J-A05001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    FRANKLIN JOSEPH SABOLCIK                   :
                                               :
                      Appellant                :       No. 892 WDA 2015

              Appeal from the Judgment of Sentence May 4, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015022-2013


BEFORE:      GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 13, 2017

        Appellant, Franklin Joseph Sabolcik, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

his jury trial convictions of theft by unlawful taking or disposition and

receiving stolen property.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant became the vice president of White Oak Animal Safe Haven in

2010.     As vice president, Appellant was responsible for the day-to-day

operations of the shelter and had access to the shelter’s bank accounts.

After a few checks bounced in 2012, the shelter’s bank contacted Ina Jean

Marton, the president of White Oak Animal Safe Haven.               Ms. Marton
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1
    18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively.
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confronted Appellant about the shelter’s increased operating expenses and

the bounced checks, and Appellant assured her everything was fine. About

six months later, Ms. Marton learned of a second shelter bank account,

which Appellant had opened without her knowledge or permission. Appellant

was the only person with access to this second account.            When shelter

finances continued to be an issue, Ms. Marton fired Appellant.         During an

ensuing inspection of the shelter’s bank accounts, Ms. Marton discovered

Appellant   had   made      many     unauthorized   purchases.     Ms.     Marton

subsequently contacted police, who further investigated the matter.

      On January 22, 2014, the Commonwealth charged Appellant with theft

by unlawful taking or disposition, theft by deception, and receiving stolen

property. Appellant proceeded to a jury trial on February 3, 2015. At trial,

Appellant   presented    the    testimony    of   Andrew   Richards,   a   private

investigator, who conducted his own investigation into the unauthorized

charges.    During the Commonwealth’s cross-examination, Mr. Richards

mentioned he had limited opportunities to talk to Appellant during his

investigation due to Appellant’s incarcerated status. The court immediately

held a sidebar discussion with Appellant’s counsel and the Commonwealth,

where counsel requested a mistrial. The court denied counsel’s motion for

mistrial, and counsel asked for a curative instruction. The court agreed to

issue a curative instruction and gave counsel a brief recess to draft an

instruction for the jury.      The court then read the instruction to the jury


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without further objection by counsel.         On February 5, 2015, the jury

convicted Appellant of theft by unlawful taking or disposition and receiving

stolen property. The court deferred sentencing pending the preparation of a

pre-sentence investigation (“PSI”) report.

      On May 4, 2015, the court sentenced Appellant to an aggregate term

of eleven and one-half (11½) to twenty-three (23) months’ imprisonment.

Appellant timely filed a notice of appeal on June 3, 2015. On July 7, 2015,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied

on July 27, 2015.

      Appellant raises the following issue for our review:

           DID THE TRIAL COURT ERR IN FAILING TO GRANT A
           MISTRIAL   WHEN    THE   PROSECUTOR    IMPROPERLY
           COMMENTED ON [APPELLANT’S] ABSOLUTE RIGHT TO
           REMAIN SILENT BY ASKING A DEFENSE WITNESS, A
           PRIVATE   INVESTIGATOR,    WHETHER     [HE    HAD]
           QUESTIONED [APPELLANT] IN CONNECTION WITH HIS
           INDEPENDENT     INVESTIGATION    INTO    FINANCIAL
           IMPROPRIETIES AT THE WHITE OAK ANIMAL SAFE HAVEN?

(Appellant’s Brief at 5).

      Our standard of review of the denial of a motion for a mistrial is as

follows:

           [R]eview of a trial court’s denial of a motion for a mistrial
           is limited to determining whether the trial court abused its
           discretion. An abuse of discretion is not merely an error of
           judgment, but if in reaching a conclusion the law is
           overridden or misapplied, or the judgment exercised is
           manifestly unreasonable, or the result of partiality,
           prejudice, bias or ill-will…discretion is abused.

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Commonwealth v. Chamberlain, 612 Pa. 107, 175-176, 30 A.3d 381, 422

(2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017

(2012) (internal citations and quotation marks omitted). “A trial court may

grant a mistrial only where the incident upon which the motion is based is of

such nature that its unavoidable effect is to deprive the defendant of a fair

trial by preventing the jury from weighing and rendering a true verdict.”

Commonwealth v. Fletcher, 41 A.3d 892, 894 (Pa.Super. 2012), appeal

denied, 618 Pa. 683, 57 A.3d 67 (2012).            “[A] mistrial is not necessary

where cautionary instructions are adequate to overcome any possible

prejudice.” Id. at 894-95. “[W]hether the exposure of the jury to improper

evidence can be cured by an instruction depends upon a consideration of all

the circumstances.”     Commonwealth v. Morris, 513 Pa. 169, 177, 519

A.2d 374, 377 (1986).           Significantly, “juries are presumed to follow the

instructions   of   a   trial    court   to   disregard   inadmissible   evidence.”

Commonwealth v. Simpson, 562 Pa. 255, 272, 754 A.2d 1264, 1272

(2000), cert. denied, 533 U.S. 932, 121 S.Ct. 2556, 150 L.Ed.2d 722

(2001).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Kevin G.

Sasinoski, we conclude Appellant’s issue on appeal merits no relief. The trial

court opinion comprehensively discusses and properly disposes of the

question presented. (See Trial Court Opinion, filed June 8, 2016, at 8-11)

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(finding: record belies Appellant’s allegation that court abused its discretion

when it denied Appellant’s motion for mistrial; Appellant’s argument for

mistrial is based on statement made by defense witness during cross-

examination by Commonwealth, where witness referenced Appellant’s

incarcerated status; court immediately stopped cross-examination and

initiated sidebar discussion; court cautioned Commonwealth against any line

of questioning that could possibly shift burden of proof to Appellant 2; court

also noted Commonwealth did not elicit or expect answer that witness

provided; Appellant’s counsel then made motion for mistrial; court denied

motion for mistrial but offered to provide cautionary instruction; after brief

recess, court read counsel’s cautionary instruction to jury; under these

circumstances, witness’ statement did not deprive Appellant of his right to

fair and impartial trial; further, record belies Appellant’s claim that court

____________________________________________


2
   After the court stopped cross-examination and cautioned the
Commonwealth against any line of questioning that could shift the burden of
proof to Appellant, defense counsel made an objection and requested a
mistrial to preserve the record. Counsel’s two-prong objection claimed: (1)
the Commonwealth deliberately induced a response, which implicated
Appellant’s right to remain silent; and (2) the defense witness’ reference to
Appellant’s incarcerated status prejudiced the jury. With respect to the first
prong of counsel’s objection, the court noted it stopped the line of
questioning before any reference to Appellant’s right to remain silent
occurred; and the response by the defense witness was both unsolicited and
unanticipated by the Commonwealth. With respect to the second prong of
counsel’s objection, the court issued a cautionary instruction, drafted by
defense counsel, which instructed the jury not to draw an adverse inference
from Appellant’s incarcerated status. Thus, we agree with the trial court
that Appellant received a fair and impartial trial.



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“forced” Appellant’s counsel to draft curative instruction; counsel indicated

desire for cautionary instruction and agreed to prepare one as reasonable

and necessary precaution to avoid any prejudice to Appellant; record reveals

counsel expressed no opposition to this course of action; therefore, court

properly denied motion for mistrial, and cautionary instruction read to jury

was sufficient to   cure   any potential undue     prejudice   from witness’

statement).

      Moreover, to the extent Appellant challenges the content of the

cautionary instruction, Appellant’s counsel drafted the language read to the

jury and did not object to its content at any time.   Appellant cannot now

complain on new grounds that the instruction itself was inadequate.      See

Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa.Super. 2003), appeal

denied, 575 Pa. 691, 835 A.2d 709 (2003) (explaining failure to make

timely, specific objection to jury instruction waives challenge to content of

jury instruction on appeal). Accordingly, we affirm on the basis of the trial

court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017

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