J-S44005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYLER KEHOE,
Appellant No. 1245 WDA 2013
Appeal from the Judgment of Sentence Entered May 1, 2013
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000095-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 13, 2014
Appellant, Tyler Kehoe, appeals from the judgment of sentence of
seven years’ probation and $300 in fines, imposed after he was convicted of
aggravated assault, simple assault, and recklessly endangering another
person. Appellant contends that he is entitled to a new trial based on
prejudicial remarks by the judge during the course of his jury trial. We
affirm.
The trial court set forth the facts of this case as follows:
On August 23, 2011, at approximately 3:00 a.m., Officer Chad
Lively of the Economy Borough police department was informed
of an ambulance being dispatched to 210 Hoenig Road,
Sewickley, Pennsylvania 15143 for a twenty-five (25) year-old
male who was acting in an out-of-control manner. He was
informed by the dispatcher that one could hear the individual
yelling in the background. When he arrived at the scene at 3:06
a.m., [Appellant’s] mother, Pamela Oriszko, met him in the
driveway. After [the officer] exited from his vehicle, he heard
[Appellant] screaming, “F@#* you, I’ll kill you,” from the woods
J-S44005-14
on the hillside. Officer Lively then instructed [Appellant] that he
was a police [officer] and that he was there to help. The officer
then heard several gunshots coming from the area of
[Appellant]. One of the gunshots traveled over the head area of
the officer, and he heard it go through the tree branches above
where he was standing. The officer immediately notified
dispatch and asked for backup. After other police officers
arrived, a dialogue was started with [Appellant] and after
approximately thirty (30) minutes, [Appellant] exited the woods
and turned himself in to Officer Lively. The officer noted that the
entire incident took fifty (50) minutes from the time he arrived
at the scene until [Appellant] turned himself in to the police.
Officer Lively stated that [Appellant] was visibly intoxicated. The
officer also noted that [Appellant] told the police officer that he
was sorry and [that he] didn’t mean to shoot at [the officer].
[Appellant] was then transported to the Beaver Medical Center
for a mental health evaluation. Officer Lively further testified
that the police had discovered that [Appellant] was the
registered owner of a .380 caliber Mav, which is a semiautomatic
handgun. He also stated that after [Appellant] was read his
Miranda[1] warnings, [Appellant] stated that he didn’t mean to
shoot toward the officer or anyone else.
Trial Court Opinion (TCO), 9/25/13, at 3-4.
Based on these facts, the jury convicted Appellant of the above-stated
offenses and the court imposed the aggregate sentence stated supra.
Appellant filed a timely post-sentence motion, which the court denied on July
1, 2013. Appellant then filed a timely notice of appeal, as well as a timely
court-ordered concise statement of errors complained of on appeal in
accordance with Pa.R.A.P. 1925(b). Herein, Appellant presents one issue for
our review:
I. Whether the trial court’s sua sponte interruption of Appellant’s
trial counsel’s cross-examination of the only witness against him
____________________________________________
1
Miranda v. Arizona, 86 S.Ct. 1602 (1966).
-2-
J-S44005-14
effectively denied him a fair trial by bolstering the witness’
credibility and impugning the tactics of defense counsel[?]
Appellant’s Brief at 3.
Appellant maintains that he is entitled to a new trial based on
irreparable prejudice he suffered when the trial judge made inappropriate
comments during defense counsel’s cross-examination of Officer Lively. The
court’s remarks occurred when defense counsel attempted to point out
inconsistencies between the officer’s testimony and the facts set forth by the
officer in the Affidavit of Probable Cause and in his “narrative report.” N.T.
Trial at 121. The following portion of the transcript sets forth the context of
the court’s comments:
[Defense Counsel]: All right. So, nevertheless, you generated,
you authored two reports[, the narrative report and Affidavit of
Probable Cause,] correct?
[Officer Lively]: Correct.
[Defense Counsel]: And a moment ago I believe [the prosecutor]
said that not all of the facts and you agreed that not all of the
facts make it into the reports?
[Officer Lively]: Correct.
[Defense Counsel]: Only the material facts is, I think, the word
you used, material facts.
[Officer Lively]: Well, your Affidavit of Probable Cause, we’re
putting in there enough to get an arrest warrant for the
individual.
[Defense Counsel]: Okay, and will you agree with me that
important facts go into both of these reports?
[Officer Lively]: Correct.
[Defense Counsel]: And will you agree with me that –
-3-
J-S44005-14
The Court: [Defense counsel], your term is a little misleading.
The Affidavit of Probable Cause requires sufficient facts for a
Magistrate or Magisterial District Judge to issue a warrant. It’s
not all the facts. It’s just sufficient facts.
[Defense Counsel]: Okay.
The Court: Many times policemen in doing their job do not place
all the facts in purposefully because they don’t want to let the
defense know exactly what evidence they have.
Now, you may continue, but keep that in mind of what can
and [cannot] happen because you’re speculating about a lot of
things here.
[Defense Counsel]: Okay. So, with that said, sufficient facts,
forgive me.
N.T. Trial at 122-124 (unnecessary capitalization omitted).
After defense counsel posed several more questions to Officer Lively,
the court took a short recess. When court reconvened, defense counsel had
the following exchange with the court:
[Defense Counsel]: Your Honor, at this time, I’m moving for a
mistrial based on the fact that when I was giving my cross-
examination, this Honorable Court said something to the effect
of me trying to mislead the jury, and as a result, I do feel as
though that undermines my credibility with the jury. I can’t
remember exactly what was said. It kind of all caught me off
guard.
The Court: Basically I said that the Affidavit of Probable Cause
doesn’t need to have all the important facts, just sufficient facts.
Your use of “all facts” was misleading, and I’ll stand by that.
Your motion is denied.
Id. at 125.
On appeal, Appellant maintains that the court erred by denying his
request for a mistrial because the judge’s comments “erroneously lent [the
judge’s] influence to the jury’s credibility calculations.” Appellant’s Brief at
-4-
J-S44005-14
20. Appellant primarily contends that the judge’s comments impermissibly
bolstered Officer Lively’s credibility, which was a key issue at trial. He also
avers that the court’s remarks “denigrat[ed] defense counsel’s standing in
the courtroom[,]” and implied that counsel was “misleading the jury….”
Appellant’s Brief at 22. Appellant argues that the prejudice caused by the
court’s comments was clear, and because the court did nothing to cure that
prejudice, such as issuing a cautionary jury instruction, Appellant was
entitled to a mistrial.
Initially, we are compelled to conclude that Appellant has waived two
of his arguments for our review. First, when defense counsel objected to the
court’s remarks, he only requested a mistrial; he did not ask the court to
provide the jury with a cautionary instruction. Consequently, any challenge
to the court’s failure to provide such an instruction is waived.
Commonwealth v. Sanchez, 82 A.3d 943, 971 (Pa. 2013) (finding the
appellant’s claims that the court erred by not granting a mistrial or providing
a cautionary instruction were waived because “[n]either remedy was
requested at trial”) (citing Commonwealth v. Johnson, 42 A.3d 1017,
1026 (Pa. 2012) (“Insofar as appellant complains about the lack of a
contemporaneous instruction, he waived this claim by failing to request a
curative instruction.”)).
Likewise, Appellant has also waived his argument that the trial judge’s
remarks improperly bolstered Officer Lively’s credibility. Defense counsel
objected to the court’s remarks on the basis that they “undermine[d]
-5-
J-S44005-14
[defense counsel’s] credibility with the jury.” N.T. Trial at 125. Counsel did
not assert that the court’s comments impermissibly bolstered the veracity of
Officer Lively’s testimony. Accordingly, this argument is also waived for our
review. See Sanchez, 82 A.3d at 969-970 (finding waived appellant’s claim
that prosecutor improperly bolstered witness’ testimony where “the
objection posed by [a]ppellant … was not offered on the basis of improper
bolstering,” but on another unrelated ground) (citations omitted); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
Therefore, the only argument we may assess herein is Appellant’s
claim that the judge’s remarks undermined defense counsel’s credibility,
thus entitling him to a new trial. Our Supreme Court has stated:
Every unwise or irrelevant remark made in the course of a trial
by a judge, a witness, or counsel does not compel the granting
of a new trial. A new trial is required when the remark is
prejudicial; that is, when it is of such a nature or substance or
delivered in such a manner that it may reasonably be said to
have deprived the defendant of a fair and impartial trial.
Commonwealth v. Goosby, 301 A.2d 673, 674 (Pa. 1973) (internal
citations and quotation marks omitted).
It is clear from the record that the court directed two remarks toward
defense counsel. First, the court stated that counsel’s “term [was] a little
misleading,” and, second, that counsel was “speculating about a lot of things
here.” N.T. Trial at 123. When the court stated that counsel was using a
“misleading” term, it went on to explain that an Affidavit of Probable Cause
-6-
J-S44005-14
requires sufficient facts, not a recitation of all the facts, as the court
interpreted defense counsel’s language as indicating. The court’s comment
was an accurate statement of law. See Commonwealth v. Geary, 411
A.2d 1195, 1197-1198 (Pa. 1980) (rejecting the appellant’s argument that
an Affidavit of Probable Cause for an arrest warrant must contain “all
information used to supply probable cause[;]” emphasizing that “the
applicable Rules of Criminal Procedure do not require all evidence used to
supply probable cause for arrest to be included in the affidavit”). Moreover,
we disagree with Appellant that the comment “denigrat[ed] defense
counsel’s standing in the courtroom.” Appellant’s Brief at 22. Instead, the
court appropriately clarified for the jury a legal principle upon which the
court thought defense counsel’s language was unclear. See
Commonwealth v. Hammer, 494 A.2d 1054, 1062 (Pa. 1985), abrogated
on other grounds by Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)
(indicating it is permissible for a judge to question a witness or comment on
testimony for purposes of clarifying that testimony, or to “enlighten the
jury”).
The court’s second remark that counsel was “speculating about a lot of
things” appears to be more of an admonishment to counsel than a comment
on counsel’s credibility. This Court has stated that “a defendant is not
entitled to a new trial because of the trial court’s chastisement of his trial
counsel unless that criticism reflects animosity towards or disbelief of the
defendant or partiality favoring the Commonwealth.” Commonwealth v.
-7-
J-S44005-14
Correa, 620 A.2d 497, 505 (Pa. Super. 1993). Here, the court’s remark
that counsel was speculating did not reflect animosity toward Appellant, nor
indicate that the court disbelieved Appellant’s defense. It also did not imply
any favoritism toward the Commonwealth.
For these reasons, Appellant has not convinced us that he was
prejudiced by the trial court’s remarks during the cross-examination of
Officer Lively. Accordingly, the trial court did not err in denying his motion
for a mistrial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
-8-
J-S44005-14
-9-
Com. v. Kehoe, T.
Combined Opinion