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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

TYLER KEHOE,

                         Appellant                     No. 1245 WDA 2013


          Appeal from the Judgment of Sentence Entered May 1, 2013
               In the Court of Common Pleas of Beaver County
             Criminal Division at No(s): CP-04-CR-0000095-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 13, 2014

      Appellant, Tyler Kehoe, appeals from the judgment of sentence of

seven years’ probation and $300 in fines, imposed after he was convicted of

aggravated assault, simple assault, and recklessly endangering another

person.    Appellant contends that he is entitled to a new trial based on

prejudicial remarks by the judge during the course of his jury trial.      We

affirm.

      The trial court set forth the facts of this case as follows:

      On August 23, 2011, at approximately 3:00 a.m., Officer Chad
      Lively of the Economy Borough police department was informed
      of an ambulance being dispatched to 210 Hoenig Road,
      Sewickley, Pennsylvania 15143 for a twenty-five (25) year-old
      male who was acting in an out-of-control manner. He was
      informed by the dispatcher that one could hear the individual
      yelling in the background. When he arrived at the scene at 3:06
      a.m., [Appellant’s] mother, Pamela Oriszko, met him in the
      driveway. After [the officer] exited from his vehicle, he heard
      [Appellant] screaming, “F@#* you, I’ll kill you,” from the woods
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        on the hillside. Officer Lively then instructed [Appellant] that he
        was a police [officer] and that he was there to help. The officer
        then heard several gunshots coming from the area of
        [Appellant]. One of the gunshots traveled over the head area of
        the officer, and he heard it go through the tree branches above
        where he was standing.          The officer immediately notified
        dispatch and asked for backup.         After other police officers
        arrived, a dialogue was started with [Appellant] and after
        approximately thirty (30) minutes, [Appellant] exited the woods
        and turned himself in to Officer Lively. The officer noted that the
        entire incident took fifty (50) minutes from the time he arrived
        at the scene until [Appellant] turned himself in to the police.
        Officer Lively stated that [Appellant] was visibly intoxicated. The
        officer also noted that [Appellant] told the police officer that he
        was sorry and [that he] didn’t mean to shoot at [the officer].
        [Appellant] was then transported to the Beaver Medical Center
        for a mental health evaluation. Officer Lively further testified
        that the police had discovered that [Appellant] was the
        registered owner of a .380 caliber Mav, which is a semiautomatic
        handgun. He also stated that after [Appellant] was read his
        Miranda[1] warnings, [Appellant] stated that he didn’t mean to
        shoot toward the officer or anyone else.

Trial Court Opinion (TCO), 9/25/13, at 3-4.

        Based on these facts, the jury convicted Appellant of the above-stated

offenses and the court imposed the aggregate sentence stated supra.

Appellant filed a timely post-sentence motion, which the court denied on July

1, 2013. Appellant then filed a timely notice of appeal, as well as a timely

court-ordered concise statement of errors complained of on appeal in

accordance with Pa.R.A.P. 1925(b). Herein, Appellant presents one issue for

our review:

        I. Whether the trial court’s sua sponte interruption of Appellant’s
        trial counsel’s cross-examination of the only witness against him
____________________________________________


1
    Miranda v. Arizona, 86 S.Ct. 1602 (1966).



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      effectively denied him a fair trial by bolstering the witness’
      credibility and impugning the tactics of defense counsel[?]

Appellant’s Brief at 3.

      Appellant maintains that he is entitled to a new trial based on

irreparable prejudice he suffered when the trial judge made inappropriate

comments during defense counsel’s cross-examination of Officer Lively. The

court’s remarks occurred when defense counsel attempted to point out

inconsistencies between the officer’s testimony and the facts set forth by the

officer in the Affidavit of Probable Cause and in his “narrative report.” N.T.

Trial at 121. The following portion of the transcript sets forth the context of

the court’s comments:

      [Defense Counsel]: All right. So, nevertheless, you generated,
      you authored two reports[, the narrative report and Affidavit of
      Probable Cause,] correct?

      [Officer Lively]: Correct.

      [Defense Counsel]: And a moment ago I believe [the prosecutor]
      said that not all of the facts and you agreed that not all of the
      facts make it into the reports?

      [Officer Lively]: Correct.

      [Defense Counsel]: Only the material facts is, I think, the word
      you used, material facts.

      [Officer Lively]: Well, your Affidavit of Probable Cause, we’re
      putting in there enough to get an arrest warrant for the
      individual.

      [Defense Counsel]: Okay, and will you agree with me that
      important facts go into both of these reports?

      [Officer Lively]: Correct.

      [Defense Counsel]: And will you agree with me that –



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      The Court: [Defense counsel], your term is a little misleading.
      The Affidavit of Probable Cause requires sufficient facts for a
      Magistrate or Magisterial District Judge to issue a warrant. It’s
      not all the facts. It’s just sufficient facts.

      [Defense Counsel]: Okay.

      The Court: Many times policemen in doing their job do not place
      all the facts in purposefully because they don’t want to let the
      defense know exactly what evidence they have.

            Now, you may continue, but keep that in mind of what can
      and [cannot] happen because you’re speculating about a lot of
      things here.

      [Defense Counsel]:    Okay.   So, with that said, sufficient facts,
      forgive me.

N.T. Trial at 122-124 (unnecessary capitalization omitted).

      After defense counsel posed several more questions to Officer Lively,

the court took a short recess. When court reconvened, defense counsel had

the following exchange with the court:

      [Defense Counsel]: Your Honor, at this time, I’m moving for a
      mistrial based on the fact that when I was giving my cross-
      examination, this Honorable Court said something to the effect
      of me trying to mislead the jury, and as a result, I do feel as
      though that undermines my credibility with the jury. I can’t
      remember exactly what was said. It kind of all caught me off
      guard.

      The Court: Basically I said that the Affidavit of Probable Cause
      doesn’t need to have all the important facts, just sufficient facts.
      Your use of “all facts” was misleading, and I’ll stand by that.
      Your motion is denied.

Id. at 125.

      On appeal, Appellant maintains that the court erred by denying his

request for a mistrial because the judge’s comments “erroneously lent [the

judge’s] influence to the jury’s credibility calculations.” Appellant’s Brief at

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20. Appellant primarily contends that the judge’s comments impermissibly

bolstered Officer Lively’s credibility, which was a key issue at trial. He also

avers that the court’s remarks “denigrat[ed] defense counsel’s standing in

the courtroom[,]” and implied that counsel was “misleading the jury….”

Appellant’s Brief at 22. Appellant argues that the prejudice caused by the

court’s comments was clear, and because the court did nothing to cure that

prejudice, such as issuing a cautionary jury instruction, Appellant was

entitled to a mistrial.

      Initially, we are compelled to conclude that Appellant has waived two

of his arguments for our review. First, when defense counsel objected to the

court’s remarks, he only requested a mistrial; he did not ask the court to

provide the jury with a cautionary instruction. Consequently, any challenge

to   the   court’s   failure   to   provide   such   an   instruction   is   waived.

Commonwealth v. Sanchez, 82 A.3d 943, 971 (Pa. 2013) (finding the

appellant’s claims that the court erred by not granting a mistrial or providing

a cautionary instruction were waived because “[n]either remedy was

requested at trial”) (citing Commonwealth v. Johnson, 42 A.3d 1017,

1026 (Pa. 2012) (“Insofar as appellant complains about the lack of a

contemporaneous instruction, he waived this claim by failing to request a

curative instruction.”)).

      Likewise, Appellant has also waived his argument that the trial judge’s

remarks improperly bolstered Officer Lively’s credibility.       Defense counsel

objected to the court’s remarks on the basis that they “undermine[d]

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[defense counsel’s] credibility with the jury.” N.T. Trial at 125. Counsel did

not assert that the court’s comments impermissibly bolstered the veracity of

Officer Lively’s testimony. Accordingly, this argument is also waived for our

review. See Sanchez, 82 A.3d at 969-970 (finding waived appellant’s claim

that   prosecutor   improperly   bolstered   witness’   testimony   where   “the

objection posed by [a]ppellant … was not offered on the basis of improper

bolstering,” but on another unrelated ground) (citations omitted); see also

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

       Therefore, the only argument we may assess herein is Appellant’s

claim that the judge’s remarks undermined defense counsel’s credibility,

thus entitling him to a new trial. Our Supreme Court has stated:

       Every unwise or irrelevant remark made in the course of a trial
       by a judge, a witness, or counsel does not compel the granting
       of a new trial. A new trial is required when the remark is
       prejudicial; that is, when it is of such a nature or substance or
       delivered in such a manner that it may reasonably be said to
       have deprived the defendant of a fair and impartial trial.

Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 1973) (internal

citations and quotation marks omitted).

       It is clear from the record that the court directed two remarks toward

defense counsel. First, the court stated that counsel’s “term [was] a little

misleading,” and, second, that counsel was “speculating about a lot of things

here.” N.T. Trial at 123. When the court stated that counsel was using a

“misleading” term, it went on to explain that an Affidavit of Probable Cause


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requires sufficient facts, not a recitation of all the facts, as the court

interpreted defense counsel’s language as indicating. The court’s comment

was an accurate statement of law.          See Commonwealth v. Geary, 411

A.2d 1195, 1197-1198 (Pa. 1980) (rejecting the appellant’s argument that

an Affidavit of Probable Cause for an arrest warrant must contain “all

information used to supply probable cause[;]” emphasizing that “the

applicable Rules of Criminal Procedure do not require all evidence used to

supply probable cause for arrest to be included in the affidavit”). Moreover,

we disagree with Appellant that the comment “denigrat[ed] defense

counsel’s standing in the courtroom.” Appellant’s Brief at 22. Instead, the

court appropriately clarified for the jury a legal principle upon which the

court     thought   defense    counsel’s    language   was    unclear.    See

Commonwealth v. Hammer, 494 A.2d 1054, 1062 (Pa. 1985), abrogated

on other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)

(indicating it is permissible for a judge to question a witness or comment on

testimony for purposes of clarifying that testimony, or to “enlighten the

jury”).

        The court’s second remark that counsel was “speculating about a lot of

things” appears to be more of an admonishment to counsel than a comment

on counsel’s credibility.     This Court has stated that “a defendant is not

entitled to a new trial because of the trial court’s chastisement of his trial

counsel unless that criticism reflects animosity towards or disbelief of the

defendant or partiality favoring the Commonwealth.”          Commonwealth v.

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Correa, 620 A.2d 497, 505 (Pa. Super. 1993).        Here, the court’s remark

that counsel was speculating did not reflect animosity toward Appellant, nor

indicate that the court disbelieved Appellant’s defense. It also did not imply

any favoritism toward the Commonwealth.

      For these reasons, Appellant has not convinced us that he was

prejudiced by the trial court’s remarks during the cross-examination of

Officer Lively. Accordingly, the trial court did not err in denying his motion

for a mistrial.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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