J-S58028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT S. COOLBAUGH,

                            Appellant                 No. 291 WDA 2014


      Appeal from the Judgment of Sentence Entered on February 7, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001771-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 09, 2014

        Appellant, Robert S. Coolbaugh, appeals from the judgment of

sentence of 21 – 54 months’ imprisonment. After careful review, we affirm.

        Appellant proceeded to a jury trial on January 8, 2014.     The facts

adduced at trial were as follows:

        When Appellant, who was paroled to a halfway house, failed to
        return to the halfway house, Cory Bish, a parole agent for the
        Pennsylvania Board of Probation and Parole, caused a detainer to
        be issued against Appellant on May 20, 2013. On July 23, 2013,
        Trooper Brett Massafra of the Pennsylvania State Police was
        dispatched to investigate a disturbance.       Arriving at the
        residence, the Trooper saw Appellant, who was unknown to him
        at that time, and a female yelling at each other. The female,
        Theresa Morrow, asked the Trooper to remove Appellant from
        the residence.     However, when the Trooper entered the
        residence, he found that Appellant had departed the residence,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58028-14


      apparently through a rear door. He then checked Appellant's
      information on the NCIC Clean Database and found that
      Appellant was a wanted person.

            After learning that Appellant was wanted, Trooper
      Massafra, together with other troopers, began a search to
      apprehend him.     Upon information received, Massafra and
      Trooper Nicholson proceeded to, and entered, a residence
      located at 3 Phillips Manor where they took Appellant into
      custody.

             Daisy Garletts, who was born on July 22, 1999, testified
      that on the night in question she was at her home located at 3
      Phillips Manor Road with her sixteen year old sister. At about
      9:30, Appellant ran into the home and told her not to tell anyone
      he was there and that he had to hide, and then ran to a back
      bedroom. He specifically told her not to tell her mom, her
      father, or the “cops." However, Daisy called her mom, who
      returned home and told Appellant he had to leave, at which time
      the Troopers entered and apprehended him.

Trial Court Opinion (TCO), 3/3/14, at 2 - 3. At the conclusion of Appellant’s

trial, the jury found him guilty of flight to avoid apprehension and corruption

of minors. On February 7, 2014, Appellant was sentenced to an aggregate

term of 21 – 54 months’ imprisonment. He filed a timely notice of appeal,

as well as a timely concise statement of errors complained of on appeal

pursuant to Pa.R.A.P 1925(b).

      Appellant now presents the following questions for our review:

      1. Did the trial court err in denying [Appellant’s] motion for
         mistrial based on the prosecutor’s comments in his opening
         statement which undermined [Appellant’s] constitutional right
         against self-incrimination?

      2. Did the trial court err in denying [Appellant’s] motion for
         mistrial as a result of the Commonwealth’s introduction of
         evidence that [Appellant] had multiple prior criminal
         convictions?



                                     -2-
J-S58028-14


      3. Did the trial court err in denying [Appellant’s] motion for
         judgment of acquittal regarding count three, corruption of
         minors?

      4. Did the trial court err in allowing the Commonwealth to
         reopen their case-in-chief after the Commonwealth rested?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      Appellant first argues that counsel for the Commonwealth improperly

commented on Appellant’s decision not to testify in his opening statement.

Specifically,   Appellant   points   to    the   following    portions   of    the

Commonwealth’s opening statement:

      You will hear our witnesses... our witnesses will testify and be
      cross examined and then we'll rest and the defense can put on
      whatever evidence they feel is appropriate….

      You will hear testimony from the state parole agent, Cory Bish;
      testimony from Trooper Massafra; testimony from the Spikers
      and from Daisy Garletts. As I said, at the conclusion of that, you
      will hear whatever witnesses the defense feels are appropriate
      and then it will be your job to take the testimony you have
      heard[….]

Appellant’s brief at 9 (citations to the record omitted). Appellant’s counsel

objected to these statements at trial, and moved for a mistrial.         The trial

court denied this motion.

      Our standard of review with regard to denial of motion for mistrial is

as follows:

      A motion for a mistrial is within the discretion of the trial court. A
      mistrial upon motion of one of the parties is required only when
      an incident is of such a nature that its unavoidable effect is to
      deprive the appellant of a fair and impartial trial. It is within the
      trial court's discretion to determine whether a defendant was
      prejudiced by the incident that is the basis of a motion for a


                                      -3-
J-S58028-14


      mistrial. On appeal, our standard of review is whether the trial
      court abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014).

      This Court has long recognized that “a prosecutor may not comment

adversely on a defendant's refusal to testify with respect to the charges

against him since such commentary would compromise the defendant's

privilege   against   self-incrimination   and   the      defendant's     constitutional

presumption of innocence.”       Commonwealth v. Randall, 758 A.2d 669,

681 (Pa. Super. 2000).       However, our review of the record in the instant

case does not show that the Commonwealth commented on Appellant’s

refusal to testify.     Counsel for the Commonwealth generally outlined the

sequence of trial in his opening statement, noting that following the

conclusion of the Commonwealth’s evidence, the defense “can” introduce

“whatever witnesses the defense feels are appropriate.” N.T., 1/8/14, at 25,

27.    The opening statement did not reference Appellant as a possible

witness, and did not undermine Appellant’s presumption of innocence.

Accordingly, we conclude this claim is without merit.

      Appellant’s second argument is that the trial court erred in admitting

evidence    regarding    Appellant’s   prior   criminal    convictions.       However,

Appellant concedes, “In the instant case, the Commonwealth was required to




                                        -4-
J-S58028-14



prove that [Appellant] had an underlying felony charge – a distinct element

in the charge of flight to avoid apprehension.”1 Appellant’s brief at 12.

       As the trial court stated, “[s]ince the Commonwealth bears this

burden, absent a stipulation, it must prove, in this matter, that Appellant

had been convicted of a felony, and it can only do so by tendering evidence

of that conviction.” TCO at 5. Appellant did not stipulate to such a fact; as

such, the Commonwealth introduced the testimony of a probation officer

who testified that Appellant was convicted on March 4, 2009, for the felony

of possession with intent to deliver 13.1 grams of cocaine, he was sentenced

thereafter to 3 to 6 years’ incarceration, and his sentence was imposed to

run consecutive to another sentence. N.T., 1/9/14, at 78. As a result of this

testimony, the trial court issued a cautionary instruction:

       Ladies and gentlemen of the jury, the testimony that you are
       now hearing with regard to any offenses that the defendant may
       have committed in the past are not relevant to this case except
       for one purpose. You are not to consider that he may have been
       convicted of another crime when you consider guilt or innocence
       of him in this case. This evidence is offered because one of the
____________________________________________


1
 The crime of flight to avoid apprehension, trial or punishment is defined at
18 Pa.C.S. § 5126(a):

       A person who willfully conceals himself or moves or travels
       within or outside this Commonwealth with the intent to avoid
       apprehension, trial or punishment commits a felony of the third
       degree when the crime which he has been charged with or has
       been convicted of is a felony and commits a misdemeanor of the
       second degree when the crime which he has been charged with
       or has been convicted of is a misdemeanor.




                                           -5-
J-S58028-14


      charges, the flight to avoid apprehension, involves whether or
      not he was on supervision at that time because of the other
      cases. You are to consider testimony of prior offenses solely as
      to that issue when you decide his guilt or innocence as to count
      one flight to avoid apprehension.

N.T., 1/9/14, at 78. As such, we conclude the trial court did not abuse its

discretion in denying Appellant’s motion for mistrial on the basis of this

testimony.

      Appellant next argues that the evidence fails to establish that his

actions “did not corrupt nor tend to corrupt the morals of any minor.”

Appellant’s brief at 14. The crime of corruption of minors is defined at 18

Pa.C.S. § 6301(a)(1):

      Except as provided in subparagraph (ii), whoever, being of the
      age of 18 years and upwards, by any act corrupts or tends to
      corrupt the morals of any minor less than 18 years of age, or
      who aids, abets, entices or encourages any such minor in the
      commission of any crime, or who knowingly assists or
      encourages such minor in violating his or her parole or any order
      of court, commits a misdemeanor of the first degree.

      This Court has held that “actions that tend to corrupt the morals of a

minor are those that ‘would offend the common sense of the community and

the sense of decency, propriety and morality which most people entertain.’”

Commonwealth v. Snyder, 870 A.2d 336, 351 (Pa. Super. 2005) (citing

Commonwealth v. DeWalt, 752 A.2d 915 (Pa. Super. 2000)).                 Further,

our standard of review for sufficiency of the evidence claims is well settled:

         []In reviewing the sufficiency of the evidence, we view all
         the evidence admitted at trial in the light most favorable to
         the Commonwealth, as verdict winner, to see whether
         there is sufficient evidence to enable [the factfinder] to
         find every element of the crime beyond a reasonable


                                     -6-
J-S58028-14


         doubt. This standard is equally applicable to cases where
         the evidence is circumstantial rather than direct so long as
         the combination of the evidence links the accused to the
         crime beyond a reasonable doubt. Although a conviction
         must be based on []more than mere suspicion or
         conjecture, the Commonwealth need not establish guilt to
         a mathematical certainty.[]

      Moreover, when reviewing the sufficiency of the evidence, this
      Court may not substitute its judgment for that of the fact-finder;
      if the record contains support for the convictions they may not
      be disturbed.

Commonwealth v. McFadden, 850 A.2d 1290, 1292 – 1293 (Pa. Super.

2004) (internal citations omitted).

      In the instant case, the victim testified that Appellant, who was her

neighbor, entered her home and instructed her not to tell anyone he was

there, “because he needed to hide,” and specifically noted he was trying to

hide because the police “were looking for him.” N.T., 1/8/14, at 59, 52. The

trial court noted that “Appellant, being over the age of 18, enticed and

encouraged a child of 14 years of age to lie by omission.” TCO at 6. The

court reasoned that “[s]uch acts clearly would corrupt, or tend to corrupt,

the morals of a minor.” Id. Furthermore, Appellant did not merely ask the

victim to lie. Rather, he made it abundantly clear to the victim that he was

fleeing law enforcement to avoid apprehension, and sought her complicity in

that act.   As such, we conclude the record was sufficient to sustain

Appellant’s conviction for corruption of minors.

      Finally, Appellant claims that the trial court abused its discretion in

permitting the Commonwealth to reopen its case-in-chief after it had rested.

The Commonwealth rested at the end of the day on January 8, 2014.

                                      -7-
J-S58028-14



Counsel for Appellant informed the court that the defense was not ready to

proceed, and the trial was continued until the following day.

      The next morning, Appellant’s counsel moved for judgment of acquittal

with regard to the crime of flight to avoid apprehension, because, inter alia,

the Commonwealth had failed to introduce evidence to establish that

Appellant had previously been convicted of a felony. At that time, counsel

for the Commonwealth moved to reopen its case-in-chief, so that it could

submit the testimony of a witness regarding Appellant’s criminal history.

The trial court permitted the Commonwealth to reopen its case-in-chief and

reserved its ruling until the Commonwealth had finally rested. Immediately

thereafter, the Commonwealth introduced the testimony of a probation

officer regarding Appellant’s prior criminal history. Subsequently, the court

denied Appellant’s motion for judgment of acquittal.

      The Pennsylvania Supreme Court has held that “a trial court has the

discretion to reopen a case for either side, prior to the entry of final

judgment, in order to prevent a failure or miscarriage of justice.”

Commonwealth v. Tharp, 575 A.2d 557, 558 – 559 (Pa. 1990).                The

Tharp Court explicitly stated that it was a proper exercise of a trial court’s

discretion “to permit the Commonwealth to reopen its case for the purpose

of meeting a demurrer [i.e., motion for judgment of acquittal,] interposed by




                                    -8-
J-S58028-14



the defense prior to its ruling upon that motion.”2 Id. at 559. Accordingly,

we conclude the trial court did not abuse its discretion in the instant case

when it permitted the Commonwealth to reopen its case-in-chief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




____________________________________________


2
  The defense had not yet called any witnesses when the Commonwealth
sought to reopen its case both in Tharp and in the instant case.




                                           -9-
