J-S60002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    OSCAR EARL FINK, III                       :
                                               :
                       Appellant               :   No. 963 MDA 2019

          Appeal from the Judgment of Sentence Entered May 9, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005808-2018


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 20, 2019

        Appellant, Oscar Earl Fink, III, appeals from the judgment of sentence

entered on May 9, 2019, in the York County Court of Common Pleas. After

review, we affirm.

        The trial court set forth the relevant facts and procedural history of this

matter as follows:

              On August 31, 2018[,] at approximately 3:00 p.m., Thomas
        Russell, [owner of the] Northern York Grocery Outlet located at
        1500 North George Street in the county of York, became
        suspicious of [Appellant] after observing [Appellant] surveil
        customers while carrying a plain black plastic bag. Acting on his
        suspicion that [Appellant] was stealing merchandise, Mr. Russell
        began to monitor [Appellant] on the store’s security cameras.
        When reviewing the entire security footage, Mr. Russell observed
        [Appellant] concealing merchandise. Mr. Russell waited to see if
        [Appellant] would pay for the merchandise at the register. When

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*   Retired Senior Judge assigned to the Superior Court.
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       [Appellant] exited the store without paying, Mr. Russell
       approached him outside of the store at which time [Appellant]
       handed Mr. Russell the concealed merchandise. When Mr. Russell
       alerted [Appellant] that he called the authorities to investigate the
       retail theft, [Appellant] began to run eastbound on George Street
       toward Super 8 Motel and Mr. Russell immediately pursued on
       foot.

              During the foot pursuit, Mr. Russell dialed 911 to provide a
       description of the perpetrator. Mr. Russell described the
       perpetrator as short, large, and wearing a white t-shirt, shorts,
       and a fishing hat. When Officer Donald Godfrey of the Northern
       York County Regional Police Department responded to the call, he
       observed [Appellant] run inside of the Super 8 Motel. After a brief
       pursuit on foot and by car, Officer Godfrey eventually tackled
       [Appellant] and placed him under arrest.[1] Mr. Russell was
       present at the site of [Appellant’s] arrest and confirmed his
       identity as the person he observed on camera committing theft.

              Ashley Keefer, Esquire, represented [Appellant] during trial
       proceedings. Following a jury trial on May 9, 2019, the jury
       unanimously convicted [Appellant] and the [c]ourt … sentenced
       [Appellant] to six (6) to twenty-four (24) months of confinement
       in a state correctional institution. On May 13, 2019, [Appellant]
       filed a counseled post-sentence motion challenging the weight of
       the evidence adduced at trial and the trial court’s denial of
       [Appellant’s] motion for mistrial. This [c]ourt denied [Appellant’s]
       post-sentence motion by Order on May 16, 2019.

Trial Court Opinion, 7/26/19, at 2-3.          On June 14, 2019, Appellant filed a

timely notice of appeal.       Both the trial court and Appellant complied with

Pa.R.A.P. 1925.

       On appeal, Appellant avers that the trial court abused its discretion when

it denied Appellant’s motion for a mistrial. Appellant’s Brief at 4. Appellant



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1 The Commonwealth charged Appellant with one count of retail theft, 18
Pa.C.S. § 3929(a)(1).

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notes that when he was arrested, he initially refused to provide his name. Id.

at 7. However, police obtained a machine to read Appellant’s fingerprints.

Id.   at 7.   Officer Donald Godfrey testified that when Appellant saw the

fingerprint-reading machine, Appellant provided his name but also said

“[T]here is a warrant.” Id. at 7, 12; N.T., Trial, 5/9/19, at 84. Appellant

asserts that this testimony concerning a warrant revealed to the jury

Appellant’s involvement in other criminal activity requiring a mistrial. Id. at

12. After review, we conclude that Appellant is entitled to no relief.

      A trial court’s denial of a motion for a mistrial is reviewed under an

abuse-of-discretion standard. Commonwealth v. Kerrigan, 920 A.2d 190,

199 (Pa. Super. 2007). “The central tasks confronting the trial court upon the

making of the motion were to determine whether misconduct or prejudicial

error actually occurred, and if so, to assess the degree of any resulting

prejudice.” Id. (citation omitted). When confronted with a motion for mistrial

due to a reference to criminal behavior, “the nature of the reference and

whether the remark was intentionally elicited by the Commonwealth are

considerations relevant to the determination of whether a mistrial is required.”

Id. (quoting Commonwealth v. Guilford, 861 A.2d 365, 370 (Pa. Super.

2004)). “A singular, passing reference to prior criminal activity is usually not

sufficient to show that the trial court abused its discretion in denying the

defendant’s motion for a mistrial.”   Commonwealth v. Parker, 957 A.2d

311, 319 (Pa. Super. 2008).


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       The trial court addressed Appellant’s claim of error as follows:

               In the case at bar, during defense counsel’s cross-
       examination of Officer Godfrey, defense counsel attempted to
       elicit the circumstances surrounding [Appellant’s] disclosure of his
       identity at the time of his arrest and thereafter. (N. T. Trial, May
       9, 2019, pp. 83-84.). In doing so, Officer Godfrey indicated the
       following:

              What happened is we brought in a fingerprint reader,
              which you put your thumb on it and it runs fingerprints
              through the system. As soon as the fingerprint reader
              [entered] the room [Appellant] advised My name is
              Oscar Fink there is a warrant -- I am sorry. My name
              is Oscar Fink.

       (Id., pp. 84-85.).[2] Defense counsel immediately moved for a
       mistrial because the officer repeated a statement made by
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2For context, the relevant exchange between Appellant’s counsel and Officer
Donald Godfrey is set forth in greater detail below:

       Q. Okay. Now, my client tried to run away, correct, or he did run
       away?

       A. From myself?

       Q. From you.

       A. Yes.

       Q. You would agree with me that he was acting clearly belligerent?

       A. Verbally, not physically.

       Q. Okay. But he was acting pretty excited?

       A. No.

       Q. He wasn’t flailing around at all?

       A. No, I handcuffed him immediately so he wasn’t flailing.



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       Q. He didn’t fake a seizure?

       A. Yes.

       Q. He did?

       A. Yes.

       Q. So he wasn’t acting right?

       A. I guess it takes a determination what right might be.

       Q. So you took him to the hospital, correct?

       A. He requested to go to the hospital, correct.

       Q. And you were there for at least three hours?

       A. At least, yes.

       Q. And he did ultimately give you his name after he woke up in
       the hospital, correct?

       A. That is not the chain of events. He ultimately gave up his name,
       but that is not the way it occurred.

       Q. Isn’t that what you said on direct?

       A. No. She asked if he gave his name and I said yes. What
       occurred is he faked seizures, he advised he didn’t know where he
       was, he didn’t know his name. Initially at the scene he would not
       give me his name. He told me he would give me his name once I
       called an ambulance. At the hospital he kept saying he was in
       Lancaster and didn’t know his name.

             What happened is we brought in a fingerprint reader, which
       you put your thumb on it and it runs fingerprints through the
       system. As soon as the fingerprint reader walked in the room he
       advised my name is Oscar Fink there is a warrant -- I am sorry.
       My name is Oscar Fink.



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       [Appellant] indicating “there is a warrant.” (Id.). This [c]ourt
       denied the request. When asked if [Appellant] would like a
       curative instruction, defense counsel unequivocally responded in
       the negative. (Id.). Further, defense counsel did not request any
       curative or other special instruction at the time of the charge
       conference. (Id., p. 93.). The statement, “[T]here is a warrant”
       abruptly came to a halt as Officer Godfrey smoothly redirected his
       own testimony. The trial [c]ourt even noted at the sidebar
       discussion that it was defense counsel, and not the
       Commonwealth, who elicited the statement from Officer Godfrey.
       (Id., pp. 84-85.). This single, passing reference to [Appellant]
       potentially having a past criminal history is not sufficient to prove
       that the trial [c]ourt abused its discretion in denying [Appellant’s]
       motion for mistrial. The statement, “My name is Oscar Fink there
       is a warrant” is not conclusive of any specific person’s past
       criminal history.

Trial Court Opinion, 7/26/19, at 6-7 (some internal quotation marks omitted).

       We agree with the trial court’s analysis. The Commonwealth did not

elicit the testimony in question; rather, it was Appellant’s counsel’s question,

and the trial court stated in a sidebar discussion that Appellant’s counsel was

“trying to put words in the officer’s mouth as to when he got [Appellant’s]

name[.]” N.T., Trial, 5/9/19, at 84-85. The trial court continued: “It really

doesn’t tell the jury anything and I don’t know what the warrant was for, so I

am not going to stop this trial on this testimony.” Id. at 85. The trial court

offered to provide a curative instruction, but Appellant refused. Id.

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              ATTORNEY KEEFER: Objection, can we approach?

              THE COURT: You may approach.

N.T., Trial, 5/9/19, at 82-84.




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       After review, we cannot conclude that Officer Godfrey’s errant

statement, wherein he mentioned the word “warrant,” deprived Appellant of

a fair trial, and we discern no prejudice.3 Accordingly, there was no abuse of

discretion in the trial court’s denial of Appellant’s motion for a mistrial, and we

affirm Appellant’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019

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3  Moreover, if there was any prejudice, it was de minimis, and any error
harmless due to the overwhelming evidence of Appellant’s guilt.
Commonwealth v. Morris, 519 A.2d 374 (Pa. 1986). An error is harmless
where the properly admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the error is so insignificant by comparison, that it is clear
beyond a reasonable doubt that the error could not have contributed to the
verdict. Commonwealth v. Sneeringer, 668 A.2d 1167, 1173 (Pa. Super.
1995) (citation omitted). The record reflects that Thomas Russell (“Mr.
Russell”), owner of the grocery store, testified that he suspected that a man,
later identified as Appellant, was shoplifting. N.T., Trial, 5/9/19, at 62.
Utilizing the store’s video monitor, Mr. Russell confirmed his suspicion that
Appellant was stealing, and Appellant left the store without paying for the
items he had secreted in his bag. Id. Mr. Russell approached Appellant
outside of the store, and Appellant handed him the stolen items and ran. Id.
at 64. Mr. Russell called the police, and Officer Donald Godfrey pursued
Appellant and arrested him. Id. In court, both of the Commonwealth’s
witnesses, Mr. Russell and Officer Godfrey, identified Appellant as the
perpetrator. Id. at 66, 71.


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