J-S38045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERINN HOWARTH                              :
                                               :
                       Appellant               :   No. 2301 EDA 2018

          Appeal from the Judgment of Sentence Entered July 3, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0007376-2016


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 11, 2019

       Appellant, Erinn Howarth, appeals from the judgment of sentence

imposed after a jury found her guilty of robbery, aggravated assault, burglary,

firearms not to be carried without a license, and conspiracy to commit

burglary.1 We affirm.

       The facts underlying this appeal are as follows:

       On August 23, 2016, a robbery occurred at the home of Dennis
       McCarthy. McCarthy’s adult daughter, Beth Anne McCarthy, also
       lived at the home; Ms. McCarthy returned home at her usual hour,
       only to open the door and be bludgeoned. The perpetrators then
       proceeded to bind Ms. McCarthy with electrical cords, including
       one around her neck, and left her bleeding on a bedroom floor.
       The second victim, the seventy-five-year-old Mr. McCarthy, was
       held at gunpoint and bound, just hours after returning home from
       a month-long stay in the hospital for broken ribs and a punctured
       lung. Mr. McCarthy was able to partially free himself from his
____________________________________________


1 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 3502(a)(1), 6106(a)(1), and 903,
respectively.



*    Retired Senior Judge assigned to the Superior Court.
J-S38045-19


       bindings and crawl into the adjacent bedroom to his daughter.
       The burglars saw him and retied his binds. They later took every
       telephone in the home so the two could not call for help. The
       burglars removed the safe from the home, along with other
       belongings, and left their victims helpless. The homeowner was
       able to free himself once he believed the burglars had left; he
       crawled outside and was eventually able to summon help from a
       neighbor. He and his daughter were taken to the hospital, where
       he was released the same night, though his daughter would
       remain for nine (9) days. She continues to suffer a stutter, brain
       damage, and neuropathy from her bindings resulting in a limp.

Trial Court Opinion at 2-3 (not paginated) (citations to the record omitted).

       Appellant was charged with various offenses the day after the incident.

Also charged related to the incident was Ricardo Johnson, Appellant’s

boyfriend, but Mr. Johnson entered a guilty plea and agreed to testify against

Appellant. A two-day jury trial was held on April 25 and 26, 2018; Appellant

did not testify or present evidence at trial. At the conclusion of trial, the jury

found Appellant guilty of the above-identified offenses.2 On July 3, 2018, the

trial court sentenced Appellant to an aggregate term of imprisonment of 20 to




____________________________________________


2Appellant was found not guilty of possession of an instrument of a crime, 18
Pa.C.S. § 907(a), conspiracy to commit robbery, and conspiracy to commit
aggravated assault.



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40 years.3 Appellant filed a post-sentence motion, which was denied on July

13, 2018. This timely appeal followed.4

       Appellant presents the following issue on appeal:

       Whether the trial court erred in the failure to grant a mistrial by
       [Appellant] following a direct breach of [Appellant’s] right to
       silence under the Fifth Amendment of the United States
       Constitution and Article 1 Section [9] of the Pennsylvania
       Constitution.

Appellant’s Brief at 4 (unnecessary capitalization omitted).

       Our review of a trial court’s decision granting or denying a mistrial is

limited   to   determining     whether         a   trial   court   abused   its   discretion.

Commonwealth v. Smith, 131 A.3d 467, 474-75 (Pa. 2015). “An abuse of

discretion will not be found based on a mere error of judgment, but rather

exists where the court has reached a conclusion which overrides or misapplies

the law, or where the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Commonwealth v. Frein, 206

A.3d 1049, 1072 (Pa. 2019) (citation and internal quotation marks omitted).

Our Supreme Court has recognized that a mistrial is an “extreme remedy,”

Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011), and as such
____________________________________________


3 Appellant received a sentence to 78 to 156 months on the robbery offense,
84 to 168 months on the aggravated assault offense, 42 to 84 months on the
burglary offense, 36 to 72 months on the firearm offense, and 9 to 18 months
on the conspiracy offense. The robbery, aggravated assault, burglary, and
firearm offense sentences were each imposed consecutively, while the
conspiracy sentence was imposed concurrently to the firearms offense.
4Appellant filed her Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal on October 1, 2018. The trial court issued its opinion on
November 27, 2018.

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“may be granted only where the incident upon which the motion is based is of

such a nature that its unavoidable effect is to deprive the defendant of a fair

trial by preventing the jury from weighing and rendering a true verdict.”

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014) (citation omitted).

“Likewise, a mistrial is not necessary where cautionary instructions are

adequate to overcome any possible prejudice.” Id. (citation omitted).

      “Both the Fifth Amendment of the United States Constitution and Article

1, Section 9 of the Pennsylvania Constitution protect an individual’s right not

to be compelled to be a witness against himself.”         Commonwealth v.

Adams, 39 A.3d 310, 316 (Pa. Super. 2012), aff’d, 104 A.3d 511 (Pa. 2014).

“The accused in a criminal proceeding has a legitimate expectation that no

penalty will attach to the lawful exercise of his constitutional right to remain

silent.” Commonwealth v. Mitchell, 839 A.2d 202, 212 (Pa. 2003). Our

Supreme Court “has been consistent in prohibiting the post-arrest silence of

an accused to be used to his detriment.”             Id. at 213; see also

Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super. 2010).               Even

where reference is made to the defendant’s post-arrest silence, however, the

effect of the reference may still be cured through prompt and adequate

cautionary instructions to the jury. Moury, 992 A.2d at 176.

      The comment at issue in this case took place during the cross-

examination of Detective Anthony Ruggieri of the Delaware County District

Attorney’s Office, who was present when a search warrant was executed at

Mr. Johnson’s house; Appellant, who also resided at the house, was discovered

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by police during the search hiding in an adjoining garage. Detective Ruggieri

also interviewed Mr. Johnson on at least two occasions following the search.

During the cross-examination, Appellant’s counsel asked Detective Ruggieri

whether he had interviewed Mr. Johnson’s mother and sister, who were

present at the house during the search, regarding Mr. Johnson’s or Appellant’s

whereabouts between the time of the burglary and when the police arrived to

perform the search. N.T., 4/26/18, at 52. Detective Ruggieri responded that

he did not attempt to interview Mr. Johnson’s mother and sister. Id. The

following exchange then took place:

      [Counsel:] And so, again, there are people who could fill some
      holes for us and say that either [Appellant] came back with Mr.
      Johnson or she was there the whole time, correct? They could be
      neutral. They’re not connected to this case, they’re not charged
      in this case, correct? They could give us that information?

      [Detective Ruggieri:] Yes.

      [Counsel:] Okay.

      [Detective Ruggieri:] Just as well as your client could have.

Id. at 53.

      Appellant’s counsel immediately objected and moved for a mistrial. Id.

The trial court then recessed the jury and heard oral argument from counsel.

Id. at 54-58. The trial court determined that, in light of the fact that the

comment regarding Appellant’s silence was isolated and not elicited by the

Commonwealth, a mistrial was not warranted and that instead the court would

issue a cautionary instruction and an additional charge during the final

instruction. Id. at 58-60. After recalling the jury, the trial court instructed


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the jury that they were to disregard the above-quoted exchange between

Appellant’s counsel and Detective Ruggieri.         Id. at 63-64.   The trial court

stated that Appellant enjoyed an absolute constitutional right to remain silent

and therefore the jury should not draw an inference of guilt or other adverse

inference based upon the fact that Appellant did not provide any information

to Detective Ruggieri.5 Id. at 64. In addition, during the final instruction, the

trial court reiterated the cautionary instruction and further stated that

Appellant is presumed innocent and she was not required to testify at trial.

Id. at 479-80, 482.

        Initially, we observe that Detective Ruggieri’s statement clearly

referenced the fact that Appellant did not provide information to investigators

regarding the burglary of the McCarthy home.            While Detective Ruggieri’s

comment did not specifically reference Appellant’s failure to volunteer


____________________________________________


5   The trial court instructed the jury in full as follows:
     Ladies and gentlemen of the jury, . . . you heard testimony from
     Detective Ruggieri regarding information that the detective did or did
     not receive from [Appellant]. You are to disregard this portion of the
     testimony as this has no bearing or relevance and you are not to
     consider it in this case. [Appellant] is under no obligation to give any
     information or not give information to detectives and, again, you are not
     to consider this in this case at all. [Appellant] has an absolute right
     founded on the Constitutions of the United States and the
     Commonwealth of Pennsylvania to remain silent, a constitutional right
     we all enjoy. You must not draw any inference of guilt or any other
     inference adverse to [Appellant] from the fact that she did not provide
     any information and exercised the constitutional right and protection
     universal to each and every one of us.
N.T., 4/26/18, at 63-64.

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information to investigators after her arrest as opposed to her pre-arrest

conduct which is not afforded the same protection, it is reasonable to assume

that the jury would have interpreted Detective Ruggieri’s testimony as

referring to Appellant’s post-arrest silence in light of the fact that Appellant

did not appear to have contact with police until after she was arrested. Cf.

Mitchell, 839 A.2d at 214 (holding that prosecutor’s ambiguous question

regarding the defendant’s failure to previously identify who had committed

the murders for which he had been accused without any clear reference to a

time frame raised an inference that the question related to both the

defendant’s pre-arrest and post-arrest silence); Commonwealth v. Clark,

626 A.2d 154, 156 (Pa. 1993) (holding that jury would reasonably assume

that a prosecutor’s open-ended question to defendant regarding statements

to police embraced the defendant’s post-arrest silence).

      Nevertheless, even when an impermissible reference to an accused’s

silence is made, a mistrial may be avoided where a prompt and adequate

cautionary instruction is given.   Moury, 992 A.2d at 176.       In evaluating

whether cautionary instructions can cure a reference to an accused’s post-

arrest silence, four factors must be considered: (1) the nature of the reference

to the accused’s silence; (2) how it was elicited; (3) whether the prosecutor

exploited it; and (4) the promptness and adequacy of the cautionary

instruction. Id.

      Each of these factors weighs in favor of a conclusion that the cautionary

instructions were sufficient to overcome the prejudice from Detective

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Ruggieri’s comment and ensure that Appellant received a fair trial.          First,

Detective Ruggieri’s reference to Appellant’s post-arrest silence was brief and

vague, not identifying any specific instance when she was questioned or any

specific information investigators sought from her. Second, the prosecutor

had no role in eliciting the reference to Appellant’s silence as it occurred during

Appellant’s counsel’s cross-examination of the witness. Third, the prosecutor

did not exploit the reference in her examination of Detective Ruggieri or in

closing arguments and, in fact, suggested to the trial court that cautionary

instructions be given immediately and during the final instruction.          N.T.,

4/26/18, at 58-59. Finally, the cautionary instruction occurred immediately

upon the jury’s return to the courtroom and the instruction adequately

addressed the harm by asking the jury to disregard Detective Ruggieri’s

comment and reminding the jury of Appellant’s constitutional right to remain

silent and that no inference may be drawn from her decision to exercise that

right.

         In sum, because the reference to Appellant’s post-arrest silence was

brief, not elicited or exploited by the prosecutor, and the trial court promptly

issued the cautionary instruction, we conclude that any prejudice was cured

by the instruction. See Moury, 992 A.2d at 177 (holding that police officer’s

testimony that defendant invoked his right to an attorney and did not want to

talk to the police was cured by prompt cautionary instruction “[g]iven the

limited reference to [the defendant’s] initial decision to have an attorney

present” and where the comment was not purposefully elicited or exploited by

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the Commonwealth); Commonwealth v. Anderjack, 413 A.2d 693, 698-

700 (Pa. Super. 1979) (holding that a prompt cautionary instruction overcame

any prejudice resulting from police officer’s testimony that defendant refused

to sign a waiver form and speak with the police because the reference was an

“implicit rather than explicit statement that [the defendant] had chosen to

remain silent,” defense counsel elicited the reference, and the prosecutor did

not exploit it).

       Even if we were to find that the trial court’s cautionary instruction did

not cure the prejudice to Appellant, we would conclude that any error

associated with the reference to Appellant’s post-arrest silence was harmless

because the Commonwealth presented overwhelming evidence of Appellant’s

guilt at trial.

       Harmless error exists where: (1) the error did not prejudice the
       defendant or the prejudice was de minimis; (2) the erroneously
       admitted evidence was merely cumulative of other untainted
       evidence which was substantially similar to the erroneously
       admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict. The
       Commonwealth has the burden of proving harmless error beyond
       a reasonable doubt.

Commonwealth v. Radecki, 180 A.3d 441, 461 (Pa. Super. 2018) (citations

and quotation marks omitted; some formatting).

       At trial, Maura McCarthy, another of Mr. McCarthy’s adult daughters,

testified that Appellant, who had previously worked for and been in an intimate

relationship with Mr. McCarthy, stopped by the house between noon and 3 pm


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on August 23, 2016, the date of the burglary, to retrieve a bikini that she had

left at the house. N.T., 4/25/18, at 49-52, 55, 66, 84-85. Maura McCarthy

gave the bikini to Appellant who placed it in her backpack and left. Id. at 52-

54. After the burglary, Maura McCarthy found the same backpack, containing

the bikini and a cell phone, in an upstairs bedroom of Mr. McCarthy’s home.

Id. at 58-61. The cell phone contained various selfie photographs of Appellant

and numerous text messages showing Appellant planning the burglary with

Mr. Johnson and other individuals. N.T., 4/26/18, at 25-42. Location data

extracted from the phone showed that it was at Mr. McCarthy’s house at 5:09

pm on August 23, 2016, the time that the burglary occurred. N.T., 4/25/18,

at 94, 234; N.T., 4/26/18, at 21.    A retired police officer who lived in an

apartment building next to Mr. McCarthy’s house testified that he saw

Appellant and a thin black man walking down a shared driveway between the

buildings at 5:35 pm on that same day; Appellant was wearing striped

leggings, an article of clothing that Mr. McCarthy also identified one of the

burglars as wearing.   N.T., 4/25/18, at 32-36, 93.     Further, Mr. Johnson

testified that he and Appellant planned and carried out the burglary; Mr.

Johnson stated that, during the burglary, Appellant repeatedly hit Ms.

McCarthy in the head with a gun and kicked her, believing that Ms. McCarthy

had recognized her. Id. at 239-63. Mr. Johnson testified that he mistakenly

left Appellant’s backpack, with her phone inside, at Mr. McCarthy’s house. Id.

at 265, 268. Police executed a search warrant at Mr. Johnson’s house on the




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day after the burglary and discovered Mr. McCarthy’s safe and other personal

property taken during the burglary. Id. at 204-16.

      Because the properly admitted and uncontroverted evidence adduced at

trial overwhelmingly demonstrated Appellant’s guilt, the trial court’s decision

to issue a cautionary instruction and not to grant a mistrial following Detective

Ruggieri’s single, unsolicited reference to Appellant’s post-arrest silence would

not amount to more than harmless error. See Moury, 992 A.2d at 177-78.

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

      Judgment of sentence affirmed.

      Judge Ott joins the Memorandum.

      Judge Dubow Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/19




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