J-S32002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                                Appellee

                           v.

SHAWN LOUIS ECKLUND

                                Appellant           No. 1665 WDA 2012


              Appeal from the Judgment of Sentence August 3, 2012
                In the Court of Common Pleas of Venango County
                 Criminal Division at No(s): C.R. No.m. 852-2011
                                             CP-61-CR-0000852-2011



BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.

MEMORANDUM BY PANELLA, J.:                          FILED AUGUST 5, 2014

          Appellant, Shawn Louis Ecklund, appeals from the judgment of

sentence entered August 3, 2012, by the Honorable H. William White, Jr.,

Court of Common Pleas of Venango County. We affirm.

          Following a four-day jury trial, on June 22, 2012, Ecklund was

convicted of Aggravated Assault – Serious Bodily Injury Attempted,1

Intimidation of Witness,2 Endangering the Welfare of Children,3 Terroristic

Threats,4 and Simple Assault.5 On August 3, 2012, the trial court sentenced

____________________________________________


1
    18   Pa.C.S.   §   2702(a)(1).
2
    18   Pa.C.S.   §   4952(a)(1).
3
    18   Pa.C.S.   §   4304(a)(1).
4
    18   Pa.C.S.   §   2706(a)(1).
5
    18   Pa.C.S.   §   2701(a)(1).
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Ecklund to an aggregate term of eight to twenty years’ incarceration,

followed by five years’ probation.          The trial court denied Ecklund’s post-

sentence motion requesting a new trial on August 10, 2012.                 This timely

appeal followed.

      On appeal, Ecklund raises the following issues for our review:

      I.         Whether or not, due to prosecutorial misconduct, the
                 appellant was denied due process and a fair trial under the
                 5th and 14th Amendments of the United States Constitution
                 and Article, Section 8 of the Pennsylvania Constitution?

      II.        Whether or not the trial court abused its discretion in
                 failing to grant a mistrial based upon the actions of the
                 assistant district attorney?

Appellant’s Brief at 4.

      Our standard of review for a claim of prosecutorial misconduct is

limited     to    whether    the   trial   court   abused   its    discretion.    See

Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa. Super. 2012) (citation

omitted), appeal denied, 51 A.3d 838 (Pa. 2012).                  “To constitute a due

process violation, the prosecutorial misconduct must be of sufficient

significance to result in the denial of the defendant's right to a fair trial.”

Commonwealth v. Chmiel, 30 A.3d 1111, 1181 (Pa. 2011) (citation

omitted). “The touchstone is the fairness of the trial, not the culpability of

the prosecutor.” Id.

      A prosecutor may make fair comment on the admitted evidence
      and may provide fair rebuttal to defense arguments. Even an
      otherwise improper comment may be appropriate if it is in fair
      response to defense counsel's remarks. Any challenge to a
      prosecutor’s comment must be evaluated in the context in which
      the comment was made. …

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      Not every unwise, intemperate, or improper remark made by a
      prosecutor mandates the grant of a new trial:

         Reversible error occurs only when the unavoidable effect of
         the challenged comments would prejudice the jurors and
         form in their minds a fixed bias and hostility toward the
         defendant such that the jurors could not weigh the
         evidence and render a true verdict.

Id. at 1181-1182 (internal citations omitted).

      In the argument portion of his brief, Ecklund first recites our standard

for reviewing claims of prosecutorial misconduct and then proceeds to

outline 14 alleged instances of misconduct.      Many of these allegations are

not misconduct at all, but, for example, descriptions of trial court rulings.

See, e.g., Appellant’s Brief at 11 ¶ d. (“The result of the pretrial hearing was

favorable for Ecklund….”). In the instances of misconduct categorized in the

brief, Ecklund is quick to vilify the prosecutor’s “talent for lying and

misleading the court, as well as his inability to follow court orders” or his

“arrogance for verifications and certificate’s [sic] of service, as well as his

overall disregard in the filing and handling of court related documents.”   Id.

at 10, 11. Ecklund even goes so far as to provide a section devoted to “past

and/or previous conduct” of the prosecutor in cases other than that before

the Court in this case.     Id. at 15-16.     Notably absent from Ecklund’s

argument is any detailed discussion or analysis of how the prosecutor’s

alleged misconduct in this case prejudiced his right to a fair trial below or

otherwise prejudiced the jurors such that they “could not weigh the evidence

and render a true verdict.” Chmiel, supra. Indeed, Ecklund fails to provide


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any meaningful legal analysis of his individual claims and his argument

neglects to set forth a discussion of relevant case law as to whether the

prosecutor’s actions even amount to misconduct.

      In a tacit acknowledgment of this omission, Ecklund urges that “[i]f

you look at the objections, as isolated incidents in a vacuum, then Ecklund

and his counsel would agree with the trial court [that Ecklund received a fair

trial].” Appellant’s Brief at 17. Ecklund continues that, “[h]owever, it is [the

prosecutor’s] course of conduct that is in question and it is this course of

conduct that denied Ecklund the opportunity for a fair trial in this matter.”

Id.

      We note it is well settled that “no number of failed claims may

collectively attain merit if they could not do so individually.”   Chmiel, 30

A.3d at 1186 (citation omitted).         Here, because Ecklund has failed to

establish that any of his claims of prosecutorial misconduct merit relief

individually, he cannot do so on a cumulative basis.

      As Ecklund has failed to establish he was denied the right to a fair trial

as a result of the prosecutor’s actions when taken individually, we are

constrained to find that Ecklund’s claims of prosecutorial misconduct do not

warrant relief. Consequently, we also find no abuse of discretion in the trial

court’s refusal to declare a mistrial.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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