Com. v. Masse, L.

J-A01009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

LANCE E. MASSE,

Appellant No. 2877 EDA 2014

Appeal from the Judgment of Sentence September 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003686-2012
CP-51-CR-0009143-2012

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 13, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County after a jury found Appellant Lance

Masse (“Appellant”) guilty of rape, sexual assault, indecent assault,

terroristic threats (two counts), retaliation against a witness or complainant,

intimidation, and stalking.1 Sentenced to an aggregate term of nine to

eighteen years’ incarceration, Appellant contends that prosecutorial

misconduct during the course of trial requires us to vacate judgment of

sentence and remand for a new trial. We affirm.

The trial court aptly provides a history of the case as follows:

____________________________________________

1
18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3126(a)(2), 2706(a)(1), 4953(a),
4952(a)(1), 2706(a)(1), and 2709.1(a)(1), respectively.

*Former Justice specially assigned to the Superior Court.
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[Appellant] was found guilty of raping and sexually assaulting his
former girlfriend. The crime occurred on January 17, 2012, at
around 6:00 a.m. in the complainant’s apartment located in the
City and County of Philadelphia. [Appellant] called her at 4:30
a.m. upset and angry. At 5:00 a.m. he showed up at her
apartment,fn entered the apartment and began yelling at her and
calling her derogatory names. He said to her that he was there
to “beat the shit out of her.” The complainant tried to calm
[Appellant], given his demeanor. He grabbed her cell phone and
began looking through it. He then began demanding sex from
her and the complainant refused.

fn
[Appellant] and the complainant had previously lived together,
however, in this instance, [Appellant] had spent the night at a
hotel before going to the apartment they once shared.

The complainant stated [Appellant] said to her “My dick gets
what my dick wants.” With that, he pulled her hair, put his hand
over her nose and threatened to break it. He then held her
down, pulled down her pants and raped her. The complainant
testified that she did not consent to have sex with [Appellant].
[Appellant], who testified at trial, maintained that he and the
complainant had consensual sex that morning.

The complainant fled the apartment and called her friend,
Rebecca Rodriguez. Ms. Rodriguez testified that the complainant
called her around 7:15 a.m., and that she was extremely
panicky, crying, upset, state that she had just been raped by
[Appellant].fn The complainant went to Thomas Jefferson
University Hospital where she reported that she had been
sexually assaulted by her ex-boyfriend. Police were summoned
and she was taken to the Special Complainants Unit that same
day. Later that day, she was taken to Episcopal Hospital for a
rape kit examination. From the evidence collected, DNA testing
confirmed the presence of [Appellant’s] sperm in and around the
complainant’s vagina.

fn
N.T. 9/10/2013 [at 45].

Thereafter, on January 23, 2012, the complainant obtained a
temporary protection from abuse order (PFA) against
[Appellant]. There was an issue regarding service of the PFA

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upon [Appellant] and whether [Appellant] had been served or
had notice of the entry of the PFA Order.fn

fn
At trial, [Appellant was found not guilty of violation of the
protective order (18 Pa.C.S. § 4955), therefore, further details
on this issue are not necessary, despite extensive testimony on
the issue at trial.

Charges were eventually filed against [Appellant], who was
arrested on February 8, 2012 after turning himself [over to]
police. Thereafter, on February 25, 2012, [Appellant] repeatedly
called the complainant’s cell phone in excess of 50 times over a
several hour period. Many of the calls were ignored by the
complainant, but she did answer on several occasions and told
[Appellant] of the PFA and to leave her alone. In response,
[Appellant] made threats to her, advising her that he would put
a bullet in his head or in someone else’s head, that he knew that
she moved back with her parents and knew where they lived.
He further stated that if she did not appear in court, the charges
against him would be dropped. It was these actions that gave
rise to the additional charges being filed against [Appellant]….

Trial Court Opinion, filed March 16, 2015, at 2-4.

As noted, supra, the jury convicted Appellant on all counts except

violating an existing PFA order, and the court imposed sentence. After the

court entered an order denying post-sentence motions, this timely appeal

followed.

Appellant raises the following issues for our review:

I. DOES MISCONDUCT IN SUMMATION REQUIRE
REVERSAL BECAUSE THE PROSECUTOR TOLD THE
JURY THAT DEFENSE COUNSEL HAD TO RESORT
TO TRICKS AND DECEPTION AND TIED SUCH
TRICKS TO APPELLANT’S GUILT?

II. DID THE PROSECUTOR’S BLATANT ATTACK ON
DEFENSE COUNSEL IN SUMMATION WHICH HAS

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BEEN CITED ABOVE VIOLATE DUE PROCESS OF
LAW AS GUARANTEED BY THE FEDERAL
CONSTITUTION?

III. DID THE CURATIVE INSTRUCTION CURE THE
MISCONDUCT OR DID IT MAKE MATTERS WORSE?

IV. WAS THE MISCONDUCT IN SUMMATION
HARMLESS?

V. DOES FURTHER MISCONDUCT BY THE
PROSECUTOR IN THE FORM OF COACHING TWO
OF HER WITNESSES WHILE THEY WERE ON THE
STAND WARRANT REVERSAL?

Appellant’s brief at 4.

Appellant’s first four issues coalesce to ask this Court to determine

whether the prosecutor’s closing remarks denied him a fair trial so as to

entitle him to remand for a new trial. Our standard of review of such a

challenge is well-settled:

The prosecutor is allowed to vigorously argue his case so long as
his comments are supported by the evidence or constitute
legitimate inferences arising from that evidence. In considering
a claim of prosecutorial misconduct, our inquiry is centered on
whether the defendant was deprived of a fair trial, not deprived
of a perfect one. Thus, a prosecutor's remarks do not constitute
reversible error unless their unavoidable effect ... [was] to
prejudice the jury, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the evidence
objectively and render a true verdict. Further, the allegedly
improper remarks must be viewed in the context of the closing
argument as a whole.

Commonwealth v. Smith, 985 A.2d 886, 907 (Pa. 2009) (internal

quotation marks omitted) (quoting Commonwealth v. Washington, 700

A.2d 400, 407–408 (Pa. 1997)). Accord Commonwealth v. Hughes, 865

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A.2d 761, 801-802 (Pa. 2004) (holding remarks must be viewed in the

context of the entire proceeding); Commonwealth v. Boone, 428 A.2d

1382 (Pa.Super. 1981) (holding allegedly prejudicial remarks must be read

in context of entire case, with particular view to evidence presented and

reasonable inferences drawn therefrom, to determine whether they are

prejudicial).

“A prosecutor may not express his personal opinion regarding a

defendant's guilt or credibility and, in doing so, clearly and improperly

intrudes upon the jury's exclusive function of evaluating the credibility of the

witness.” Commonwealth v. Gilman, 368 A.2d 253 at 258, 259 (Pa.

1977).” “When the cumulative effect of improper remarks so prejudices the

jury as to prevent a fair trial, a motion for mistrial must be granted.”

Commonwealth v. Baranyai, 442 A.2d 800, 803 (Pa.Super. 1982). The

proper action to be taken is a matter within the discretion of the trial court.

Commonwealth v. Hickman, 466 A.2d 148, 150 (Pa.Super. 1983).

Accord Commonwealth v. Correa, 664 A.2d 607, 609 (Pa.Super. 1995)

(instructing “the initial determination whether the prosecutor's remarks were

unfairly prejudicial rests within the sound discretion of the trial court and our

inquiry of necessity must turn to whether an abuse of discretion was

committed.”).

According to Appellant, the misconduct in question centers on the

prosecutor’s closing remarks on the defense strategy of cross-examining the

complainant with her cell phone records and medical reports. With respect

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to cell phone records, two sets of records logging voice calls involving the

complainant’s cell phone on February 25, 2012, shortly after authorities

charged Appellant—one record printed out by the complainant herself from

her phone and the other record certified by AT&T—were at issue. At trial,

the prosecution introduced the AT&T record into evidence to establish that

Appellant called the complainant’s cell phone 56 times on February 25th in

an attempt to harass and intimidate the complainant into withdrawing her

complaint against him. The defense, however, sought to highlight what it

argued were crucial differences between the AT&T record and the

complainant’s personal printout of the record, which the Commonwealth had

initially included in its discovery.

Specifically, the defense set out to establish that the personal printout

chronicled multiple outgoing calls from the complainant’s phone to

Appellant’s phone on the day in question, suggesting that the complainant

sought to establish and maintain contact with Appellant, behavior

inconsistent with what one would reasonably expect from an alleged

complainant of harassment, intimidation, sexual assault, and rape. Toward

this end, defense counsel cross-examined the complainant extensively with a

single page from her own personal printout of the phone record. The

complainant denied the heading “number called” appearing on that page

meant that a call was placed from her cell phone to the number listed, but

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she conceded that is what the page stated. N.T., 9/11/13, at 69-70.2

Defense counsel went on to gain the complainant’s agreement that the page

therefore indicated eight phone calls in a row were made from her cell phone

during the time in which Appellant allegedly called her 56 times. N.T. at 70-

75.

The Commonwealth, however, effectively rebutted the defense tack on

redirect, where it undermined the defense’s use of this single page by

referring to a more specific page from the complainant’s print out as well as

to the AT&T certified phone record:

Prosecutor: First, I want to refer to what defense counsel
marked as their first exhibit and the portions that were left out.
Calling your attention to the back page where defense
counsel stated [sic], is it fair to say that it does not reflect
whether the phone call was incoming or outgoing?

[court overrules defense counsel’s hearsay-based objection]

Complainant: Yes.

Prosecutor: Now, I would like to call your attention to the
first page of the document that counsel also had [gone] over.

The Court: The first page of D-1 [defense exhibit #1]?

Prosecutor: Correct.

____________________________________________

2
Supporting her position that the “number called” heading on the page in
question did not mean calls placed by her phone, the complainant responded
to defense counsel’s question about one “number called” by explaining the
number was that of the local police department, which had placed a call to
her cell phone in response to her earlier 911 phone call. N.T. at 71.

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Prosecutor: Does that show whether it’s an incoming or
outgoing call?

Complainant: Yes.

Prosecutor: Calling your attention to the specific calls that
counsel referenced from 6:13 a.m., 6:29 a.m., 6:38 a.m., 7:37
a.m. – actually, all the phone calls involving the defendant’s
number, does it indicate that those were all, in fact, incoming
phone calls that you received?

Complainant: Yes.

Prosecutor: Now, calling your attention now to the certified
records referring to the exact same date, which was certified
from AT&T –

[In response to defense objection, court reiterates earlier ruling
deeming the AT&T report properly authenticated]

Prosecutor: Calling your attention now to the same time
period where it says originating number, as in the number where
the calls are coming from to your phone, all of those phone calls
come from the defendant’s phone number to your phone
number, correct?

Complainant: Yes.

Prosecutor: There are no phone calls from your phone to
his phone on that date, correct?

Complainant: [After clarifying that she inadvertently pressed a
button that called Appellant’s number but immediately hung up,
resulting in a phone record indicating an outgoing call of zero
seconds] Yes.

Prosecutor: Is it fair to say that all of the calls defense
counsel referenced, the twelve-minute, five-minute, the
everything, according to the records were actually incoming
calls.

Complainant: Yes.

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Prosecutor: And so the one page that counsel referred to does
not actually reflect if those are incoming or outgoing calls,
correct?

Complainant: Correct.

N.T., 9/11/13, at 77-79.

With respect to the prosecutor’s commentary on defense counsel’s use

of hospital records, the record shows that defense counsel had just elicited

from the complainant a detailed account of being forcibly overtaken and

raped when he immediately segued to the Jefferson Hospital triage nurse

report, asking, over objection, “[a]nd would it be fair to say that when you

went to the hospital, it was found[] that you had no acute distress and no

obvious discomfort; is that correct? N.T. at 46. Defense counsel sought a

yes or no answer and suggested that the complainant, apparently relying on

her nursing school experience, gave a response not in accord with the

document’s definition, although counsel eventually ceded to the court’s

ruling that the witness could explain her answer:

The Witness: No acute distress, meaning I could – no airway
breathing circulation. That’s what no acute distress means.

Defense Counsel: it says [‘]general appearance[’]—you
don’t have any reason to doubt what’s on this paperwork,
correct?

The Court: If you’re going to ask specifically about that
paperwork, I want you to indicate to her what is it that you’re
referring to.

Defense Counsel: I’m referring to the triage nurse report
and nurse’s intake.

The Court: C-1?

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Defense Counsel: I believe so, Your Honor. . . . Where it
begins with “Physical examine.” It says, “General appearance,
well nourished, alert, oriented times three, no acute distress, no
obvious discomfort.”

Defense Counsel: [to witness] Do you agree with any of
that ?

The Witness: No acute disress means no airway –

Defense Counsel: Do you –

Prosecutor: I’m asking that this witness be able to answer.

The Court: Yes. She can explain her answer.

Defense Counsel: Okay. I’m asking her first is that what it
says. If she wants to explain afterwards, Your Honor, she can.

N.T. at 46-47. Following this exchange, however, defense counsel confined

the complainant to a yes or no answer on this same section of the triage

nurse report and then moved to another section within the document

without giving her the opportunity to explain.

Defense Counsel: Now, was that what it said, yes or no?

The Witness: Yes.

Defense Counsel: Now, if you turn to page 3, it talks about
your neck up top, correct?

N.T. at 46-47.

Defense counsel also reviewed the nurse evaluation performed at the

Sexual Assault Response Center (“SARC”) at the Hospital of the University of

Pennsylvania, which included findings of no bruising, cuts, or abrasions

anywhere on the complainant’s body, N.T. at 51, prompting him to ask the

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complainant if it was true that there was nothing in the report to “indicate

that you were forced down in any sort of way by way of bruising[.]” Id.

When the prosecution subsequently called the SARC nurse to testify, he

explained that while he found no “gross injuries [such as] lacerations,

bruising, that kind of thing[,] such a finding was not inconsistent with the

patient having been sexually assaulted. N.T., 9/12/13, at 47-48. He further

explained that the Jefferson Hospital assessment of “no acute distress” is a

triage determination of whether a “more severe medical complaint that could

lead to somebody’s death within that day or within a few hours [is

apparent].” N.T. at 53-54. He provided examples of acute distress, such as

when “someone [is] crawling on the floor from the chest pain they’re

having[, or when] somebody [is] going into shock because a broken bone is

sticking through their arm. That’s acute distress.” N.T. at 54.

During her summation, the prosecutor implored the jury not to allow

defense counsel’s exclusive focus on a single page of the complainant’s

personal printout of her phone record to divert its attention from those

additional parts of the complainant’s printout and the AT&T certified record

establishing that all calls were made from Appellant’s phone to the

complainant’s phone. Appellant directs us to the following passage

containing what he contends were unfairly prejudicial remarks constituting

grounds for reversal:

Remember when she was on the stand and she was being
questioned about the phone calls on the 25th? She was
questioned, you see right here. ["]You made those calls. You

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made those calls.["] Recognizing that the records that the
defendant had both say[] that they were all incoming calls from
the defendant, yet [sic] he sat her up there and for five minutes
or more grilled her trying to convince her that she had made
these calls when the evidence was to the contrary. That was an
attempt to trick her. To break her down even more, to confuse
her. Quite frankly, it was an attempt to trick you. And why
would you need to be tricked if the defendant wasn't guilty? You
wouldn't be. The blatant attempt of misreading and misguiding
[sic] those phone records, was an attempt to distract you away
from the truth because focusing on the fact that he called her
over 55 times in under three hours, what does that do? Make
him look guilty. It's consciousness of his own guilt. The Judge
will specifically instruct you that that's exactly what you could
take that to mean.

***

Now, where was the other trick? Remember when [the
complainant] again was being grilled about her medical records
at Jefferson and the defendant approached her with things of,
["]Well, there was no acute distress, there [were] no
disturbances observed["] and tr[ied] to imply that in some way
that meant she was calm, cool, and collective [sic] and that
everything was fine[?] When you heard from an expert in the
nursing field [testify] "No, no, no, acute distress means when a
bone is coming out of your skin, when you're having a heart
attack, when you're going to die in --

[defense objection led to a sidebar discussion, prompting the
court to instruct the jury, to defense counsel's satisfaction, that
counsels' respective recollections of the evidence in closing
arguments are not controlling and are not evidence, and if either
counsel says anything that disagrees with the jury's recollection
of the facts, the jury's recollection is controlling. Defense
counsel then resumed her summation.]

As we all heard [the medical expert/SARC nurse] Mr. Brophy
testify to what was described [as acute distress] in those medical
records were extreme circumstances and yet [the complainant]
was interrogated about them at some length because she didn't
show those signs. That was another attempt to trick, to deceive,
to distract you from the actual evidence and the actual truth.

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So in response to defense counsel's closing, there is no
guidebook as the defense has made multiple attempts to try to
trick and distract you away from the truth. The Judge is going to
instruct you not to be tricked, not to be deceived, but to follow
the actual evidence and to judge it, to judge the actual[ ]
credibility of the evidence and he's going to give you tools in
order to do that.

N.T., 9/13/13, at 35-36, 38-39.

At the conclusion of the prosecutor's closing, and out of the jury's

presence, defense counsel moved for mistrial, arguing that the prosecutor's

repeated references to defense counsel’s attempt to trick the complainant

and the jury were fatally inappropriate. The trial court agreed with defense

counsel that the remarks were "inappropriate" but disagreed they rose to

the level of depriving the defendant of a fair trial so as to warrant the

extreme remedy of a mistrial.

Instead, the court decided it would issue a curative instruction, but it

would not go so far as to tell the jury that what the prosecutor said was

improper or that defense counsel was not, in fact, attempting to trick them.

Rather, the court instructed the jury to disregard the prosecutor's remarks

that defense counsel tried to trick them as it was for the jury, alone, to

decide whether either counsel was attempting to deceive them or was,

instead, merely zealously advocating his or her respective position:

The Court: So ladies and gentlemen of the jury, you heard Ms.
Kemp, attorney, for the Commonwealth, state at various times
during his trial Mr. Klineburger, attorney for the defendant, tried
to trick you with some questions he asked of the various
witnesses, including specifically questions [posed] to [the
complainant]. You are to disregard that statement. It is for you
and you alone, members of the jury, to determine whether

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either counsel attempted to trick or deceive you or whether they
were diligently representing their respective position. Again, it is
for you and you alone, members of the jury, to rely on your own
recollection of the testimony that you find to be credible in
reaching your verdict in this case.

Counsel, that's sufficient?

Defense counsel: Yes, Your Honor.

Prosecutor: Yes, Your Honor.

N.T. at 64.

Appellant contends the prosecutor's closing remarks denied him his

right to vigorous counsel, and he defends defense counsel's cross-

examination of the complainant with what he calls "two contradictory sets of

phone records" and with her medical record. Appellant's brief at 23. In a

case pitting the credibility of the complainant against that of Appellant, the

prosecutor's argument that defense counsel would not need to use tricks if

his client was not guilty was particularly damaging and warranted a mistrial,

Appellant posits.

In this regard, Appellant cites as support for reversal this Court's

decision in Commonwealth v. Raffensburger, 435 A.2d 864 (Pa.Super.

1981), in which we reversed rape and kidnapping convictions and remanded

for a new trial for what we determined was reversible misconduct in the

prosecutor's summation, consisting predominantly of overt attacks on

defense strategy, frequent expressions of personal opinion and belief, and a

"continual stream of personal anecdotes." Id. at 869. Imbedded within an

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already a broadly sweeping appeal to emotion was what this Court deemed

"[p]erhaps the single most troubling remark," which stated:

You know, gentlemen [of the jury], defense counsel, and I say
this sincerely, and I also say this in terms of argument, but the
defense counsel, I believe, is trying to make a fool out of this
jury. He wants to make you believe that poor Kenneth
Raffenberger is just riding around the country. Got himself a
little bit drunk, and really had no idea what he was doing....

Id. at 870. We went on to say:

This statement unmistakenly alters the issue before the jury. No
longer were they being asked to determine the witnesses' or
appellant's credibility, but rather the prosecutor's; no longer
were they being asked to determine whether the evidence
showed beyond a reasonable doubt that appellant's actions fell
within the bounds of statutorily prohibited behavior, but to
determine whether or not they, the members of the jury, would
appear as fools to the 225,000 inhabitants of York County.
Furthermore, not only does the remark challenge the jury to
render a verdict of guilty because otherwise they would appear
foolish, but it expresses a personal opinion about the defendant's
trial strategy. On the latter point the Supreme Court has stated:

Our decisions have firmly established that the
prosecutor may not express his personal opinion
regarding a defendant's guilt, credibility, or trial
strategy. We have ruled that (t)he determination of
guilt must not be the product of fear or vengeance,
but rather intellectually compelled after a
disinterested, impartial and fair assessment of the
testimony that had been presented.
Commonwealth v. Harvell, supra, 458 Pa. at 411,
327 A.2d at 30 (emphasis in original).

Commonwealth v. Gilman, 470 Pa. at 189-190, 368 A.2d at
258. (Footnotes omitted). The prosecutor's statement
undeniably violates the prohibition against comment on defense
counsel's trial strategy. So too does the statement about the
pre-trial proceedings when the prosecutor said:

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All of this that (Defense Counsel) wants to throw at
you about the method of identification....

The statement clearly disparages defense counsel's method of
defending his client. It also implies that the defense strategy
was not aimed so much at determining the truth but at hiding it
from the jury.

Id.

Consistent with our standard of review, however, this Court went on to

view the objectionable remark in context of the whole case before

determining whether grounds for reversal existed. In this respect, we found

it significant that the Commonwealth's case against the defendant relied

upon fine subtleties, as it was undisputed that the defendant was not one of

the four cohorts who physically raped the victim, was previously unknown to

the victim, and the victim—who could not make out the face of the second

abductor—relied exclusively on the length and color of the defendant's hair

and his position in the passenger seat after her abduction to deduce that he

was the second abductor who initially left the vehicle and forced her into the

back seat. The defendant, however, had testified he had been driving and

could not have abducted the victim, and he presented corroborating

evidence that he was asked to yield driving duties and sit in the passenger

seat at some point after the abduction because he was too inebriated to

drive safely. He also sought to exculpate himself on the charges of

confinement and rape on the theory that he was too inebriated to form the

requisite intent to aid and abet in the commission of these crimes.

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On weighing the prosecutorial remarks against the strength of the

evidence presented at trial, we said:

In considering these [prosecutorial] remarks we must be mindful
of the fact that the balance in this case is a delicate one. This
was not the case of a prosecution for actual rape. The violators
of the complainant's corporal sanctity had already been brought
to justice. In the instant case, however, there was neither
evidence presented nor the contention made that appellant was
one of the rapists. Rather, the question to be placed before the
jury on the rape charge was one subtler than whether appellant
had or had not violated the complainant's person. It was to be a
question which dealt with appellant's intent: did he aid and abet
his fellows in their heinous act, or was he merely present, too
drunk to come even to his own aid? As for the kidnapping
charge, the question was to be whether the complainant
correctly or incorrectly deduced that appellant was one of the
abductors based on her observations only of the perpetrator's
hair color and that the cab's passenger had done the deed, and
conclusion that appellant, who admits to having been in the
passenger's seat later, was seated there at the time of the
abduction. The circumstances of the case and the evidence
adduced at trial raised fine questions for the jury's
determination. Although these questions were not so subtle that
the jury, in its wisdom, and guided by its common sense and a
dispassioned analysis of the evidence, could not have decided
them, they were of such a nature that the jury easily could have
been swayed to render an improper verdict by the prejudicial
remarks of an over-zealous prosecutor.

Id. at 868.

What distinguishes the present case from Raffensberger, however, is

not only the comparatively stronger presentation of incriminating evidence

against Appellant but also the prosecutor’s overarching message calling upon

the jury to remain focused on essentially unrebutted testimony regarding

Appellant’s 56 phone calls to the complainant and the medical expert’s

explanation of medical terminology in the hospital reports. In stark contrast

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to the difficulties associated with the Commonwealth's attenuated

identification evidence in Raffensberger, the incriminating evidence in the

present case included the complainant’s detailed account of Appellant’s

aggression leading up to the rape, the rape itself, and her immediate and

consistent report of the event to both a friend and SARC medical providers

who performed a rape kit that same day. Evidence that Appellant phoned

the complainant 56 times in a single day after charges were filed further

bolstered the incriminating evidence against Appellant.

With respect to the prosecutor’s call to focus on the evidence, the

present case is more akin to the prosecutor’s emphasis on the evidence in

Commonwealth v. Smith, 467 A.2d 1307 (Pa.Super. 1983), in which the

prosecutor cautioned the jury against being “fooled by the smokescreen

defense,-[objections by defense counsel]-this hallucination defense.... Look

at all the evidence. Don't be fooled. [Objections of counsel.]” Id at 1319.

In affirming the convictions in Smith despite the negative references to

defense counsel’s employed strategy, we distinguished such commentary

from that made in Raffensberger, of which we said:

The remark there [Raffensberger] condemned was, “[T]he
defense counsel, I believe, is trying to make a fool out of this
jury.” Id. at 205, 435 A.2d at 870 (original emphasis). This
court condemned that remark as deflecting the inquiry from
whether guilt was proven beyond a reasonable doubt to whether
or not the jury was appearing in a foolish light. Furthermore,
this remark occurred in a summation in which the prosecutor
blatantly attacked defense strategy, repeatedly expressed his
personal opinion and constituted a “continual stream of personal
anecdotes.” Id. at 204-205, 435 A.2d at 869. In the case

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before us, however, the summation taken as a whole and with
the contested remark in context constitutes an appeal to the jury
to use its collective intelligence and logic in assessing all of the
evidence.

Id at 1321 n.20.

Similarly, though criticizing defense counsel’s use and characterization

of evidence and tying it to a rhetorical question concerning Appellant’s guilt,

the prosecutor primarily kept the focus of her summation on the evidence

and asked the jury to do the same. Absent in her closing were the more

egregious examples of prosecutorial conduct noted in Smith, including:

Commonwealth v. Gilman, 368 A.2d 253 (Pa. 1977) (invalidating closing

remarks mounting lengthy plea to jury’s emotions while characterizing

defense as incredible, shrewd, and calculating strategy to becloud issue and

deceive jury from seeing defendant as he really was, a cunning, sly,

calculating, and deceiving cold-blooded killer); Commonwealth v. Harvell,

327 A.2d 27, 29 (Pa. 1974) (invalidating closing plea that the members of

the jury not “be fooled” occurring within long harangue appealing to jury's

passions and prejudices regarding fear of crime in the community and

warning jury it could free the defendant but “it might be one of you next

time.”); Commonwealth v. Long, 392 A.2d 810 (Pa.Super. 1978)

(invalidating prosecutor’s string of disparaging remarks, including appeal to

jury that it not allow defendant “to sneak out of this courtroom under the

cover of smoke” and reference to defense counsel as a “not guilty machine”

and prosecutor as being required to search for truth). See also

Commonwealth v. Young, 692 A.2d 1112, 1116 (Pa.Super. 1997)

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(upholding judgment of sentence where defense counsel’s tactics, while

perhaps inappropriate, were not likely “to inflame the jury to such a degree

that it would be incapable of dispassionately considering the evidence.”).

In the case sub judice, therefore, we find the prosecutor sufficiently

mitigated the potential for prejudice arising from her closing remarks where

she had already introduced and developed pertinent evidence during trial

that convincingly undermined defense counsel’s interpretation of the phone

and medical records, and where she ultimately advanced as the prevailing

theme in her summation that such evidence was dispositive of the issues.

N.T., 9/11/13, at 77-80; 9/13/13 at 47. Though potentially problematic

given the negative characterization of defense counsel’s tactics, the remarks

in question were not the central feature of the prosecutor’s 20-page closing

argument. On balance, the strength of the Commonwealth’s evidence—both

in general and with respect to the phone and medical records—cause us to

perceive no reversible prejudice arising from the characterization of defense

counsel’s advocacy on the two records as tricky and distracting.

Accordingly, we discern no error with the trial court’s ruling denying

Appellant’s request for mistrial.3, 4
____________________________________________

3
Assuming, arguendo, that Appellant’s challenge to the court’s cautionary
instruction was preserved despite his affirmative acceptance of the
instruction, we disagree with his argument that the instruction exacerbated
the potential for prejudicing Appellant. Indeed, the instruction initially
instructed the jury to disregard the prosecutor’s remarks that defense
counsel had attempted to trick it or distract it from incriminating evidence.
(Footnote Continued Next Page)

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In Appellant’s remaining issue, he contends the prosecutor twice

impermissibly coached Commonwealth witnesses during cross-examination

when she nodded her head in response to defense counsel’s questioning.

The two instances were as follows:

Defense Counsel: Despite the fact that it says number
called from wireless detail of your number, you’re claiming that
these were actually calls made from Mr. Masse to you, correct?

Complainant: Yes.

Defense Counsel: I would ask that Ms. Kemp stop nodding
her head to the witness.

Prosecutor: I’m sorry, Your Honor, I’ll wait until its my
turn.

The Court: Do I have to tell you that, Ms. Kemp?
_______________________
(Footnote Continued)

It is well-settled that juries are presumed to follow such instructions. From
there, the instruction treated both counsel identically, charging the jury that
it was the sole decision-maker as to whether either counsel had gone too far
in his or her advocacy or had, instead, fairly represented the evidence and
simply advocated zealously in that respect. Far from infusing any unfair
prejudice that would give cause for reversal, such instruction charged the
jury appropriately that it, and it alone, would recollect and interpret the
evidence and all reasonable inferences therefrom.
4
Appellant raises a corresponding federal constitutional law claim that the
prosecutor’s comments violated his due process rights. Our Supreme Court
has explained that the same standard applicable to a state-based
prosecutorial misconduct claim applies to a corresponding federal
constitutional law claim. See Hughes, 865 A.2d at 801-802 (instructing
that “both [state and federal] standards concentrate on the effect of the
improper remarks upon the fairness of the verdict and are thus consistent.”).
Accordingly, for the reasons set forth above, Appellant’s federal due process
claim fails.

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Prosecutor: No, you do not, Your Honor. It won’t happen
again.

The Court: Proceed.

N.T., 9/11/13, at 75.

Defense Counsel: So if there was a voicemail message
saved, was that something you would have preserved?

Complainant: Yes.

Defense Counsel: Again, Your Honor, I would ask that the
Commonwealth stop nodding yes or no.

The Court: Stop [directed at complainant].

***
Complainant: Sorry, Judge.

Prosecutor: I didn’t even realize I did.

The Court: I was reading C-5 as the witness was
speaking. I didn’t think I had to monitor the actions of a very
experienced counsel in here.

You know you’re not supposed to make any kind of gestures or
facial expressions or anything like that. If that is occurring, I
would ask whoever is doing it to stop doing it.

Prosecutor: Yes, Your Honor.

N.T., 9/11/13, at 153-154.

In neither instance did defense counsel seek a mistrial or curative

instruction after the trial court ostensibly granted defense counsel’s request

that the prosecutor be instructed to stop nodding her head. Now, Appellant

contends that “the court had [the] opportunity [to correct whatever it is that

was objected to] and took no action at all.” Appellant’s brief at 39. We

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disagree. The record clearly shows the court admonished counsel in the

presence of the jury pursuant to the specific defense objection and request

made.

To the extent Appellant now contends, for the first time on appeal,

that the court erred in failing to give a curative instruction or to declare a

mistrial, we find Appellant failed to preserve such a claim with a timely and

specific objection requesting such relief. See Commonwealth v.

Shamsud–Din, 995 A.2d 1224, 1228 (Pa.Super. 2010) (citation omitted)

(Holding “in order for a claim of error to be preserved for appellate review, a

party must make a timely and specific objection before the trial court at the

appropriate stage of the proceedings; the failure to do so will result in

waiver of the issue.”). We likewise reject Appellant’s bald assertion that

requesting such relief with the court would have been futile, a contention he

makes to avail himself of an exception to the waiver doctrine recognized in

the decisional law of this Commonwealth:

Requiring a litigant to make a timely, specific objection during
trial ensures that the trial court has a chance to correct alleged
trial errors. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa.
255, 322 A.2d 114, 116 (1974). We have stressed that
“[w]aiver is indispensable to the orderly functioning of our
judicial process and developed out of a sense of fairness to an
opposing party and as a means of promoting jurisprudential
efficiency by avoiding appellate court determinations of issues
which the appealing party has failed to preserve.” [Reilly by
Reilly v. Southeastern Pennsylvania Trasnp. Authority],
489 A.2d 1291, at 1300].

There exists, however, an exception to the waiver doctrine. We
first announced this exception in Commonwealth v. Hammer,

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508 Pa. 88, 494 A.2d 1054 (1985). According to our decision in
Hammer, in limited circumstances, a party may raise allegations
of judicial misconduct for the first time in post-trial motions.
While trial counsel has an obligation to object to improper
language and/or behavior in the courtroom to effectively
represent his or her client, there may be circumstances in which
objections have a deleterious effect on the jury or even on the
judge whose behavior is extremely unprofessional.

***
In addressing the allegations of judicial misconduct in Hammer,
we held that:
On this record, whereas it appears that objection
would be meaningless to satisfy the reasons for
raising objection and, as further reflected by this
record, indeed intensified judicial animosity, justice
is not served by the strict application of the waiver
doctrine. Accordingly, we hold that the failure of
trial counsel to object to questioning by the judge,
who is charged with a function of self-regulation, will
not under all circumstances render the allegation of
judicial impropriety unavailable for appellate review.

Id. at 1060 (emphasis added).

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124-25 (Pa. 2000).

We do not, however, share the notion necessarily implicit in Appellant’s

argument that the matter under review involves an instance of judicial

misconduct or impropriety. Nor do we find Appellant has, for that matter,

demonstrated that raising the specific objection he now makes would have

been a futile, meaningless act met likely to have produced a

counterproductive effect. We, therefore, find this line of jurisprudence

inapposite to the present claim.

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Even if we were to address the merits of this claim, we would adopt

the trial court’s opinion dismissing it for want of a demonstration of

prejudice:

[E]ven if this issue had been properly preserved, the effects of
these two limited instances over the course of a 5-6 day trial,
fails to reveal that such head nodding had, in fact, influenced the
answers to the questions posed, nor can the [Appellant] show
that such action resulted in any prejudice to the [Appellant].
There is nothing in the record to even suggest that the
Commonwealth used any improper means to influence the
elicited response or that the response would have been different
had the nodding not occurred. This Court reasonably presumed
that Ms. Kemp [prosecutor], as an officer of the court and in
discharge of her duties, had acted in good faith and said nodding
motions were inadvertent and not done with any intent to
influence, sway or otherwise have an effect upon the sworn
testimony being presented. Further, such occurrence did not
deprive the [Appellant] of a fair trial.

Trial Court Opinion, March 16, 2015, at 27-28. Finding the court acted well

within its discretion in addressing the prosecutor’s two instances of head

nodding, we conclude this claim affords Appellant no relief.

Judgment of sentence is AFFIRMED.
Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016

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