J-S33042-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
               Appellee                :
                                       :
         v.                            :
                                       :
BRAD ALLEN MOYER,                      :
                                       :
               Appellant               :    No. 1729 MDA 2016

         Appeal from the Judgment of Sentence October 12, 2016
            in the Court of Common Pleas of Schuykill County
           Criminal Division at No(s): CP-54-CR-0001340-2015

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 12, 2017

     Brad Allen Moyer (Appellant) appeals from the judgment of sentence

imposed on October 12, 2016, after a jury found him guilty of two counts

each of aggravated assault by attempting to cause serious bodily injury,

aggravated assault by attempting to cause serious bodily injury with a

deadly weapon, simple assault, and recklessly endangering another person

(REAP).1 We affirm.

     The events giving rise to the aforementioned charges began the

evening of May 28, 2015. Appellant was residing with his parents, Wendy

Moyer and Nevin Randy Moyer (Randy).       Appellant came home early from

work that evening because he was having “[m]ajor back problems” while

working at his job. N.T., 4/7/2016, at 25.      According to Wendy, when

1
  The trial court also found Appellant guilty of criminal mischief as a
summary offense.


* Retired Senior Judge assigned to the Superior Court.
J-S33042-17


Appellant came home, he appeared “confused, frustrated, [and] in pain.” Id.

at 26.   Additionally, “[h]is balance and all was off.” Id.   Wendy “wasn’t

capable of driving” Appellant to the hospital and also could not reach Randy,

so she waited until Randy came home. Id. at 27. Wendy felt that Appellant

“[w]anted [her] to allow him to just stay at the house and die.” Id. at 28.

Randy arrived home around 10:00 p.m. that night, and Wendy told Randy

that Appellant “had consumed a bottle of approximately 250 Tylenol.” Id. at

34. Before calling 911, Randy went outside to write down Appellant’s license

plate number, and while Randy was doing that, Appellant went outside and

shoved Randy from behind. Randy went back into the house, reached for

the phone, and Appellant struck Randy again. When Randy fell, Appellant

continued hitting him. Randy called 911, and Appellant left the home.

      Pennsylvania State Police Troopers Robert O’Connor and Matthew

Barrett were dispatched to the Moyer residence and arrived around 11:00

p.m. Upon arrival, they spoke with both Wendy and Randy, who informed

the troopers about the aforementioned domestic incident.          They also

indicated that Appellant was suicidal. The troopers then decided to canvass

the area around the home and put a broadcast throughout the county for

Appellant’s vehicle, a white Chevrolet Malibu.

      Eventually, when the troopers were driving in the right lane on

Ringtown Road, they observed a car driving at a high rate of speed toward

them. According to Trooper O’Connor, the car’s headlights were hitting him



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“square in the eyes” which indicated to him that the oncoming car was

coming directly toward them and “escape route” was necessary to avoid a

collision. Id. at 57. Trooper O’Connor then “cut the wheel hard” and drove

off the right side of the road. Id. The oncoming vehicle, later identified as

Appellant’s vehicle with Appellant driving, collided with the police vehicle

behind the driver’s side door. Trooper O’Connor testified that he “felt like

there was an attempt at [his] life at that time.” Id. at 60.

      The troopers exited their vehicle and followed the debris field until

they found Appellant. They attempted to take him into custody. Appellant

was “[n]ot compliant, verbally resistant, cursing at [the troopers], [and]

calling [them] names.” Id. at 64. Eventually, Appellant was handcuffed, and

they waited for backup to arrive.    Appellant and the troopers went to the

hospital to assess their injuries.    Both troopers suffered abrasions and

bruises due to the crash.

      As a result of this series of incidents, Appellant was arrested. A jury

trial was held on April 7, 2016, and Appellant was convicted of the

aforementioned crimes.2 On May 17, 2016, Appellant was sentenced to an

aggregate term of 9 to 22 years of incarceration.      This sentence included

consecutive four-to-ten-year sentences for aggravated assault by attempting

to cause serious bodily injury and consecutive six-to-12 month sentences for

REAP. The trial court determined that the two counts each for aggravated

2
 The jury was hung on two counts of attempted murder and two counts of
aggravated assault.


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assault by attempting to cause serious bodily injury with a deadly weapon

and simple assault merged for the purposes of sentencing.

     Appellant filed a post-sentence motion, which was granted in part.

Specifically, the trial court vacated Appellant’s judgment of sentence

because the “sentence for the two aggravated assault charges was improper

pursuant to 18 Pa.C.S. [] § 906, which prohibits a criminal defendant from

being convicted of more than one inchoate crime for conduct designed to

culminate in the commission of the same crime.” Trial Court Opinion,

8/4/2016, at 2 (internal quotations omitted).

     The statute provides that “[a] person may not be convicted of more

than one of the inchoate crimes of criminal attempt, criminal solicitation or

criminal conspiracy for conduct designed to commit or to culminate in the

commission of the same crime.” 18 Pa.C.S. § 906.            Despite the clear

statutory language, the prohibition against multiple convictions has been

interpreted as a prohibition against multiple judgments of sentence. See

Commonwealth v. Kingston, 143 A.3d 917, 922 n.3 (Pa. 2016)

(“Although Section 906 bars ‘multiple convictions,’ the Superior Court has

held, and we have assumed without deciding, that the statute proscribes

multiple judgments of sentence.”).

     On August 15, 2016, Appellant was resentenced. The Commonwealth

filed a post-sentence motion based upon the decision of our Supreme Court

in Kingston, filed on August 15, 2016, which interpreted section 906. To



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understand the issue in Kingston, the Supreme Court offered the following

helpful illustration. “[S]uppose that Dan, with the requisite criminal intent,

asks Abe to commit a robbery.      Abe agrees and takes a substantial step

toward the commission of the robbery. Dan has committed three inchoate

crimes.   Yet, pursuant to Section 906, he may be punished for only one.”

143 A.3d at 923. The Supreme Court considered the question of “whether

‘more than one of the inchoate crimes’ refers to more than one substantive

inchoate crime only, or whether it also connotes more than one count of a

particular inchoate crime.” Id. at 924 (citing 18 Pa.C.S. § 906).          The

Supreme Court offered the following:

      It is not difficult to imagine why the General Assembly would
      proscribe multiple convictions for distinct inchoate offenses in
      circumstances where a defendant’s conduct was designed to
      culminate in the commission of a single underlying crime.
      Successive steps in a criminal undertaking often will constitute a
      criminal solicitation, a criminal conspiracy, and a criminal
      attempt, because all three offenses necessarily overlap. All
      conspiracies follow a solicitation of some kind; there can be no
      acceptance without an offer. In addition, the difference between
      an “overt act” necessary to establish a criminal conspiracy and a
      “substantial step” evidencing a criminal attempt is one of degree
      only.

Id. at 925.    Thus, the Supreme Court concluded that the language of

Section 906 prohibits more than one conviction for each solicitation,

attempt, and conspiracy, but “does not forbid the imposition of consecutive

sentences for multiple violations of a single inchoate offense” so long as they

culminated in different crimes. Id. at 927.




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      Accordingly, the trial court concluded that Appellant’s original sentence

was not improper where Appellant was sentenced consecutively for two

different aggravated assaults by attempting to cause serious bodily injury

convictions. Thus, on October 12, 2016, the trial court vacated its August

15, 2016 sentence and reinstated Appellant’s original sentence from May 17,

2016. Appellant timely filed a notice of appeal, and both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth three issues for our review, which we

have reordered for ease of disposition.

      [1]. Whether a defendant can be found guilty of a second
      specific intent attempt when the defendant lacked knowledge of
      the presence or existence of a second victim at the scene.

      [2]. Whether the trial court erred in sentencing [Appellant] on
      two counts of aggravated assault - attempted serious bodily
      injury in violation of 18 Pa.C.S. [] § 90[6] and the direction of []
      Kingston [].

      3. Whether the Commonwealth committed prosecutorial
      misconduct in its closing which misconduct impacted the jury’s
      decision despite cautionary instructions.

Appellant’s Brief at 1 (unnecessary capitalization omitted).

      As Appellant’s first two issues concern his two convictions and

sentences for aggravated assault by attempting to cause serious bodily

injury, we address them together. Appellant’s argument as to both issues

can be distilled to the following: a defendant may not be convicted and

sentenced for two separate inchoate crimes where there was one act (ie.




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driving the vehicle into an oncoming vehicle), even where there are two

separate victims as a result of this act.

      Specifically, Appellant suggests that it was improper to conclude that

he “could be found guilty of a separate attempt on an unknown occupant of

an oncoming vehicle in addition to the known driver.” Appellant’s Brief at 8.

In addition, Appellant argues that “[t]he Commonwealth has failed to prove

that [his] intention was anything other than suicide.”3 Id. at 10.

      Appellant further maintains that the trial court erred at re-sentencing

in how it applied Kingston. Appellant contends that in this case “there was

a single attempt not multiple violations of a single inchoate offense.”

Appellant’s Brief at 8 (emphasis removed).      Appellant again suggests that

because he was unaware “of the number of occupants in the vehicle[,]” a

finding of multiple attempts was in error. Id.     Further, Appellant suggests

that “[e]ven though a jury may return a verdict on more than one inchoate

crime, the [t]rial [c]ourt may sentence on only one of those crimes.”

Appellant’s Brief at 6.

      To the extent Appellant is challenging the sufficiency of the evidence

to sustain his convictions, we set forth the following.


3
  Appellant also argues the trial court erred in instructing the jury as to
these offenses. See Appellant’s Brief at 8 (“The issue is whether the [t]rial
[c]ourt erred in instructing the jury that [Appellant] could be found guilty of
a separate attempt on an unknown occupant of an oncoming vehicle in
addition to the known driver.”). However, because Appellant did not present
a challenge to this jury instruction in his Pa.R.A.P. 1925(b) statement, it is
waived. See Pa.R.A.P. 302(a).


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            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant’s participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendants crimes beyond a reasonable doubt, the
      appellant's convictions will be upheld.

Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016)

(quoting Commonwealth v. Franklin, 69 A.3d 719, 722–23 (Pa. Super.

2013) (citations and internal quotation marks omitted)).

      The statute governing Appellant’s convictions provides that “[a] person

is guilty of aggravated assault if he … attempts to cause serious bodily injury

to another, or causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.”

18 Pa.C.S. § 2702(a)(1).

      Where the victim does not suffer serious bodily injury, the
      charge of aggravated assault can be supported only if the



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      evidence supports a finding of an attempt to cause such injury.[4]
      A person commits an attempt when, with intent to commit a
      specific crime, he does any act which constitutes a substantial
      step toward the commission of that crime. An attempt under
      Subsection 2702(a)(1) requires some act, albeit not one causing
      serious bodily injury, accompanied by an intent to inflict serious
      bodily injury. A person acts intentionally with respect to a
      material element of an offense when … it is his conscious object
      to engage in conduct of that nature or to cause such a result[.]
      As intent is a subjective frame of mind, it is of necessity difficult
      of direct proof. The intent to cause serious bodily injury may be
      proven by direct or circumstantial evidence.

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa. Super. 2012)

(internal quotations and citations omitted).

      The trial court considered these arguments and concluded that

“[w]hen one crashes his vehicle into another vehicle at 90 mph, there is

evidence from which a jury may infer the requisite intent to injure any or all

occupants of the target vehicle, even if the perpetrator cannot actually see

who is present therein.” Trial Court Opinion, 8/4/2016, at 5.

      At   trial,   the   Commonwealth   presented    evidence   from   accident

reconstruction specialist, Robert W. Herb.      Herb testified that the police

vehicle was cruising at 33 miles per hour (mph) and was in the process of

slowing down when the vehicle abruptly accelerated to 100 percent and

veered to the right. N.T., 4/7/2016, at 127. Appellant’s car was going 91

mph when it hit the police vehicle. Id. “[I]n the five seconds leading up to

the impact, [Appellant’s] vehicle increased speed from … 79 to 91 [mph]


4
  The Commonwealth does not suggest that the troopers suffered serious
bodily injury.


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hour. The accelerator pedal was stepped on at 100 percent capacity for that

time, and there was never any braking involved.” Id. at 128.         “[T]he front

left corner of [Appellant’s car] struck the left side of the police car…, which is

right at the back of the driver’s seat.” Id. at 129.         “After the impact,

[Appellant’s car] continued [moving] … [a]nd then there was impact with [a]

large tree.” Id.

      Despite the fact that Appellant testified that “suicide was the only

thing on [his] mind,” the jury could have inferred based upon the foregoing

accident reconstruction that Appellant was attempting to cause serious

bodily injury to the driver of the vehicle. Id. at 197. See Commonwealth

v. Fierst, 620 A.2d 1196 (Pa. Super. 1993) (upholding aggravated assault

conviction where Fierst drove into the opposing lane of traffic in an apparent

attempt to commit suicide and crashed into the driver-victim, but the driver-

victim did not suffer injury when swerving and crashing to avoid the

collision).

      We cannot agree the same is true with respect to an unknown

passenger. Nonetheless, as the Commonwealth suggests, we conclude that

the doctrine of transferred intent applies to the unknown passenger in the

vehicle under these circumstances. See Commonwealth’s Brief at 10 (“As it

was established beyond a reasonable doubt that Appellant intended to cause

serious bodily injury to (at a minimum) the driver of the vehicle which he

intentionally drove 90 mph into, this intent was transferred, pursuant to the



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transferred intent doctrine, to the other Trooper riding as a passenger in the

same vehicle.”).

      The doctrine of transferred intent is codified in the following statute:

      Divergence between result designed or contemplated and
      actual result.--When intentionally or knowingly causing a
      particular result is an element of an offense, the element is not
      established if the actual result is not within the intent or the
      contemplation of the actor unless:

             (1) the actual result differs from that designed or
             contemplated as the case may be, only in the respect that
             a different person or different property is injured or
             affected or that the injury or harm designed or
             contemplated would have been more serious or more
             extensive than that caused; or

             (2) the actual result involves the same kind of injury or
             harm as that designed or contemplated and is not too
             remote or accidental in its occurrence to have a bearing on
             the actor’s liability or on the gravity of his offense.

18 Pa.C.S. § 303(b).

      This   Court   examined     the   doctrine   of   transferred   intent     in

Commonwealth v. Jackson, 955 A.2d 441 (Pa. Super. 2008).                 In that

case, Jackson and others made an attempt to murder Charles Wesley while

Wesley was in the midst of a group of police officers who were investigating

an earlier attempt on Wesley’s life. In so doing, Jackson fired his gun in the

vicinity of seven other people on the scene, and was correspondingly

convicted of seven counts of aggravated assault.           On appeal, Jackson

claimed, similar to Appellant in the case sub judice, that the evidence was

insufficient to sustain those convictions:



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      While [Jackson] admits that he intended to shoot Wesley,
      [Jackson] contends that these other persons were simply in the
      way.     [Jackson] argues that the Commonwealth failed to
      establish that he had the specific intent to cause serious bodily
      injury to any of these persons, and thus, the requisite intent for
      his aggravated assault convictions is lacking.

Id. at 445-46.      This Court agreed with Jackson’s position that the

Commonwealth did not establish his specific intent to cause serious bodily

injury to the seven people.

      [T]he evidence shows that [the seven individuals who served as
      the victims for the seven counts of aggravated assault] were
      near [Jackson’s] intended victim. The evidence shows that
      [Jackson] fired a deadly weapon toward them.            There is,
      however, no other evidence, in the form of circumstances,
      actions or words, occurring before, during, or after the shooting,
      that tends to demonstrate that [Jackson] specifically intended to
      inflict injury upon these particular persons. Therefore, the only
      circumstance in the record from which it may be inferred that
      [Jackson] had the intent to cause these persons serious bodily
      injury was his firing a deadly weapon in their direction. Based
      upon the totality of the circumstances, we conclude that the
      evidence was insufficient to establish beyond a reasonable doubt
      that [Jackson] harbored the specific intent to cause serious
      bodily injury with a deadly weapon to any of these persons.

Id. at 448. Thus, this Court turned to consider whether the intent element

of the assaults was satisfied under the doctrine of transferred intent.

            The Commonwealth argues that under the doctrine,
      [Jackson’s] admitted intent to shoot and cause Wesley serious
      bodily harm, satisfies the intent element for [Jackson’s]
      aggravated assault convictions of these persons.        [Jackson]
      counters that the doctrine of transferred intent does not apply in
      this case because these persons were not actually injured. It is
      [Jackson’s] position that the doctrine is not meant to apply and
      has not been applied to a charge of aggravated assault, when
      criminal liability is premised on the attempt to cause serious
      bodily injury to another.     [Jackson] further argues that 18
      Pa.C.S.[] § 303(b), enacted to reflect existing law, reveals that


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      the doctrine is to be used only where a defendant shoots a gun
      at a person, intending to cause serious bodily injury, but hits
      another, or where the defendant shoots the intended victim, but
      does not cause serious harm.

Id. (internal citation omitted) (citing State v. Brady, 903 A.2d 870 (Md.

2006) (holding that the doctrine of transferred intent is inapplicable to

crimes of attempt because, in such instances, the defendant commits a

complete crime against the intended victim)).

      In holding that the doctrine of transferred intent applied in Jackson,

this Court concluded that Jackson’s specific intent to kill Wesley transferred

to the seven bystanders, satisfying the intent elements for Jackson’s

aggravated assaults of those seven people. Given this precedent, we affirm

Appellant’s convictions and sentence as to Trooper Barrett. The jury found

the totality of the circumstances demonstrated that Appellant had the

specific intent to cause serious bodily injury to the driver of the vehicle.

Under Jackson, Appellant’s intent to injure Trooper O’Conner seriously

transferred to Trooper Barrett, even if Appellant did not know of his

existence, satisfying the intent element of the crimes.        Based on the

foregoing, we hold that the evidence was sufficient to sustain Appellant’s

convictions for aggravated assault by attempting to cause serious bodily

injury as to both victims.

      Having concluded that the evidence was sufficient to sustain both

convictions, we now turn to the issue of whether Appellant could be

sentenced on both convictions. “[A] claim that crimes should have merged


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for purposes of sentencing challenges the legality of his sentence.”

Commonwealth v. Glass, 50 A.3d 720, 730 (Pa. Super. 2012).                 In

Commonwealth v. Frisbie, 485 A.2d 1098, 1101 (Pa. 1984), our Supreme

Court held “that the imposition of multiple sentences upon a defendant

whose single unlawful act injures multiple victims is legislatively authorized

and, consequently, does not violate the double jeopardy clause of the Fifth

Amendment.” In Frisbie, the defendant, “while fleeing from police officers

in downtown Philadelphia, drove his car through a crowded intersection and

seriously injured nine pedestrians.” 485 A.2d at 1099. He was charged with

nine counts of REAP, and the trial court sentenced him separately for each

one.

       On appeal to this Court, the defendant argued that his one act could

not result in nine separate sentences even where there were nine separate

victims.   This Court agreed and held that defendant’s “single action of

propell[ing] his vehicle forward through a crowd of persons causing injury to

numerous persons … [could] support but one sentence.” Id (internal

quotation marks omitted).

       However, our Supreme Court disagreed and concluded that “[a]n

offender whose unlawful act harms or is likely to harm many people is more

culpable, and thus deserving of more severe punishment, than an offender

whose unlawful act harms only one person.” Id. at 1101.            Thus, the

Supreme Court upheld all nine sentences.



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      Based upon the foregoing, it was proper for the trial court to sentence

Appellant separately for each victim. Thus, Appellant is not entitled to relief.

Moreover, as discussed supra, the Supreme Court in Kingston held that it is

not a violation of Section 906 to sentence an individual for two inchoate

offenses so long as two separate crimes are committed. Here, because we

have held that Appellant has committed two separate crimes against two

separate victims, the trial court’s sentencing on both attempts was proper.

      We next consider Appellant’s argument that he was deprived of a fair

trial based upon two statements made in the Commonwealth’s closing

argument.    First, Appellant argues that the trial court erred in denying a

mistrial when the Commonwealth argued that incidents like that of May 28,

2015 had “happened before” and were a “ritual.” N.T., 4/7/2016, at 254.

Appellant’s counsel argued that such a statement was “grounds for a

mistrial.” Id. at 258.    On appeal, Appellant suggests that this was an

attempt by the Commonwealth “to establish that [Appellant] was a bad

person.” Appellant’s Brief at 13.

      In considering this issue, we are mindful of the following.

      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.

      With specific reference to a claim of prosecutorial misconduct in
      a closing statement, it is well settled that in reviewing
      prosecutorial remarks to determine their prejudicial quality,
      comments cannot be viewed in isolation but, rather, must be
      considered in the context in which they were made. Our review
      of prosecutorial remarks and an allegation of prosecutorial


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      misconduct requires us to evaluate            whether   a defendant
      received a fair trial, not a perfect trial.

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

citations and quotation marks omitted).

      Here, Trooper Barrett testified that when he arrived at the Moyer

residence, he “observed [it] to have holes all over the walls.” N.T.,

4/7/2016, at 76.    The Moyers “explained that [the holes were] a result of

their son’s anger in the past, not only on that day but in the past.” Id.

Counsel for Appellant did not object to this testimony. Moreover, the trial

court sustained Appellant’s objection during the closing argument and

offered the following curative instruction.

      Ladies and gentlemen, you should totally disregard any
      argument by the Commonwealth about anything that, that is
      alleged to have happened or suggested it happened at anytime
      other than the night in question. You’re not allowed to consider
      anything other than the evidence about what happened that
      night.

Id. at 259. “The law presumes that the jury will follow the instructions of

the court.” Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011).

Thus, because the Commonwealth’s comments were based upon testimony

in the record, and the trial court sustained the objection and offered a

curative instruction, we hold that the trial court did not err by not granting a

mistrial.

      Appellant also argues that he is entitled to a mistrial based upon the

Commonwealth’s statement in its closing argument about police officers



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being more deserving of sympathy as victims because “they put their lives

on the line to protect and serve.” N.T., 4/7/2016, at 265; Appellant’s Brief at

11. Counsel for Appellant objected. The trial court sustained the objection

and offered a curative instruction to the jury.5 On appeal, Appellant argues

that based on this prosecutorial misconduct, a “mistrial is appropriate in this

case.” Appellant’s Brief 13.

      However, the record reveals that with respect to this statement,

Appellant did not request specifically a mistrial. “[E]ven where a defendant

objects to specific conduct, the failure to request a remedy such as a mistrial

or curative instruction is sufficient to constitute waiver.” Commonwealth v.

Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013).          Thus, where, as here,

Appellant did not request a mistrial, he has waived this issue on appeal. See

Pa.R.A.P. 302(a); Commonwealth v. Brown, 134 A.3d 1097, 1107 (Pa.

Super. 2016) (holding that where counsel for defendant objects during

prosecutor’s closing statement, the objection is sustained, and the defendant

does not request a mistrial, then the issue is waived for review).      Based

upon the foregoing, Appellant is not entitled to relief with respect to his

issues about the Commonwealth’s closing argument.




5
  The trial court provided the following: “Ladies and gentlemen, you have to
decide this case based on the facts presented, not in any way as a
statement about support of police officers in general. The issue is whether
or not the Commonwealth has established the charges that have been
brought against the Defendant in this case.” N.T., 4/7/2016, at 266.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2017




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