J-S29015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VINCENT CLARK                              :
                                               :
                       Appellant               :   No. 1736 EDA 2019

                 Appeal from the Order Entered March 18, 2019
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006549-2017


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              Filed: July 30, 2020

        Appellant, Vincent Clark, appeals from his judgment of sentence entered

by the Court of Common Pleas of Delaware County for, inter alia, first-degree

murder. In the sole issue in his appeal, Appellant argues that the trial court

abused its discretion in denying the motion for a mistrial he made after a

Commonwealth witness testified that he believed Appellant had previously

killed someone other than the victim in this case. Appellant alleges the

prosecutor intentionally elicited this testimony without giving prior notice to

him and this amounted to prosecutorial misconduct. We disagree that the trial

court abused its discretion in denying Appellant’s motion for a mistrial, and

therefore affirm Appellant’s judgment of sentence.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S29015-20


      On May 31, 2015, Michael Collier, who was also called by the nickname

“Sheetz,” was shot sixteen times and killed outside of his sister’s house in

Chester. Appellant was subsequently charged with the murder, but his first

trial ended in a mistrial due to a hung jury. A second trial began on January

7, 2019.

      Breon Purnell, a long-time friend of Appellant’s, testified at Appellant’s

first trial and again at Appellant's second trial. Purnell testified that on the

night of Sheetz’s murder, he saw a post on Facebook written by Sheetz’s sister

that Appellant had killed Sheetz.

      Later that same evening, Appellant called Purnell and picked him up at

his house. Purnell testified that the two drove around selling cocaine, and as

they did so, Appellant admitted to killing Sheetz. According to Purnell,

Appellant maintained he killed Sheetz because Sheetz had killed Eshon Mills,

a mutual friend to Purnell and Appellant. Mills had been killed approximately

two weeks before Sheetz.

      Purnell did not come forward with this information to authorities until

March of 2017. At trial, the prosecutor questioned Purnell about his delay in

coming forward, asking him “Why then? Why did you talk to police then?” N.T.

Trial, 1/8/19, at 110. Purnell replied that it was because he “found out that

[Appellant] had killed [Mills].” Id. Defense counsel objected. The court

sustained the objection, stating that counsel would “have to elicit a foundation

before the jury can [ ] put any credence in that remark.” Id. at 111.


                                     -2-
J-S29015-20


      Defense counsel requested a sidebar and moved for a mistrial on the

basis that the Commonwealth had not given notice of its intent to present

evidence of prior criminal activity. The trial court denied the motion. Purnell’s

direct testimony continued, wherein he stated that when he spoke with police

in March of 2017 he was incarcerated on an open theft by receiving stolen

property charge but that he had not received any favorable treatment

regarding the resolution of that charge in exchange for his statement against

Appellant. See id. at 112.

      The next morning, the trial resumed and the trial court gave the

following curative instruction to the jury:

      Yesterday you may have heard that Mr. Breon Purnell testified that
      [Appellant] murdered a gentleman he identified as [Mills]. He also stated
      that he and [Appellant] had been selling cocaine together at some point
      in time. You may also recall that the District Attorney in her opening
      statement said that there had been a rumor that [Sheetz] had been
      killed because he had killed a drug dealer. That his death was an act of
      revenge for the killing of that drug dealer. Understand and this is
      critically important [:] [Appellant] is not charged with the killing of
      anyone other than [Sheetz] and has never been charged with the killing
      of anybody other than [Sheetz]. [Appellant] is also not and I emphasize
      the word not, charged with selling cocaine. Additionally, there is
      absolutely no evidence that the victim in this case, [Sheetz], is
      responsible for killing anyone else. You may not and must not consider
      that [Appellant] or the victim in this case [Sheetz] were guilty of any
      other crime. Were you to do so you would be making a mockery of our
      system of justice because your verdict would not be based upon
      evidence, but upon speculation without any evidentiary support. Is there
      anyone on this jury who has any doubt that they can and will and must
      follow this instruction? Anyone? Okay, let’s proceed.

N.T. Trial, 1/9/19, at 3-4.




                                      -3-
J-S29015-20


       Several other witnesses testified over the next three days, including

Detective Thomas Scarpato, one of the investigating detectives in the Sheetz

murder case. Detective Scarpato’s department had also been involved with

the Mills murder case. The Commonwealth asked Detective Scarpato if the

police had ever been able to develop any suspects in the murder of Mills, and

the detective replied that they had not. See id. at 72. Following the trial, the

jury convicted Appellant of, inter alia, first-degree murder. The trial court

subsequently sentenced him to life in prison without parole plus 8 1/2 to 17

years of incarceration.

       Appellant filed a post-sentence motion, claiming, inter alia, that the

court abused its discretion in failing to grant a mistrial based on the

prosecutor’s alleged misconduct in intentionally eliciting the testimony from

Purnell that he suspected Appellant had killed Mills. However, because the

prosecutor in Appellant’s case was unavailable to testify at the post-sentence

motion hearing, she provided responses to written interrogatories submitted

by Appellant. Following the hearing and the submission of the written

interrogatories and responses,1 the trial court denied Appellant’s post-

____________________________________________


1 Appellant has included these interrogatories and the responses to those
interrogatories in the reproduced record and the trial court refers to them as
“Defendant’s Interrogatories and the Commonwealth’s Responses Thereto
Submitted as Exhibit B.” See Trial Court Opinion, 8/6/19, at 14. The
interrogatories and responses do not, however, appear to be part of the
certified record. However, there is an entry in the docket on May 31, 2019 for
these documents, and there is no challenge as to the content of either the
interrogatories or the responses.


                                           -4-
J-S29015-20


sentence motion. Appellant filed a timely notice of appeal. Appellant complied

with the trial court’s instruction to file a statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) and the trial court issued its Pa.R.A.P.

1925(a) opinion in response to that statement.

      In this appeal, Appellant continues to maintain that the trial court erred

by not granting his motion for a mistrial on the basis of Purnell’s testimony

that he suspected Appellant killed Mills. He argues, in the first instance, that

a mistrial was warranted because the prosecutor intentionally elicited this

prejudicial   testimony   and   this   amounted   to   intentional   prosecutorial

misconduct. This claim fails.

      The granting of a mistrial is a matter vested in the sound discretion of

the trial court. See Commonwealth v. Jones, 668 A.2d 491, 503 (Pa. 1994).

It is an extreme remedy that is only required when the trial court determines,

in its discretion, that an alleged prejudicial event is “of such a nature that its

unavoidable effect is to deprive the appellant of a fair and impartial trial.”

Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super. 2012)

(citation omitted). In making its determination, the trial court “must discern

whether misconduct or prejudicial error actually occurred, and if so, … assess

the degree of any resulting prejudice.” Id. This Court’s review of the trial

court’s ruling on a motion for a mistrial is limited to determining whether the

trial court abused its discretion. See id.




                                       -5-
J-S29015-20


      Prosecutorial misconduct is not grounds for a mistrial unless the

unavoidable effect of the prosecutor’s actions was to prejudice the jurors,

forming in their minds a fixed bias and hostility toward a defendant so that

they were incapable of weighing the evidence objectively and rendering a true

verdict. See Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa. 1995). A

claim of prosecutorial misconduct must be viewed in light of the entire context

in which the alleged misconduct arose. See id. at 235.

      Here, Appellant alleges that Purnell’s challenged “testimony had to have

been intentionally elicited by the Commonwealth,” and asks “Why else would

the Commonwealth ask the question that resulted in Purnell’s improper

testimony?” Appellant’s Brief at 10-11. In addressing this claim and this

question below, the trial court stated:

             The assistant district attorney who represented the
      Commonwealth at both trials provided written interrogatories in
      lieu of testifying at [Appellant’s] post-sentence motion hearing. In
      response to [Appellant’s] inquiry concerning her discussions with
      [ ] Purnell in preparation for his testimony for the second trial the
      prosecutor stated that she reviewed, inter alia, [ ] Purnell’s
      testimony on cross-examin[ation] from the first trial and that they
      discussed a series of questions where defense counsel confronted
      [Purnell] ‘about whether [Purnell] believed that Sheetz killed
      Eshon Mills.’ [ ] Purnell told the prosecutor that initially he believed
      [Appellant’s] explanation that Sheetz shot [Mills]. Eventually he
      came to believe that [Appellant] shot and killed [Mills]. [ ] Purnell
      had no factual basis for his belief ‘other than an apparent change
      in [Appellant’s] behavior following [Mill]’s death.’ In light of this
      the prosecutor instructed [ ] Purnell that he was not to testify as
      to his suspicion at trial. The prosecutor stated that her expectation
      was, that in response to her question regarding his delay in
      coming forward, [ ] Purnell would discuss the charges against him
      that were open at the time he gave the statement and the
      circumstances of his plea since these matters were used to attack

                                       -6-
J-S29015-20


      Purnell’s credibility during the first trial. At trial she attempted to
      elicit this testimony on direct examination anticipating, after the
      first trial, that the defense strategy would focus on [ ] Purnell’s
      open cases and suggest that he had received consideration on
      those cases. …

             The prosecutor did not intentionally elicit [Purnell’s
      objectionable] testimony. She prepared [ ] Purnell for the second
      trial and instructed him directly and unequivocally that he was not
      to testify that he suspected that [Appellant] killed [Mills]. The
      prosecutor’s intent to address the vulnerabilities in … Purnell’s …
      credibility in an anticipatory fashion is evidenced by the fact that
      the prosecutor[ ] who represented the Commonwealth in [the]
      criminal case that [was] open at the time [ ] Purnell [ ] came
      forward [was] called to explain the outcome of [the] criminal
      proceeding [and that when she negotiated Purnell’s plea in that
      proceeding she was unaware that Purnell was a witness in the
      instant case]. [She was] not called during the first trial. In cross-
      examination at [the first trial], [defense] counsel suggested that
      because [ ] Purnell gave his statement in March 2017 when he
      was incarcerated the statement was a way for Purnell to obtain a
      quick release [from jail]. … In [his] opening argument at the
      second trial[,] defense counsel again argued, and at greater
      length, that [ ] Purnell offered his statement in exchange for a
      release from jail. The strategy employed by [defense] counsel
      lends credence to the prosecutor’s explanation that she posed the
      question concerning Purnell’s delay in coming forward after
      preparing him for cross-examination regarding his motive for
      offering evidence and after explicitly instructing him not to
      express his belief that [Appellant] killed [Mills].

Trial Court Opinion, 8/6/19, at 13-15 (citations omitted) (footnotes omitted).

      The trial court’s findings are supported by the record and we see no

error in its conclusion that based on that record, the prosecutor did not

intentionally elicit Purnell’s testimony that he came forward because he

believed Appellant killed Mills. Instead, as the trial court found, the prosecutor

specifically instructed Purnell not to give any testimony about those suspicions

and there is no evidence that her question was intended to contradict her own

                                       -7-
J-S29015-20


instructions and prompt Purnell to do so. See Commonwealth v. Graham,

109 A.3d 733, 737-738 (Pa. Super. 2015) (finding that no prosecutorial

misconduct took place when the prosecutor’s question, which did not directly

or indirectly ask about any unrelated criminal activity but which “could have

been worded … more carefully,” did not prompt Commonwealth witness’s

testimony that the defendant had sexually molested another person in

addition to the victim for whom he was on trial for sexually molesting).2

       Appellant argues, however, that even if the prosecutor did not intend to

elicit Purnell’s objectionable testimony, a mistrial was still warranted because

the testimony constituted improper and unduly prejudicial evidence of prior

criminal activity and the curative instruction issued by the trial court did not

cure the prejudice stemming from that testimony. This claim also fails.

       Evidence of prior crimes may not be presented at trial to establish the

defendant’s criminal character or proclivities. See Commonwealth v.


____________________________________________


2 Appellant also tacks on a one-sentence assertion that the prosecutor at least
recklessly elicited Purnell’s objectionable testimony and that a mistrial should
have been granted on this basis. In the first place, Appellant does not cite to
any case law in support of this claim nor does he develop it in any meaningful
way. The claim is therefore waived. See Commonwealth v. Love, 896 A.2d
1276, 1287 (Pa. Super. 2006) (stating that arguments which are not
sufficiently developed are waived). Even if Appellant had not waived this claim,
we fail to see how the prosecutor acted recklessly when the trial court
specifically found that she “directly and unequivocally” instructed Purnell to
avoid the testimony at issue and that her question was not meant to prompt
that testimony. Trial Court Opinion, 8/6/19, at 14.




                                           -8-
J-S29015-20


Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). However, 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 that it is to disregard the evidence. See id. Our Supreme Court has

clearly stated that a mistrial is not necessary if the trial court gives an

adequate cautionary instruction. See Commonwealth v. Bryant, 67 A.3d

716, 728 (Pa. 2013). Moreover, the law presumes that the jury will follow a

trial court’s curative instruction. See Jones, 68 A.2d at 504.

       Here, in addressing the prejudicial effect of Purnell’s objectionable

testimony, the trial court noted that the testimony was only a brief reference

and that the prosecutor had not subsequently referenced the testimony or

exploited it in any way.3 In fact, as the Commonwealth points out, the

prosecutor later undermined Purnell’s testimony regarding his suspicions that

Appellant killed Mills when she elicited testimony from Detective Scarpato that

there had never been any suspects in the Mills’ murder case. The trial court

then noted that it gave a strongly worded cautionary instruction to the jury

____________________________________________


3 Appellant argues that the trial court’s characterization of the reference as
brief is inaccurate because Purnell referred to Appellant killing Mills and then
did so again in response to the defense counsel’s statement that he could not
hear what Purnell said. See N.T., 1/8/19, at 110. It is true that there were
issues regarding noise in the courtroom and the difficulty in hearing Purnell
throughout his testimony. See id. at 98, 104, 123, 126 and 134. However, as
the Commonwealth argues, the fact that the courtroom was noisy during
Purnell’s references, if anything, only served to lessen the risk of prejudice.
Moreover, Appellant does not contend that Purnell repeated this testimony at
any time after this exchange.


                                           -9-
J-S29015-20


that it was not to consider Purnell’s testimony that he believed Appellant killed

Mills, and determined that this instruction cured any residual prejudice

resulting from that testimony.

      We see no error in the trial court’s determination. In its instruction, the

court made clear to the jury that it was to disregard Purnell’s testimony that

Appellant had killed Mills and that Appellant had never been charged with the

killing of anybody other than Sheetz, the victim in that case. The court

instructed the jury in no uncertain terms that it must not consider that

Appellant was guilty of any other crime. The trial court specifically asked if

there was any member of the jury who had any doubt that he could and must

follow the court’s instruction in this regard and not one juror responded. The

jury gave no indication that it did not follow this instruction, and the law is

clear that it is presumed that the jury did so. See Jones, 68 A.2d at 504.

      Appellant complains, however, that this instruction was insufficient to

cure the prejudice caused by Purnell’s testimony because the court did not

issue the instruction until the morning after Purnell testified. We disagree.

      As the trial court noted, when Purnell offered his unsolicited testimony

that he believed Appellant killed Mills, defense counsel objected. The trial court

sustained counsel’s objection, and cautioned the jury that it could not put any

credence into the objected-to testimony. After Purnell finished testifying, the

trial court called counsel for a sidebar, where defense counsel and the

prosecutor informed the court that they were uncertain as to exactly what


                                     - 10 -
J-S29015-20


Purnell had said in terms of the challenged testimony due to the noise in the

courtroom. See N.T. Trial, 1/8/19, at 133-134. Both counsel agreed to review

the tape of Purnell’s testimony at issue after the testimony of the next witness,

who was the final one of the day. See id. at 133-135. After that witness

testified, and after the jury was dismissed for the day, the tape of Purnell’s

testimony was replayed for counsel. See id. at 152-153. Defense counsel then

renewed his motion for a mistrial, and in response, the court asked defense

counsel for a proposed curative instruction to address the objectionable

testimony. See id. at 154-156.

      First thing the following morning, before any testimony resumed, the

court gave the jury the instruction quoted above, unequivocally telling the jury

that it was not to consider Purnell’s testimony regarding any unrelated crimes

he believed Appellant had committed. Under these circumstances, we see no

abuse of discretion in the trial court’s determination that its instruction, which

the jury is presumed to have followed, cured any prejudice resulting from

Purnell’s unsolicited testimony and that a mistrial was not required. See

Commonwealth v. Dennis, 715 A.2d 404, 410 (Pa. 1998) (finding that a

cautionary instruction delivered the day after the admission of improper

evidence regarding the defendant’s motive was “presumed to be sufficient to

cure any prejudice to” the defendant).




                                     - 11 -
J-S29015-20


      Appellant argues that Commonwealth v. Roman, 351 A.2d 214 (Pa.

1976), compels the contrary conclusion that the trial court did in fact abuse

its discretion in not granting his motion for a mistrial. It does not.

      Roman involved the Commonwealth’s intentional introduction of prior

instances of the defendant’s criminal activity at the defendant’s trial for

second-degree murder. In Roman, the trial court ruled at trial that the

Commonwealth was allowed to present testimony that the defendant shot his

gun at a woman’s feet, stole and killed a calf with a hammer and assaulted a

fellow gang member because, according to the trial court, this evidence

showed the defendant’s propensity for violence. See id. at 220-221. On

appeal, the Commonwealth argued that the evidence had been admissible to

show the defendant’s motive and to show that the defendant’s previous violent

behavior incited his fellow gang members to commit the murder at issue. See

id. at 219. The Supreme Court disagreed, finding that the trial court had

admitted the evidence for an improper purpose and that the evidence did not

tend to establish the defendant’s intent or motive to predispose the group to

murder. See id. at 219-221.

      Roman is, in the words of the Commonwealth, “not instructive in this

matter at all,” Commonwealth’s Brief at 19, and simply does not alter our

conclusion that the trial court did not abuse its discretion in denying

Appellant’s motion for a mistrial in materially different circumstances from

those in Roman. No relief is due.


                                      - 12 -
J-S29015-20


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




                                 - 13 -
