Appeal from the Judgment of Sentence entered January 24, 2008, In the Court of Common Pleas of Dauphin County, Criminal at No. CP-22-CR-0002662-2006.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BOWES, DONOHUE, and FREEDBERG, JJ.
¶ 1 Appellant Michael C. Judy appeals from judgment of sentence after a jury convicted him of sexual offenses stemming from his alleged sexual abuse of a female child over a period of eight years. Appellant was sentenced to an aggregate term of four to ten years in state prison and classified as a sexually violent predator. Post-sentence motions were denied and timely appeal followed. The record discloses compliance with Pa.R.A.P. 1925. Appellant maintains that statements made by the assistant district attorney in closing argument constituted prosecutorial misconduct, that a mistrial was warranted, and that the intentional nature of the misconduct bars retrial under double jeopardy principles. We disagree. Accordingly, we affirm judgment of sentence.
¶ 2 The female child victim was born June 5, 1993. When she was approximately two years old she began to spend time staying with Appellant and his wife. The child regarded Appellant as her uncle, though they were not related. In April of 2006, she was hospitalized for depression after a period of behavioral, attitudinal, and academic deterioration, as well as expressions of a desire to hurt herself. In a family therapy session during this hospitalization she first disclosed the years of sexual abuse at the hands of Appellant. She disclosed that Appellant touched her every time she would stay with him, and she described that the touching included digital penetration.
¶ 3 At trial the victim testified that between ages two and ten she would stay with Appellant and his wife and that during these times Appellant would touch her under her clothes and that the touching included digital penetration. This occurred in bed, in the bath, and after bath. She also described use of a "massager thingie" and stated that Appellant made her look at "bad" pictures on the computer.
¶ 4 Appellant testified at trial. He denied sexually abusing the child and stated that the first he learned of any of this was when police arrested him at his place of work. The defense in the case was premised largely upon the theory that the child fabricated the allegations of abuse against Appellant in order to obtain the attention and support of her family. The defense pointedly sought to portray the victim as a troubled child unworthy of belief and sought to characterize the Commonwealth's case as an unreasonable rush to judgment based on the unsupported allegations of that troubled child.
¶ 5 The only contention raised on appeal is that certain comments of the assistant district attorney in closing constituted prosecutorial misconduct warranting mistrial. No objection was lodged during the closing argument of the Commonwealth. However, following the closing argument of the Commonwealth, defense counsel asked to approach and the following exchange occurred:
MR. TULLY: I need to put objections on the record. The prosecutor rendered his personal opinion as to the truth and veracity. He once started off by saying that if Mr. Judy took the stand and told the truth, he would go to jail. That was clearly a personal reference as to the guilt of my client, as opposed to an objective one based on the facts.
Also rendered his opinion that he looked like a child molester. He made reference to the red herring, which is very similar to the smoke screen defense and Mr. Tully gave you his version and I would like to provide you with the truth. Again rendering a personal opinion that he was rendering the truth, which is again I think prosecutorial misconduct which is the cause for a mistrial and I make a motion for mistrial.
THE COURT: You motions are denied.
N.T. at 367-368. That ended the exchange, and there was no request for any contemporaneous curative instruction.
¶ 6 We note that issues relating to the objection and request for mistrial on the ground of prosecutorial misconduct are properly preserved notwithstanding the fact that counsel waited until the end of the assistant district attorney's closing to lodge the objection and move for a mistrial. Commonwealth v. Rose, 960 A.2d 149, 154-155 (Pa. Super. 2008). While the lack of a request for a contemporaneous curative instruction constitutes a waiver of any claim of error based upon the failure to give such curative instruction, the objection coupled with the request for the remedy of a mistrial preserves denial of the mistrial for appellate review. Commonwealth v. Robinson, 670 A.2d 616, 622 n. 9 (Pa. 1995).
¶ 7 Although there was no request for any contemporaneous curative instruction, the charge of the court included a general instruction that the arguments of counsel are not evidence but that such arguments may be considered as a factor in deliberations. N.T. at 370. The charge of the court also included a general instruction that the jurors are the sole judges of the facts and of the credibility of the witnesses. N.T. at 375. At the conclusion of the charge of the court, on specific inquiry from the trial judge, both counsel stated that there were no other matters that counsel wanted included in the charge. N.T. at 384.
¶ 8 Appellant presents the following issue for our review on appeal: Whether the trial court abused its discretion in denying a motion for mistrial based upon intentional prosecutorial misconduct committed during closing argument. Brief of Appellant at 4. In his brief, Appellant maintains that the comments of the assistant district attorney in closing were improper, inflammatory, and had the unavoidable effect of prejudicing jurors thereby depriving Appellant of a fair trial. With specific reference to the American Bar Association Standards governing closing argument, Appellant contends that the comments of the assistant district attorney in closing constituted prosecutorial misconduct in the following particulars: (1) the assistant district attorney intentionally misstated the evidence and misled the jury as to the inferences it may draw; (2) the assistant district attorney expressed his personal belief or opinion as to the truth or falsity of testimony and the guilt of the accused; (3) the assistant district attorney employed arguments calculated to inflame the passions or prejudices of the jury; and (4) the assistant district attorney employed arguments to divert the jury from the duty to decide the case on the evidence by injecting issues broader than guilt or innocence of the accused or by making predictions of the consequences of the jury's verdict.
¶ 9 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.
Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa. Super. 2008) (internal citations and quotations omitted). The remedy of a mistrial is an extreme remedy required "only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal." Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en banc), quoting Commonwealth v. Montgomery, 626 A.2d 109, 112-113 (Pa. 1993).
¶ 10 With specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that "[i]n reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made." Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006) (citation omitted). Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998). This Court has observed that
[i]n defining what constitutes impermissible conduct during closing argument, Pennsylvania follows Section 5.8 of the American Bar Association (ABA) Standards. Section 5.8 provides: Argument to the jury.
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.
Sampson, 900 A.2d at 890, quoting American Bar Association (ABA) Standards, Section 5.8. In addition, we note the following:
It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008) (internal citations and quotations omitted). We are further mindful of the following:
In determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
It is settled that it is improper for a prosecutor to express a personal belief as to the credibility of the defendant or other witnesses. However, the prosecutor may comment on the credibility of witnesses. Further, a prosecutor is allowed to respond to defense arguments with logical force and vigor. If defense counsel has attacked the credibility of ...