J-S02036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MYRON LIVELY

                         Appellant                    No. 242 EDA 2015


    Appeal from the Judgment of Sentence entered December 18, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0003637-2012


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 11, 2016

      Appellant Myron Lively appeals from the judgment of sentence entered

by the Court of Common Pleas of Philadelphia County (“trial court”),

following a jury trial that resulted in Appellant being found guilty of robbery

with a deadly weapon under 18 Pa.C.S.A. § 3701(a)(1)(ii). Upon review, we

affirm.

      The facts and procedural history of this case are undisputed. Briefly,

after Appellant was charged with robbery, among other crimes, his case

proceeded to a jury trial. On the first day of his trial, a court crier informed

the parties and the trial court that, during a brief recess, five or six jurors

witnessed the sheriff escorting Appellant from the courtroom.        N.T. Trial,

11/20/13, at 164. As the sheriff was escorting Appellant, he remarked to

Appellant “come on.” Id. At 166. At that time, the jurors were filing into
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the jury room and five or six jurors turned around and observed Appellant

exiting the courtroom with the sheriff.          Id.   Upon learning this, Appellant

timely moved for a mistrial or, in the alternative, an individual voir dire of

the affected jurors. The trial court denied Appellant’s motion. 1 Eventually,

the jury found Appellant guilty only of robbery with a deadly weapon. The

trial court sentenced Appellant to 4 to 8 years’ imprisonment followed by 10

years of probation.       Appellant timely appealed to this Court.         Following

Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that

it had not abused its discretion in denying Appellant’s motion for a mistrial.

Specifically, the trial court found that the jurors accidentally observed

Appellant, who was unrestrained and dressed in civilian clothes, exiting the

courtroom.

       On appeal,2 Appellant raises only a single issue for our review.           He

argues that the trial court abused its discretion in denying his motion for a

mistrial or, alternatively, a voir dire of certain jurors who observed him

being led out of the courtroom by a sheriff.           Appellant’s Brief at 3.   As a

____________________________________________


1
  Appellant declined the trial court’s offer to provide curative instruction to
the jury on this issue.
2
  Our standard of review for the denial of a motion for mistrial is one of an
abuse of discretion. See Commonwealth v. Padilla, 923 A.2d 1189, 1192
(Pa. Super. 2007), appeal denied, 934 A.2d 1277 (Pa. 2007). “It is
primarily within the trial court’s discretion to determine whether a defendant
was prejudiced by the challenged conduct.” Id.



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result, Appellant argues that he suffered irreparable prejudice because he

was denied a fair trial. Id.

      It is settled that “[a]s a general rule, defendants should not be

subjected to physical restraint while in court unless the trial judge has found

such restraint reasonably necessary to maintain order.” Commonwealth v.

Johnson, 500 A.2d 173, 175 (Pa. Super. 1985) (citation omitted).          This

Court, however, has held that “[a] brief accidental sighting of a defendant in

custodial trappings, without more, is not so inherently prejudicial as to

significantly impair the presumption of innocence to which the defendant is

entitled.”   Commonwealth v. Padden, 783 A.2d 299, 313 (Pa. Super.

2001) (quoting Commonwealth v. Neary, 512 A.2d 1226, 1230 (Pa.

Super. 1986)).

      In Commonwealth v. Mayhugh, 336 A.2d 379 (Pa. Super. 1975),

we affirmed the denial of a mistrial where a juror observed the defendant

being brought to the courtroom restrained only by the presence of two

deputy sheriffs, one of whom had a handhold on the defendant. Mayhugh,

336 A.2d at 380-81.     We explained that because the defendant had been

observed “with a minimum of restraint and in the custody of two deputy

sheriffs who remained in the courtroom throughout the trial . . . the degree

of prejudice, if any, resulting from the brief incident was so minute that the

trial judge could properly have determined that a voir dire only would have

served to magnify a minor occurrence.” Id. At 382-83.




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       The instant case is similar to, and less favorable to a defendant than,

Mayhugh.3       Unlike the sheriffs in Mayhugh, there is no indication in the

record before us that the sheriff had a handhold on Appellant as he escorted

Appellant out of the courtroom. As the trial court found, five to six jurors

accidently observed Appellant, while unrestrained, existing the courtroom

with the sheriff.     Thus, as in Mayhugh and consistent with Padden, we

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

Appellant’s motion for mistrial or, alternatively, a voir dire of the affected

jurors.

       To the extent Appellant relies upon Commonwealth v. Keeler, 264

A.2d 407 (Pa. Super. 1970), Commonwealth v. Cruz, 311 A.2d 691 (Pa.

Super. 1973), and Commonwealth v. Henry, 491 A.2d 193 (Pa. Super.

1985), to bolster his argument that the trial court abused its discretion in

failing to declare a mistrial, such reliance is misplaced. Keeler and Henry

concern challenges by defendants who wore their prison garb to trial. Cruz

involves a challenge by a defendant who was observed in handcuffs by

jurors.

       Judgment of sentence affirmed.



____________________________________________


3
  Appellant fails to cite any cases that stand for the proposition that jurors’
accidental observation of an unrestraint defendant in the company of a
sheriff is sufficiently prejudicial to defendant to warrant a mistrial. Indeed,
our review of the law yields no such case.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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