J-S64019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DINO DAGOSTINO                            :
                                           :
                    Appellant              :   No. 1895 EDA 2017

            Appeal from the Judgment of Sentence May 18, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0006001-2016,
            CP-51-CR-0008114-2016, CP-51-CR-0009105-2012,
                          CP-51-CR-0013426-2012


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 13, 2018

      Appellant, Dino Dagostino, appeals from the judgment of sentence

entered on May 18, 2017 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

      Briefly, the facts and procedural history in this case are as follows.

Between 2012 and 2016, Appellant was arrested and charged with offenses

at four trial court dockets. The charges arose from sexual assaults Appellant

perpetrated against his young step-daughters, G.C. and A.B., and their

childhood friend, S.T. At the conclusion of trial on March 8, 2017, a jury found

Appellant guilty of rape and related offenses. On May 16, 2017, the trial court

sentenced Appellant to an aggregate term of 27 to 64 years’ confinement,

followed by 15 years’ state supervised probation.
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       On May 26, 2017, Appellant filed post-sentence motions, which the trial

court denied on June 8, 2017. A notice of appeal followed on June 14, 2017.1

Pursuant to the trial court’s Rule 1925(b) order, Appellant filed his concise

statement of errors complained of on appeal on July 7, 2017. Appellant filed

a supplemental concise statement on November 15, 2017. The trial court

issued its Rule 1925(a) opinion on November 22, 2017.

       Appellant raises the following claims in his brief:

       Whether the trial court erred in sentencing Appellant to 27 to 64
       years of confinement despite his lack of a criminal record and
       mitigation [evidence] presented at the sentencing hearing[?]

       Did the trial court err when it:


____________________________________________


1 We note that the trial court imposed judgment of sentence upon Appellant
on May 18, 2017 at four separate docket numbers. Counsel for Appellant filed
a post-sentence motion at each docket number, listing all four docket
numbers. On June 8, 2017, the trial court denied the post-sentence motions.
On June 14, 2017, counsel for Appellant filed a single notice of appeal listing
all four docket numbers.

On June 1, 2018, the Supreme Court of Pennsylvania decided
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) in which the Court
addressed the issue of filing separate notices of appeal when a single order
resolves issues arising in more than one trial court docketed case. The Court
noted that Pa.R.A.P. 341 provides that separate notices of appeal should be
filed in such instances. However, the Court went on to hold, “While we do not
quash the present appeal in this instance, in future cases Rule 341(a) will, in
accordance with its official note, require that when a single order resolves
issues arising on more than one lower court docket, separate notices must be
filed. The failure to do so will result in quashal of the appeal.” Id. at 977
(footnote omitted). The Court provided that this holding was to be applied
prospectively. Id. at 971. Therefore, even though Appellant filed a single
notice of appeal with four separate docket numbers, we will not quash this
appeal as the notice was filed before the Walker case was decided.

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        -   denied Appellant’s request for a mistrial when, during
            closing arguments, the prosecutor told the jury that
            Appellant was never subjected to cross-examination when
            he pled not guilty to the instant charges;

        -   overruled defense counsel’s objection to the prosecutor’s
            closing argument asserting that every day in the
            courthouse reasonable doubt is appropriately defined and
            jurors find defendants guilty after hearing the evidence;

        -   overruled defense counsel’s objection to the prosecutor’s
            closing argument that the complaining witnesses are not
            going to lie about being raped[?]

Appellant’s Brief at 4 (order of claims altered to facilitate ease of discussion).

      In his first claim, Appellant asserts that the trial court abused its

discretion by imposing an excessive sentence without considering Appellant’s

individual history, including his lack of a prior criminal record. Appellant’s

challenge to the discretionary aspects of his sentence is not automatically

subject to appellate review. See Commonwealth v. Antidormi, 84 A.3d

736, 759 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). Before

we may reach the merits of such a claim, we must engage in an analysis to

determine, inter alia, whether Appellant's brief includes a concise statement

of the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of sentence.        See Pa.R.A.P. 2119(f); see also

Antidormi, 84 A.3d at 759 (describing four prerequisites to substantive

review of discretionary sentencing challenge).        “[C]laims relating to the

discretionary aspects of a sentence are waived if an appellant does not include

a Pa.R.A.P. 2119(f) statement in his brief and the [Commonwealth] objects to

the statement's absence.” Commonwealth v. Brougher, 978 A.2d 373, 375


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(Pa. Super. 2009), citing Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.

Super. 2008).    Here, Appellant failed to comply with the requirement of

2119(f) and the Commonwealth has objected to the exclusion of the required

statement. See Commonwealth’s Brief at 12. Therefore, we will not review

the merits of Appellant’s discretionary sentencing challenge.

      Appellant’s second issue raises three distinct claims of prosecutorial

misconduct during closing arguments in support of his request that we vacate

the judgment of sentence and remand for a new trial. Specifically, Appellant

asserts that the Commonwealth, in its closing, made improper reference to

Appellant’s silence at trial, improperly commented upon the reasonable doubt

standard, and improperly bolstered the credibility of the victims.            See

Appellant’s Brief at 11-13.     We address these claims in their order of

appearance, first discussing matters of preservation and waiver and then

substantive merit. Ultimately, we conclude that no relief is due.

      The following standards apply to our review of a trial court's denial
      of a motion for a mistrial:

        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. Judicial discretion requires
        action in conformity with [the] law on facts and
        circumstances before the trial court after hearing and
        consideration. Consequently, the court abuses its discretion
        if, in resolving the issue for decision, it misapplies the law or
        exercises its discretion in a manner lacking reason.

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     Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super.
     2009) (quoting Commonwealth v. Lettau, 955 A.2d 360, 363
     (Pa. Super. 2008) (internal citations and quotations omitted)).
     “The remedy of a mistrial is an extreme remedy required only
     when an incident is of such a nature that its unavoidable effect is
     to deprive the appellant of a fair and impartial tribunal.” Judy,
     978 A.2d at 1019 (citations omitted).

     With regard to a claim of prosecutorial misconduct in a closing
     statement, it is well settled that:

       The prosecutor is allowed to vigorously argue his case so long
       as his comments are supported by the evidence or constitute
       legitimate inferences arising from that evidence. In
       considering a claim of prosecutorial misconduct, our inquiry
       is centered on whether the defendant was deprived of a fair
       trial, not deprived of a perfect one. Thus, a prosecutor's
       remarks do not constitute reversible error unless their
       unavoidable effect ... [was] to prejudice the jury, forming in
       their minds fixed bias and hostility toward the defendant so
       that they could not weigh the evidence objectively and render
       a true verdict.

     Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009)
     (quoting Commonwealth v. Washington, 700 A.2d 400,
     407-408 (Pa. 1997)) (quotation marks omitted). Further, the
     propriety of the prosecution's remarks in closing argument must
     be evaluated in light of defense counsel's comments in closing:

       In determining whether the prosecutor engaged in
       misconduct, we must keep in mind that comments made by
       a prosecutor must be examined within the context of defense
       counsel's conduct. It is well settled that the prosecutor may
       fairly respond to points made in the defense closing.
       Moreover, prosecutorial misconduct will not be found where
       comments were based on the evidence or proper inferences
       therefrom or were only oratorical flair.

                                ******

       It is settled that it is improper for a prosecutor to express a
       personal belief as to the credibility of the defendant or other
       witnesses. However, the prosecutor may comment on the

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         credibility of witnesses. Further, a prosecutor is allowed to
         respond to defense arguments with logical force and vigor.
         If defense counsel has attacked the credibility of witnesses in
         closing, the prosecutor may present argument addressing the
         witnesses' credibility.

      Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005)
      (internal citations and quotations omitted).

Commonwealth v. Ragland, 991 A.2d 336, 340-341 (Pa. Super. 2010),

appeal denied, 4 A.3d 1053 (Pa. 2010).

      In his initial claim of prosecutorial misconduct, Appellant asserts that

the Commonwealth improperly referred to Appellant’s silence in electing not

to testify at trial.   Appellant placed a contemporaneous objection to the

prosecution’s comment on the record but did not request a mistrial until the

prosecutor concluded her remarks. Arguably, defense counsel’s delay waived

this claim. See Pa.R.Crim.P. 605 (“When 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.”).

      Even if this claim is not waived, we conclude that Appellant is not

entitled to relief. During closing argument, defense counsel referred the jury

to Appellant’s declaration that he was not guilty of the charged offenses. In

response, the prosecutor reminded the jury that Appellant’s declaration was

not evidence, adding that Appellant’s declaration was not subjected to

cross-examination. When read in context, the prosecutor’s comment was a

fair retort to the argument raised by defense counsel.




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      Our Supreme Court dealt with a substantially similar issue in

Commonwealth v. Trivigno, 750 A.2d 243 (Pa. 2000). In that case, defense

counsel suggested to the jury that his client’s testimony was unnecessary

because he pled not guilty. In response, the prosecutor reminded the jurors

that no such testimony had been presented at trial.       The Supreme Court

concluded that the prosecutor’s comment was a fair response to the closing

argument made by defense counsel.          Id. at 250.    Appellant seeks to

distinguish Trivigno on grounds that the prosecutor in this case noted that

Appellant’s declaration was not subject to cross-examination.      Contrary to

Appellant’s contention, however, we conclude that the prosecutor’s comment

regarding cross-examination was simply a further explanation to the jury as

to why Appellant’s declaration should not be treated like other testimony or

evidence offered during trial. As such, Appellant is not entitled to relief on

this claim.

      In his second claim of prosecutorial misconduct, Appellant asserts that

the prosecution improperly diluted the reasonable doubt standard by telling

the jurors that juries find defendants guilty “everyday” despite accurate

instructions regarding reasonable doubt. Here too, Appellant arguably waived

this ground for relief by failing to articulate a contemporaneous request for a

mistrial. In any event, no relief is due on this claim. When read in context,

the prosecutor’s comment simply sought to explain to the jury that reasonable

doubt is a high, but not insurmountable, burden.      The prosecutor did not

advise the jury to overlook the standard or offer an inaccurate formulation of

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the governing decisional principle. Because the prosecutor’s comment did not

conjure an adverse bias against Appellant or deprive him of a fair trial, we

conclude that this claim merits no relief.

      In his last claim of prosecutorial misconduct, Appellant asserts that the

district attorney improperly vouched for the credibility of the victims. Again,

leaving aside the issue of waiver in light of Appellant’s failure to cite this

objection as grounds for a mistrial at the time the challenged comment was

made, we conclude that this claim is devoid of merit. Throughout trial and in

his closing argument, defense counsel challenged the credibility of the victims

by calling into doubt the circumstances of their complaints, noting their delay

in reporting Appellant’s abuse, and highlighting possible motivations for their

fabrication of testimony. As such, the prosecutor’s comment that the victims

“would not lie” about the sexual assaults was a fair response to arguments

raised by defense counsel.    The comments, when read in context, did not

purport to place the prestige of government office behind the witnesses but

simply asked the jury to consider the entire setting in which the victims offered

their testimony, including the difficulty of relaying the subject matter in a

public courtroom and the minimal benefit of leveling accusations against a

family member. In sum, Appellant’s final claim of prosecutorial misconduct is

meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/18




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