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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
ROBERT HORSEY,                          :         No. 1756 EDA 2018
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, January 18, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007124-2014


BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 23, 2020

      Robert Horsey appeals from the January 18, 2018 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after a jury

convicted him of one count each of rape by forcible compulsion, involuntary

deviate sexual intercourse by forcible compulsion, unlawful contact with

minor, endangering welfare of children, and corruption of minors.1 The trial

court imposed an aggregate sentence of three to six years of incarceration,

followed by six years of reporting probation. We affirm.

      The record reflects that appellant’s convictions stem from several

incidents during which appellant sexually abused the victim, his stepdaughter.

On two occasions when the victim was 14 years old, appellant forced her to


1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 4304(a)(1), and
6301(a)(1)(ii), respectively.
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perform oral sex on him.      In another incident when the victim was also

14 years old, appellant forcibly penetrated her vagina with his penis. When

the victim was 16 years old, appellant again forcibly penetrated her vagina

with his penis. The final incident of forced oral sex occurred when the victim

was 16 years old.

      Sometime prior to the victim’s turning 16 years old, she first disclosed

the sexual abuse to two of her siblings. Shortly thereafter, the victim told her

mother.    The victim’s mother called appellant at his workplace and an

argument ensued. She then called the police, but the victim never spoke with

the police, and appellant continued to live at the family home.         When the

victim was 16 years old, she again told her mother about the sexual abuse.

The victim’s mother did nothing. The victim then left home and moved in with

her paternal grandfather. While living there, the victim disclosed the abuse

to her aunt, paternal grandfather, and father. The victim’s father called the

police, which led to a criminal investigation and appellant’s arrest.

      Following his convictions and imposition of sentence, appellant filed a

timely post-sentence motion, which the trial court denied. Appellant then filed

a timely notice of appeal. The trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant requested two extensions of time, which the trial court granted.

Appellant then timely filed his Rule 1925(b) statement. Thereafter, the trial

court filed its Rule 1925(a) opinion.



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      Appellant raises the following issue for our review:

            Did several inappropriate and prejudicial comments
            made by the prosecutor during closing arguments
            amount to prosecutorial misconduct and deprive
            appellant of a fair trial?

Appellant’s brief at 2 (full capitalization omitted).

            The standard for granting a new trial because of the
            comments of a prosecutor is a high one. Generally, a
            prosecutor’s arguments to the jury are not a basis for
            the granting of a new trial unless the unavoidable
            effect of such comments would be to prejudice the
            jury, forming in their minds fixed bias and hostility
            towards the accused which would prevent them from
            properly weighing the evidence and rendering a true
            verdict. This standard permits us to grant a new trial
            based on the comments of a prosecutor only if the
            unavoidable effect of the comments prevented the
            jury from considering the evidence. A prosecutor
            must have reasonable latitude in fairly presenting a
            case to the jury and must be free to present his or her
            arguments with logical force and vigor.

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citation omitted).

            We are further mindful of the following:

                   In determining whether the prosecutor
                   engaged in misconduct, we must keep in
                   mind that comments made by a
                   prosecutor must be examined within the
                   context of defense counsel’s conduct. It
                   is well settled that the prosecutor may
                   fairly respond to points made in the
                   defense closing. Moreover, prosecutorial
                   misconduct will not be found where
                   comments were based on the evidence or
                   proper inferences therefrom or were only
                   oratorical flair.



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                 Commonwealth v. Judy, 978 A.2d 1015, 1019-1020
                 (Pa.Super. 2009) (quotations, quotation marks, and
                 citations omitted).    See Commonwealth v.
                 Ragland, 991 A.2d 336 (Pa.Super. 2010).

Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600 (2013).

        Appellant first directs our attention to a portion of the prosecutor’s

closing argument wherein she discussed the Commonwealth’s nolle pros

power. Appellant contends that because the prosecutor knew the jury would

decide     the    case   on   credibility,   the   following   comments   constituted

prosecutorial misconduct because they were an “explicit endorsement” of the

victim’s credibility:2

                 [THE COMMONWEALTH]: . . . I also hold the power
                 to nolle pros a case. That means, if I don’t think he
                 did it, if I don’t believe the victim, if I don’t have
                 enough evidence, if something bad happened with the
                 police investigation and the police did something they
                 shouldn’t have done --

                 [DEFENSE COUNSEL]: Objection.

                 THE COURT: Overruled.

                 [THE COMMONWEALTH]: It’s called a “nolle prosse.”
                 She’s not stuck here because it says Commonwealth
                 of Pennsylvania vs. [appellant]. You didn’t hear that
                 she had to be drug [sic] in and told, You have to come
                 here. You’re getting a bench warrant. Nobody made
                 her do this. She did this for herself because she
                 deserves justice and she deserves to be told that
                 touching your stepdaughter is wrong.




2   Appellant’s brief at 6.


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Notes of testimony, 2/13/17 at 124-125; see also appellant’s brief at 6.

     Appellant then contends that the above comments coupled with the

following comments had the cumulative effect of denying him a fair trial:

           [THE COMMONWEALTH:] Next, it was because [the
           victim] didn’t tell her mom, her brother, the detective,
           and maybe the doctor about the blood that she saw
           [in her underwear the first time appellant forcibly
           penetrated the victim’s vagina with his penis]. Well,
           that’s not surprising that a prepubescent teen didn’t
           want to tell her little brother that when she [wiped]
           herself that there was blood. Mom didn’t even believe
           her and did nothing. The detective, he actually didn’t
           ask her to describe the very first incident of sexual
           abuse, so why would that be included in there if it
           happened the first time?

           [The Commonwealth’s expert in child physical and
           sexual abuse] said that’s actually not a common
           question that we ask. So, again, not surprised it’s not
           in the records. But you can bet that when she sat in
           that witness stand, that wasn’t the first time that she
           told someone that she [wiped] herself and there was
           blood. Because [defense counsel], as the skilled
           attorney that she is, she would have stood up and
           yelled at [the victim] and said, This is the first time
           you’re telling anyone about this, right?

           [DEFENSE COUNSEL]: Objection.

           [THE COMMONWEALTH]: But that didn’t happen.
           That’s why [the assistant district attorney formerly
           assigned to this case] sat with [the victim] and asked
           her to describe every single incident.

Notes of testimony, 2/13/17 at 136-137.

     Following closing arguments, the trial court heard oral argument on

appellant’s objections to the above comments. With respect to the comments

regarding the Commonwealth’s power to nolle pros, the trial court denied


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appellant’s request for a curative instruction. (Id. at 152.) The trial court

explained that it did so because those statements rebutted defense counsel’s

suggestion that once the victim made sexual abuse allegations against

appellant and charges were filed, the victim could not take the allegations

back. (Trial court opinion, 2/26/19 at 8.) Indeed, the record reflects that

defense counsel made the following statements during her closing argument:

            Now, [the Commonwealth] argued in [its] opening,
            What motive does [the victim] have for making this
            up? Now, I used to be in federal law enforcement and
            I used to carry a gun and I used to pray every day
            that I didn’t shoot that gun because once you pull that
            trigger and the bullet goes out, you could never take
            that back. That’s kind of the same thing of making an
            allegation about your stepfather. Once you say that,
            you can take that back.          Once [the victim’s]
            grandfather and [aunt] called [the Department of
            Human Services] and the police got involved, the case
            became Commonwealth vs. [appellant]. It’s not the
            same as when you tell [your brother] and your mom.
            Now it’s Commonwealth vs. [appellant].

Notes of testimony, 2/13/17 at 117.

      It is well settled that a prosecutor may respond fairly to arguments

made by the defense in its closing. See Commonwealth v. Clancy, 1924

A.3d 44, 62 (Pa. 2018). Here, the challenged comments fairly responded to

comments that defense counsel made in her closing argument.

      With respect to the latter comments, the trial court granted defense

counsel’s request for a curative instruction, and instructed the jury as follows:

            In the outset of [the Commonwealth’s] closing
            argument, she argued that the defense attorney
            would have impeached [the victim] if [the victim]


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            would not have mentioned blood in her underwear
            before. I’m going to direct you to disregard that
            statement.

Notes of testimony, 2/13/17 at 153.

      In his brief, appellant acknowledges the curative instruction, and then

in a one-sentence argument baldly asserts that “the cumulative effect of the

prosecutor’s improper statements constituted prosecutorial misconduct and

thereby deprived him of a fair trial.” (Appellant’s brief at 8.) Notwithstanding

our conclusion that the comments regarding the Commonwealth’s power to

nolle pros did not rise to the level of prosecutorial misconduct, appellant

entirely fails to explain how the unavoidable effect of the challenged

comments was to prejudice the jury so as to form in their minds a fixed bias

towards him and to impede the jury’s ability to objectively weigh the evidence

and render a true verdict. See Commonwealth v. Begley, 780 A.2d 605,

626 (Pa. 2001) (reiterating that relief for prosecutorial misconduct granted

only where unavoidable effect was to prejudice jury to form in their minds a

fixed bias toward accused and impede jury’s ability to objectively weigh

evidence and render true verdict). Moreover, juries are presumed to follow

the trial court’s instructions, and curative instructions are presumed to be

sufficient to cure any prejudice. See Commonwealth v. Thornton, 791 A.2d

1190, 1193 (Pa.Super. 2002). Here, appellant offers no argument to rebut

the presumption.




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      Our review of the record compels the conclusion that appellant failed to

show that the prosecutor’s conduct deprived him of a fair trial. Therefore, no

relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 6/23/2020




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