February 21, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
WENDY SCHULTZ, Appellant
Appeal from the Judgment of Sentence January 24, 2013 In the Court of Common Pleas of Monroe County Criminal Division No(s).: CP-45-CR-0000087-2012
BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD, [*] JJ.
Appellant, Wendy Schultz, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas following her jury trial conviction of burglary,  criminal conspiracy to commit burglary,  robbery,  criminal trespass,  theft by unlawful taking,  receiving stolen property,  unlawful restraint,  terroristic threats,  and recklessly endangering another person. We affirm.
Appellant argues that her motion for a mistrial was improperly denied because the court admitted evidence by a police officer that she could have cleared her name had she taken a polygraph. Appellant objects to the following testimony, which occurred on direct examination by the Commonwealth of Trooper Sebastianelli:
[The Commonwealth]: And was there a time in July of 2011 when you became involved with the investigation of a burglary and a robbery . . . relating to the residence of [victim].
[Trooper Sebastianelli]: Yes, it wasn't my follow up investigation, but I ended up becoming involved when I received a call from [Appellant] . . . .
Q: And was this telephone call placed to the police barracks?
A: Yes, it came right to my desk.
Q: And did [Appellant] tell you why she was calling?
A: Yes, she said that her name was being thrown around as being involved with this robbery, the home invasion robbery at the victim's home, and she said Sebastianelli you know I didn't do this and it went on from there.
Q: What else did she tell you in the telephone call?
A: She said you know I didn't do this and the old man up there said that I didn't do it. I said Wendy I don't know what the victim had to say about this robbery. I said, but if you're looking to clear your name out of something, you want to come in, you can take a polygraph, you can talk to the investigator.
[Counsel for Appellant]: Objection.
N.T., 11/26/12, at 39, 40.
At trial, Pennsylvania State Trooper William Patrick McDermott, III, testified that he received a dispatch to meet the victim at the Weis Market in Stroudsburg. N.T., 11/26/12, at 25. The victim wanted to report that a male and a female had come into his home in the middle of the night, held a knife to his throat, taken his cell phone and cash. Id. at 26.
Following a jury trial, Appellant was convicted and sentenced to an aggregate term of not less than ten years nor more than twenty years in a state correctional institution. N.T., 1/24/13, at 23. Appellant filed a post sentence motion, which was denied on April 16, 2013. On the same date, the court entered an order vacating the sentence for receiving stolen property as a misdemeanor of the first degree because it should have been graded as a misdemeanor of the second degree. See Order, 4/16/13. The order stated that because the sentence merged with other counts for purposes of sentencing it had no effect on the sentence received. Id. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court did not file a responsive opinion.
Appellant raises the following issue for our review: "Is motion for mistrial improperly denied where trial court admits evidence by police officer that [Appellant] could 'clear her name' by taking a polygraph?" Appellant's Brief at 3. She contends that an inference of guilt resulted from the use of the word "polygraph" thereby shifting the burden of proof to her. In the argument section of the brief, Appellant also argues that that the court erred in failing to give a curative instruction.
Appellant argues here that the trial court error in this matter was not the admissibility of the evidence. The transcript clearly indicates that neither [Appellant], nor the trial court had an advance opportunity to rule on the statement made by Trooper [Robert] Sebastianelli.However, [Appellant's] counsel did timely object and requested a mistrial which was denied. The error in this case was that no curative instruction was given. . . .
Id. at 6 (emphasis added).
As a prefatory matter, we consider whether Appellant has waived her claim that the trial court erred in failing to give a curative instruction. At the time of trial, after the objection to Trooper Sebastianelli's mention of the polygraph, the following sidebar discussion was held:
[Counsel for Appellant]: Sadly I think we just had the mistrial.
The Court: Because?
[The Commonwealth]: I don't think so.
[Counsel for Appellant]: Because of the mention of the word polygraph. The law on that is very, very clear that it cannot be mentioned as part of testimony and if it is brought out in the Commonwealth's case in chief it is grounds for a mistrial, and there's actually no choice.
[The Commonwealth]: I think, he's true if you're talking about was she offered a polygraph, did she undergo a polygraph, what were the results.
[Counsel for Appellant]: And he just said that he offered her
[The Commonwealth]: He's testifying as to the conversation between himself and [Appellant].
[Counsel for Appellant]: But he said he offered her to come in for a polygraph, that is a problematic phrase and [the Commonwealth] and I are in agreement that when that is used it creates
[The Commonwealth]: No, we're not in agreement, we're in agreement if he had said yes she came in and took a polygraph, not whether, you know the standard litany of come in, talk to us, polygraph, whatever. We have no idea whether she took one or not, I don't know. Just because he used the word polygraph doesn't mean mistrial.
[Counsel for Appellant]: It doesn't matter whether she took one or not, and if we recess for 15 minutes I'll get you the cases.
The Court: What about a curative instruction?
[Counsel for Appellant]: My understanding was that because of the junk science that is a polygraph it's considered to be sufficient to taint the proceedings so that they can't go further.
Id. at 41-42. The discussion continued and Counsel for Appellant did not respond to the court's inquiry regarding a curative instruction. The court asked both counsel, "What would be sufficient?" Id. at 43. The Commonwealth replied: "A curative instruction to the jury, the mere fact that the trooper said that this is what the conversation was does not in and of itself cause grounds for a mistrial." Id. at 44. The court overruled Counsel for Appellant's objection. Id. at 46. Counsel for Appellant did not request a curative instruction.
The trial court opined: "Finally, although [Appellant's] counsel raised an objection immediately upon utterance of the polygraph, and he requested a mistrial, he failed to request a cautionary instruction. As a result, [Appellant] waived the right to request a new trial on the grounds no cautionary instruction was given." Trial Ct. Op., 4/16/13, at 6-7. We agree.
"Failure to request a cautionary instruction upon the introduction of evidence constitutes a waiver of a claim of trial court error in failing to issue a cautionary instruction." Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004). Therefore, because [Appellant's] counsel did not request a curative instruction, this issue is waived. See id.
Appellant contends the trial court erred in denying her motion for a mistrial based upon the Commonwealth's statement regarding a polygraph. Appellant's argument is inextricably tied to the lack of a curative instruction. Appellant quotes the standard of review for the denial of a mistrial in Commonwealth v. Fortenbaugh, 69 A.3d 191 (Pa. 2013), viz., "A trial court is required to grant a mistrial only where the alleged prejudicial event may reasonably be said to have deprived the defendant of a fair and impartial trial." Appellant's Brief at 8 (quoting Fortenbaugh, 69 A.3d at 193). Additionally, she quotes the test to be applied in determining whether a mistrial is warranted.
In determining whether a testimonial reference to a polygraph test warrants a mistrial, three factors are generally considered: (1) whether the Commonwealth prompted the reference to the polygraph test; (2) whether the reference suggested the results of the polygraph; and (3) whether the trial court issued prompt and adequate instructions regarding the unreliability and inadmissibility of polygraph tests. See Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167, 1171 (1982).
Id. at 8, (quoting Fortenbaugh, 69 A.3d at 193.)
The totality of Appellant's argument in relation to the denial of the motion for a mistrial consists of the aforementioned quotations from Fortenbaugh, the recitation of the curative instruction given by the court in Fortenbaugh, 69 A.3d at 194-95, and the following:
Fortenbaugh, a case originating out of the same county as this case determined that the mention of a polygraph while playing a police interview tape albeit twice under a cautionary instruction to the Commonwealth to redact such reference from the jury did not warrant the grant of a new trial. The Supreme Court noted that the exact reference made regarding the polygraph were not recorded in the record. Furthermore, the Court noted that a curative instruction was promptly given.
Appellant argues that she received an unfair trial because no curative instruction was given to the jury. Furthermore, she argues that the prejudice to her at trial came from the fact that an inference of guilt was inferred upon her by the Commonwealth's witness, Trooper Sebastianelli in that she could "clear her name" by taking such a test. In this case, [A]ppellant was denied her right to a fair trial because third [sic] prong i.e., a prompt instruction like the one given in Fortenbaugh was not applied in this case.
Appellant's Brief at 9.
It is well-settled that the review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will . . . discretion is abused. A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. . . .
Fortenbaugh, 69 A.3d at 193 (citation omitted). "Not every mention of a polygraph is prejudicial or worthy of a mistrial." Id. at 195.
In the case sub judice, the trial court opined:
. . . Trooper Sebastianelli testified to a conversation he had with [Appellant] that covered issues presented by [her] in a telephone call she initiated. The attorney for the Commonwealth did not specifically ask about a polygraph. The question posed was "what else did she tell you in the telephone call?" The question was not posed to elicit testimony about a polygraph. The witness merely recounted the telephone call which was relevant to how the investigation started. More importantly, there was no reference to a test being taken nor an inference a test was required. . . . Here, there was no mention of any test being taken which created even less of a chance of prejudice to [Appellant]. Furthermore, the Trooper made reference to the polygraph as one of several things [Appellant] could do, since [Appellant] initiated the call, and wanted to clear her name. The Trooper said [Appellant] could "come in[, ]" could "take a polygraph" and could "talk to an investigator[.]" The reference to the polygraph was not prompted by the question, it did not suggest the results, nor even infer if a test was given or not, and therefore, did not serve to prejudice [Appellant]. As such, there was no reason to grant a mistrial.
Trial Ct. Op. at 5. We agree. The mere mention of the polygraph was neither prejudicial nor grounds for a mistrial. See Fortenbaugh, 69 A.3d at 195. We discern no abuse of discretion by the trial court. Id. at 193.
Judgment of sentence affirmed.