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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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