J-S05043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FERNANDO LOUIS LAGARES, III,
Appellant No. 910 MDA 2016
Appeal from the Judgment of Sentence May 4, 2016
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0008023-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 27, 2017
Appellant, Fernando Louis Lagares, III, appeals from the judgment of
sentence imposed on May 4, 2016, following his jury conviction of one count
each of possession with intent to deliver narcotics (PWID)1 and person not to
possess firearms.2 On appeal, Appellant challenges the trial court’s denial of
his motion for a mistrial. For the reasons discussed below, we affirm the
judgment of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S.A. § 6105(a)(1).
J-S05043-17
We take the underlying facts and procedural history in this matter
from the trial court’s September 27, 2016 opinion and our independent
review of the certified record.
This case arises out of the execution of a search warrant
on October 16, 2014[,] at 900 East Princess Street, in York
County, Pennsylvania by the Springettsbury Township Police
Department along with the York County Drug Task Force.
At approximately 4:45 [p.m.] on October 16, 2014, police
officers arrived at 900 East Princess Street, knocked on the door
and announced they had a warrant to search the residence.
After hearing no response, they rammed the door and entered.
Upon entrance, officers saw a man, later identified as []
Appellant, running towards the rear exit of the house. Officers
at the rear entrance of the house were able to secure Appellant
and take him into custody. At that time Appellant was given his
Miranda[3] rights and cautioned that anything he said could be
used against him in court. A search of Appellant’s person
produced approximately $4,500.00 in cash. Also present during
the execution of the search warrant was a female, Diamond
Bailey, and two small children.
A search of the residence and the garage produced:
approximately [seventy] grams of marijuana; a digital scale;
packaging materials, including plastic baggies; and a firearm, a
12-ga[u]ge shotgun. The firearm was found in a green bag
located under the sofa in the living room of the residence and
was identified as a Mossberg 12-ga[u]ge shotgun. When officers
found the weapon Diamond Bailey became upset that there was
a gun in the house with the children.
Appellant told officers that the shotgun was not his and
that it belonged to his girlfriend, Diamond Bailey. Officers asked
Appellant if law enforcement would find Appellant’s DNA or
fingerprints on the weapon. Appellant responded by stating,
“that his fingerprints would probably be on the shotgun because
he used the weapon to protect his family.” Appellant also
____________________________________________
3
Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S05043-17
explained that, “he knew he was not allowed to use a firearm but
he did not care.” In addition to the shotgun, numerous shells for
a 12-ga[u]ge shotgun were found at the residence. As a result
of the search, Appellant was arrested on October 16, 2014.
(Trial Court Opinion, 9/27/16, at 2-3) (record citations omitted).
A jury trial took place on March 21 and 22, 2016. In his opening
statement, defense counsel admitted that Appellant was a person who was
not allowed to possess a firearm and that he had possessed the marijuana
with the intent to deliver. (See N.T. Trial, 3/21/16, at 99-100).
One of the witnesses presented by the Commonwealth was Detective
Russell Schauer of the Springettsbury Township Police Department. (See
N.T. Trial, 3/22/16, at 143). When asked by the Commonwealth if Appellant
made any statements to him, Detective Schauer testified, in part, that while
yelling at the police, Appellant stated “he was on probation.” (Id. at 146).
Defense counsel moved for a mistrial, which the trial court ultimately denied.
(See id. at 146-53). The jury found Appellant guilty of all charges.
On May 4, 2016, the trial court sentenced Appellant to an aggregate
term of incarceration of not less than five nor more than twelve years. On
June 2, 2016, Appellant filed a timely notice of appeal. On June 3, 2016, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal. See Pa.R.A.P. 1925(b). Subsequent to the grant of a motion
for an extension of time, Appellant filed a timely Rule 1925(b) statement on
July 25, 2016. See id. On September 27, 2016, the trial court filed an
opinion. See Pa.R.A.P. 1925(a).
-3-
J-S05043-17
On appeal, Appellant raises the following question for our review.
Whether the trial court committed an error of law when it
denied Appellant’s request for a mistrial because a
Commonwealth witness referred to Appellant’s probation status
during testimony?
(Appellant’s Brief, at 4).
In his only claim, Appellant contends that the trial court erred in
denying his motion for a mistrial. (See Appellant’s Brief, at 105). We
disagree.
The following standards govern our review of the denial of a motion for
mistrial:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant
when prejudicial elements are injected into the case or
otherwise discovered at trial. By nullifying the tainted
process of the former trial and allowing a new trial to
convene, declaration of a mistrial serves not only the
defendant’s interest but, equally important, the public’s
interest in fair trials designed to end in just judgments.
Accordingly, the 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.
-4-
J-S05043-17
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016) (citation omitted). “A mistrial is an
extreme remedy that is required only where the challenged event deprived
the accused of a fair and impartial trial.” Commonwealth v. Smith, 131
A.3d 467, 475 (Pa. 2015), cert. denied, 137 S.Ct. 46 (2015) (citation
omitted). “The trial court is in the best position to assess the effect of an
allegedly prejudicial statement on the jury, and as such, the grant or denial
of a mistrial will not be overturned absent an abuse of discretion.”
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008), appeal
denied, 966 A.2d 571 (Pa. 2009) (citation omitted).
Here, the following occurred at trial during the direct examination of
Detective Schauer:
[The Commonwealth]: And in the course of your interactions
with [Appellant], what did he say to you about anything?
[Detective Schauer]: It was more yelling at us. He was yelling
that we were wasting our time there. He stated that he was on
probation.
[Defense Counsel]: Your Honor, may we approach?
[The Trial Court]: Yep.
(N.T. Trial, 3/22/16, at 146). During a sidebar discussion, the following
occurred:
[Defense Counsel]: Your Honor, [the Commonwealth] and I
know this exact statement is to make sure he doesn’t get that in
and he sure did. So, I have to request a mistrial at this point.
[The Trial Court]: [The Commonwealth]?
-5-
J-S05043-17
[The Commonwealth]: [Defense Counsel] did make that request
along with other points that he raised. I admit that. I agreed
with him that that won’t be admissible. I inadvertently with my
discussions with the affiant this morning among other subjects
that we discussed. [sic]
* * *
[The Trial Court]: My initial inclination was to grant your
request, [Defense Counsel]. But on reflection the jury already
knows that he is not permitted to have a firearm from a prior
conviction. They could very well think that the conviction that
the officer mentioned he was on probation for could have been
that conviction.
So, this isn’t a situation where he is theoretically devoid of
all criminal contact. I think that puts it in a little different
situation. I can give the jury a cautionary instruction. They
have already heard that he is a person not to possess because of
a prior incident. They are not to infer that he did anything
wrong as a result of that or some other type of cautionary
instruction.
But, I think given the fact that they have already been
informed that he has got a previous conviction that prohibits him
from having the firearm, I am not so sure that mention of
probation is an automatic grant of a mistrial in this particular
situation. Ordinarily I would agree with you. But I am not sure
that we are at that point in this case.
(N.T. Trial, 3/22/16, at 146-48).
After some discussion, the trial court directed the parties to revise a
previously agreed upon stipulation regarding Appellant’s prior felony
conviction, to make it seem like the probation Detective Schauer referred to
could have come from that offense.
[The Trial Court]: Is there any reason why you can’t work out a
stipulation, understanding you have made the request for a
-6-
J-S05043-17
mistrial that indicates that at least [sixty] days prior to October,
whatever it was, he became a person prohibited by law from
possessing or controlling a firearm?
Is there some reason why you have to mention a particular
date?
[The Commonwealth]: No, there isn’t. We can cover the [sixty]
day threshold.
[The Trial Court]: If the Commonwealth does that with regard
to the stipulation, I am going to overrule your request for a
mistrial. I understand your agreement to the stipulation is not a
waiver of that request for a mistrial.
But, I think under the circumstances had we not already
had this information potentially before the jury, I would have no
hesitation granting a mistrial. I think it would be entirely
appropriate given the pecuniary [sic] of the charge in this case
and what the jury already knows.
I agree I think it’s not automatic and I believe the
stipulation will be able to cure that. If not, you will have your
appeal issue if there is a conviction.
I am going to overrule your request for a [mistrial]
predicated [on] the Commonwealth revising the stipulation to
meet the terms of the statute and eliminating any reference to
the date, and we will also note that your agreement to that
stipulation is not waiving your request for a mistrial.
(Id. at 151-52).
The trial court offered to give an immediate curative instruction to the
jury, but defense counsel stated that he would prefer that such a curative
instruction be included in the final charge to the jury. (See id. at 152-53).
Following closing arguments, the trial court gave the following
instruction to the jury.
-7-
J-S05043-17
I [sic] may have heard testimony or even a stipulation
concerning the fact that [Appellant] had a previous conviction
that precludes him from carrying a firearm. You may not
consider that evidence as evidence or proof of the fact that he
may have committed a crime on this particular occasion.
That evidence was only admitted for a very limited
purposes and that was specifically to address one of the
elements of the offense with which [Appellant] is charged and
which I’ll talk about in a few minutes.
(Id. at 294-95).
Appellant did not object to this instruction. (See id. at 295). When
asked, defense counsel stated that he did not see the need for any
corrections or additional instructions. (See id. at 302-03, 306). At the
conclusion of the jury charge, defense counsel did not object to the charge
as a whole, or request any additional instruction. (See id. at 308).
This Court has stated that:
[i]n Pennsylvania, evidence of crimes other than those
charged in the case before the jury may not be presented at trial
to prove the defendant’s criminal character or his tendency
toward committing criminal acts. However, mere passing
references to prior criminal activity will not necessarily require
reversal unless the record illustrates definitively that prejudice
results. Prejudice results where the testimony conveys to the
jury, either expressly or by reasonable implication, the fact of
[another] criminal offense. Determining whether prejudice has
occurred is a fact specific inquiry.
Commonwealth v. Padilla, 923 A.2d 1189, 1194-95 (Pa. Super. 2007),
appeal denied, 934 A.2d 1277 (Pa. 2007) (quotation marks and citations
omitted).
-8-
J-S05043-17
Here, the incident did not deprive Appellant of a fair and impartial trial
because the comment was, at most, a fleeting reference to criminal activity.
Detective Schauer made a brief reference that Appellant told him that he
was on probation. Detective Schauer did not state what offense Appellant
had committed and did not give any details of the alleged crime. Moreover,
by the time Detective Schauer testified, both the Commonwealth and
defense counsel had already informed the jury during voir dire and during
opening statements that Appellant had a prior conviction that rendered him
a person not to possess a firearm, and that he was admitting that he
possessed marijuana with intent to distribute. (See N.T. Trial, 3/21/16, at
53-54, 68, 92, 97-100). Thus, the jury knew that Appellant participated in
criminal activity. Further, the parties amended their stipulation regarding
that prior crime so as not to draw undue attention to the jury about whether
the probation sprung from that offense. (See N.T. Trial, 3/22/16, at 152-
53, 165). The trial court offered to give an immediate curative instruction
but counsel for Appellant declined. (See id. at 152-53). Given this,
Appellant has failed to explain how he was prejudiced by a fleeting reference
to his being on probation. Accordingly, the trial court did not err in denying
Appellant’s motion for a mistrial. See Padilla, supra at 1194-95; see also
Smith, supra at 475.
In any event, Appellant’s argument appears to be less that the trial
court erred in denying the initial motion for a mistrial and more that its
-9-
J-S05043-17
curative instruction was inadequate. (See Appellant’s Brief, at 13-14).
However, Appellant waived this claim because he did not timely object to the
curative instruction or request any additional instruction. See
Commonwealth v. Neff, 860 A.2d 1063, 1071 (Pa. Super. 2004), appeal
denied, 878 A.2d 863 (Pa. 2005).
Appellant’s issue is both partially waived and lacks merit. Thus, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2017
- 10 -