J-S05043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FERNANDO LOUIS LAGARES, III,

                            Appellant                  No. 910 MDA 2016


              Appeal from the Judgment of Sentence May 4, 2016
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0008023-2014


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

MEMORANDUM BY PLATT, J.:                              FILED MARCH 27, 2017

        Appellant, Fernando Louis Lagares, III, appeals from the judgment of

sentence imposed on May 4, 2016, following his jury conviction of one count

each of possession with intent to deliver narcotics (PWID)1 and person not to

possess firearms.2 On appeal, Appellant challenges the trial court’s denial of

his motion for a mistrial.       For the reasons discussed below, we affirm the

judgment of sentence.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S.A. § 6105(a)(1).
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        We take the underlying facts and procedural history in this matter

from the trial court’s September 27, 2016 opinion and our independent

review of the certified record.

             This case arises out of the execution of a search warrant
        on October 16, 2014[,] at 900 East Princess Street, in York
        County, Pennsylvania by the Springettsbury Township Police
        Department along with the York County Drug Task Force.

               At approximately 4:45 [p.m.] on October 16, 2014, police
        officers arrived at 900 East Princess Street, knocked on the door
        and announced they had a warrant to search the residence.
        After hearing no response, they rammed the door and entered.
        Upon entrance, officers saw a man, later identified as []
        Appellant, running towards the rear exit of the house. Officers
        at the rear entrance of the house were able to secure Appellant
        and take him into custody. At that time Appellant was given his
        Miranda[3] rights and cautioned that anything he said could be
        used against him in court. A search of Appellant’s person
        produced approximately $4,500.00 in cash. Also present during
        the execution of the search warrant was a female, Diamond
        Bailey, and two small children.

              A search of the residence and the garage produced:
        approximately [seventy] grams of marijuana; a digital scale;
        packaging materials, including plastic baggies; and a firearm, a
        12-ga[u]ge shotgun. The firearm was found in a green bag
        located under the sofa in the living room of the residence and
        was identified as a Mossberg 12-ga[u]ge shotgun. When officers
        found the weapon Diamond Bailey became upset that there was
        a gun in the house with the children.

               Appellant told officers that the shotgun was not his and
        that it belonged to his girlfriend, Diamond Bailey. Officers asked
        Appellant if law enforcement would find Appellant’s DNA or
        fingerprints on the weapon. Appellant responded by stating,
        “that his fingerprints would probably be on the shotgun because
        he used the weapon to protect his family.” Appellant also
____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      explained that, “he knew he was not allowed to use a firearm but
      he did not care.” In addition to the shotgun, numerous shells for
      a 12-ga[u]ge shotgun were found at the residence. As a result
      of the search, Appellant was arrested on October 16, 2014.

(Trial Court Opinion, 9/27/16, at 2-3) (record citations omitted).

      A jury trial took place on March 21 and 22, 2016.        In his opening

statement, defense counsel admitted that Appellant was a person who was

not allowed to possess a firearm and that he had possessed the marijuana

with the intent to deliver. (See N.T. Trial, 3/21/16, at 99-100).

      One of the witnesses presented by the Commonwealth was Detective

Russell Schauer of the Springettsbury Township Police Department.         (See

N.T. Trial, 3/22/16, at 143). When asked by the Commonwealth if Appellant

made any statements to him, Detective Schauer testified, in part, that while

yelling at the police, Appellant stated “he was on probation.” (Id. at 146).

Defense counsel moved for a mistrial, which the trial court ultimately denied.

(See id. at 146-53). The jury found Appellant guilty of all charges.

      On May 4, 2016, the trial court sentenced Appellant to an aggregate

term of incarceration of not less than five nor more than twelve years. On

June 2, 2016, Appellant filed a timely notice of appeal. On June 3, 2016, the

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

of on appeal. See Pa.R.A.P. 1925(b). Subsequent to the grant of a motion

for an extension of time, Appellant filed a timely Rule 1925(b) statement on

July 25, 2016.   See id.   On September 27, 2016, the trial court filed an

opinion. See Pa.R.A.P. 1925(a).

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      On appeal, Appellant raises the following question for our review.

            Whether the trial court committed an error of law when it
      denied Appellant’s request for a mistrial because a
      Commonwealth witness referred to Appellant’s probation status
      during testimony?

(Appellant’s Brief, at 4).

      In his only claim, Appellant contends that the trial court erred in

denying his motion for a mistrial.        (See Appellant’s Brief, at 105).   We

disagree.

      The following standards govern our review of the denial of a motion for

mistrial:

               In criminal trials, declaration of a mistrial serves to
            eliminate the negative effect wrought upon a defendant
            when prejudicial elements are injected into the case or
            otherwise discovered at trial. By nullifying the tainted
            process of the former trial and allowing a new trial to
            convene, declaration of a mistrial serves not only the
            defendant’s interest but, equally important, the public’s
            interest in fair trials designed to end in just judgments.
            Accordingly, the 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. Judicial discretion requires action in conformity
            with [the] law on facts and circumstances before the trial
            court after hearing and consideration. Consequently, the
            court abuses its discretion if, in resolving the issue for
            decision, it misapplies the law or exercises its discretion in
            a manner lacking reason.




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Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016) (citation omitted).        “A mistrial is an

extreme remedy that is required only where the challenged event deprived

the accused of a fair and impartial trial.” Commonwealth v. Smith, 131

A.3d 467, 475 (Pa. 2015), cert. denied, 137 S.Ct. 46 (2015) (citation

omitted). “The trial court is in the best position to assess the effect of an

allegedly prejudicial statement on the jury, and as such, the grant or denial

of a mistrial will not be overturned absent an abuse of discretion.”

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008), appeal

denied, 966 A.2d 571 (Pa. 2009) (citation omitted).

        Here, the following occurred at trial during the direct examination of

Detective Schauer:

     [The Commonwealth]: And in the course of your interactions
     with [Appellant], what did he say to you about anything?

     [Detective Schauer]: It was more yelling at us. He was yelling
     that we were wasting our time there. He stated that he was on
     probation.

     [Defense Counsel]: Your Honor, may we approach?

     [The Trial Court]: Yep.

(N.T. Trial, 3/22/16, at 146).   During a sidebar discussion, the following

occurred:

     [Defense Counsel]: Your Honor, [the Commonwealth] and I
     know this exact statement is to make sure he doesn’t get that in
     and he sure did. So, I have to request a mistrial at this point.

     [The Trial Court]: [The Commonwealth]?

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      [The Commonwealth]: [Defense Counsel] did make that request
      along with other points that he raised. I admit that. I agreed
      with him that that won’t be admissible. I inadvertently with my
      discussions with the affiant this morning among other subjects
      that we discussed. [sic]

                                    *    *    *

      [The Trial Court]:   My initial inclination was to grant your
      request, [Defense Counsel]. But on reflection the jury already
      knows that he is not permitted to have a firearm from a prior
      conviction. They could very well think that the conviction that
      the officer mentioned he was on probation for could have been
      that conviction.

             So, this isn’t a situation where he is theoretically devoid of
      all criminal contact. I think that puts it in a little different
      situation. I can give the jury a cautionary instruction. They
      have already heard that he is a person not to possess because of
      a prior incident. They are not to infer that he did anything
      wrong as a result of that or some other type of cautionary
      instruction.

             But, I think given the fact that they have already been
      informed that he has got a previous conviction that prohibits him
      from having the firearm, I am not so sure that mention of
      probation is an automatic grant of a mistrial in this particular
      situation. Ordinarily I would agree with you. But I am not sure
      that we are at that point in this case.

(N.T. Trial, 3/22/16, at 146-48).

      After some discussion, the trial court directed the parties to revise a

previously agreed upon stipulation regarding Appellant’s prior felony

conviction, to make it seem like the probation Detective Schauer referred to

could have come from that offense.


      [The Trial Court]: Is there any reason why you can’t work out a
      stipulation, understanding you have made the request for a

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      mistrial that indicates that at least [sixty] days prior to October,
      whatever it was, he became a person prohibited by law from
      possessing or controlling a firearm?

              Is there some reason why you have to mention a particular
      date?

      [The Commonwealth]: No, there isn’t. We can cover the [sixty]
      day threshold.

      [The Trial Court]: If the Commonwealth does that with regard
      to the stipulation, I am going to overrule your request for a
      mistrial. I understand your agreement to the stipulation is not a
      waiver of that request for a mistrial.

            But, I think under the circumstances had we not already
      had this information potentially before the jury, I would have no
      hesitation granting a mistrial.    I think it would be entirely
      appropriate given the pecuniary [sic] of the charge in this case
      and what the jury already knows.

            I agree I think it’s not automatic and I believe the
      stipulation will be able to cure that. If not, you will have your
      appeal issue if there is a conviction.

            I am going to overrule your request for a [mistrial]
      predicated [on] the Commonwealth revising the stipulation to
      meet the terms of the statute and eliminating any reference to
      the date, and we will also note that your agreement to that
      stipulation is not waiving your request for a mistrial.

(Id. at 151-52).

      The trial court offered to give an immediate curative instruction to the

jury, but defense counsel stated that he would prefer that such a curative

instruction be included in the final charge to the jury. (See id. at 152-53).

      Following closing arguments, the trial court gave the following

instruction to the jury.




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            I [sic] may have heard testimony or even a stipulation
      concerning the fact that [Appellant] had a previous conviction
      that precludes him from carrying a firearm.      You may not
      consider that evidence as evidence or proof of the fact that he
      may have committed a crime on this particular occasion.

           That evidence was only admitted for a very limited
      purposes and that was specifically to address one of the
      elements of the offense with which [Appellant] is charged and
      which I’ll talk about in a few minutes.

(Id. at 294-95).

      Appellant did not object to this instruction. (See id. at 295). When

asked, defense counsel stated that he did not see the need for any

corrections or additional instructions.   (See id. at 302-03, 306).    At the

conclusion of the jury charge, defense counsel did not object to the charge

as a whole, or request any additional instruction. (See id. at 308).

      This Court has stated that:

            [i]n Pennsylvania, evidence of crimes other than those
      charged in the case before the jury may not be presented at trial
      to prove the defendant’s criminal character or his tendency
      toward committing criminal acts.        However, mere passing
      references to prior criminal activity will not necessarily require
      reversal unless the record illustrates definitively that prejudice
      results. Prejudice results where the testimony conveys to the
      jury, either expressly or by reasonable implication, the fact of
      [another] criminal offense. Determining whether prejudice has
      occurred is a fact specific inquiry.

Commonwealth v. Padilla, 923 A.2d 1189, 1194-95 (Pa. Super. 2007),

appeal denied, 934 A.2d 1277 (Pa. 2007) (quotation marks and citations

omitted).




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      Here, the incident did not deprive Appellant of a fair and impartial trial

because the comment was, at most, a fleeting reference to criminal activity.

Detective Schauer made a brief reference that Appellant told him that he

was on probation. Detective Schauer did not state what offense Appellant

had committed and did not give any details of the alleged crime. Moreover,

by the time Detective Schauer testified, both the Commonwealth and

defense counsel had already informed the jury during voir dire and during

opening statements that Appellant had a prior conviction that rendered him

a person not to possess a firearm, and that he was admitting that he

possessed marijuana with intent to distribute. (See N.T. Trial, 3/21/16, at

53-54, 68, 92, 97-100).     Thus, the jury knew that Appellant participated in

criminal activity.   Further, the parties amended their stipulation regarding

that prior crime so as not to draw undue attention to the jury about whether

the probation sprung from that offense. (See N.T. Trial, 3/22/16, at 152-

53, 165). The trial court offered to give an immediate curative instruction

but counsel for Appellant declined.      (See id. at 152-53).       Given this,

Appellant has failed to explain how he was prejudiced by a fleeting reference

to his being on probation. Accordingly, the trial court did not err in denying

Appellant’s motion for a mistrial. See Padilla, supra at 1194-95; see also

Smith, supra at 475.

      In any event, Appellant’s argument appears to be less that the trial

court erred in denying the initial motion for a mistrial and more that its


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curative instruction was inadequate.       (See Appellant’s Brief, at 13-14).

However, Appellant waived this claim because he did not timely object to the

curative   instruction    or   request   any   additional   instruction.   See

Commonwealth v. Neff, 860 A.2d 1063, 1071 (Pa. Super. 2004), appeal

denied, 878 A.2d 863 (Pa. 2005).

     Appellant’s issue is both partially waived and lacks merit.       Thus, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2017




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