Com. v. Ibrahim, M.

J-A19005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MAHMOUD MOHAMED AHMED : No. 1143 MDA 2021
IBRAHIM :

Appeal from the Order Entered August 5, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003070-2020

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED DECEMBER 13, 2022

The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the August 5, 2021 order granting Mahmoud Mohamed Ahmed Ibrahim’s oral

motion in arrest of judgment on his conviction for sex assault. After careful

review, we reverse and remand for further proceedings.

On February 26, 2018, Lillian and Lucas Miller invited Courtney Custer

(“victim”) and Appellee over to their house with the intent of introducing them

to each other. N.T. Jury Trial, 6/24-25/21, at 29, 95. Appellee and the victim

met and spent several hours talking. Id. at 29-30. In the early hours of

February 27, 2018, the Millers went to sleep in their bedroom. Id. at 30-31.

In the living room, the victim and Appellee put on a movie and reclined on a

double chair with an arm rest separating the two seats. Id. at 30, 32-34. A
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* Former Justice specially assigned to the Superior Court.
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short time later, Appellee began kissing the victim’s neck repeatedly. Id. at

34. Despite her requests to stop, Appellee continued kissing the victim,

lowered her pajama bottoms, forcefully inserted his penis into her vagina, and

began thrusting violently. Id. at 37-40. When Appellee briefly paused to

readjust himself, the victim escaped to a nearby bathroom. Id. at 40-41.

Sometime later, Lillian found the victim in the bathroom and, after the victim

told her what happened, transported the victim to the hospital for a sexual

assault examination. Id. at 41-43, 89-90.

At the hospital, medical professionals took photographs of bruises and

scratches to the victim’s neck, chest, legs, and buttocks. Id. at 44, 74, 138-

47. An internal examination revealed blunt force trauma to the victim’s cervix.

Id. at 134. The sexual assault kit also indicated the presence of DNA that

matched Appellee. Id. at 136-38. The Pennsylvania State Police (“PSP”)

reported to the hospital and interviewed the victim, who identified Appellee as

the perpetrator. The PSP interviewed Appellee twice. Initially, he denied the

events had occurred. Id. at 165-66. However, mid-interview, Appellee

conceded that he met and had consensual sex with the victim, because she

“was asking for it.” Id. at 166-67. In his second interview, Appellee professed

his “love” for the victim, stated that he wanted her to be his wife, and showed

the officers approximately 160 unanswered text messages he had sent to her

after the incident. Id. at 46-48, 178-79, 181-86, 188, 190-91. Ultimately,

Appellee was arrested and charged with rape – forcible compulsion and sexual

assault.

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While the charges were pending, Appellee was taken into the custody of

Immigration and Customs Enforcement (“ICE”) and incarcerated at York

County Prison pending his removal to Egypt. Appellee initiated a voluntary

removal to expedite the process. As a result, the Dauphin County District

Attorney’s Office filed a motion with the lower court to set bail, which was

granted.

On June 24, 2021, Appellee proceeded to a jury trial. Before the jury

was brought into the courtroom, trial counsel requested that there be “no

mention of [Appellee’s] immigration status or . . . incarceration.” Id. at 5.

The Commonwealth agreed to this oral motion in limine and ensured that all

Commonwealth witnesses abided by its terms for the duration of its case-in-

chief. Id. at 6-7. After the Commonwealth concluded its case, Appellee called

his landlord as a character witness. Id. at 194-98. On cross-examination,

and after confirming that the witness identified herself as Appellee’s “current”

landlord, the Commonwealth questioned whether Appellee “currently” paid the

landlord rent. Id. at 199. In response, the landlord responded, “how can he,

he’s been in prison for a year.” Id.

The trial court immediately interrupted the questioning and issued a

cautionary instruction telling the jury to disregard the reference to Appellee’s

incarceration, as “sometimes people charged with serious offenses spend

some time incarcerated. Whether someone is incarcerated or not has nothing

to do with whether [they are] innocent or guilty of an offense.” Id. Appellee

did not object to the Commonwealth’s question or the court’s instruction.

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Instead, the prosecutor resumed her cross-examination of the witness. Id.

at 199-200. Afterwards, Appellee conducted a brief redirect examination, and

the witness was excused. Id. at 200-202.

Once the jury exited the courtroom, Appellee asked for a mistrial on the

grounds that the Commonwealth’s cross-examination of Appellee’s character

witness violated the terms of the motion in limine order. Id. at 204. The

Commonwealth responded that they posed the question to establish bias and

did not intend to elicit the response received. Id. at 204-05. The trial court

agreed that the violation was unintentional and denied Appellee’s request for

a mistrial. Id. at 206. Furthermore, the court found that the statement was

not impactful, since many members of the public were likely already aware

that suspects are often incarcerated pending trial. Id. at 206-07.

Accordingly, the court found that its cautionary instruction was sufficient to

cure any prejudice Appellee may have suffered, noting that it was immediately

issued, and jurors were nodding in the affirmative while it was delivered. Id.

at 206. Ultimately, the jury convicted Appellee of sexual assault, but was

unable to reach a unanimous verdict on the rape count. Thus, the court

granted a mistrial on the rape charge. Id. at 273.

After the verdict was announced and the jury had been dismissed,

Appellee made an oral motion for an arrest of judgment, arguing that the court

erred when it denied Appellee’s prior request for a mistrial. Id. at 278. The

Commonwealth reiterated its earlier argument, and the trial court took the

matter under advisement, requesting that the notes of testimony be

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transcribed and that the parties submit briefs in support of their respective

positions. Id. at 279. After reviewing the trial transcript and the post-verdict

briefs, the trial court issued an order and opinion granting Appellee’s oral

motion for arrest of judgment and vacating the sexual assault verdict. See

Order, 8/4/21, at 1-3. In the opinion, the trial court found that the

Commonwealth should have known that the question posed would elicit a

response that would violate the motion in limine order and that the “error was

so manifest that immediate relief [was] essential.” Id. at 2-3.

The Commonwealth filed a motion for reconsideration and the court held

a hearing. At the hearing, the parties stipulated that defense counsel did not

inform the character witness of the parameters of the motion in limine order.

See N.T. Motion Hearing, 8/19/21, at 4. Additionally, the trial prosecutor

testified consistently with her earlier statements regarding her cross-

examination of Appellee’s character witness and her attempt to elicit bias. Id.

at 7-16. Following the hearing, the court denied the motion for

reconsideration. See Order, 8/25/21, at 1. This timely Commonwealth appeal

followed.1 Both the Commonwealth and the trial court have complied with the

mandates of Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review:
____________________________________________

1 In this Court, Appellee filed a motion to quash the instant appeal. See
Motion, 12/16/21. Therein, Appellee argued that the trial court’s ruling was
interlocutory rather than a final order from which the Commonwealth was
permitted to appeal. Id. This Court denied the motion without prejudice for
Appellee to present the argument to the panel assigned to address the merits
of the appeal. See Order, 2/8/22.

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Whether the trial court erred in granting Appellee’s motion for a
mistrial where the testimony in question was given by Appellee’s
own witness, Appellee failed to advise the witness of the
limitations imposed by the motion in limine, the question posed
by Appellant sought to elicit admissible evidence regarding the
witness’[s] bias, and the answer given by the witness was non-
responsive to Appellant’s question?

Commonwealth’s brief at 4.

Preliminarily, we consider Appellee’s argument that this appeal must be

quashed. See Appellee’s brief at 18-28. Appellee contends that the appeal

should be quashed because the Commonwealth appealed from an

interlocutory order retroactively granting a mistrial. Id. We disagree.

It is well settled that “[j]urisdiction is purely a question of law; the

appellate standard of review is de novo and the scope of review plenary.”

Commonwealth v. Seiders, 11 A.3d 495, 496–97 (Pa.Super. 2010) (citation

omitted). Generally, appellate courts have jurisdiction only over final orders.

See 42 Pa.C.S. § 742. However, the appellate courts have been granted

jurisdiction to review interlocutory orders under limited circumstances,

including certain interlocutory appeals as of right. See Pa.R.A.P. 311.

The Commonwealth filed the instant appeal pursuant to Pa.R.A.P.

311(d), which permits a Commonwealth appeal from an interlocutory order in

a criminal action “where the Commonwealth certifies in the notice of appeal

that the order will terminate or substantially handicap the prosecution.”

Pa.R.A.P. 311(d); see also Commonwealth’s brief at 1. However, our

Supreme Court has consistently held that “the application of Rule 311(d) . . .

is limited to circumstances in which a pretrial ruling results in the suppression,

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preclusion or exclusion of Commonwealth evidence.” Commonwealth v.

Shearer, 882 A.2d 462, 467 (Pa. 2005); see also Commonwealth v.

Andre, 17 A.3d 951, 957 (Pa.Super. 2011) (“Pa.R.A.P. 311(d) has been

limited to pre-trial rulings precisely because to hold otherwise would permit

the Commonwealth to appeal mid-trial from adverse rulings entered by the

trial court that might hamper the prosecution.”). The challenged ruling in this

case was not a pre-trial determination. Instead, by the time the court issued

its ruling, jeopardy had long since attached, evidence had been presented,

and the jury had issued its verdict. See Commonwealth v. Hallman, 67

A.3d 1256, 1261 (Pa.Super. 2013) (“In a criminal jury trial, jeopardy attaches

when the jury is sworn.”). Thus, the order does not fall within the parameters

of Rule 311(d) as delineated by our Supreme Court. However, this does not

end our jurisdictional inquiry.

The Commonwealth’s issue pertains to whether the trial court

committed an error of law in awarding a new trial. See Commonwealth’s brief

at 4 (“whether the trial court erred . . .” (emphasis added)). Pennsylvania

Rule of Appellate Procedure 311(a)(6) confers this Court with jurisdiction in

those circumstances. See Order, 8/4/21 (granting Appellee’s motion for

arrest of judgment and vacating the sexual assault verdict); see also

Commonwealth v. Coleman, 532 A.2d 477, 482 (Pa.Super. 1987) (“[f]or

one hundred and seventy-five (175) years appellate courts of this

Commonwealth have properly entertained appeals by the Commonwealth

from orders granting a defendant arrest of judgment.”). Rule 311(a)(6) states

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that in a criminal proceeding, the Commonwealth may appeal from the

decision to grant a new trial when “the Commonwealth claims that the lower

court committed an error of law.” Pa.R.A.P. 311(a)(6). While we are

cognizant that the Commonwealth neglected to invoke this rule, the issue is

jurisdictional, and we may raise it sua sponte. See Andre, supra at 957

(finding jurisdiction over an appeal pursuant to Rule 311(a)(6) after the

Commonwealth erroneously appealed pursuant to Rule 311(d)).

Furthermore, we are unpersuaded by Appellee’s argument that Rule

311(a)(6) does not apply because the court retroactively granted a mistrial,

and the declaration of a mistrial is not appealable by the Commonwealth. See

Appellee’s brief at 28. It is well-established that Rule 311(a)(6) does not

apply when a trial court declares a mistrial, because no party has been

“awarded” a new trial. Commonwealth v. Wardlaw, 249 A.3d 937, 951-53

(Pa. 2021) (differentiating between an order granting a motion for a new trial

which was appealable as of right pursuant to Rule 311(a)(6) and a mistrial

which was not). However, the court did not grant a mistrial here. See

Pa.R.Crim.P. 605(B) (“When an event prejudicial to the defendant occurs

during trial only the defendant may move for a mistrial; the motion shall be

made when the event is disclosed. Otherwise, the trial judge may declare a

mistrial only for reason of manifest necessity.”). Instead, the trial court

granted a post-trial motion for arrest of judgment and vacated the sexual

assault verdict. Thus, case law governing interlocutory appeals from mistrial

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awards is irrelevant. The ruling was immediately appealable as of right under

Rule 311(a)(6).

Having decided that jurisdiction is proper, we turn now to the merits of

whether the trial court erred when it changed its mind post-verdict on whether

a mistrial was necessitated and granted Appellee’s motion in arrest of

judgment. See Commonwealth’s brief at 28. We review the decision to grant

a new trial for an abuse of discretion or an error of law. See Rohe V. Vinson,

158 A.3d 88, 95 (Pa.Super. 2016). “An abuse of discretion is not merely an

error of judgment; rather, discretion is abused when the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the

record.” Commonwealth v. Kriner, 915 A.2d 653, 656 (Pa.Super. 2007)

(internal quotations and citations omitted).

The Rules of Criminal Procedure provide that “[u]nder extraordinary

circumstances, when the interests of justice require, the trial judge may,

before sentencing, hear an oral motion in arrest of judgment, for a judgment

of acquittal, or for a new trial.” Pa.R.Crim.P. 704(B)(1). The Comment to

Rule 704(B) limits the grounds on which a trial court judge can grant a motion

for extraordinary relief to those “errors so manifest that immediate relief is

essential.” Pa.R.Crim.P. 704, Comment; see also Commonwealth v.

Grohowski, 980 A.2d 113, 115 (Pa.Super. 2009).

Herein, the trial court initially denied Appellee’s motion for a mistrial,

finding that the offending comment was unintentionally elicited, and any

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prejudice suffered was remedied by its curative instruction. See N.T. Jury

Trial, 6/24/21, at 206-07. After the jury rendered its verdict, the court found

it was compelled to reverse course on its prior finding due to the close jury

verdict and its own interpretation of Commonwealth v. Padilla, 923 A.2d

1189, 1193-94 (Pa.Super. 2007), which the court found required the award

of a new trial because the Commonwealth violated the motion in limine order.

See Trial Court Opinion, at, 12/8/21, at 5.

The Commonwealth contends that this decision was the result of two

errors. First, it asserts that the trial court improperly abandoned its initial

factual determination at trial based upon a split jury verdict. See

Commonwealth’s brief at 30-31. Further, it argues that the trial court’s

decision is founded upon an incorrect application of the Padilla decision,

which the court interpreted as mandating a new trial any time a motion in

limine is violated. Id. at 28-31.

Initially, we note that the only piece of evidence that the court relied

upon when reversing itself that it did not have access to when making its initial

ruling was the fact that the jury convicted Appellee on one count and hung on

the other. See Trial Court Opinion, 10/19/18, at 8. In fact, in its opinion, the

court explained that its decision to reverse itself was heavily influenced by the

jury’s mixed verdict. Id. In the trial court’s view, this verdict demonstrated

how “close” the case was, which therefore meant that the violation of the

motion in limine was more impactful than the court initially held. Id. The

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Commonwealth contends that this reasoning constituted an error of law, and

we agree.

The importance the trial court placed on the meaning behind the jury

verdict contradicts longstanding federal and state precedent cautioning

against speculating about the reasons behind an inconsistent verdict. See,

e.g., Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012) (“While

recognizing that the jury’s verdict appears to be inconsistent, we refuse to

inquire into or to speculate upon the nature of the jury’s deliberations or the

rationale behind the jury’s decision.”); see also United States v. Powell,

469 U.S. 57, 66 (1984) (“[A]n individualized assessment of the reason for the

inconsistency [in a split verdict] would be based . . . on pure speculation, or

would require inquiries into the jury’s deliberations that courts generally will

not undertake.”). Accordingly, to the extent the trial court granted a new trial

on the grounds that the jury issued a split verdict, it erred.

We also agree with the Commonwealth that the trial court misapplied

the holding of Padilla as mandating the issuance of a new trial when the

Commonwealth violates a motion in limine. See Trial Court Opinion,

10/19/21, at 4-6. In that case, Padilla filed a motion in limine seeking “to

preclude evidence of his prior incarceration and parole status, the issuance of

a [Protection From Abuse] order against him, and his use of marijuana,” which

the trial court granted. Id. at 1192. Nevertheless, a police officer testified

“in response to an open-ended question [on direct examination] about what

he found when he arrived at the scene[,]” as follows:

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When I got there I found – I was met at the door by the
mother who was very upset, yelling and carrying on, practically
mad at me, but she started to tell me how everybody was
downstairs. She went and picked up this guy [Padilla]. He’s a
family friend. Apparently he just got out of jail, and so she
was doing him a favor.

Id. Defense counsel immediately requested a sidebar, which was conducted

within earshot of the jury, and moved for a mistrial. Id. During the sidebar,

the trial court initially stated its intention to grant the mistrial before the

Commonwealth persuaded the court that a curative instruction would be

sufficient. Id. at 1192-93. The court concluded the sidebar by denying the

motion for mistrial and issuing a curative instruction directing the jurors to

disregard the remarks made by the witness. Id. at 1192-93. Afterwards, the

Commonwealth resumed its direct examination by repeating the officer’s

testimony that “Mom was upset.” Id. at 1196. Appellant was convicted and

appealed the denial of his request for a mistrial.

On appeal, we reversed, determining that the officer’s statement was

clearly prejudicial because the trial court had entered an “explicit order that

no reference whatsoever must be made to [Padilla’s] time in jail” and the

witness clearly communicated to the jury that Padilla had been previously

incarcerated. Id. at 1193. However, the Padilla Court’s prejudice analysis

was not limited to the fact that the pretrial ruling had precluded the at-issue

testimony. Id. at 1196. The Court also considered that the jury had

overheard the side bar conference addressing the matter, the inadequacy of

the curative instruction issued, and the problematic subsequent questioning

by the prosecutor. Ultimately, the court found the instruction was too vague

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to remedy the infraction. Id. Accordingly, a proper application of Padilla

should view the violation of a pretrial order prohibiting a prejudicial remark as

an important factor in our analysis, but not as an automatic determination

that the error was prejudicial and a new trial must be ordered.

For example, in Commonwealth v. Hudson, 955 A.2d 1031, 1034

(Pa.Super. 2008), the trial court granted a defense motion in limine seeking

the preclusion of any evidence of Hudson’s prior convictions. Nevertheless,

at trial, a witness testified that Hudson “had to go see his parole officer or

probation officer.” Id. Following an objection, the trial court immediately

issued a curative instruction. On appeal, this Court held as follows:

Based upon this record, we conclude that [the] testimony
regarding Hudson’s probation or parole officer was inadvertent,
even when viewed in light of Hudson’s motion in limine. The
prosecutor did not ask a question that could have been reasonably
foreseen to elicit evidence of Hudson’s prior criminal activities.
Furthermore, [the] testimony constituted a mere passing
reference to Hudson’s prior criminal activity that the trial court’s
cautionary instruction adequately cured. Judge Johnson not only
clearly instructed the jury to disregard the testimony when
deliberating on the verdict, he also expressly instructed them that
they had no basis upon which to determine whether the testimony
itself was true. When viewed in light of the substantial
circumstantial evidence presented by the Commonwealth at trial
indicating Hudson’s guilt, we conclude that Hudson did not suffer
improper prejudice from this reference to his prior criminal
activity.

Id. at 1035.

We find that the case sub judice is distinguishable from Padilla on the

facts, and more in line with our decision in Hudson. As in Padilla, the pretrial

motion in this case did constitute an absolute ban on prior-bad-acts evidence,

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such that the violation of this order prejudiced Appellant. See Padilla, supra

at 1193. However, such a finding does not conclude our analysis. Id. at

1196. Unlike in Padilla, this was a passing reference that was immediately

interrupted by the following, detailed cautionary instruction:

We’ll just stop this here. All right. I’m not sure what the purpose
of asking whether he’s paying rent currently because it doesn’t go
to reputation.

Sometimes people charged with serious offenses spend some time
incarcerated. Whether someone is incarcerated or not has nothing
to do with whether they’re innocent or guilty of an offense.

So I’m instructing the jurors as a matter of law that any reference
to incarceration should be not taken adversely if, indeed, he is or
he isn’t. Very well.

N.T. Jury Trial, 6/24-25/21, at 199. This instruction was clear, specific,

properly instructed the jury to disregard the improper evidence, and reminded

the jury that the statement may or may not be true. See also

Commonwealth v. Thompson, 106 A.3d 742, 753 (Pa.Super. 2014) (finding

that if evidence is inadvertently presented to the jury, the trial court may cure

the improper prejudice with an appropriate cautionary instruction so long as

the court’s instruction is clear and specific).

Importantly, here, as in Hudson, there was no deliberate attempt by

the prosecutor to elicit the at-issue remark. Indeed, Appellee does not claim

that the remark was intentionally elicited and the trial court has consistently

deemed the interaction unintentional. N.T. Jury Trial, 6/24-25/21, at 206;

see also Trial Court Opinion, 10/19/21, at 10-11. Moreover, in contrast to

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Padilla, Appellee waited to object until after the jury left the room, there was

no side bar where the jury overheard the trial court vacillate between granting

and denying the motion for a mistrial, and the Commonwealth did not revisit

the inadmissible statement when it resumed its questioning or at any other

point in the presence of the jury. N.T. Jury Trial, 6/24-25/21, at 199. Thus,

there was no additional, related prejudice to Appellee caused by the

Commonwealth or the trial court that the instruction needed to remedy.

Instead, the only additional reference to Appellee’s incarceration status came

from defense counsel during closing argument:

And you can’t take concepts from outside this courtroom
and apply them, prejudices that you might walk in here with and
apply them to this case. You have to take it from the real evidence
that came in in this case, because despite it coming out
yesterday that [Appellee] may or may not have been
incarcerated, that’s nothing for you to consider. He’s innocent.
That’s nothing for you to consider. The Court will tell you that.
Because he didn’t take the stand, that’s nothing for you to
consider against him. That’s a tactical decision and a right he has
that you all have as well. And unless and until they meet their
burden without that information and you all agree with that, he
remains innocent and he is not guilty.

And also proper evidence that came out that you can
consider is his character evidence that we put on the stand.
Despite that woman being attacked because she could barely
understand these complicated rules, what did we get out of Ms.
Bruno? He is a nonviolent, peaceful person. She’s known him for
four years. She allows him to live in one of her rental properties.
She’s his landlord. That’s their relationship.

Nothing was discredited about his reputation, just about
some complication where she could barely understand the
question, but his character was not challenged in those questions.

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Id. at 212-13 (emphasis added). Notably, the impact of this reference by

defense counsel is not discussed in the trial court’s opinion, despite the

implication that defense counsel did not believe revisiting the information

would be harmful to Appellee.

Finally, the evidence presented by the Commonwealth in this case was

substantial. In addition to the victim’s compelling testimony about the

assault, the sexual assault nurse examiner identified photographs that

corroborated the victim’s description of events and testified that the victim

suffered blunt force trauma to her cervix. Id. at 134-36. Furthermore,

Appellee’s DNA was found inside the victim’s vagina and Appellee initially

denied even meeting the victim. Id. at 137-38, 165-66.

For these reasons we conclude that the landlord’s unsolicited passing

reference to Appellee’s incarceration status did not raise to the level of an

“error so manifest that immediate relief [was] essential.” Pa.R.Crim.P.

704(B)(1). We find that the trial court erred when it abandoned the factual

determinations it had previously made, placing improper weight on the jury’s

verdict. We also find that the court erred when it incorrectly interpreted

Padilla as mandating a new trial in this circumstance. Accordingly, we

reverse the trial court’s order granting Appellee’s post-verdict motion for a

new trial, and remand for the reinstatement of the sexual assault verdict and

sentencing.

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Order reversed. Case remanded for reinstatement of guilty judgment

and sentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/13/2022

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