J-A23005-13

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
WILLIAM J. LYNN,                         :
                                         :
                 Appellant               : No. 2171 EDA 2012

        Appeal from the Judgment Sentence entered July 24, 2012,
               Court of Common Pleas, Philadelphia County,
            Criminal Division at No. CP-51-CR-0003530-2011

BEFORE: BENDER, P.J.E., DONOHUE and MUSMANNO, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY DONOHUE, J.:

                                               FILED: December 22, 2015

     I agree with the learned Majority that Lynn’s remaining sufficiency

claims are unreviewable. The Supreme Court found that Lynn “endangered

the welfare of D.G., whose well-being he supervised, when he placed Rev.

Avery in a position to have access him,” and that “the Commonwealth’s

evidence was sufficient to sustain the conviction for EWOC as a principal.”

Commonwealth v. Lynn, 114 A.3d 796, 826, 827 (Pa. 2015).             On that

basis, the Court declined to “address the separate contention that the

evidence was insufficient to sustain the EWOC conviction as an accomplice.”

Id. As the Majority accurately concludes, this forecloses our review of any

of Lynn’s additional challenges to the sufficiency of the evidence to sustain

his conviction of EWOC. See Maj. at 10-13.
J-A23005-13


         Based upon the standard by which we review evidentiary challenges,

however, I respectfully disagree that the trial court’s decision to admit the

prior bad acts evidence at trial warrants reversal and the grant of a new

trial.    In reaching its conclusion, the Majority reweighs the other acts

evidence presented before the trial court.      This is improper, as we review

challenges to the admission of evidence for an abuse of discretion.       “An

abuse of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.”        Commonwealth v. Dillon, 925

A.2d 131, 136 (Pa. 2007) (citation omitted).

         Further, despite its recognition that Lynn does not challenge the

evidence admitted on a case-by-case basis, see Maj. at 16, it nonetheless

parses the evidence of the individual prior acts presented and makes

findings regarding the probative value of that testimony. See, e.g., id. at

23 (finding evidence presented concerning Father Cudemo “more relevant

and probative” of Lynn’s motive in his dealings with Avery and Brennan than

the evidence presented about Father Gausch, and chastising the trial court

for failing “to distinguish between significantly probative and minimally

probative evidence”). It is axiomatic that this Court cannot reverse the trial

court     based   upon   an   argument   not   presented   on   appeal.   See

Commonwealth v. Colavita, 993 A.2d 874, 898 (Pa. 2010); The York



                                     -2-
J-A23005-13


Grp., Inc. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1246-47 (Pa.

Super. 2007).

      In my view, the record reveals no abuse of discretion in the trial

court’s decision to admit the other acts evidence presented at trial. The trial

court found, inter alia, that this evidence was probative of Lynn’s “motive to

uphold and advance the practices and policies of his predecessors, which

prioritized shielding the Church from scandal over protecting children from

the sources of that scandal,” and “intent to protect the reputation of the

Church as a moral institution, and priests as moral individuals, even when

that meant jeopardizing the welfare of child parishioners.”           Trial Court

Opinion, 4/12/13, at 133.    As the Majority correctly states, for other acts

evidence to be admissible as proof of motive, “there must be a specific

logical connection between the other act and the crime at issue which

establishes that the crime currently being considered grew out of or was in

any   way   caused    by   the   prior   set   of   facts   and   circumstances.”

Commonwealth v. Ross, 57 A.3d 85, 100 (Pa. Super. 2012) (en banc)

(citation and quotations omitted).

      The record reflects that as the Secretary for Clergy, Lynn was

responsible for addressing the reports of sexual abuse committed by priests.

N.T., 4/3/12, at 259. By his own admission, Lynn had no formal training on

how to handle these reports prior to taking this job, but learned from his

predecessors and on the job about how to handle interviewing the victim(s),



                                     -3-
J-A23005-13


investigating the allegations made, and confronting the accused priest. N.T.,

5/7/12, at 222-29. By Lynn’s own account, he thought his predecessors did

the job well and were “doing the right thing.” Id. at 226. In other words,

this is how he learned to do his job, and these are the people he modeled

himself after in his job performance. Lynn was fully aware of the prior acts

of abuse committed by priests under the auspices of the Philadelphia

Archdiocese. He not only read and reviewed the files contained in the Secret

Archives detailing the horrors committed by these priests, but also received

inquiries and reports from victims of other priests regarding incidents of

abuse that predated his tenure as Secretary for Clergy and was responsible

for addressing these concerns.

      The record supports a finding that both Lynn and his predecessors

handled prior allegations of sexual abuse against other priests with the

motive and intent of shielding the Church from scandal.        Thus, there is

support for the conclusion that the way Lynn handled the allegations of

abuse made against Avery and Brennan “grew out of” and was “caused by”

the way Lynn’s predecessors and Lynn himself handled past allegations of

sexual abuse committed by other priests. See Ross, 57 A.3d at 100. This

is especially so in light of Lynn’s testimony that the protection of children,

not the protection of the Church, was of foremost importance in his role as

the Secretary for Clergy. See N.T., 5/23/12, at 190-91.




                                    -4-
J-A23005-13


        Further, the Commonwealth was tasked with proving that Lynn

“knowingly” endangered the welfare of children.          See 18 Pa.C.S.A. §

4304(a)(1). As the trial court observed, Lynn denied “that he knowingly or

intentionally placed children in harm’s way,” claiming instead that “in light of

his limited power, lack of training and the instructions he was given by the

Archdiocese of Philadelphia, as well as the information provided to him about

Fathers Avery and James Brennan, he did the best he could have done in

handling these cases at that time.” Trial Court Opinion, 4/12/13, at 134-35

n.85 (quoting Lynn’s Answer to Commonwealth’s Motion in Limine to Admit

Other Acts Evidence Pursuant to Pa.R.E. 404(b)(2), 12/12/2011, at 18).

Therefore, as the trial court found, the evidence of how past allegations of

sexual abuse were handled by Lynn and his predecessors was also probative

to show that when dealing with Avery and Brennan, Lynn had knowledge of

the risk of placing an abusive priest around children. See id. at 133, 138-

45.

        I also would find no abuse of discretion in the trial court’s conclusion

that the probative value of the evidence outweighed its potential to prejudice

Lynn.     Although the Majority points to one instance of the trial court

“summarily” addressing the probative/prejudicial question, my review of the

trial court’s opinion reveals that it dedicates far more than “precisely one

sentence” to the question of the prejudicial nature of the evidence.        See

Maj. at 32 (citing Trial Court Opinion, 4/12/13, at 180); see also Trial Court



                                      -5-
J-A23005-13


Opinion,   4/12/13,    at     133-38   (discussing   the   law   regarding   the

probative/prejudicial balancing test and applying it to the other acts

evidence presented in the case at bar), 145 (“the probative value of this

evidence, which provided a complete picture of [Lynn]’s knowledge that

sexually abusive priests are opportunistic offenders who can cause grave

harm to children in myriad ways, outweighed its potential for prejudice”),

168 (“Evidence that [Lynn] learned how his predecessors pursued the

Cardinal’s priority, and that he mimicked their efforts, was critical to the

jury’s understanding of [Lynn]’s mens rea, and thus it outweighed any

potential for prejudice.”).

      As stated by the trial court, “The admission of [Pa.R.E. 404(b)]

evidence becomes problematic only when its prejudicial effect creates a

danger that it will stir such passion in the jury as to sweep them beyond a

rational consideration of guilt or innocence of the crime on trial.” Trial Court

Opinion, 4/12/13, at 134 (quoting Commonwealth v. Sherwood, 982 A.2d

483, 497 n.25 (Pa. 2009)).1            “Whether relevant evidence is unduly

prejudicial is a function in part of the degree to which it is necessary to

prove the case of the opposing party.”       Commonwealth v. O’Brien, 836


1
   I note that the statement appearing on page 137 of the trial court’s
opinion that “the [other acts] evidence [in the case at bar] did not ‘stir such
passion in the jury as to sweep them beyond a rational consideration of guilt
or innocence,’” referred not to Commonwealth v. Williams, 9 A.3d 613
(Pa. 2010), as the Majority states, but to this passage from Sherwood that
appeared earlier in the trial court’s opinion. See Trial Court Opinion,
4/12/13, at 132, 137; Maj. at 37.


                                       -6-
J-A23005-13


A.2d 966, 972 (Pa. Super. 2003). Where the other acts evidence is required

for the Commonwealth to prove its case and to refute the defendant’s denial

of criminal conduct, it is not unduly prejudicial.       Commonwealth v.

Gordon, 673 A.2d 866, 870 (Pa. 1996); see also Commonwealth v.

Towles, 106 A.3d 591, 603 (Pa. 2014) (finding evidence of the defendant’s

prior bad acts to be admissible, inter alia, to refute his claim that he lacked

specific intent to murder the victim), cert. denied sub nom. Towles v.

Pennsylvania, 135 S. Ct. 1494 (U.S. 2015).

      The trial court found that the other acts evidence was necessary for

the Commonwealth to prove its case, as it was the only evidence to establish

Lynn’s mens rea required for convictions of EWOC and conspiracy and to

combat his claims that his priority was to protect the children of the

Archdiocese of Philadelphia. See Trial Court Opinion, 4/12/13, at 13, 134-

35 n.85; see also Gordon, 673 A.2d at 870; Towles, 106 A.3d at 603.

Furthermore, the trial court instructed the jury nine separate times

regarding the purpose for which the others acts evidence was admissible and

could be considered, which, as this Court has previously held, “minimiz[es]

its prejudicial effect.” Commonwealth v. Kinard, 95 A.3d 279, 287 (Pa.

Super. 2014); see Trial Court Opinion, 4/12/13, at 136 n.86, 136-37.

      The Majority goes on to “assess the effect” of the multiple cautionary

instructions issued by the trial court in association with the other acts

evidence presented. The learned Majority recognizes “the presumption that



                                     -7-
J-A23005-13


a jury follows the curative instructions of the trial court,” further correctly

states that “this presumption is not unassailable,” and ultimately concludes

that the cautionary instructions failed to ameliorate the unfair prejudice that

resulted from the admission of the other acts evidence. Maj. at 40-42. My

review of Lynn’s appellate brief reveals, however, that once again, he failed

to raise any argument regarding the sufficiency of the trial court’s cautionary

instructions. Indeed, he did not include any recognition of these instructions

in his argument on this issue before this Court. As Lynn did not present any

argument to rebut the presumption in favor of limiting instructions curing

any prejudice that may arise from the admission of other acts evidence, it is

improper for the Majority to reverse the trial court on that basis.         See

Colavita, 993 A.2d at 898; The York Grp., 924 A.2d at 1246-47.

      Therefore, I would find no abuse of discretion in the trial court’s

admission of the other acts evidence at trial. Because I disagree with the

Majority that Lynn is entitled to a new trial on this basis, for purposes of

completeness, I briefly discuss the remaining issues he raised on appeal.

Jury Instructions

      Lynn raises several challenges to the propriety of the instructions the

trial court provided to the jury.       This Court reviews such challenges

according to the following standard:

               [W]hen evaluating the propriety of jury
            instructions, this Court will look to the instructions as
            a whole, and not simply isolated portions, to



                                       -8-
J-A23005-13


            determine if the instructions were improper. We
            further note that, it is an unquestionable maxim of
            law in this Commonwealth that a trial court has
            broad discretion in phrasing its instructions, and may
            choose its own wording so long as the law is clearly,
            adequately, and accurately presented to the jury for
            its consideration. Only where there is an abuse of
            discretion or an inaccurate statement of the law is
            there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citations omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

      First, Lynn criticizes the trial court’s failure to instruct the jury that

Lynn could only be found to be a “supervisor” under the 1995 version of the

EWOC statute if the Commonwealth proved his “actual involvement with a

known child.” Lynn’s Brief at 41-46. Our Supreme Court’s decision in this

matter rebuts Lynn’s claim of error here, as it concluded that “the

requirement of supervision is not limited to only certain forms of supervision,

such as direct or actual, [but] encompasses all forms of supervision of a

child’s welfare.” Lynn, 114 A.3d at 824. Therefore, the trial court did not

abuse its discretion by failing to instruct the jury as Lynn requested.

      Next, Lynn contends that when defining “knowing” conduct required to

convict him of EWOC, the trial court abused its discretion by instructing the

jury that it did not need to find that Lynn “was practically certain that the

child would be sexually abused as a result of his act or omissions or that

harm actually occurred.” Lynn’s Brief at 46-49 (quoting N.T., 6/1/12, at 76-

77). According to Lynn, this instruction “contradicts the statutory language



                                     -9-
J-A23005-13


that ‘a person’s conduct is knowing when he is aware that it is practically

certain that this conduct will result in a particular result.’” Id. at 47 (case

citations omitted).    In Lynn’s estimation, the “particular result” that the

Commonwealth was required to prove was that Lynn was aware “that Avery

would abuse a child there.” Id.

      To establish the intent element of EWOC, the Commonwealth must

prove the following:

            (1) the accused is aware of his/her duty to protect
            the child; (2) the accused is aware that the child is in
            circumstances that could threaten the child’s physical
            or psychological welfare; and (3) the accused has
            either failed to act or has taken action so lame or
            meager that such actions cannot reasonably be
            expected to protect the child’s welfare.

Commonwealth v. Wallace, 817 A.2d 485, 490-91 (Pa. Super. 2002)

(citation omitted).

            [T]he [EWOC] statute does not require the actual
            infliction of physical injury. Nor does it state a
            requirement that the child or children be in imminent
            threat of physical harm. Rather it is the awareness
            by the accused that his violation of his duty of care,
            protection and support is “practically certain” to
            result in the endangerment to his children’s welfare,
            which is proscribed by the statute.

Id. at 491-92 (emphasis in the original).

      The record reflects that following the provision of the objected-to

instruction, the trial court stated:

            To find that the defendant knowingly endangered the
            welfare of a child, it must be proved beyond a



                                       - 10 -
J-A23005-13


             reasonable doubt that the defendant was aware of
             his duty to protect the child, that he was aware that
             the child was in circumstances that threatened the
             child’s physical or psychological welfare, and that he
             either failed to act or took actions so lame or meager
             that such actions could not have been reasonably
             expected to protect the child’s welfare.

N.T., 6/1/12, at 77.     This is an accurate statement of the law.       See

Wallace, 817 A.2d at 490-92. Thus, reading the instruction in its entirety, I

would conclude that Lynn is not entitled to relief on this claim.

      The third instruction Lynn maintains was erroneous relates to the jury

charge regarding his “duty of care.” Lynn asserts that the trial court used a

definition “derived from tort and corporate law,” which, according to Lynn,

“has no application in a criminal trial for endangering the welfare of

children.”   Lynn’s Brief at 49-50.   He cites no case law in support of this

proposition, thus waiving this claim on appeal.      See Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015) (en banc) (“When

an appellant cites no authority supporting an argument, this Court is inclined

to believe there is none”), appeal denied, 123 A.3d 331 (Pa. 2015). Further,

Lynn’s argument focuses on the fact that the pre-amended version of the

EWOC statute did not impute upon him a duty of care, a proposition

effectively put to rest by our Supreme Court’s decision in this matter. See

Lynn, 114 A.3d at 826 (finding that “the Commonwealth’s evidence was

sufficient to sustain the conviction for EWOC as a principal”); but see id. at

823 (our Supreme Court stating in the same Opinion that the question of



                                      - 11 -
J-A23005-13


whether Lynn “owed a duty of care to the children of St. Jerome’s, or to D.G.

in particular, is not an issue in this appeal and was not encompassed within

our grant of allowance of appeal”).

      Lynn next assails the trial court’s “improper emphasis on the concept

of accomplice liability” when instructing the jury, arguing that in so doing, it

was “hinting at an outcome it favor[ed].” Lynn’s Brief at 51-52. The record

bears no support for this claim. The trial court provided the jury with the

definition of accomplice liability only once, while generally explaining how a

defendant can be responsible for crimes committed by another person and

how accomplice liability differs from conspiratorial liability. N.T., 6/1/12, at

72-74.   The trial court only again mentioned the concept of accomplice

liability when defining the elements of EWOC, explaining that Lynn could be

guilty as either a principal or an accomplice. Id. at 76-81.

      In his fifth jury instruction-related argument, Lynn asserts that “[t]he

trial court impermissibly instructed the jury that it can find [Lynn] guilty of

EWOC if it found that Avery had endangered unknown and unnamed

persons.” Lynn’s Brief at 53 (citing N.T., 6/1/12, at 75; N.T., 6/5/12, at 60-

62, 67-68).   The record reflects, however, that this instruction was based

upon a prior ruling of the trial court pertaining to the expiration of the

statute of limitations for the charges brought by one of the named victims,

M.B., and that the trial court’s instruction was consistent with that ruling.

See N.T., 6/5/12, at 45-46, 66-67.        Lynn does not provide any citation



                                      - 12 -
J-A23005-13


indicating where in the vast and extensive record of this case he made the

original objection to the inclusion of unnamed minors in the EWOC charge or

jury instruction.   The portion of the record cited to in his brief on appeal

reveals that Lynn acquiesced to the trial court instructing the jury that

unnamed minors could be considered as victims for an EWOC conviction

based upon the trial court’s prior rulings.   See Lynn’s Brief at 53 & n.35;

N.T., 6/5/12, at 45-47, 60-61, 63. Therefore, in my view, the issue raised is

unreviewable. See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.

Super. 2014) (“It is not this Court’s responsibility to comb through the

record seeking the factual underpinnings of an appellant’s claim.”).

      Lastly, Lynn asserts that the trial court erred in answering the jury’s

questions of (1) whether the defendant’s conduct must be criminal for a

defendant to be guilty of EWOC and (2) whether the defendant must know

that the endangering behavior was a crime.      Lynn’s Brief at 53-54 (citing

N.T., 6/11/12, at 4). The record reflects that the trial court answered: (1)

“it does not have to be, but it could be,” and (2) “no, one does not have to

know his conduct is a crime.”     N.T., 6/11/12, at 27.   According to Lynn,

these answers “were misleading and inappropriate,” as the trial court

“shortchanged the law of EWOC” by providing such “brief answers.” Lynn’s

Brief at 54. Lynn contends that the trial court should have expounded on

the context of the behavior, instructing the jury that non-criminal actions

can only constitute EWOC once these actions “rise to the level of criminal



                                    - 13 -
J-A23005-13


conduct,” providing the example of a person who fails to feed a child for five

hours as opposed to five days, and asserting that only the latter would

constitute criminal behavior sufficient for a conviction of EWOC. Id.

      “[A] court need only respond to the precise question posed by the jury

and, absent an erroneous response, need not elaborate beyond the jury’s

question.   Commonwealth v. Hobson, 398 A.2d 1364, 1367 (Pa. 1979).

The jury did not ask how long or to what degree a person must act for an

otherwise non-criminal action to be considered criminal for an EWOC

conviction. The jury simply asked “does the endangering behavior regarding

the welfare of children have to be considered criminal behavior?” and “would

the defendant have to know the behavior was a crime?”, and the trial court

answered the questions posed. Thus, the trial court did not err or abuse its

discretion by failing to provide the answer requested.

Prosecutorial Misconduct

      As his final issue on appeal, Lynn raises several claims of prosecutorial

misconduct based upon statements made by the Commonwealth during its

summation and asserts that the trial court erred by denying his motion for a

mistrial. This Court reviews such issues with the following in mind:

                A motion for a mistrial is within the discretion of
            the trial court. A mistrial upon motion of one of the
            parties is required only when an incident is of such a
            nature that its unavoidable effect is to deprive the
            appellant of a fair and impartial trial. It is within the
            trial court’s discretion to determine whether a
            defendant was prejudiced by the incident that is the



                                     - 14 -
J-A23005-13


            basis of a motion for a mistrial. On appeal, our
            standard of review is whether the trial court abused
            that discretion.

               It is well settled that a prosecutor has
            considerable latitude during closing arguments and
            his arguments are fair if they are supported by the
            evidence or use inferences that can reasonably be
            derived from the evidence. Further, prosecutorial
            misconduct does not take place unless the
            unavoidable effect of the comments at issue was to
            prejudice the jurors by forming in their minds a fixed
            bias and hostility toward the defendant, thus
            impeding their ability to weigh the evidence
            objectively and render a true verdict. Prosecutorial
            misconduct is evaluated under a harmless error
            standard.

Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super.

2009)) (internal citations omitted). The law is clear that closing arguments

by the prosecution must be evaluated in the context in which they were

made and in light of statements made during defense counsel’s summation

to which the prosecutor may respond.         Commonwealth v. Ligons, 773

A.2d 1231, 1238 (Pa. 2001); Judy, 978 A.2d at 1020. Further, “prosecuting

attorneys have leeway to present their arguments with logical force and

vigor, and they are permitted a degree of oratorical flair in advocating the

Commonwealth’s case.” Commonwealth v. Laird, 119 A.3d 972, 1010-11

(Pa. 2015) (internal citations, quotations and brackets omitted).

      Lynn first states that the prosecutor’s reference to the personnel at St.

John Vianney who evaluated and treated Avery as “company doctors,”



                                    - 15 -
J-A23005-13


insinuating that they diagnosed priests accused of sexual abuse to appease

the Archdiocese of Philadelphia was improper, as there was no evidence to

support that claim. Lynn’s Brief at 68. My review of the record reveals that

Lynn himself agreed that the Archdiocese of Philadelphia owned St. John

Vianney and that he was a member of its board of directors for a number of

years at the Cardinal’s direction.     See N.T., 5/23/12, at 204-05.      The

Commonwealth also presented evidence that some of the priests who

committed acts of abuse against children and were evaluated by St. John

Vianney were not given a diagnosis of a specific sexual disorder, even in

cases where the priest admitted to having committed the act(s). See, e.g.,

N.T., 4/2/12, at 23-25; N.T., 4/16/12, at 154-59; N.T., 5/10/12, at 124,

153-54. Avery was one such priest. See N.T., 3/27/12, at 42, 48. Thus, in

my view, these statements by the Commonwealth were reasonable based on

the evidence presented and inferences derived therefrom.       See Caldwell,

117 A.3d at 774.

      Next, Lynn contends that because the prosecutor used the word

“pedophile” in connection with priests, including Avery, who had never been

given that diagnosis, the trial court abused its discretion by denying his

request for a mistrial.   Lynn’s Brief at 69.   The trial court found that the

prosecutor referred to priests as “pedophiles” who had not been diagnosed

in connection with the Commonwealth’s theory that the absence of diagnosis

was part of the Archdiocese’s effort to “avoid scandal,” even though the



                                     - 16 -
J-A23005-13


priests’ actions warranted the diagnosis.     Trial Court Opinion, 4/12/13, at

221-22. The record supports that conclusion. See, e.g., N.T., 5/31/12, at

138-39, 158-59, 173, 175, 176, 187, 190, 219. Based upon the context the

prosecutor used the word “pedophile” in his summation, the trial court did

not abuse its discretion by refusing to grant the requested mistrial.     See

Ligons, 773 A.2d at 1238; Caldwell, 117 A.3d at 774.

      Lynn also assails the prosecutor’s reference in his closing argument “to

the existence of countless other currently unknown victims of Avery,”

asserting that there was no evidence presented to support such a claim.

Lynn’s Brief at 69. My review of the record reveals that Lynn failed to object

on this basis in the court below. As such, the argument is waived on appeal.

See Commonwealth v. Sanchez, 82 A.3d 943, 969-70 (Pa. 2013) (“This

Court has long held that to preserve for appellate review an objection

relating to the opening or closing address of opposing counsel, the objection

must be specific and brought to the trial judge’s attention as soon as is

practical.”), cert. denied sub nom. Sanchez v. Pennsylvania, 135 S. Ct.

154 (U.S. 2014); Pa.R.A.P. 302(a).

      Lynn further argues that the prosecutor inappropriately ended his

summation by stating:    “I’d ask that you bring back the verdict which is

demanded by justice, which is demanded by the victims, which is demanded

by the children, which is demanded by the little ones.” Lynn’s Brief at

69; N.T., 5/31/12, at 227 (emphasis added).           According to Lynn, the



                                     - 17 -
J-A23005-13


emphasized portion of that statement was “the Commonwealth’s attempt to

convict [Lynn] for the sins of the church.” Lynn’s Brief at 69. I disagree

with this characterization, as Lynn stood trial for acts of sexual abuse

perpetrated by two priests to more than one child. Thus, the “little ones”

referred to could have been the victims at issue in this case.

      Furthermore, the record reflects that immediately following this

statement by the prosecutor, the trial court instructed the jury in direct

response to that statement: “Before I excuse the jury I will just tell you that

the only verdict you will return is a verdict that is supported by the

evidence.”   Id.   Before excusing the jury that day, the trial court further

instructed: “I will tell you right now and I will remind you again tomorrow,

that to the extent that you heard from any of the attorneys anything of a

personal opinion and that is not, in fact, supported by the evidence of

record, then you are to disregard it.” Id. at 255. The following day, at the

inception of its full charge to the jury, the trial court stated:

                 In determining the facts, you are to consider only
             the evidence which has been presented in this
             courtroom from the witness stand, and also the
             stipulations that have been entered into by and
             between counsel, and the logical inferences which
             are derived from all of that evidence, and that
             requires you, pursuant to your oath, to perform your
             duties with fairness and impartiality. Do not let
             outside forces or outside influence play any role in
             your deliberations or decision-making.

                … Your determination of the facts should not be
             based on sympathy for or prejudice against the



                                      - 18 -
J-A23005-13


             defendants or the witnesses or the families or the
             audience or any victims, nor on which attorney made
             the better speech – or the best speech, I should say
             – nor on whether or not you like the attorneys in the
             case.

N.T., 6/1/12, at 39.

      As stated above, we presume that a jury follows the trial court’s

instructions. See Commonwealth v. Reid, 99 A.3d 470, 501 (Pa. 2014).

Thus, to the extent Lynn suffered any prejudice by the Commonwealth’s

remark, it was effectively eliminated by the trial court’s cautionary

instructions.   See, e.g., Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa.

Super. 2012).

      As his final claim of error, Lynn asserts that the trial court abused its

discretion by denying his request for a mistrial because the prosecutor

“referred to defense counsel as ‘highly-paid attorneys’ and cautioned the

jury not to fall for defense counsel’s ‘deceptive lawyer stuff,’” which he

contends “malign[ed] the integrity of defense counsel by implying that

defense counsel is deceitful and manipulative.”       Lynn’s Brief at 70.     The

record reflects that the prosecutor did not make the two statements at the

same time.      The prosecutor referred to defense counsel as “very skillful,

very crafty, very well paid,” in his urging to the jury that it must listen to the

trial court and its instructions regarding the law, and not defense counsel.

N.T., 5/31/12, at 127.     This statement was based upon defense counsel

giving an erroneous definition of EWOC to the jury. See id. at 126-27; see



                                      - 19 -
J-A23005-13


also id. at 25-26 (counsel for Lynn defining EWOC in his closing argument

as requiring proof that when placing Avery at Nazareth Hospital, Lynn “was

practically certain” that placement there would “cause the harm” and “what

the result would be”); Wallace, 817 A.2d at 490-92. The prosecutor made

the second statement later in his summation when, referring to the jury

selection process, he stated:

                I think it’s invasive when we picked you. The
            Judge asks you all these questions. But we do it for
            a reason because we want to pick people who could
            be fair. Fair to everybody. Because what we know
            is if we get fair people, people that will follow the law
            in a case like this, they will convict. People – we
            want to pick people who have common sense, who
            won’t fall for deceptive, attractive lawyer stuff. We
            picked you for a reason.

Id. at 179-80.

      As stated above, a prosecutor’s statements only constitute reversible

error if “the unavoidable effect of the comments at issue was to prejudice

the jurors by forming in their minds a fixed bias and hostility toward the

defendant, thus impeding their ability to weigh the evidence objectively and

render a true verdict.” Caldwell, 117 A.3d at 774. Insinuating that defense

counsel was being “deceitful” does not meet this threshold if the statement

finds support in the record. See, e.g., Commonwealth v. Guilford, 861

A.2d 365, 371 (Pa. Super. 2004) (finding that the prosecutor’s statement in

summation that defense counsel “tried to pull the wool over your eyes,” and

stating “that he was tempted to say that ‘[e]verything [that defense



                                     - 20 -
J-A23005-13


counsel] just said is total BS,’” was not prosecutorial misconduct, as it was

based upon defense counsel’s failure to put forth evidence promised in the

opening statement). As such, I would find no abuse of discretion in the trial

court’s denial of Lynn’s request for a mistrial.

Conclusion

      The Majority grants Lynn a new trial based upon its conclusion that the

trial court abused its discretion by admitting evidence regarding the handling

of other accusations of sexual abuse against other priests by Lynn and his

predecessors. I disagree that our standard of review permits us to reverse

the trial court on that basis. I further conclude, based upon my review of

the record and the remaining arguments raised, that Lynn is not otherwise

entitled to relief. I therefore respectfully dissent.




                                      - 21 -
