J-S88009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellee

                     v.

DAVID BROWN,

                          Appellant                      No. 1404 EDA 2015


          Appeal from the Judgment of Sentence of April 23, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0015193-2012
                        and CP-51-CR-001594-2012


BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED JANUARY 23, 2017

      Appellant, David Brown, appeals from the judgment of sentence

entered on April 23, 2015 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

      In September and October 2012, the Department of Human Services

for   Philadelphia   (DHS)     and    Philadelphia    Children’s   Alliance   (PCA)

investigated reports that Appellant sexually abused L.C., a minor female who

was the daughter of Appellant’s girlfriend.      Based upon this investigation,

law enforcement officials on November 12, 2012 charged Appellant with rape

of a child and related offenses.

      On November 10, 2014, a jury found Appellant guilty of rape of a

child, involuntary deviate sexual intercourse, aggravated indecent assault,

endangering the      welfare   of children, corruption of minors, indecent


*Retired Senior Judge assigned to the Superior Court
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exposure, and two counts of indecent assault.1 On April 23, 2015, the trial

court sentenced Appellant to an aggregate term of 31 to 62 years’

imprisonment.

        Appellant filed a timely notice of appeal on May 15, 2015. On July 16,

2015, the court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925.              After receiving a

court-ordered extension, Appellant timely complied on October 29, 2015.

The court issued its Rule 1925(a) opinion on December 1, 2015.

        Appellant raises a single issue for our consideration:

        Did the [trial court] err by not declaring a mistrial due to a
        statement in the closing argument of the prosecutor that she
        was personally offended by [a] statement made by defense
        counsel?

Appellant’s Brief at 3.

        Appellant claims that he is entitled to a mistrial based upon

prosecutorial misconduct as evidenced by the following comments made

during the closing argument of the Commonwealth’s attorney.

        Those kind of details show that she [(L.C.)] did not make this
        up. She was not capable of doing that. I think it’s pretty
        offensive that [defense counsel] would even suggest she
        would make up any of those statements, about any of
        them. They were so detailed that I felt like I was living
        them through her as she was telling [the PCA
        investigator] what happens [sic].


____________________________________________


1
    18 Pa.C.S.A. §§ 3121, 3123, 3125, 4304, 6301, 3127, and 3126.



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N.T., 11/7/14, at 84 (emphasis added).          Appellant asserts that “[t]he

unavoidable effect of [the prosecutor’s] indignant declaration that she was

personally offended by defense counsel’s argument was to form in the minds

of the jury a fixed bias and hostility towards [Appellant] such that they could

not weigh the evidence objectively and render a true verdict.” Appellant’s

Brief at 11.

      The following standards govern our review of Appellant’s claims:

      [T]he 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.

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009).                  “The

remedy of a mistrial is an extreme remedy required only when an incident is

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

fair and impartial tribunal.” Id.

      When presented with a claim of prosecutorial misconduct during

closing statements, it is well settled that “[i]n reviewing prosecutorial

remarks to determine their prejudicial quality, comments cannot be viewed

in isolation but, rather, must be considered in the context in which they were

made.”    Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super.

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2006) (citation omitted). In this context, we evaluate whether a defendant

received a fair trial, not a perfect one. Commonwealth v. Rios, 721 A.2d

1049, 1054 (Pa. 1998).

      “A prosecutor has considerable latitude during closing arguments and

his arguments are fair if they are supported by the evidence or use

inferences   that   can   reasonably    be    derived   from     the   evidence.”

Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (internal

citations and quotations omitted).      Moreover, while “it is improper for a

prosecutor to express a personal belief as to the credibility of the defendant

or other witnesses[,] the prosecutor may comment on the credibility of

witnesses.    Further, a prosecutor is allowed to respond to defense

arguments with logical force and vigor. If defense counsel has attacked the

credibility of witnesses in closing, the prosecutor may present argument

addressing the witnesses' credibility.”      Commonwealth v. Chmiel, 889

A.2d 501, 544 (Pa. 2005).

      We have carefully reviewed the certified record, the submissions of the

parties, and the opinion of the trial court. Based upon our review, we agree

with the trial court that Appellant is not entitled to relief.   Specifically, we

concur with the trial court’s determination that the prosecutor properly

commented upon the details of L.C.’s statements to DHS and PCA in

response to arguments by defense counsel that L.C. lacked credibility. We

also agree that the prosecutor exceeded proper bounds in stating her


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personal opinion as to defense counsel’s conduct. Here, however, the trial

court correctly sustained a defense objection and directed the jury to decide

this case based on the evidence and to disregard the personal opinion of the

prosecutor. Given the trial court’s curative instruction and the brevity of the

prosecutor’s   improper   comments,    we   conclude   that   the   prosecutor’s

comments did not impede the jury’s ability to objectively weigh the evidence

and render a fair and impartial verdict. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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