J-S65036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORTHELLO LEE FULTZ, JR.                    :
                                               :
                       Appellant               :   No. 579 MDA 2018

       Appeal from the Judgment of Sentence Entered February 2, 2018
      In the Court of Common Pleas of Mifflin County Criminal Division at
                       No(s): CP-44-CR-0000177-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 05, 2019

       Orthello Lee Fultz, Jr. appeals from the judgment of sentence entered

on February 2, 2018, after a jury found him guilty of possession with intent to

deliver or manufacture a controlled substance; operating a methamphetamine

laboratory and illegal dumping of methamphetamine waste; and use or

possession of drug paraphernalia.1 Fultz maintains that the trial court

committed error when it denied his motion for a mistrial and his request for a

curative instruction to the jury. We affirm.

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

February 8, 2017, Trooper Shane Varner and Trooper Daniel Cherry arrived at

Fultz’s residence to investigate whether methamphetamines were being

manufactured at the residence. After searching the residence and questioning
____________________________________________


1  35 P.S. §§ 780-113(a)(30); 780-113.4(b)(1); and 780-113(a)(32),
respectively.
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Fultz,     the    troopers     determined    that      Fultz    was     manufacturing

methamphetamines in his garage. At trial, Trooper Varner testified on direct

examination that Fultz advised him that he learned “how to cook meth off of

a biker in the ‘80s.” N.T., Trial, 11/13/17, at 39. Defense counsel did not

object to the testimony at that time.

         On cross examination, Trooper Varner testified to the following:

         Q: And Mr. Fultz didn’t admit          that    he     was    making   or
         manufacturing methamphetamine?

         A: Actually, when he had asked me that, I recall that outside when
         we were sitting where they had the burn pit there or whatever, he
         at one time did say something to the effect of it all belonged to
         him.

         Q: So you are just remembering that?

         A: I was. After he had asked me that, yes. It’s in my report?

         Q: I didn’t receive - -

         A: It’s part of the whole report. I’m sorry, it’s not my report. It’s
         Trooper Guido’s report. I did a supplemental. It’s attached to his
         report.

         Q: So that statement is someplace in Trooper Guido’s report?

         A: It should be.

         Q: would it assist you in your recollection if I were to show you a
         copy of Trooper Guido’s report?

         A: It would be on my supplemental attached to his report.

Id. at 41-42.

         Following this, the trial court called counsel to side bar. Defense counsel

informed the court that the Commonwealth had not supplied him with the

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supplemental report and argued that the Commonwealth had violated Brady

v. Maryland, 373 U.S. 83 (1963) and Pa.R.Crim.P. 573(B)(1). N.T., Trial at

44-45. The Commonwealth responded that it had no prior knowledge of the

supplemental report and did not have it in its possession. Id. at 46-47. The

trial court declined to grant a mistrial and decided it would instead instruct the

jury to disregard Trooper Varner’s testimony about Fultz’s alleged admission.

Id. at 55.

      During the side bar discussion, defense counsel also raised an objection

to Trooper Varner’s testimony that Fultz allegedly said “he learned how to

cook meth in the ‘80s from an old biker friend”:

             And, Your Honor, the statement that Mr. Varner made we
      also object to. The first time we ever heard of this statement
      where Mr. Fultz supposedly said he related that he learned how to
      cook meth in the ‘80s from an old biker friend, that was only in
      this report as well. We have never heard that statement before
      either. So both that statement and the statement that he related
      that all the stuff was his are the two items of new information that
      we were previously unaware of. And if the [c]ourt is inclined to
      issue a corrective instruction to the jury, we would request that it
      be made on both of those statements.

Id. at 51-52. The trial court overruled the objection because “[i]t wasn’t

objected to at the time.” Id. at 54. However, when the jury returned, the trial

court gave the following curative instruction:

            Ladies and gentlemen of the jury, we had discussed some
      things with regard to the previous testimony. So what I will
      instruct you on is the last portion of Trooper Varner’s testimony
      indicated that Mr. Fultz made a statement that, quote, all items
      belonged to me. That was contained in a supplemental report that
      the Commonwealth did not know existed, defense counsel didn’t
      know existed until the day of trial.

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            So with regard to that supplemental report, I’m just advising
      you you can’t take that statement into consideration as far as
      testimony or evidence here today with regard to the charges
      against Mr. Fultz. Do you understand that?

   Id. at 56.

      The jury found Fultz guilty of the above-referenced charges and the trial

court subsequently sentenced him. This timely appeal followed.

      On appeal, Fultz raises the following issues:

      I.    Whether the trial court erred when it denied [Fultz’s] motion
            for mistrial after Trooper Shane Varner testified that [Fultz]
            had admitted that all items related to the manufacture of
            methamphetamine belonged to him and that this alleged
            statement was contained in a supplemental police report
            and the alleged inculpatory statement(s) therein were never
            provided to the defense prior to trial in violation of Brady
            v. Maryland and Pa.R.Crim.P. 573(B)?

      II.   Whether the trial court erred when it denied [Fultz’s]
            request for curative instruction or corrective statement
            concerning Trooper Varner’s testimony that [Fultz] told
            Varner a biker friend had taught him to cook
            methamphetamine in the 1980’s?

   Fultz’s Br. at 7.

      We review the grant or denial of a motion for a mistrial for an abuse of

discretion as “[t]he trial court is in the best position to assess the effect of an

allegedly prejudicial statement on the jury.” Commonwealth v. Simpson,

754 A.2d 1264, 1272 (Pa. 2000). “An abuse of discretion may not be found

merely because an appellate court might have reached a different conclusion,

but requires a result of manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.”



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Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (citation

omitted).

      A mistrial is appropriate “where the incident upon which the motion is

based is of such a 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.” Simpson, 754 A.2d at 1272. Thus, “a mistrial is not necessary where

cautionary instructions are adequate to overcome any possible prejudice.” Id.

      Fultz    claims   that   a   mistrial     was   necessary     because    of   the

Commonwealth’s alleged violation of Brady and Rule 573(B)(1), in failing to

provide the supplemental report. Fultz candidly admits that Brady does not

warrant relief for this claim since Brady concerns “the withholding of

exculpatory or potentially exculpatory evidence by the prosecution.” Fultz’s

Br. at 18. Nevertheless, he maintains “[n]o curative instruction could possibly

mitigate the prejudicial effect of the statement that was improperly introduced

by Trooper Varner . . . particularly where the curative instruction in this

particular case likely had the effect of reinforcing the substance of Trooper

Varner’s testimony.” Fultz’s Br. at 21.

      A     defendant   establishes   a   Brady       violation   where   he   or   she

demonstrates “that exculpatory or impeaching evidence, favorable to the

defense, was suppressed by the prosecution, to the prejudice of the

defendant.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008).

Prejudice occurs in the Brady context if “the evidence suppressed [is] material

to guilt or punishment.” Id.

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      Pennsylvania Rule of Criminal Procedure 573(B)(1) reads:

      In all court cases, on request by the defendant, and subject to any
      protective order which the Commonwealth might obtain under this
      rule, the Commonwealth shall disclose to the defendant’s attorney
      all of the following requested items or information, provided they
      are material to the instant case. The Commonwealth shall, when
      applicable, permit the defendant’s attorney to inspect and copy or
      photograph such items.

   Pa.R.Crim.P. 573(B)(1).

      Here, the trial court concluded that a Brady violation did not exist and

therefore a mistrial was not appropriate. It stated:

      Nothing was presented to this Court, either on the day of trial or
      since the day of trial, to indicate the supplemental report
      contained any information favorable to [Fultz] either because it
      was exculpatory or because it could have been used for
      impeachment purposes. The only information presented to this
      Court regarding the supplemental report was that it contained an
      inculpatory statement made by [Fultz].

             Moreover, this [c]ourt cannot say the Commonwealth’s
      failure to disclose the supplemental report amounts to a Brady
      violation as no argument was offered to prove that the evidence
      was material to [Fultz’s] guilt or innocence. Material requires more
      than a mere possibility that the disclosed information might have
      helped the defense or affected the outcome of the trial. In [Fultz’s]
      case, had the alleged inculpatory statement not been raised in
      Trooper Varner’s cross-examination, there would still have been
      sufficient evidence for a reasonable jury to return a verdict of
      guilty on the crimes charged.

Trial Court 1925(a) Opinion (“TCO”), filed May 1, 2018, at 2-3 (unpaginated).

      The court also concluded that it addressed any issue by giving a curative

instruction pursuant to Rule 573(E), which reads:

      If at any time during the course of the proceedings it is brought
      to the attention of the court that a party has failed to comply with


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      this rule, the court may order such party to permit discovery or
      inspection, may grant a continuance, or may prohibit such party
      from introducing evidence not disclosed, other than testimony of
      the defendant, or it may enter such other order as it deems just
      under the circumstances.

Pa.R.Crim.P. 573(E).

      The court’s reasoning is supported by the record and does not misapply

the law. No relief is due under Brady because Fultz failed to demonstrate that

the report contained exculpatory or impeaching evidence. Additionally, the

curative instruction given adequately addressed any prejudice that resulted

from Trooper Varner’s testimony. The instruction told the jury to disregard

Trooper Varner’s testimony. As such, we conclude that the trial court did not

abuse its discretion.

      Next, Fultz maintains that the trial court erred when it denied his request

for a curative instruction regarding Trooper Varner’s testimony that Fultz

learned the process of cooking methamphetamines from a biker. The

Commonwealth argues that Fultz has waived this issue because he did not

object to the testimony. However, Fultz argues that “[t]here was no basis for

an objection at the time of Varner’s testimony on direct examination.” Fultz’s

Br. at 24.

      In addressing this issue, the trial court stated the following:

      This [c]ourt first notes that an objection was not raised by [Fultz]
      at the time Trooper Varner initially made the statement in
      question. Further, it was the discretion of this [c]ourt that a
      curative instruction was not necessary following Trooper Varner’s
      testimony as the statement in question indicated only that [Fultz]
      was once told how to produce methamphetamine. The statement
      was not an admission that he had even manufactured


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      methamphetamine or that he currently was manufacturing
      methamphetamine. Therefore, it is the opinion of this [c]ourt that
      the statement was not so inflammatory or prejudicial so as to
      render the jury incapable of returning a fair verdict.

TCO at 5 (unpaginated). We agree with the reasoning of the trial court.

      “[I]t is within the sound discretion of the trial court to determine

whether a curative instruction is necessary.” Commonwealth v. Sanchez,

82 A.3d 943, 982 (Pa. 2013). “The purpose of contemporaneous objection

requirements respecting trial-related issues is to allow the court to take

corrective measures and, thereby, to conserve limited judicial resources.”

Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa. 2011).

      While Fultz raised an objection to the testimony later in the proceeding,

he lodged no objection at the time of the testimony; he therefore waived this

issue for appellate review. See Commonwealth v. Griffin, 412 A.2d 897,

901 (Pa.Super. 1979) (stating that crux of waiver doctrine is that issues not

raised below in a timely manner are “foreclosed for purposes of appellate

review” and “in a timely manner requires contemporaneous objection”); see

also Pa.R.A.P. 302(a) (issues not raised below may not be raised for the first

time on appeal).

      Even if Fultz had properly preserved this issue, we would conclude that

it lacks merit. As the trial court pointed out, Trooper Varner’s testimony “was

not an admission that [Fultz] had ever manufactured methamphetamine or

that he   currently   was manufacturing methamphetamine.”          TCO     at 5

(unpaginated). As such, we conclude that the trial court did not abuse its



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discretion by denying Fultz request for a curative instruction. Therefore, we

affirm the judgment of sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/05/2019




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