2 for cause.      Rather, counsel noted his objection to the

court’s refusal to allow him to question Juror #2 on how she would resolve a

credibility issue between an officer and a layperson.   N.T. Voir Dire, 7/11/17,

at 34.   Further, unlike the prospective juror in Penn, Juror #2 was not

“steeped in law enforcement.” Penn, 132 A.3d at 500. In fact, Juror #2

stated that her relationship with the police officer was “just friends,” N.T. Voir

Dire, 7/11/17, at 34, whereas in Penn the prospective juror’s bias in favor of

police “rested on a firm bedrock.” 132 A.3d at 505. Additionally, unlike the

prospective juror in Penn, Juror #2 did not vacillate or qualify her answers

when the question presented was whether she could evaluate impartially the

credibility of a police officer. Juror #2 immediately answered that she could

be fair and impartial, and that she could decide the case based solely upon


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the evidence presented at trial. The Court’s decision in Penn was based on

the prospective juror’s testimony during voir dire that she “would be more

likely to believe the testimony of a police officer,” thus indicating her bias in

favor of the police and the Commonwealth.           Id. at 504.     Finally, upon

additional questioning, the prospective juror in Penn reiterated her bias. The

Penn court determined that the individual questioning “did not dispel the force

of [her] admissions of bias,” id. at 505, whereas here, the individual

questioning revealed that Juror #2 was unequivocal in her statement that she

would be able to follow the court’s instruction.

      The trial court examined Juror #2 to determine if she would be able to

put aside her initial feelings of predisposition and fairly evaluate the evidence

presented at trial. The court fully explored the matter on individual voir dire

and determined that she could.         We conclude, therefore, that defense

counsel’s request to ask Juror #2 how she would, hypothetically, resolve a

credibility issue at trial was outside the scope of individual voir dire; the trial

court, therefore, did not abuse its discretion in refusing defense counsel’s

request. Ellison, supra.

      Next, Summers argues the trial court erred in denying his motion for a

mistrial after Summers’ first name was mentioned in Officer Molineaux’s

testimony. Officer Molineux testified that he and Seargent Moore responded

to the shooting following an interaction with two women in the Willowbrook

Apartments parking lot. Officer Molineaux’s testimony began as follows:




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      OFFICER MOLINEAUX: Okay. When we originally responded on
      location myself and two other officers from the Upper Chichester
      Township police department, as well as Sergeant Moore from the
      Lower Chichester police department, we were met by two females
      in a red Ford Expedition that were advising us of a subject with a
      gun.

      [DEFENSE COUNSEL]: Your Honor, again objection if I’m not going
      to get a chance to question these females. I would object to
      hearsay.

      THE COURT: I will sustain that objection. There were two females.
      Let’s continue. As a result of that, did you have a discussion with
      them?

      OFFICER MOLINEAUX: We did.

      THE COURT: And as a result of that, what did you do next?

      OFFICER MOLINEAUX: As a result of the investigation with these
      two females we had learned that a subject by the name of Ralph
      –

      THE COURT: Stop. Don’t tell us what they said. Just tell us what
      you did.

N.T. Jury Trial, 7/12/17, at 65. At this point, defense counsel asked for a

sidebar and requested a mistrial, which the court denied.      The court then

instructed the jury as follows:

      THE COURT: Ladies and gentlemen, you get into a little bit of an
      evidentiary lesson. You probably all heard at some point in time
      the word hearsay in a movie or a television show. Basically there’s
      a rule of evidence that says that hearsay is inadmissible which
      means that if somebody tells you something you can’t say so and
      so told me something. That is not competent evidence.
      Sometimes we will permit hearsay for a limited reason. He was
      permitted to say he had a discussion with these individuals and
      that was offered for one reason and one reason only, that’s to
      explain why he went and did what he did next. What may have
      been said or was not said to him by these individuals is not
      something that you may consider. With that, you may proceed.


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      [DEFENSE COUNSEL]: Your Honor, with that I would move to
      strike the last response.

      THE COURT: Okay, consider it stricken.

Id. at 67.

      “A mistrial is an ‘extreme remedy’ that is only required where the

challenged event deprived the accused of a fair and impartial trial. The denial

of a mistrial motion is reviewed for an abuse of discretion.” Commonwealth

v. Laird, 988     A.2d 618, 638       (Pa.    2010) (citations   omitted).   See

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). “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 the defendant of a fair

trial by preventing the jury from weighing and rendering a true verdict.”

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (citation and

quotation marks omitted). When reviewing the trial court’s denial of a motion

for a mistrial, our standard is abuse of discretion. Further, “a mistrial is not

necessary where cautionary instructions are adequate to overcome any

possible prejudice.” Commonwealth v. Fletcher, 41 A.3d 892, 894–95 (Pa.

Super. 2012).

      Here, the court’s questioning elicited an unexpected response from the

officer that mentioned the defendant’s first name.      The court immediately

stopped the officer from continuing, and gave a cautionary instruction. The

jury was aware that the officers were responding to a call about a man with a

gun at the apartment complex, and that Summers was discovered during a



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security sweep of the building, attempting to hide a controlled substance and

a firearm. Further, the trial court promptly cautioned the jury, instructing it

to disregard the hearsay statement, and struck the officer’s offending

testimony. We cannot say that the unavoidable effect of the objectionable

hearsay prejudiced Summers to the extent of denying him a fair trial. See

Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2013); see also

Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super. 2009) (stating

that “[a] trial court may remove taint caused by improper testimony through

curative instructions.”). Moreover, it is well settled that “[a] jury is presumed

to follow a trial court's instructions [.]” Commonwealth v. Reid, 99 A.3d

470, 501 (Pa. 2014).9

       Upon review, we cannot conclude that the trial court abused its

discretion by denying Summers’ motion for a mistrial. The trial court's

cautionary instruction alleviated any prejudice caused by Officer Molineaux’s

testimony.     Laird, supra.

       Judgment of sentence affirmed.




____________________________________________


9We also note that the Commonwealth did not elicit this testimony, that it
was in response to the court’s questioning after sustaining defense counsel’s
hearsay objection, and that the Commonwealth did not exploit the reference.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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