J-S26036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
JESSE DOUGLAS MELNICK,                   :
                                         :
                     Appellant           :     No. 2018 EDA 2015

             Appeal from the Judgment of Sentence June 2, 2015
            in the Court of Common Pleas of Montgomery County
            Criminal Division, at No(s): CP-46-CR-0006790-2014

BEFORE:    OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED MAY 17, 2016

      Jesse Douglas Melnick (Appellant) appeals from the judgment of

sentence imposed following his convictions for driving under the influence of

a controlled substance (DUI) and the summary offense of disregarding a

traffic lane. Upon review, we affirm.

      The trial court summarized the background underlying this matter as

follows.

             On May 16, 2014 at approximately 5:38 p.m.,
      Pennsylvania State Police Trooper Michael Perillo [(Trooper
      Perillo)] was dispatched to Interstate 76-West (“I-76W”) due to
      reports of erratic driving. Reportedly, Appellant drove his blue
      Volvo past other drivers, struck the center concrete barrier and
      continued driving.     Appellant’s driving continued to pose a
      danger to other drivers as he nearly struck two vehicles and
      crossed rumble strips. As Appellant proceeded onto State Route
      422 West, he almost struck the guardrail while navigating the
      ramp. Once on the roadway, Appellant drifted out of his lane
      and struck a white Dodge Caravan driven by Derek Beeks



*Retired Senior Judge assigned to the Superior Court.
J-S26036-16


     [(Beeks)].      At the time of the accident, … Beeks’
     four[-]year[-]old granddaughter was a passenger in the vehicle.

           Trooper Perillo arrived at the scene of the accident, where
     he discovered that both vehicles were disabled. Trooper Perillo
     approached Appellant’s vehicle and immediately noticed
     Appellant’s bloodshot eyes, slurred speech and sluggish
     movement. Trooper Perillo also noticed that Appellant’s pupils
     were constricted. An ambulance was called to the scene to
     provide medical attention. Out of concern for Appellant’s safety,
     Trooper Perillo placed him in the back of his patrol car. An
     internal vehicle recording device recorded Appellant while he sat
     in the back of the patrol car.

           Eventually, Appellant was evaluated by medical personnel
     who determined that Appellant did not suffer underlying medical
     effects from the crash; Appellant declined further medical
     treatment. Having concluded that Appellant’s impairment was
     drug related, Trooper Perillo placed Appellant under arrest for
     [DUI]. Trooper Perillo requested that Appellant submit to a
     blood test and read him the O’Connell warnings.1          Appellant
     signed the DL-26 form containing the penalties for refusing
     chemical testing and then refused to provide a blood sample.
           ______
           1
              The phrase “O’Connell warnings” means the
           officer must specifically inform a motorist that his
           driving privileges will be suspended for one year if he
           refuses chemical testing, and that the rights
           provided by the United States Supreme Court’s
           decision in Miranda v. Arizona, 384 U.S. 436
           (1966), do not apply to chemical testing.

           On July 2, 2014, Appellant was charged with [the above
     offenses].

           On April 27, 2015, th[e trial] court held a suppression
     hearing and decided motions in limine. Th[e trial] court denied
     Appellant’s suppression motion and decided the motions in
     limine as follows:

           1. The Commonwealth’s four civilian witnesses were not
           allowed to render an opinion on whether Appellant was
           DUI.



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           2. Trooper Perillo was not allowed to testify as an expert,
           but was permitted to offer a lay opinion as to whether he
           believed Appellant was DUI.

           3.    The defense was not allowed to use … Be[e]ks’
           thirty[-]year[-]old conviction for the purposes of
           impeachment.

            After the initial hearing, a two[-]day jury trial began on
     April 27, 2015. During voir dire, th[e trial] court introduced
     Appellant’s trial counsel, John Kravitz (“trial counsel”), to the
     jury panel and stated that he worked for the public defender’s
     office.    Trial counsel moved for a mistrial based on this
     identification, which th[e trial] court denied. Later that day, the
     trial commenced.

           On April 28, 2015, the jury found Appellant guilty of [DUI].
     After the jury rendered its verdict, th[e trial] court found
     Appellant guilty of the summary offense and modified his bail to
     include a condition that he was not to drive.

            On June 2, 2015, th[e trial] court sentenced Appellant to
     undergo incarceration of no less than 15 months and no more
     than 60 months. Appellant contested the amount of restitution
     requested by the Commonwealth and th[e trial] court ordered a
     restitution hearing for July 9, 2015.

            On July 2, 2015, Appellant filed [his] notice of appeal. Due
     to the timing of the notice of appeal, th[e trial] court was
     divested of jurisdiction and unable to order restitution. Th[e
     trial] court ordered Appellant to file and serve a concise
     statement [of errors complained of on appeal pursuant to
     Pa.R.A.P. 1925(b)] within 21 days of July 7, 2015. On July 16,
     2015, th[e trial] court granted Appellant’s request for an
     extension of time to file his concise statement.

           On August 11, 2015, a concise statement was filed in the
     clerk of courts and served upon the Commonwealth. On August
     24, 2015, th[e trial] court informed appellate counsel that it
     would entertain an amended concise statement. Appellant’s
     amended concise statement was filed on August 27, 2015 and
     again was served only on the Commonwealth.



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Trial Court Opinion (TCO), 9/16/2015, at 1-3 (unnecessary capitalization and

some citations omitted).

      As a preliminary matter, the trial court and the Commonwealth note

that, although Appellant timely filed his Rule 1925(b) statement, he failed to

serve it on the trial court. See Pa.R.A.P. 1925(b)(1) (“Appellant shall file of

record the Statement and concurrently shall serve the judge.”). Moreover,

the trial court takes the position that, even if Appellant’s failure to serve the

court with his statement is not fatal, the statement does not provide the

court “with meaningful direction to distinguish important issues,” as it

“contains nine numbered issues that are generally vague, not preserved for

appeal, or are based on misrepresentations of the facts.” TCO, 9/16/2015,

at 6. Based on the foregoing, the trial court and Commonwealth argue that

Appellant’s issues should be found waived on appeal.

      Upon review, it is clear that the trial court received Appellant’s Rule

1925(b) statement despite his failure to serve it upon the court, as the court

proceeded to address the individual issues raised therein in its opinion issued

pursuant to Pa.R.A.P. 1925(a).      Given that the court received Appellant’s

Rule 1925(b) statement and addressed the issues raised therein on an

individual basis, we decline to find a wholesale waiver of Appellant’s claims.




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      We first consider Appellant’s claims related to instances in which the

trial court denied his request for a mistrial.     In so doing, we note the

following standards which govern our review of such claims:

         In criminal trials, 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 interest 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. 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.

      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.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal

quotation marks and citation omitted).

      Appellant first argues that the trial court erred in denying his motion

for a mistrial or new jury panel on the basis that, during voir dire, the trial

court noted that Appellant’s trial counsel was a public defender. Appellant




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essentially claims that this reference prejudiced the jury against him

because of the generally negative perceptions and stereotypes the public at

large associates with public defenders.

      In Commonwealth v. Palm, 903 A.2d 1244 (Pa. Super. 2006), this

Court addressed the issue of “whether the trial court erred in refusing to

dismiss the jury panel upon objection when defense counsel was identified

as a public defender” by a prospective juror during voir dire. Id. at 1245-

46.   Upon this disclosure, the public defender requested a mistrial on the

basis that the disclosure prejudiced the appellant, and “[t]he trial judge

noted this exception but refused to vacate the jury pool.” Id. at 1245. The

prospective juror “was eventually dismissed [and the public defender] did

not investigate whether any of the other prospective jurors would be tainted

by the juror’s reference[,] nor did the trial judge issue any type of

instruction to the other jurors.” Id. at 1245-46.

      In rejecting Palm’s claim, this Court held that “any reference to

counsel as the public defender is insignificant and does not violate equal

protection.” Id. at 1247. This Court explained that, “[f]urthermore, nothing

in the record indicates that the jury panel was tainted. Counsel’s request for

a new jury panel was denied but he was permitted to ask the prospective

jurors if they would still be impartial after learning the defense attorney was

a public defender. Counsel failed to do so.” Id.




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      Given Palm’s holding, we likewise conclude that the trial court’s

reference to Appellant’s trial counsel as a public defender was “insignificant.”

See id.   In so doing, we note that in denying counsel’s motion, the trial

court indicated that it would ask the jurors “if knowing or having heard [its]

reference to the defendant’s financial status, if they feel they can still be fair

and impartial jurors.”     N.T., 4/27/2015, at 6.      Appellant’s trial counsel

responded, “I would request the [c]ourt not belabor it.       If the [c]ourt has

turned down my motion for a new panel or mistrial at this point, I would

request no discussion or any further discussion of it be had.” Id. at 6-7.

Thus, Appellant is not entitled to relief on this claim.1

      We next address Appellant’s argument that the trial court erred in

denying his motion for a mistrial based upon a violation of the sequestration

order that was put in place at the beginning of trial.         Appellant’s issue

relates to the following testimony provided by Commonwealth witness Adam

Joshua Slavin (Slavin) on cross-examination:

            [Appellant’s Trial Counsel]:     Now, before you testified
               today is it correct that you were sitting in a room across
               the hall?

            [Slavin]: Yes.




1
 Appellant’s attempt to distinguish this case from Palm by noting that Palm
was decided in the context of a situation wherein counsel was seeking to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), is
unavailing.



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            [Appellant’s Trial Counsel]: And all the other witnesses
               were in the same room, correct?

            [Slavin]: Sure were.

            [Appellant’s Trial Counsel]:   Did you chat about the case
               while you were waiting?

            [Slavin]: There was a time when, you know, one of the
               witnesses had mentioned something, and so yes.

N.T., 4/27/2015, at 44.

      Trial counsel did not object at this point, but rather proceeded to

cross-examine Slavin about matters relating to Appellant’s driving on the

day in question. Id. at 44-45. Thereafter, Slavin was excused, Beeks was

called as a witness, and, following his testimony, the jury was adjourned for

the day. Id. at 45-56. Indeed, Appellant’s counsel did not make his motion

for a mistrial based upon a purported sequestration order violation until the

following morning.   N.T., 4/28/2015, at 3.     Pennsylvania Rule of Criminal

Procedure 605, relating to mistrials, specifically states that “the motion shall

be made when the [allegedly prejudicial] event is disclosed.”       Appellant’s

motion therefore was made untimely. See Commonwealth v. Randolph,

421 A.2d 469, 471 (Pa. Super. 1980) (concluding that a motion for mistrial

was made untimely when defense counsel did not move for a mistrial at the




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time the prejudicial event complained of occurred, but instead made it one

day later). Thus, Appellant has waived his claim for appellate review.2

      We now turn to Appellant’s next issue, which we set forth verbatim as

presented in his statement of questions:

      The trial court erred in denying the motion for mistrial after a
      motion in limine was granted that the witnesses should give no
      opinion as to whether Appellant was impaired and yet the
      prosecution elicited such testimony. The trial court erred in
      allowing the conclusory opinion testimony as to impaired driving
      rather than restricting the testimony to observational
      details. The trial court erred in allowing the trooper to claim
      Appellant was impaired based on his pupils allegedly being
      constricted. The trooper admittedly was not an expert on such
      matters.     The     prosecution    utilized  the    constricted
      pupil/impairment argument in his closing to suggest that
      Appellant had used controlled substances rather than merely
      drowsy from lack of sleep.

Appellant’s Brief at 9 (unnecessary capitalization omitted).

      The trial court concluded that it was unable to address Appellant’s

issue and that it was waived “due to a lack of cohesion and clarity.” TCO,

9/16/2015, at 9-10; see Commonwealth v. Ray, __ A.3d __, 2016 WL

638845, at *3 (Pa. Super. filed February 17, 2016) (“[T]he Pa.R.A.P.

1925(b) statement must be sufficiently ‘concise’ and ‘coherent’ such that the

2
 Appellant attempts to avoid waiver based upon Commonwealth v. Smith,
346 A.2d 757 (Pa. 1975), wherein the Pennsylvania Supreme Court held that
“where … the violation of a sequestration order is revealed at the beginning
of cross-examination, there is no waiver in counsel’s making motions based
on the violation at the end of his cross-examination of the witness.” Id. at
760; id. at 759 n.4 (“A motion for a mistrial made at the close of cross-
examination, under the facts as given here, is timely ….”). As demonstrated
above, Appellant waited to make his motion until the following morning and
after one additional witness had testified.


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trial court judge may be able to identify the issues to be raised on

appeal….”). We disagree that the claims of error lack sufficient clarity, but

nonetheless conclude that Appellant has waived them.

      “The failure to develop an adequate argument in an appellate brief

may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth

v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015). Appellant utterly fails

to develop any meaningful legal argument and, aside from one citation to a

case relating to whether Appellant preserved his issue at trial, does not cite

any authority in support of his claims. Accordingly, we hold that Appellant’s

issue is waived. See Freeman, 128 A.3d at 1249 (explaining that the

appellant “ha[d] made no effort whatsoever to discuss the applicable law or

link the facts of his case to that law” and concluding that “[h]is failure to

develop a coherent legal argument in support his claim results in waiver of

[]his issue”); Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super.

2006) (finding waiver where the appellant “fail[ed] to offer either analysis or

case citation in support of the relief he seeks” and admonishing that “[i]t is

not this Court’s    function or   duty   to   become   an advocate    for   the

appellant[]”).

      We next address Appellant’s argument that the trial court erred in

granting the Commonwealth’s motion to exclude Beeks’s 1984 conviction for

retail theft.




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      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. A trial court has broad discretion to determine whether
      evidence is admissible, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous. If the evidentiary question is purely one of law, our
      review is plenary.

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014)

(internal quotation marks and citations omitted).

      Pennsylvania Rule of Evidence 609 provides, in pertinent part, that

evidence of a witness’s prior conviction older than ten years is admissible

only if “(1) its probative value substantially outweighs its prejudicial effect;

and (2) the proponent gives an adverse party reasonable written notice of

the intent to use it so that the party has a fair opportunity to contest its

use.” Pa.R.E. 609(b).

      It is undisputed that Beeks’s retail theft conviction constitutes crimen

falsi, Commonwealth v. Howard, 823 A.2d 911, 913 n.2 (Pa. Super.

2003), and that Beeks’s conviction is more than ten years old for purposes

of Rule 609.    Appellant challenges the court’s conclusion with respect to

weighing the conviction’s probative value against its prejudicial effect.

      In its Rule 1925(a) opinion, the trial court explained as follows.

      Based on the minor nature of the crime and the fact that …
      Beeks had no further convictions, th[e] court believed the
      probative value of the conviction was negligible. Introduction of
      the thirty[-]year[-]old conviction would detrimentally distract
      from the facts of the case, resulting in a prejudicial effect.



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      Accordingly, th[e] court found that the probative value did not
      substantially outweigh the prejudicial effect and precluded its
      introduction.

TCO, 9/16/2015, at 8. Upon review, we conclude that the trial court did not

abuse its discretion in reaching its conclusion. Thus, Appellant is not entitled

to relief on this claim.

      In his last issue, Appellant argues that the prosecutor engaged in two

instances of prosecutorial misconduct during his closing argument.

            Our standard of review for a claim of prosecutorial
      misconduct is limited to whether the trial court abused its
      discretion. In considering this claim, our attention is focused on
      whether the defendant was deprived of a fair trial, not a perfect
      one.

         [A] prosecutor’s arguments to the jury are [generally] not
         a basis for the granting of a new trial unless the
         unavoidable effect of such comments would be to prejudice
         the jury, forming in their minds fixed bias and hostility
         towards the accused which would prevent them from
         properly weighing the evidence and rendering a true
         verdict.

         A prosecutor must have reasonable latitude in fairly
         presenting a case to the jury and must be free to present
         [his] arguments with logical force and vigor. The
         prosecutor is also permitted to respond to defense
         arguments. Finally, in order to evaluate whether the
         comments were improper, we do not look at the comments
         in a vacuum; rather we must look at them in the context in
         which they were made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (internal

quotation marks and citations omitted).




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      First, Appellant contends that the prosecutor improperly argued

Appellant was suffering from narcolepsy, rather than insomnia as alleged, to

prove that Appellant was lying about not ingesting any intoxicating

substances.    Appellant’s Brief at 45; see also N.T., 4/28/2015, at 66.

Appellant argues that the prosecutor could not suggest Appellant was lying

on the basis that he was actually suffering from narcolepsy without putting

on evidence as to the difference between the two conditions.          Appellant’s

Brief at 45.    Appellant also takes issue with statements made by the

prosecutor with regard to his personal observations of Appellant at trial,

contending, in essence, that the prosecutor improperly asked the jurors to

credit those observations.     Appellant’s Brief at 46, 52; see also N.T.,

4/28/2015, at 70.

      In rejecting Appellant’s claims, the trial court explained that, inter alia,

“any prejudice created by the prosecution’s closing argument[] was

mitigated by th[e trial c]ourt’s cautionary instruction and the error is

harmless.”     Id. at 12.    That instruction provided, in relevant part, as

follows:

            You should bear in mind in your deliberations that the
      argument of counsel are an important and essential ingredient in
      our legal system. You should carefully consider and evaluate the
      opposing contentions that were presented to you by counsel.
      However, neither the opening statements nor closing arguments
      of counsel constitute the law that you will apply in this case, nor
      are they part of the evidence. You should not consider them as
      such.




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            In deciding your case, you should carefully consider the
      evidence in light of the various reasons and arguments that each
      lawyer presented. It is the right and duty of each lawyer to
      discuss the evidence in a manner that is most favorable to the
      side that they represent. You should be guided by each lawyer’s
      argument to the extent that they are supported by the evidence
      and insofar as they aid you in applying your own reason and
      common sense. However, you are not required to accept the
      arguments of the lawyer. It is for you and you alone to decide
      the case based on the evidence as it was presented from the
      witness stand and in accordance with the instructions that I am
      now giving you.

             The personal beliefs of counsel, if expressed, with regard
      to the evidence, its weight or effect [are] of no moment,
      because it’s your unique function in this trial as the sworn jury to
      collectively find the true facts from the evidence presented. If
      counsel in their closing argument say something is a fact that
      you don’t recall as a fact, you should ignore what they said to be
      a fact, because it is your collective recollection that controls with
      regard to the facts of this case. You are the sole and exclusive
      triers of fact.

            Now, as the sole judges of facts, you are sole judges of the
      credibility of the witnesses and their testimony....

N.T., 4/28/2015, at 74-76.

      Assuming arguendo that there was any misconduct as alleged, we

agree with the trial court that any prejudice suffered by Appellant was

mitigated by the court’s instructions to the jury.    See Commonwealth v.

Passarelli, 789 A.2d 708, 713 (Pa. Super. 2001) (“Furthermore, our law

presumes that juries follow the trial court’s instructions as to the applicable

law. Thus, any prejudicial effect from the prosecutor’s statement was cured

by the trial court’s general cautionary instruction to the jury.”) (citation

omitted). Because we discern no abuse of discretion, Appellant’s claim fails.



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     Based on the foregoing, Appellant is not entitled to relief. Accordingly,

we affirm the judgment of sentence.

     Judgment of Sentence affirmed.

     Judge Stabile joins.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/17/2016




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