J-S54031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : BUCKLEY LAWRENCE THOMPSON, :

: Appellant : No. 2029 WDA 2015 Appeal from the Judgment of Sentence December 4, 20 15 in the Court of Common Pleas of Mercer County, Criminal Division, No(s): CP-43-CR-0000566-2015 BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016 Buckley Lawrence Thompson (“Thompson”) appeals fro m the judgment of sentence imposed following his convictions of on e count each of aggravated assault, simple assault, recklessly enda ngering another person (“REAP”), and harassment. 1 We affirm.

The trial court set forth the relevant facts as fo llows: [Thompson] was arrested on March 28, 2015, and char ged with [the above-listed crimes]. The charges arose out o f the allegation that [Thompson] beat Joseph Steen [“Stee n”], age 76, about the face and arms with a [six-foot long] bam boo pole[,] causing [] Steen a small brain bleed.

... [] Steen testified that [Thompson] lived with him o n and off for over 20 years. On March 28, 2015, sometime between [3:00 a.m.] and [4:00 a.m.], [Thompson] came into the res idence and began to [slap] [] Steen. [Thompson] told [] Steen : “You know I do this because I can.” After a few minutes, [Th ompson] got a [six-foot long] bamboo rod and began to strike [] S teen about his head and arms. The rod eventually broke in hal f.

1 18 Pa.C.S.A. §§ 2702, 2701, 2705, 2709.J-S54031-16

- 2 -

The beating stopped and [] Steen tried to get some sleep. When he awoke, he had trouble breathing. The police and an ambulance were called. [] Steen was taken to the emergency room at The Sha ron Regional Health System. A CAT scan showed a subdur al hematoma. As a result, [] Steen was transferred to St. Elizabeth’s Hospital in Youngstown, Ohio, the close st trauma center. Trial Court Opinion, 2/2/16, at 1-2. After a three-day trial in October 2015, a jury fou nd Thompson found guilty of aggravated assault, simple assault, and R EAP. 2 On December 4, 2015, the trial court sentenced Thompson to an aggr egate term of 8-20 years in prison. Thompson filed a timely Notice ofAppeal and a courtordered Pennsylvania Rule of Appellate Procedure 19 25(b) Concise

Statement. On appeal, Thompson raises the following question f or our review: “Did the trial court err when it denied [] [Thompso n’s] eight (8) objections and/or requests for mistrials[?]” Brief for Appell ant at 4 (capitalization omitted).

Our standard of review is as follows:

A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is req uired only when an incident is of such a nature that its unavo idable effect is to deprive the appellant of a fair and impartial tr ial. It is within the trial court’s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a m otion for a

2 The trial court, rather than the jury, found Thomp son guilty of harassment.J-S54031-16

- 3 -

mistrial. On appeal, our standard of review is whe ther the trial court abused that discretion. An abuse of discretion is more than an error in jud gment. On appeal, the trial court will not be found to have a bused its discretion unless the record discloses that the jud gment exercised by the trial court was manifestly unreaso nable, or the result of partiality, prejudice, bias, or ill-will. When the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a he avy burden ... It is not sufficient to persuade the appellate cour t that it might have reached a different conclusion if, in the firs t place, [it was] charged with the duty imposed on the court below; i t is necessary to go further and show an abuse of discre tionary power. Commonwealth v. Tejeda , 834 A.2d 619, 623-24 (Pa. Super. 2003) (citations and quotations omitted). In Thompson’s first claim, he contends that during jury selection the

Commonwealth committed a Batson 3 violation by striking an AfricanAmerican venireperson without race-neutral grounds for doing so. Brief for Appellant at 9-10. Thompson asserts that “the reas on given by the Commonwealth [for striking the juror] was that an u nknown individual in the District Attorney’s office wrote ‘No’” on the juror ’s questionnaire when it was circulated throughout the District Attorney’s offic e. Id. at 10.

In order to establish a Batson claim, a defendant must establish a prima facie case of purposeful discrimination. To do so, a defendant must demonstrate that he/she is of a cogn izable racial group; that the prosecution has exercised peremptor y challenges to exclude members of that racial group from the pa nel of venirepersons; and finally, that these facts and an y other relevant circumstances raise an inference that the prosecutor

3 Batson v. Kentucky , 476 U.S. 79 (1986).J-S54031-16

- 4 -

used peremptory challenges to exclude venirepersons on the basis of race. Implicit in this scheme is the noti on that peremptory challenges constitute a jury selection p ractice that allows for such discrimination by those who have a design to discriminate. If a defendant succeeds in establish ing a prima facie case of purposeful discrimination, the prosecution is then required to provide non-discriminatory reasons for striking the potential jurors.

Commonwealth v. Abu-Jamal , 720 A.2d 79, 113-14 (Pa. 1998) (citations omitted). Further, to prove a Batson violation, the moving party must provide a full record of the alleged violation. Commonwealth v. Uderra , 862 A.2d 74, 84 (Pa. 2004). Specifically, the movi ng party must identify the race of all the venirepersons removed by the prosec ution, the race of the jurors who served, and the race of the jurors accep table to the Commonwealth who were stricken by the defense. Commonwealth v. Washington , 927 A.2d 586, 609 (Pa. 2007). Here, Thompson failed to develop even a partial Batson record. See

Uderra , 862 A.2d at 84. Moreover, even if Thompson had developed a full

Batson record and established a prima facia case, his contention lacks

merit. Our review discloses that Assistant Distric t Attorney Mary Odem, Esquire (“ADA Odem”) explained that the venireperso n in question was struck because someone in the District Attorney’s o ffice indicated that the venireperson should not be on the jury. N.T. (Exce rpt from Jury Selection), 10/19/15, at 3. The trial judge found Odem’s reaso ning to be credible, and determined that the race-neutral basis for striking the venireperson was persuasive. See id. at 4; see also Commonwealth v. Sanchez , 36 A.3dJ-S54031-16

- 5 -

24, 46 (Pa. 2011) (stating that the trial court jud ges the credibility of the prosecutor in determining the reasoning for strikin g jurors). Thus, Thompson’s first claim does not establish a Batson violation. See

Sanchez , 36 A.3d at 46 (concluding that the appellant had not provided evidence in support of his discrimination claim, an d thus could not show that the trial court had abused its discretion); see also Commonwealth v.

Simmons , 662 A.2d 621, 631 (Pa. 1995) (stating that “[t]he use of a peremptory challenge on a single person of color wi thout more is insufficient

to establish a Batson violation.”). In Thompson’s second claim, he argues that “the Co mmonwealth used the term ‘robbed’ when robbery was not a crime char ged,” thus prejudicing Thompson. Brief for Appellant at 10. Initially, we note that Thompson objected to the C ommonwealth’s language, but did not seek a mistrial. See N.T., 10/19/15, at 18. Thus, the

claim is waived. 4 See Commonwealth v. Strunk , 953 A.2d 577, 579 (Pa. Super. 2008) (stating that “[e]ven where a defendan t objects to specific

4 Even if Thompson had preserved this claim, we woul d have concluded that it lacks merit. Here, during opening statements “t he Commonwealth argued [that Steen] was robbed of ... love, protection, an d security” due to Thompson’s beating. N.T., 10/19/15, at 18. Contra ry to Thompson’s argument, “robbed” is an illustrative term commonly used outside of the legal field. The prosecutor’s use of rhetorical fl ourish would not have prejudiced the jury. See Commonwealth v. Thomas , 54 A.3d 332, 339 (Pa. 2012) (stating that a prosecutor’s claim that a defense attorney was attempting to “shoot the messenger” in a case invol ving the killing of a witness was not prejudicial to the defendant as to render the jury incapable of delivering a fair verdict).J-S54031-16

- 6 -

conduct, the failure to request a remedy such as a mistrial or curative instruction is sufficient to constitute waiver.”). In Thompson’s third claim, he contends that Steen’ s testimony that Thompson attempted to strangle him with a t-shirt d uring the attack prejudiced Thompson by introducing an allegation of attempted homicide, a crime for which Thompson was not charged. Brief fo r Appellant at 10-11. Here, Thompson merely objected to this aspect of S teen’s testimony,

and did not move for a mistrial on this basis. N.T ., 10/19/15, at 25-26.

This claim is thus waived. See Strunk , 953 A.2d at 579. In Thompson’s fourth claim, he contends that Steen ’s testimony that, following the attack, he told Thompson that an apol ogy was not going to “cut it this time” prejudiced Thompson by referencing an uncharged crime. Brief for Appellant at 12 (citing N.T., 10/19/15, at 30). Thompson’s entire argument consists of two sentenc es, without citation to any relevant authority. See Pa.R.A.P. 2119(a) (stating that “[t]he argument shall be divided into as many parts as there are questions to be argued ... followed by such discussion and ci tation of authorities as areJ-S54031-16

- 7 -

deemed pertinent.”). Thus, his claim is waived. 5 See Commonwealth v.

Hakala , 900 A.2d 404, 407 (Pa. Super. 2006) (stating that “because [appellant] fails to offer either analysis or case citation in support of the relief he seeks, we deem all of his questions waive d.”). In Thompson’s fifth claim, he argues that, through the Commonwealth’s direct examination of Steen, the Com monwealth introduced evidence that Thompson had not contacted or visited Steen following the beating. Brief for Appellant at 12. According to Thompson, “the questioning [of Steen] was done with the full knowledge that Thompson

remained incarcerated” at the time and could not ha ve visited Steen, thus creating bias and hostility towards Thompson in the minds of the jury. Id. Here, ADA Odem asked Steen whether he “had any con tact with [Thompson] since [the] incident,” to which Steen re sponded “[n]o.” N.T., 10/19/15, at 41. ADA Odem then asked Steen whether Thompson had either called or visited him since the incident, an d Steen answered “[n]o” to both questions. Id. Defense counsel then called for a sidebar, during w hich he objected to the line of questioning and moved fo r a mistrial. Id. at 41-

5 Even if we were to address this claim, we would co nclude that it lacks merit. We note that Thompson’s counsel moved for a mistrial following this aspect of Steen’s testimony. However, Steen’s vagu e use of the phrase “this time” does not implicate a “distinct crime” committ ed by Thompson. See N.T., 10/19/15, at 30 (wherein the trial court deni ed the mistrial request). Indeed, Steen had already testified that his relati onship with Thompson “was good for awhile. Then things started changing.” Id. at 21. We would conclude that the trial court did not abuse its dis cretion in denying Thompson’s request for a mistrial. See Tejeda , 834 A.2d at 623.J-S54031-16

- 8 -

42. The trial judge asked ADA Odem what the purpos e of the line of questioning was, to which ADA Odem responded, “[Tho mpson] wrote him a letter. He hasn’t called, but he wrote a letter. That’s the contact.” Id. at 41. ADA Odem explained to the trial judge that Ste en thought there had been no contact between him and Thompson because St een did not understand that Thompson’s letter to him constitute d contact. Id. at 42. The trial judge directed Odem to “go to the letter” and not ask Steen about Thompson either calling or visiting because such a line of questioning might

cause a mistrial. Id. The trial judge then denied Thompson’s request for a mistrial. Id. Thereafter, the trial judge asked Steen to identify the letter and Thompson’s handwriting, and allowed ADA Odem to read a portion of the letter in front of the jury. 6 Id. at 44.

Our review of the examination reveals that the Com monwealth was laying the foundation for introducing the letter in to evidence. See Pa.R.E. 901 (stating that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence

6 The letter read as follows: Hi Joe. I’m sorry for what I did. I hope you are okay. I feel real bad. You have done good for me. The booze is what set it off and the cold pills. I seen Dustin, my son, the oth er day I left at Circle K’s. He would not talk to me. It set me of f. And I drank too much. I’m sorry for putting you through all th is. I hope they find out what is setting me off. I wish you w ell. I love you. The food in the fridge is probably bad. I will cal l you in five days. Again, I’m sorry. N.T., 10/19/15, at 44.J-S54031-16

- 9 -

sufficient to support a finding that the item is wh at the proponent claims it is.”). Thompson does not take issue with the intro duction of the contents of the letter, just the line of questioning preceding its introduction. We conclude that the trial judge did not abuse his dis cretion in denying Thompson’s request for a mistrial, thus Thompson’s claim must fail. See Tejeda , 834 A.2d at 623. In Thompson’s sixth claim, he contends that an emp loyee with the Mercer County Clerk of Courts, who was called as a witness by the Commonwealth, referenced a prior, nolle prossed burglary charge against Thompson during her testimony. Brief for Appellant at 12-13. Thompson argues that he was never convicted of burglary and was thus prejudiced by this testimony. Id. at 13. Our review discloses that, while outlining two of Thompson’s previous criminal dockets, the witness inadvertently and inc orrectly stated that Thompson had been convicted of burglary. N.T., 10/ 20/15, at 101-02. Instead, Thompson had pled guilty to theft by unlaw ful taking and theft from

a motor vehicle. Id. at 103. Thompson moved for a mistrial, asserting t hat the witness’s mistake was prejudicial and could not be corrected by a cautionary instruction. Id. at 101. The trial judge denied the request for a mistrial and, instead, informed the jury that Thomp son had not been convicted of burglary. Id. at 104.J-S54031-16

- 10 - Here, the Commonwealth did not intentionally elici t the reference to Thompson’s withdrawn burglary charge. See id. at 100; see also

Sattazahn 631 A.2d 597, 608 (stating that “[t]he nature of t he reference and whether the remark was intentionally elicited b y the Commonwealth are [] factors to be considered in determining whether a mistrial is necessary.”). Further, the trial judge quickly clarified to the w itness and the jury that the witness had misspoken, and that Thompson had not be en convicted of burglary. N.T., 10/20/15, at 104; see also Sattazahn , 631 A.2d at 608 (stating that “an immediate curative instruction to the jury may alleviate the

harm which would otherwise result from reference to prior criminal conduct.”). We conclude that Thompson was not prej udiced by this exchange, and thus the trial court did not abuse it s discretion in denying

motion for a mistrial. See Tejeda , 834 A.2d at 623. In Thompson’s seventh claim, he contends that the trial judge erred by not granting a mistrial where Odem referenced the C ommonwealth’s “other witnesses” despite such witnesses being repeatedly rejected by the court at side bar and in recess. Brief for Appellant at 13. Thompson asserts that [t]he only plausible reason to call more witnesses by the Commonwealth was that the Commonwealth had more evi dence to prove Thompson’s guilt. And since the trial cou rt was clear in its ruling [on the witnesses], making such a reques t again in front of the jury could only have been done to prej udice Thompson by that basis.

Id.J-S54031-16

- 11 - We note that Thompson did not object to the state ment or move for a mistrial when the statement was made. Thus, his cl aim is waived. 7 See

Strunk , 953 A.2d at 579. Finally, Thompson baldly claims that because each of the issues he raised should independently warrant a mistrial, the cumulative effect should “surely” do the same. Brief for Appellant at 14. However, “[w]here a claimant has failed to prove prejudice as the resul t of any individual errors, he cannot prevail on a cumulative effect claim unle ss he demonstrates how the particular cumulation requires a different anal ysis.” Commonwealth v. Wright , 961 A.2d 119, 158 (Pa. 2008). Based upon our foregoing discussion, we conclude that this issue lacks merit

. Judgment of sentence affirmed.

7 The trial court addressed Thompson’s claim as foll ows: The first the jury heard the Commonwealth had other witnesses that the Court would not permit to testify is not s o prejudicial as to warrant a mistrial. It is the same as when a Co urt grants a defendant’s objection. The jury is left with an im pression there is something else, but they are specifically told t hey are not to concern themselves with the ruling. To grant a mis trial under these circumstances would make it impossible to try any case.” Trial Court Opinion, 2/2/16, at 9; see also N.T., 10/19/15, at 14 (wherein the trial judge instructed the jury that “[a] state ment by an attorney is not evidence.”).J-S54031-16

- 12 - Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/16/2016