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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)1and 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).
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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).
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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).
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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.
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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]?
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[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 
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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.
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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).
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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 
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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