J-A21032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM HENRY ROBINSON, III,

                            Appellant                    No. 2878 EDA 2014


      Appeal from the Judgment of Sentence entered September 8, 2014,
            in the Court of Common Pleas of Montgomery County,
             Criminal Division, at No(s): CP-46-CR-0000492-2013


BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED AUGUST 27, 2015

        William Henry Robinson, III (“Appellant”) appeals from the judgment

of sentence imposed after a jury convicted him of rape of a child, aggravated

indecent assault of a child, indecent assault of a child, and corruption of

minors.1 We affirm.

        The pertinent facts and procedural background of this case are as

follows:    In the summer of 2011, Appellant, his paramour J.B. and their

infant child lived on-and-off at the home of J.B.’s mother, W.B., in

Pottstown, Montgomery County.            Trial Court Opinion, 12/1/14, at 1.   The

home was also shared by W.B.’s             teenage son and her then 12-year old

daughter, K.W., the victim. Id. Over the course of the summer, Appellant

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), 3126(a)(7) and 6301(a)(1)(ii).



*Former Justice specially assigned to the Superior Court.
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engaged in an escalating pattern of sexual contact with K.W. that began with

inappropriate touching and progressed to rape.       Id.   K.W. subsequently

reported the abuse to her school guidance counselor and Appellant was

arrested and charged with the aforementioned crimes.

     A trial commenced on October 7, 2013, at the conclusion of which the

jury found Appellant guilty.   On September 8, 2014, following a hearing,

Appellant was designated a sexually violent predator (“SVP”).     That same

day, the trial court sentenced Appellant to 20 to 40 years of imprisonment

for rape of a child, a consecutive 5 to 10 years of imprisonment for

aggravated indecent assault of a child, and a consecutive 2 to 4 years of

imprisonment for indecent assault of a child, for an aggregate sentence of

27 to 54 years of imprisonment.      No further penalty was imposed for

corruption of minors.

     Appellant filed a post-sentence motion on September 17, 2014, which

he subsequently withdrew, and a notice of appeal was filed on October 3,

2014. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

     Appellant presents two issues for our review:

     1. WHETHER THE TRIAL COURT ERRED BY DENYING
        [APPELLANT’S] MOTION FOR A MISTRIAL FOR THE
        PROSECUTION’S STATEMENTS MADE DURING OPENING
        STATEMENTS REGARDING [APPELLANT’S] STATEMENTS THAT
        HE WISHED TO COOPERATE AS A CONFIDENTIAL INFORMANT
        REGARDING DRUG ACTIVITY.

     2. WHETHER THE TRIAL COURT ERRED BY DENYING
        [APPELLANT’S] MOTION FOR A MISTRIAL ON THE GROUNDS
        THAT   A   COMMONWEALTH     WITNESS   TESTIFIED TO


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         [APPELLANT] BEING HELD IN CUSTODY AT THE PRELIMINARY
         HEARING.

Appellant’s Brief at 6.

      Appellant’s issues are interrelated.   Therefore, we will address them

together. Appellant first argues that the trial court erred when it denied his

motion for mistrial after the prosecutor, in his opening statement, informed

the jury that Appellant had offered to cooperate with the police as a

confidential informant, and additionally when Detective Heather Long, a

Commonwealth witness, referenced Appellant’s having been in police

custody prior to trial. Appellant’s Brief at 10-22.

      “[T]he trial court is vested with discretion to grant a mistrial whenever

the alleged prejudicial event may reasonably be said to deprive the

defendant of a fair and impartial trial. In making its determination, the court

must discern whether misconduct or prejudicial error actually occurred, and

if so, ... assess the degree of any resulting prejudice.    Our review of the

resulting order is constrained to determining whether the court abused its

discretion.”   Commonwealth v. Judy, 978 A.2d 1015, 1019–1020 (Pa.

Super. 2009) (quotation marks and citations omitted).       “The remedy of a

mistrial is an extreme remedy required only when an incident is of such a

nature that its unavoidable effect is to deprive the appellant of a fair and

impartial tribunal.” Id. With regard to cautionary instructions, “the decision

to give curative instructions is within the sound discretion of the trial court

and will not be disturbed absent manifest error.” Commonwealth v. Ford,

650 A.2d 433, 442 (Pa. 1994).

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     Here, the trial court addressed Appellant’s motions for mistrial:

           [Appellant] contends [the trial court] erred in denying his
     requests for mistrials when the prosecutor mentioned during his
     opening statement that [Appellant] had offered to cooperate
     with law enforcement as a confidential informant and when a
     Commonwealth witness made reference during her testimony to
     [Appellant] being in police custody during a conversation she
     had with him. Neither event warranted the drastic remedy of a
     mistrial.


                                       ***

           During the prosecutor’s opening remarks to the jury, he
     stated:

           You are going to hear that after [Appellant] was
           arrested he told Detective Heather Long that he
           didn’t rape [the victim], but he kissed her. That the
           rape didn’t take place, but he admits that he kissed
           her, and he is willing to cooperate with the police as
           a confidential informant.

           N.T., 10/7/14 at 78-79.

            Upon completion of the opening statement, defense
     counsel made an opening statement and the Commonwealth
     presented testimony from its first witness. The following day,
     defense counsel requested a mistrial on the basis of the
     reference to [Appellant] offering to act as a confidential
     informant. N.T., 11/8/14 at 6-7. In the alternative, defense
     counsel requested the jury be instructed to disregard the
     prosecutor’s comment. Id. [Appellant] did not challenge the
     knowing, voluntary and intelligent nature of his statement to
     Detective Long. He argued that the reference to a “confidential
     informant” implicated prior bad act information. Id. at 6. [The
     trial court] denied the motion for mistrial and [asked] whether
     the defense warranted a curative instruction [given the danger
     of drawing more attention to the objectionable statement]. Id.
     at 6-7. Defense counsel asked for time to think about it and get
     back to the court, but did not raise the issue again.



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           The fleeting remark by the prosecutor during his opening
     statement, which was not mentioned again in front of the jury,
     did not warrant the drastic remedy of a mistrial. Moreover,
     during [the trial court’s] closing charge, it instructed the jury
     that the opening and closing statements of counsel are not part
     of the evidence and should not be considered as such. N.T.,
     10/8/14 at 176-177. The jury ... is presumed to have followed
     that instruction. Commonwealth v. Jemison, 98 A.3d 1254,
     1263 (Pa. 2014). [Appellant] therefore is not entitled to relief
     on his claim that the [trial] court should have granted a mistrial
     based on the prosecutor’s remark.

           Similarly, the [trial court] properly exercised its discretion
     in denying [Appellant’s] request for a mistrial when reference
     was made during Detective Long’s testimony about statements
     made to her by [Appellant] when he was in custody at the time.
     N.T., 10/8/13 at 100-101.            The brief comments about
     [Appellant] being in custody did not deprive him of a fair trial.
     Indeed, it has been held that a mistrial is not generally
     warranted even where members of the jury see a defendant in
     handcuffs. Here, the passing reference to [Appellant’s] pre-trial
     detention did not rise to the level of a mistrial. In addition, upon
     the request of defense counsel, [the trial court] gave the jury a
     cautionary instruction:

           THE COURT:        All right. Ladies and gentlemen of
           the jury, you have heard the testimony regarding
           pretrial detention. Any testimony to that effect has
           no bearing on this trial and shall be disregarded by
           the jury. All right? You are so ordered to do so. It
           is disregarded. Satisfactory, Mr. Kravitz?

           MR. KRAVITZ:       Yes, Your Honor.

           Given the presumption that the jury followed the court’s
     instruction, [Appellant] is not entitled to relief on his claim that
     the [trial court] erred in denying his request for a mistrial.

Trial Court Opinion, 12/1/14, at 8-10.

     Upon careful review of the record, we find no error in the trial court’s

determinations.     First,   we   note   that   Appellant   failed   to   make   a


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contemporaneous objection after the prosecutor, during opening statements,

referenced Appellant’s willingness to become a confidential informant.

Rather, Appellant’s counsel waited until the following day, after opening

statements had concluded and witnesses had begun to testify, to object. On

this basis alone, the trial court could have denied the objection for being

untimely. See Commonwealth v. Pearson, 322, 685 A.2d 551, 555 (Pa.

Super. 1996) (“Failure to raise a contemporaneous objection to the evidence

at trial waives that claim on appeal. Pa.R.A.P. 302(a)”).

        Moreover,   even    after   Appellant’s   counsel    objected    to   the

Commonwealth’s reference to Appellant offering to be a confidential

informant, Appellant’s counsel still did not request a mistrial, and did not

pursue the trial court’s offer to issue a curative instruction. N.T., 10/8/13,

at 8.   See Commonwealth v. Wholaver, 989 A.2d 883, 892 (Pa. 2010)

(where trial counsel objected to the admission of evidence but did not

request a limiting instruction, the issue of trial court error for not giving such

instruction is waived); Commonwealth v. Bryant, 855 A.2d 726, 739

(2004) (failure to request cautionary instruction upon introduction of

evidence constitutes waiver of claim of trial court error in failing to issue

cautionary instruction); Commonwealth v. Bell, 562 A.2d 849, 853 (Pa.

Super. 1989) (“Where counsel fails to request a mistrial when the alleged

prejudicial event occurs, the issue is not preserved for appellate review.”).




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J-A21032-15


      Even if Appellant had not waived the challenge to the prosecutor’s

opening   statement    referencing   Appellant’s   offer   to   cooperate   as   a

confidential informant, we agree with the trial court that a mistrial was not

warranted.    Following Appellant’s objection to the prosecutor’s opening

statements, the trial court made clear to the prosecution that it could not

question Commonwealth witnesses about Appellant’s desire to become a

confidential informant, thus ensuring that the Commonwealth did not exploit

the reference. N.T., 10/8/13, at 7-8.

      Moreover, although arguably the jury could have inferred prior bad

acts from the prosecutor’s statement that Appellant offered to become a

confidential informant, the prosecutor did not make any explicit references

to any prior bad acts or detail any past criminal activity committed by

Appellant, diminishing any potentially prejudicial effect from the statement.

In addition, prior to the Commonwealth’s opening statement, the trial court

instructed the jury that “the statements and the arguments of counsel ... are

not binding upon you as evidence” and the jury is presumed to follow the

trial court’s instructions. N.T., 10/7/13, at 65. Based on the foregoing, we

find no abuse of discretion in the trial court’s determination that Appellant

was not entitled to a mistrial.

      We turn next to Appellant’s challenge to the Commonwealth’s

reference to Detective Long’s statements that she spoke with Appellant while




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he was being held in pre-trial custody after the preliminary hearing.2          Our

Supreme Court has explained that “although generally no reference may be

____________________________________________


2
    Appellant objected to the following testimony of Detective Heather Long:

        Assistant District Attorney:      Were you present at [Appellant’s]
                                          preliminary hearing?

        Detective Long:                   Yes, I was.

                                           ***

        Assistant District Attorney:      After the preliminary hearing, did
                                          you    have   any   contact   with
                                          [Appellant] again?

        Detective Long:                   Yes. I walked [Appellant] back to
                                          Pottstown Borough Hall where he
                                          was placed in a holding cell to
                                          await transport back. And I had
                                          returned to the cellblock with
                                          another prisoner and he got my
                                          attention.    We had very thick
                                          doors, so I had to open the door to
                                          be able to hear him. At which
                                          point, he stated, prior to me being
                                          able to say anything to him, that
                                          he had kissed [the victim], but did
                                          not put his penis in her vagina.

                                              ***
        Assistant District Attorney:      At that point in time, did you ask
                                          [Appellant] any questions?

        Detective Long:                   No.

        Assistant District Attorney:      And was that because he was in
                                          custody at the time?

        Detective Long:                   Correct.
(Footnote Continued Next Page)


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J-A21032-15


made at trial in a criminal case to a defendant's arrest or incarceration for a

previous crime, there is no rule in Pennsylvania which prohibits reference to

a defendant's incarceration awaiting trial or arrest for the crimes charged.”

Commonwealth v. Johnson, 52-53, 838 A.2d 663, 680-81 (Pa. 2003).

Here, the jury could have reasonably inferred that Appellant’s custody

referenced by Detective Long was the result of the criminal acts for which

Appellant was on trial. Thus, the testimonial evidence in question “did not

either expressly or by reasonable implication convey the fact of a prior

criminal offense unrelated to the criminal episode for which [Appellant] was

then on trial,” and therefore no mistrial was warranted. Commonwealth v.

Wilson, 649 A.2d 435, 446 (Pa. 1994).

      Moreover, immediately after Detective Long’s statement, the trial court

issued a prompt curative instruction to the jury sufficient to negate any

prejudice which may have resulted, and thereafter issued a full and

complete charge to the jury. The Commonwealth did not further exploit the

reference, and no other evidence of Appellant being in custody prior to trial

was introduced.        Under these circumstances, we conclude that the trial

court’s instruction to the jury to disregard the remark was proper, and that

the any prejudice that resulted was insufficient to require a mistrial.
                       _______________________
(Footnote Continued)


      Appellant’s Counsel:                 Objection. Your Honor, may I approach?

N.T., 10/8/13, at 101.



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J-A21032-15


     For the foregoing reasons, we find Appellant’s issues to be unavailing,

and therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2015




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