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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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