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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
JOHN LEE JONES,                             :
                                            :
                           Appellant        :
                                            :     No. 1438 WDA 2015

               Appeal from the Judgment of Sentence May 13, 2015
       in the Court of Common Pleas of Clearfield County Criminal Division
                        at No(s): CP-17-CR-0000843-2014

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 11, 2016

        Appellant, John Lee Jones, appeals from the judgment of sentence

entered in the Clearfield County Court of Common Pleas following his

convictions for weapons or implements for escape,1 prohibited offensive

weapons,2 and disorderly conduct.3         Appellant contends the trial court

improperly denied two requests for a mistrial following a reference to

Appellant’s post-arrest silence by a Commonwealth witness and the

Commonwealth’s cross-examination of Appellant referring to his post-arrest




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 5122(a)(2).
2
    18 Pa.C.S. § 908(a).
3
    18 Pa.C.S. § 5503(a)(4).
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silence.    Appellant also argues the trial court erred by not suppressing a

statement he made before Miranda4 warnings were given. We affirm.

        We summarize the factual and procedural background of this case as

follows.    Appellant is an inmate at State Correctional Facility at Houtzdale

(“the prison”) in Clearfield County. N.T., 3/23/15, at 17-18. On August 14,

2014, Appellant informed Michael Rowe, the unit manager, that, if Appellant

was sent back to his cell, he would “bust his cellmate’s head open.” Id. at

19.    Appellant informed Rowe that he had a “sock of rocks and . . . a

whack,” i.e., a prison-made knife.      Id. at 20.    Rowe informed Captain

Michael Lewis, the shift commander of the prison, of the threat, and Captain

Lewis supervised the escort of Appellant into the restrictive housing unit

(“RHU”)5.     Id. at 68-69.    Prison officials searched Appellant’s cell and

discovered “two weapons” concealed under Appellant’s mattress. Id. at 41-

44. Specifically, a sock filled with rocks and a “marker with a wooden shank

sharpened into a point” were recovered.          Id. at 48.    Captain Lewis

questioned Appellant about the discovered items, and Appellant admitted

they were his. Id. at 76. Captain Lewis contacted Trooper Justin Jones of

the Pennsylvania State Police, and Trooper Jones reported to the prison,




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
  Captain Lewis explained RHU as, “a restricted housing unit. It’s . . . the
higher security level housing unit, more control.” N.T. at 70.



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collected the weapons, and ultimately filed charges against Appellant. Id. at

88-89.

      A jury trial was held on March 23, 2015.            Appellant did not file an

omnibus pretrial motion to suppress evidence.            Captain Lewis offered the

following testimony:

             [The Commonwealth]: And what was the nature of
             that conversation with [Appellant] as to [the items
             discovered in Appellant’s bed]?

             A. I was questioning him about those items.

                                  *     *      *

             Q. What did [Appellant] tell you about those items
             as to who they belonged to?

             A. He claimed ownership.

             Q. Meaning what?

             A. Meaning they said they were his.

             Q. He said they were his?

             A. Yes.

Id. at 76.   Appellant did not object during the direct testimony of Officer

Lewis.

      Trooper Justin Jones of the Pennsylvania State Police testified

regarding his interaction with Appellant.

             [The Commonwealth:]         Are       you   familiar   with
             [Appellant]?

             A. I am.



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                                  *    *    *

            Q. Would you please describe your involvement with
            [Appellant]?

            A. As far as my involvement with him, I’ve had
            none. . . . I did respond to the State Correctional
            Facility at Houtzdale.

            Q. Okay.

            A. But my involvement with him, he chose not to
            speak with me, as he’s afforded.

Id. at 87-88. Trooper Jones then continued to describe his investigation at

the prison without objection from Appellant. Id. at 88-91. At the conclusion

of Trooper Jones’ cross-examination, the Commonwealth rested its case.

Id. at 92. The trial court dismissed the jury for lunch, and Appellant, at this

time, requested suppression:

               My position is that, because of the rules at the
            state facility, which is what I what I was trying to get
            the testimony from Captain Lewis to testify about,
            because of the rules, that you go through the unit
            manager to resolve problems and that [Appellant]
            needed to go through his unit manager to talk to the
            psychologist, that, and because the unit manager
            wanted to know what the problem was before, our
            position is that the unit manager wanted to know
            what the problem was before he would get the
            psychologist for my client; that this was some type
            of, I don’t know if I want to call it, an imputed
            privilege or something that my client was almost
            forced to give the information to the unit manager in
            order to get counseling services and that, therefore,
            it was almost it was, in fact, the same as giving the
            information to the psychologist and, therefore, that
            should be confidential information and that that
            information should not have been divulged, that it
            would be privileged and protected information.


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                And, therefore, any information that was obtained
            because of that should not be – well, should be
            suppressed.      And Your Honor’s correct, it is
            something that should have been in a suppression
            motion. I do want to raise it for the record so that
            it’s not waived so that my client has the opportunity
            to bring that up on appeal if we should lose today.
            That was the first issue.

Id. at 95-96. Appellant did not invoke Miranda as a basis for suppression.

The trial court concluded Appellant waived the issue for failure to raise it in a

suppression motion. Id. at 97.

      Appellant then requested a mistrial based on Trooper Jones’ statement

that Appellant chose not to speak with him. Id. at 98.

               [Appellant’s Counsel]: . . . And I do have concern
            that that [reference to Appellant’s silence] was
            brought up to the jury. So at this point, just to
            make sure I’ve covered all my bases, I do, because
            it was brought up in front of the jury, I didn’t
            immediately ask for a mistrial because I didn’t want
            to bring it to the jury’s attention.

               I do have to ask for a mistrial at this point. That’s
            why I asked for a sidebar after the questioning was
            over and we did excuse the jury for lunch, so that we
            didn’t draw a lot of attention to it. So at this time
            I’m asking for a mistrial because of that statement.

Id. at 98-99.    The trial court denied the request but offered to give a

curative instruction to the jury after lunch. Id. at 99. Appellant declined.

Id. at 99-100.

      Appellant testified in his own defense, and during cross-examination,

the following exchange occurred:



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           [The Commonwealth:] That’s because Mr. Rowe
           called and told the shift manager that you just
           disclosed that you had weapons in the cell and you
           were going to use them on your cellmate. Right?

           A. Actually, he told the captain that I threatened the
           person.

           Q. You threatened the person?

           A. That’s what he said.

           Q. So when Hinson, the shift manager, Captain Lewis
           and McCullough and whoever else showed up to
           escort you [to RHU], did you say this is all a lie, this
           is a –

           A. I didn’t say nothing.

           Q. You didn’t say anything?

           A. I didn’t say nothing.

           Q. And it’s your testimony here today that when you
           did talk with Captain Lewis and owned up to the two
           items . . . the rock in sock and the Sharpie pen,
           sharpened, that those were yours, that’s also a lie?

           A. No. I did tell him that.

Id. at 110-11. At the conclusion of cross-examination, out of the presence

of the jury, Appellant requested a mistrial based on the above line of

questioning.    Id.   at   114-16.       Specifically,   Appellant   argued   the

Commonwealth’s question about his escort to RHU “implicat[ed] his right

against incriminating himself.” Id. at 116. The trial court offered to deliver

a curative instruction, and Appellant declined. Id. at 116-17. The trial court

then denied the mistrial request. Id. at 117.



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        The jury convicted Appellant of the above crimes. On May 13, 2015,

the trial court sentenced Appellant to twenty-one months’ to five years’

imprisonment, concurrent to all other periods of incarceration currently

being served.     Appellant filed a post-sentence motion on May 14, 2015

challenging, inter alia, the trial court’s denial of his requests for a mistrial

and failure to suppress a statement made by Appellant.         Appellant’s Post-

Sentence Mot., 5/14/15, at 1-2 (unpaginated). Appellant, for the first time,

argued his statement should have been suppressed because he did not

receive Miranda warnings. The court heard argument, and after granting

an extension to submit briefs, denied Appellant’s motion on August 24,

2015.    Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925

statement.

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

              I. Did the [trial] court err when it denied the grant
              of a mistrial after Trooper Jones referenced
              [Appellant’s] post-arrest silence?

              II. Did the [trial] court err when it denied the grant
              of a mistrial after the assistant district attorney
              questioned [Appellant] during cross examination
              regarding his post-arrest silence?

              III. Did the [trial] court err in failing to suppress
              [Appellant’s] statement which was made to Captain
              Lewis because he was not given his Miranda
              warnings prior to making the statement when he was
              in custody when he was being questioned?

Appellant’s Brief at 7.




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      In Appellant’s first two issues, he argues the references to Appellant’s

silence   made   by     Trooper   Jones,   in   his   direct   testimony,   and   the

Commonwealth, in its cross-examination of Appellant, violate Appellant’s

right against self-incrimination. Appellant’s Brief at 12. Therefore, Appellant

contends it was error to deny his requests for a mistrial.          Id. at 10. The

Commonwealth responds that Appellant waived these issues for failure to

raise contemporaneous objections to the references. Commonwealth’s Brief

at 12-14, 21. Alternatively, the Commonwealth posits that both instances

reference pre-arrest silence and that the trial court did not abuse its

discretion because the references did not prejudice Appellant. Id. at 14-18,

21. We hold Appellant is not entitled to relief.

      We employ the following standard of review over challenges to the

denial of a mistrial:

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

Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en

banc) (citation omitted), appeal denied, 126 A.3d 1282 (Pa. 2015).                “[A]

mistrial is not necessary where cautionary instructions are adequate to




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overcome any possible prejudice.” Commonwealth v. Johnson, 107 A.3d

52, 77 (Pa. 2014) (citation omitted), cert. denied, 136 S. Ct. 43 (2015).

      This Court has “long held that failure to raise a contemporaneous

objection   to   the   evidence   at   trial   waives    that   claim   on   appeal.”

Commonwealth v. Thoeun Than, 64 A.3d 704, 713 (Pa. Super. 2013)

(internal quotation marks, citation, and alteration omitted). “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) (citation omitted).

      This Court has recognized:

            We would be naïve if we failed to recognize that
            most laymen view an assertion of the Fifth
            Amendment privilege as a badge of guilt. It is clear
            that the privilege against self-incrimination would be
            reduced to a hollow mockery if its exercise could be
            taken as equivalent either to a confession of guilt or
            a conclusive presumption of perjury.

Commonwealth v. Kuder, 62 A.3d 1038, 1050 (Pa. Super. 2013), appeal

denied, 114 A.3d 416 (2013) (internal quotation marks, alterations, and

citations omitted).    “[A]n impermissible reference to the accused’s post-

arrest silence is innately prejudicial.” Id. at 1052 (citing Commonwealth

v. Clark, 626 A.2d 154, 158 (Pa. 1993)).          However, such references are

subject to harmless error analyses.        See id.      Similarly, an impermissible




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reference to pre-arrest silence is also subject to harmless-error analysis.

See Commonwealth v. Adams, 39 A.3d 310, 321 (Pa. Super. 2012).

            An error will be deemed harmless where the
            appellate court concludes beyond a reasonable doubt
            that the error could not have contributed to the
            verdict. If there is a reasonable probability that the
            error may have contributed to the verdict, it is not
            harmless. In reaching that conclusion, the reviewing
            court will find an error harmless where the
            uncontradicted evidence of guilt is so overwhelming,
            so that by comparison, the error is insignificant.

Kuder, 62 A.3d at 1052 (citation omitted).

     In the instant case, Appellant did not move for a mistrial at the time of

the objected to testimony but instead waited until the conclusion of each

witness’ testimony. N.T. at 98, 114. However, in both instances, the trial

court entertained Appellant’s argument for a mistrial and proposed a

corrective measure. See id. at 98-100, 114-17. Therefore, we decline to

conclude    Appellant   waived   these   issues   based   on   the   failure    to

contemporaneously object because the trial court considered the alleged

errors and had the ability to take corrective measures at that time.           See

Thoeun Than, 64 A.3d at 713; Sanchez, 36 A.3d at 42. But see

Commonwealth v. Gumby, 580 A.2d 1110, 1115 (Pa. Super. 1990)

(agreeing with the trial court that defendant waived objection to a reference

to silence by not objecting until after witness had been cross-examined and

excused).




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     Assuming, arguendo, the references to Appellant’s silence constituted

error, we conclude any error was harmless. Appellant admitted to Rowe that

he intended to “bust his cellmate’s head open” and described the weapons

he had to accomplish that end. N.T. at 19-20. A search of Appellant’s bed

revealed he possessed the sock filled with rocks and the prison-made knife.

Id. at 41-44. Moreover, in his testimony, Appellant acknowledged that he

told Captain Lewis that the recovered items were his.              Id. at 111.

Accordingly, Appellant cannot claim that the references to his silence

resulted in the deprivation of a fair and impartial trial where the evidence

demonstrated that he admitted the weapons belonged to him.                   See

Caldwell, 117 A.3d at 774; Kuder, 63 A.3d at 1052.               In light of the

evidence, we conclude beyond a reasonable doubt that the references to

Appellant’s silence did not contribute to the verdict, and the trial court did

not abuse its discretion in denying Appellant’s requests for a mistrial.6

Kuder, 63 A.3d at 1052; Caldwell, 117 A.3d at 774.

     Next, Appellant argues the trial court erred by not suppressing the

statement he made to Captain Lewis.          Appellant’s Brief at 13.   Appellant

reasons “[t]here is no indication that [Appellant] was given his Miranda

warnings prior to being interviewed by Captain Lewis.” Id. Therefore, the

6
  We further observe the trial court offered curative instructions following
each reference, which Appellant declined.        Though we conclude the
references were harmless error, Appellant could have attempted to cure any
perceived prejudice by accepting the trial court’s offer to give the curative
instructions. See Johnson, 107 A.3d at 77 (Pa. 2014).



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statement “should have been suppressed.” Id. at 14. The Commonwealth

responds that Appellant has waived this issue. Commonwealth’s Brief at 23.

For the following reasons, we agree this issue is waived.

      Pennsylvania Rule of Criminal Procedure 581 provides:

            Rule 581. Suppression of Evidence

            (A) The defendant’s attorney, or the defendant if
            unrepresented, may make a motion to the court to
            suppress any evidence alleged to have been obtained
            in violation of the defendant’s rights.

            (B) Unless the opportunity did not previously exist,
            or the interests of justice otherwise require, such
            motion shall be made only after a case has been
            returned to court and shall be contained in the
            omnibus pretrial motion set forth in Rule 578. If a
            timely motion is not made hereunder, the issue
            of suppression of evidence shall be deemed
            waived.

Pa.R.Crim.P 581(A)-(B) (emphasis added).

            Normally, issues not preserved in the trial court may
            not be pursued before this Court. Pa.R.A.P. 302(a).
            . . . Moreover, for any claim that was required to be
            preserved, this Court cannot review a legal theory in
            support of that claim unless that particular legal
            theory was presented to the trial court.

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013), appeal

denied, 87 A.3d 319 (Pa. 2014) (citation omitted).

      Instantly, Appellant did not file a pre-trial motion to suppress

evidence.   Further, after the Commonwealth rested its case, Appellant

sought suppression of evidence based on a theory of “imputed privilege”

between Appellant and the unit manager, Rowe. N.T. at 95; see also 42


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Pa.C.S. § 5944 (Confidential communications to psychiatrists or licensed

psychologists). At the time, Appellant conceded, “it is something that should

have been in a suppression motion.” Id. at 96. Appellant did not present

the instant theory for suppression to the trial court until his post-sentence

motion. See Appellant’s Post-sentence Mot. at 1. Therefore, we conclude

Appellant has waived review of this issue for failure to file a suppression

motion, and we decline to review a legal theory that was not properly

preserved in the trial court. See Pa.R.Crim.P 581(B); Lincoln, 87 A.3d at

610. Based on the foregoing, we conclude all of Appellant’s issues are either

without merit or waived, and we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2016




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