J-S08017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CALVIN ADAMS

                         Appellant                  No. 1524 EDA 2014


          Appeal from the Judgment of Sentence of June 28, 2012
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0003586-2011


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                        FILED FEBRUARY 17, 2015

      Calvin Adams appeals his June 28, 2012 judgment of sentence.         We

affirm.

      The trial court summarized the factual history of the case as follows:

      On January 18, 2011, two employees, Juan Tapia and Omar
      Velazquez, were working at Franciany Market located at 965 E.
      Ontario Street, when two men, [Adams] and Rasheed Williams
      entered the store. Williams was wearing a mask exposing only
      his eyes and a part of his nose. Williams placed a bottle of
      detergent on the countertop, pulled out a black semi-automatic
      handgun, and pointed it at Juan Tapia who was standing at the
      register. [Adams] pulled a silver handgun and pointed it at
      Omar Velazquez.       Williams attempted to gain entry to the
      register area but could not because it was located behind a
      locked door. At that point, both men left the store; however,
      Williams returned within seconds when employee Juan Tapia,
      unlocked the door. Williams then entered the register area,
      pointed the gun at Tapia, removed approximately $300.00 from
      the register, and fled from the store. The incident was recorded
      by a video camera inside the store.
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     On January 21, 2011, police received information that the male
     in the mask was Rasheed Williams. Williams was placed into a
     photo array [that] was shown to Omar Velazquez. Velazquez
     identified Williams as one of the men that participated in the
     robbery.

     On January 27, 2011, police responded to a shooting at 845 East
     Westmoreland Street. Williams was a witness to the shooting
     and was brought to East Detectives for questioning. It was
     determined that Williams was a resident of the property and that
     he shared the second floor middle bedroom with his girlfriend.
     Detectives obtained a search warrant for 845 East Westmoreland
     Street as a result of the shooting incident. Police found a rifle
     and two guns in the second floor middle bedroom. One was a 9
     mm Beretta handgun, Model 65490, with plastic grips. The
     second was a five-shot, .38 revolver[], Harrington-Richardson,
     serial number AS54627. The Beretta was loaded with 15 rounds
     and one in the chamber. The Harrington was loaded with 5
     rounds. In the same room, police found parole paperwork in the
     name of Rasheed Williams, a pair of blue and black Nike
     sneakers (like those worn by one of the gunman in the video),
     and a black neoprene mask (like the one worn by that same
     gunman in the video).

     While in police custody, Williams gave a statement in which he
     admitted to his role in the robbery. He stated that the Beretta
     found at 845 East Westmoreland Street was the gun that he
     used in the robbery. He also admitted to having worn the
     sneakers and mask found at 845 East Westmoreland Street
     during the robbery. Williams stated to the police that [Adams]
     was the individual who took part in the robbery with him.
     Williams then identified [Adams] in a picture from a photo
     imager. [Adams] was arrested on February 3, 2011.

Trial Court Opinion (“T.C.O.”), 7/11/2014, at 2-4 (citations to record

omitted).

     The trial court summarized the initial procedural history as follows:




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       [Adams] was charged with two counts of Robbery (F1),
       Possession of an Instrument of Crime (M1), Criminal Conspiracy
       (F1), and Violation of the Uniform Firearms Act by a Convicted
       Felon not to have a Gun (F2).[1] [Adams] pled not guilty to all
       charges. [Adams] elected to have a jury trial which began on
       April 11, 2012.

T.C.O. at 1.

       During trial, Williams testified on behalf of the Commonwealth.

However, his testimony was limited, and he answered either that he did not

recall or did not remember to almost every question posed by the assistant

district attorney about the robbery and his statement to police.         Notes of

Testimony (“N.T.”), 4/13/2012, at 11-34.         During his testimony, Detective

Francis Green read the statement Williams gave during his police interview.

That testimony included the following exchange:

       [Commonwealth]:             Please continue [reading the statement].

       [Detective Green]:          (reading)

                                   Question: I had showed you numerous
                                   photos on the imager.    Did you see
                                   [Adams] on the computer?

                                   Answer: Yes. (identifying Calvin Adams
                                   PP Number 718286.[)]

Id. at 68. Adams’ counsel objected. The trial court sustained that objection

and struck the last part of the statement. After reading the statement into

the record, the Commonwealth asked Detective Green if he had any contact


____________________________________________


1
       18 Pa.C.S.A. §§ 3701(a)(1), 907, 903, and 6106 respectively.



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with Adams after Williams gave his statement. This line of questioning led

to the following testimony:

      [Commonwealth]:            Can you tell the ladies and gentlemen of
                                 the jury how you had contact with Mr.
                                 Adams?

      [Detective Green]:         Well, Detective Liebsch got information
                                 that Mr. Adams had a parole officer or a
                                 probation officer, and –

      [Counsel for Adams]:       Objection!

      The Court:                 Come to side-bar, please.

      (in camera side-bar without court reporter)

      ([Adams] raising arm with prison bracelet exposed.)

      [Tipstaff]:                Sir, don’t do that. Don’t do that.

      [Adams]:                   It’s already out there.

Id. at 72-73. Adams then was removed from the courtroom. The tipstaff

also sent the jury out of the courtroom.

      When the judge and attorneys reconvened, Adams’ counsel moved for

a   mistrial.    The   trial   court   questioned   Detective   Green   about   his

objectionable testimony. According to Detective Green, he was “explaining

what information I had that I knew how [Adams] was brought to East

Detectives.” Id. at 77.

      Out of the presence of the jury and the witnesses, the trial court then

took testimony from Terry Alexander, the judge’s tipstaff, and Daniel

Howlett, the court crier, about Adams’ actions while the judge and counsel

were in chambers. Mr. Alexander testified that Adams raised his right arm


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in the air to expose his prison ID band to the jury.     When asked to stop,

Adams replied that “[the jury] already know now.”         N.T. at 81-83.     Mr.

Alexander then had the jury removed and had the sheriff escort Adams from

the courtroom. Id. at 83. Mr. Howlett confirmed Mr. Alexander’s account

and testified that the band was white with Adams’ photo on it. Id. at 83-85.

The trial court explained that it was not granting a mistrial, in part because

of Adams’ own actions.     Id. at 85-87.    Adams’ counsel then requested a

curative instruction.    Id. at 88.     The trial court gave the following

instruction:

      You heard the detective mention about [Adams] being on parole,
      or words to that effect.       You are to totally disregard that
      commentary and it is not to be considered by you as evidence
      for purposes of your deliberations.        You must base your
      decisions only on the evidence you see and hear in the
      courtroom. As I told you earlier, if I strike evidence which I
      have, that particular portion of the evidence, if I tell you you are
      not to consider it, you must base your decision on the evidence
      that I specifically tell me [sic] you you may consider, and that
      you should consider. If there is a need to strike evidence and
      not consider evidence, I will let you know like I am doing now.

      By a show of hands, does everyone understand me?            Let the
      record reflect that everyone raised his or her hand.

Id. at 90-91.

      The trial then resumed.     The trial court summarized the remaining

procedural history as follows:

      On April 17, 2012, the jury convicted [Adams] of two counts of
      Robbery, Possession of an Instrument of Crime, and Criminal
      Conspiracy. On June 28, 2012, the [c]ourt sentenced [Adams]
      to 10-20 years[’] incarceration for each count of Robbery to run
      concurrently; 10-20 years[’] incarceration for Criminal

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     Conspiracy to run consecutively with the Robbery sentences; and
     5 years[’] probation for Possession of an Instrument of Crime to
     run consecutively to the other sentences. [Adams did not file a
     direct appeal.]    On August 2, 2012, [Adams] filed a Post-
     Conviction Relief Act (“PCRA”) petition [, 42 Pa.C.S.A. §§ 9541-
     46].

     On October 18, 2012, and November 5, 201[3], [Adams] filed
     amended PCRA petitions and a Memorandum of Law.2 On May
     13, 2014, the [PCRA court] granted the PCRA petition [and
     reinstated Adams’ direct appeal rights]. Thereafter, on May 18,
     2012, [Adams] filed a Notice of Appeal, and on June 10, 2014,
     the [c]ourt ordered counsel to filed a Statement of Errors
     Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
     [Adams] filed a statement on June 16, 2014. . . .
        2
         On August 2, 2012, [Adams] filed a PCRA petition pro se.
        On October 18, 2012, [Adams] filed an amended PCRA
        petition and a Memorandum of Law pro se.           Court
        appointed counsel later entered his appearance on July 1,
        2013 and filed an amended PCRA petition on November 5,
        2013.

T.C.O. at 1-2 (footnote omitted).

     Adams raises one issue for our review:

     1. Did the trial court err in failing to grant a mistrial when
        Detective Francis X. Green revealed to the jury that [Adams]
        had been previously convicted of a crime and thereby
        undermined the presumption of innocence and denied
        [Adams] an impartial jury and a fair trial?

Adams’ Brief at 4.

     In reviewing a question of whether a trial court erred in denying
     a motion for a mistrial, an appellate court considers whether the
     lower court abused its discretion.

Commonwealth v. Young, 849 A.2d 1152, 1154 n.1 (Pa. 2004).




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      Adams argues that Detective Green’s references to Adams’ prior arrest

and conviction unfairly prejudiced the jury.     Detective Green referred to

Adams’ police photo number.      Adams contends that the reference implied

that Adams previously had been arrested or convicted. Detective Green also

stated that he had contacted Adams through a parole or probation officer.

Adams asserts that this confirmed that Adams had a prior conviction.

Adams argues that the trial court’s curative instruction was insufficient to

mitigate the resulting prejudice and argues that the testimony was not

harmless. Therefore, Adams asserts that the trial court erred in refusing to

grant a mistrial. Adams’ Brief at 8-13.

      Rule 605 of the Rules of Criminal Procedure governs when a mistrial

should be granted and states, in pertinent part, as follows:

      When an event prejudicial to the defendant occurs during trial
      only the defendant may move for a mistrial; the motion shall be
      made when the event is disclosed. Otherwise, the trial judge
      may declare a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605(B). Regarding the use of prior criminal activity in a trial,

we have said:

      It is well established that evidence of other criminal activity
      generally is inadmissible against a defendant at his trial on
      another charge. Commonwealth v. Roman, 351 A.2d 214 (Pa.
      1976); Commonwealth v. Groce, 303 A.2d 917 (Pa. 1973).
      The reason behind this rule is that the Commonwealth should
      prove beyond a reasonable doubt that a defendant has
      committed the particular crime of which he is accused, without
      stripping him of the presumption of innocence by proving that he
      has committed other criminal acts.         Commonwealth v.
      Stanley, 398 A.2d 631 (Pa. 1979); Roman, supra. . . .


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       We have noted in the past that our cases have not established a
       per se rule requiring a new trial for every prejudicial reference of
       this type. See Commonwealth v. Seigrist, 385 A.2d 405 (Pa.
       Super. 1978). The prejudicial effect of the reference may be
       overcome by cautionary instructions, Commonwealth v.
       Williams, 368 A.2d 249 (Pa. 1977), or an appellate court may
       find that any error was harmless. Commonwealth v. Knight,
       364 A.2d 902 (Pa. 1976).

Commonwealth v. Stokes, 421 A.2d 240, 245 (Pa. Super. 1980) (citations

modified).

       “Not all references [that] may indicate prior criminal activity require

reversal.     Mere passing references to criminal activity will not require

reversal unless the record indicated that prejudice resulted from the

reference.”    Commonwealth v. Guilford, 861 A.2d 365, 370 (Pa. Super.

2004).      When considering whether a mistrial is necessary, the trial court

should consider “the nature of the reference and whether the remark was

intentionally elicited by the Commonwealth.” Commonwealth v. Gilliard,

446 A.2d 951, 954 (Pa. Super. 1982).         Additionally, if the trial court can

“overcome any possible prejudice” with a cautionary instruction, a mistrial is

unnecessary. Commonwealth v. Johnson, 846 A.2d 161, 166 (Pa. Super.

2004). “[T]he extreme remedy of a mistrial is not automatically required if

it is determined that the inference of prior criminality was innocuous and

that     effective    curative   instructions   were     immediately     given.”

Commonwealth v. Fernandez, 482 A.2d 567, 570 (Pa. Super. 1984).

       In Young, supra, our Supreme Court addressed whether a mistrial

was warranted when a police detective made reference to a police photo


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number. In that case, the detective explained that witnesses were shown

photographs from an imager that displayed photographs of people “who

have had contact with the police.” 849 A.2d at 1153. The detective testified

that the witness “identified a photograph of [the defendant], Police Photo

Number 775. . . .” Id. at 1154. The Court recited the general rule that a

mere passing reference to police photographs does not per se require a

mistrial. Id. at 1155. Instead, only those references “that expressly or by

reasonable implication also indicate some involvement in prior criminal

activity” rise to prejudicial error.   Id. at 1156.   In Young, the Supreme

Court concluded that the detective’s statements were passing references

that did not indicate prior criminal activity. Id.

       Here, Detective Green’s statement regarding Adams’ photograph was

similar to the statement in Young.        In Young, the detective specifically

referred a police photo number.            Here, Detective Green used the

abbreviation “PP Number.”        This statement was, at most, a passing

reference and did not indicate an involvement in prior criminal activity.

      More troubling is Detective Green’s reference to Adams’ parole or

probation officer.   Nonetheless, “[a]n isolated passing reference to prior

criminal activity will not warrant reversal unless the record indicated that

prejudice resulted from the remark.” Commonwealth v. Maute, 485 A.2d

1138, 1143 (Pa. Super. 1984). Instead, in determining whether a mistrial is

warranted, the court should consider the nature of the remark, whether the

remark was deliberately introduced or exploited by the Commonwealth, and

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whether     a   prompt    curative    instruction   was   given.   Id.   (discussing

Commonwealth v. Richardson, 437 A.2d 1162 (Pa. 1981)). In Maute, a

witness, during cross-examination by defense counsel, stated that she had

known the defendant “since he came home from jail.” Id. Because defense

counsel elicited the statement, it was a passing reference, the comment was

neither repeated nor emphasized, and did not refer to specific criminal

conduct, we held that the trial court did not err in refusing to grant a

mistrial.2 Id.

       Similarly, in Commonwealth v. Guilford, during a robbery trial, two

police officers offered testimony that could have caused the jury to infer that

the defendant was involved in a second crime.              861 A.2d 365, 370 (Pa.

Super. 2004). One police officer testified that, while he was speaking with

the victim, another officer told him that they had a man who they were

“holding from a prior job.”         Id.   The second officer said that, after they

arrested the defendant, two officers brought two victims to identify the

defendant.      We found that the testimony “was not intentionally elicited by

the Commonwealth,” and that both references were brief. Therefore, relief

was not warranted. Id.



____________________________________________


2
      We also noted that any resulting prejudice would have been cured by
an instruction, but that defense counsel refused the trial court’s offer of a
curative instruction because counsel did not want to draw attention to the
remark. Id.



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      However, when a jury hears testimony about specific prior criminal

activity, the resulting prejudice may be such that a curative instruction will

not rectify the situation. In Commonwealth v. Laughman, in response to

a question about how he knew the defendant, the victim answered:

      I ran into [the defendant] at the Lucky Spot Restaurant. . . .
      [The defendant] came in with two other guys. He sat down, and
      I don’t know what he was saying, I wasn’t listening to him
      because it was him and two other guys. He had spit in my food
      and I looked down at the food and he came leaping over the
      table and I jumped up and we both grabbed butcher knives and
      we both were arrested, and he was found guilty and they left me
      go.

452 A.2d 548, 549 (Pa. Super. 1982).         The Commonwealth told the trial

court that the witness had been warned not to testify about the prior

criminal record.    Id.   Further, the Commonwealth did not inquire further

about that incident and the trial court gave a cautionary instruction. Id. at

550. We found that the trial court erred in refusing a mistrial because the

testimony “unnecessarily conveyed to the jury the express fact of a prior

criminal offense” and a curative instruction could not remedy the resulting

prejudice.    Id.   In so ruling, we emphasized that the defendant felt

compelled to testify about the incident to minimize its impact. Id.

      In the instant case, Detective Green’s reference to Adams’ parole or

probation officer implied Adams’ had engaged in prior criminal activity.

However, it was a brief remark and the Commonwealth did not further

inquire about Adams’ parole or probation. Thus, it resembled the witness’

remark in Maute about the defendant returning from jail and the police

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officers’ testimony in Guilford that indicated the defendant was a suspect in

a second crime.      Unlike in Laughman, Detective Green did not refer to a

specific criminal incident, nor did he describe any prior criminal acts.

Detective Green’s testimony did not compel Adams to testify in an attempt

to explain or minimize Detective Green’s statement.3 Finally, the trial court

immediately gave a strong curative instruction.     Based upon all of these

circumstances, Detective Green’s statement did not cause the type of

prejudice that could not be remedied by a curative instruction. Having given

an appropriate instruction, the trial court did not err in denying the request

for a mistrial.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015
____________________________________________


3
      Although initially Adams planned to testify, he ultimately chose not to
do so. N.T., 4/17/2012, at 4-5.
4
      The trial court concluded that Adams should not benefit from any
prejudice that resulted from displaying his prison ID bracelet because the
display was Adams’ fault. T.C.O. at 6-7. Because we hold that there was
any prejudice from Detective Green’s statements was remedied by the
court’s curative instruction, and because Adams does not argue that his
display alone warranted a mistrial, we need not address this issue.



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