J-S57010-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
QASHIME WAGNER,                           :
                                          :
                   Appellant              : No. 2535 EDA 2013

            Appeal from the Judgment of Sentence August 1, 2013,
                Court of Common Pleas, Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0005678-2011
                        and CP-51-CR-0010755-2011

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 06, 2014



judgment of sentence entered by the Philadelphia County Court of Common

Pleas following his convictions of robbery and criminal conspiracy.1 Upon

review, we affirm.



err in failing to allow [Wagner] to pick a new jury where co-

                                                      As the sole issue raised



                          voir dire but before the jury was sworn, a full

recitation of the facts of the case is unnecessary.   Although the notes of

testimony do not include the actual request made by Mitchell to plead guilty,


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c).
J-S57010-14




                         ew jury, counsel for Wagner and the trial court

provided the following summary of what transpired:

           [COUNSEL FOR WAGNER]: Your Honor, the motion
           would be that the defense would have asked or is
           asking that this jury panel be dismissed given the
           fact that, when we selected the jury, Mario Mitchell
           was a co-defendant.      Mario Mitchell was a co-
           defendant in person with Mr. Wagner.

           And all the way up to the point before the jury was
           sworn in, Mario Mitchell sat or stood as a co-
           defendant with [] Wagner giving the appearance that
           he was ready to proceed to trial.

           And then only minutes before they were sworn in,
           Mario Mitchell tendered his negotiated guilty plea to
           the [c]ourt, and, therefore, was not present when
           the jury was then brought out about 20 minutes
           after he indicated that he was going to plead guilty,
           giving the certain impression that Mario Mitchell pled
           guilty to this offense or offenses and was no longer a
           part of this trial, further giving the impression that
           his guilty conscience would somehow be imputed to
           Mr. Wagner now that he was no longer a defendant.




           As the record reflects, I was not the judge that
           selected the jury. Th

           [defendants] would have been present.

           Today in terms of this courtroom, the jury was on its
           way out to start the trial, and not all of them were
           even seated when it became apparent from co-

           taken immediately back out.



                                   -2-
J-S57010-14



            not all of those jurors, saw that at that point Mr.


            Then Mr. Mitchell did enter into a negotiated guilty
            plea. Various conversations were also conducted
            with your client through yourself, and eventually the
            jury was brought back out. At which point I asked to
            see both counsel at sidebar to see if you, in fact,
            wanted an instruction.

            At that point you indicated to me, [counsel for
            Wagner], that you were objecting and wished to pick


            At that time I denied this request and said that you
            would have an opportunity to put it on the record.


N.T., 5/29/13, at 120-23.

      Following the sidebar conference, the jury was sworn and Wagner

entered a plea of not guilty on the record.         Thereafter, as part of its

preliminary instructions to the jury, the trial court stated the following:

            Good morning, members of the jury. Welcome back
            again. I want to tell you a few things before we get
            stared, and one is that I know when you were
            selected a while back before Judge Carpenter, there
            may have been two individuals that were on trial,
            and you may have seen one here today.

            But I want to tell you that you are not to concern
            yourselves with that. We have one individual on trial

            going to be delayed in any other way because I know
            that you have been here on several occasions.

            So this case now is the case of Commonwealth
            versus Mr. Wagner and Mr. Wagner only.

Id. at 6.


                                      -3-
J-S57010-14


         After three days of testimony, the jury convicted Wagner of the above-

listed crimes and acquitted him of three counts of simple assault. Numerous

other      charges   were    either   withdrawn    or   nolle   prossed   at   the



Wagner to an aggregate term of six to 15 years of imprisonment.

         On August 5, 2013, Wagner filed a pro se notice of appeal and a

request for the appointment of counsel to represent him on appeal.              On

August 9, 2013, Wagner filed pro se motions for reconsideration of his

sentence and for the correction of an allegedly illegal sentence.         The trial

court appointed counsel to represent Wagner in the post-sentencing phase.

The trial court issued an order on August 22, 2013 denying the motion for

reconsideration.     That same day, the trial court issued an order requiring

Wagner to file a concise statement of errors complained of on appeal, and

new counsel complied.

         The trial court found that the jury did not hear Mitchell enter his guilty

plea,2



2
   In his 1925(b) statement, Wagner included an argument that the jury
              sic
jury was in recess in [the] deliberation room prior to what was going to be a
two[-
on Appeal, 9/27/13, at ¶ 2.         Wagner has apparently abandoned this
contention on appeal, as he raises no argument in support of this claim. We
disagree with the Commonwealth that Wagner has waived his claim that the
jury inferred that Mitchell pled guilty on the basis that he failed to include it
in his 1925(b) statement (see
                                  and/or surmised that co-defendant pled


                                        -4-
J-S57010-14




9-10. Thus, the trial court found that Wagner was not entitled to a new jury

and that his claim contending otherwise is meritless. Id. at 10.

         Wagner asserts that the failure to grant his motion for a new jury was

                                            uction to the jury was inadequate.

                       -

would entertain giving an instruction regarding co-defendant pleading guilty,

the judge never instructed the jury regarding [the] fact that they would not

hold co-

                                                             -             Id.

at 10.



considered as evidence against the defendant who elects to stand trial.

Commonwealth v. Geho, 302 A.2d 463, 465 (Pa. Super. 1973) (en banc).



the evidence presented against him, not by what has happened with regard

                                                       Id. at 465-66 (citation




to the defendant                   Id. at 466 (citation omitted). In order for




9/27/13, at ¶ 2 (emphasis added).


                                      -5-
J-S57010-14




an adequate cautionary instruction, the defendant must have preserved the

issue below by requesting that a cautionary instruction be given.            See

Commonwealth v. Boyer, 891 A.2d 1265, 1267 (Pa. 2006) (finding waived

a claim that the trial court erred by failing to provide a cautionary instruction

when it admitted into evidence a co-



      As stated above, the record in the case at bar reflects that the trial

court gave the jury an instruction at the beginning of trial that the jury was

not to concern itself about the second person that previously may have been

present to stand trial with Wagner and that the only matter before the jury

was Commonwealth v. Wagner. N.T., 5/29/13, at 6. At the conclusion of

trial, when the trial court permitted Wagner to place his objection and

argument for a new jury on the record, the trial court stated its belief that



                                 Id. at 123.      The trial court stated that it



offered Wagner the opportunity to request an additional cautionary

instruction.   Id. at 124.   Wagner did not request an additional cautionary

instruction at that time or at any point prior the jury rendering its verdict.



jury any additional cautionary instruction(s) r



                                      -6-
J-S57010-14


we find waived the claim that the cautionary instruction provided was

inadequate.   See Boyer, 891 A.2d at 1267; see also Pa.R.A.P. 302(a)



the first

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




                                  -7-
