J-A21014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA JEAN,

Appellant No. 2959 EDA 2015

Appeal from the Judgment of Sentence Entered July 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013192-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 22, 2016

Appellant, Joshua Jean, appeals from the judgment of sentence of 

three years’ probation, imposed after he was convicted by a jury of 

possession with intent to deliver (PWID) and possession of a controlled 

substance. Appellant argues on appeal that the trial court erred by failing to 

grant his motion for a mistrial, made after a prosecution witness referred to 

Appellant’s prior incarceration in an unrelated case. After careful review, we 

affirm.

The trial court summarized the facts of Appellant’s case, as follows:

On December 4[], 2012, at around 11:45 a.m., Police 

Officer Jason Branyan was conducting surveillance on the 1500 

block of Arrott Street in Philadelphia. Officer Branyan observed 

[Appellant’s] walking up and down the 1500 block of Arrott 

Street multiple times. At about 12:15 p.m., Michael Clark, with 

his hand out, approached the area where [Appellant] had just 

stepped out of view. About thirty seconds later, Clark walked 
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away with his left hand in his pocket towards Penn Street. 

Believing Clark had purchased drugs, Officer Branyan put out 

flash information regarding Clark. Police Officer Andre Hudgens 

stopped Clark less than two blocks away on the 1500 block of 

Foulkrod Street. Officer Hudgens recovered a Ziploc bag 

containing marijuana from Clark’s front left pocket.

At about 12:45 p.m., Officer Branyan observed Julia Berry 

have a brief conversation with Rashee Sullivan who was standing 

on the north side of Arrott Street. Sullivan called across the 

street to [Appellant] who was standing on the south side of 

Arrott Street. After [Appellant] crossed the street to where 

Berry and Sullivan were standing, Berry handed an object to 

[Appellant] who walked back across the street. [Appellant] 

returned with his hand in his pocket and handed an object to 

Berry who then walked away. Believing Berry had purchased 

drugs, Officer Branyan transmitted a flash description of Barry 

[sic]. Police Officer Michael Schaffer stopped Berry about two 

blocks away on the 1300 block of Arrott Street. Officer Schaffer 

recovered four Ziploc packets containing marijuana from Berry.

Pursuant to information received from Officer Branyan, 

Sergeant Michael Cerruti entered an alley located on the south 

side of Arrott Street, just east of 1514 Arrott Street. Along the 

fence in the alley[,] Sergeant Cerruti found a clear plastic bag 

with two Ziploc packets containing marijuana. Sergeant Cerruti 

and Officer Sean Kennelly located [Appellant] and Sullivan in a 

house at the back of the alley. After Officer Sean Kennelly 

confiscated $100 in United States currency from Sullivan, both 

[Appellant] and Sullivan were arrested.

Trial Court Opinion (TCO), 9/23/14, at 2-3 (citations to the record omitted).

Appellant was charged with PWID (marijuana), 35 P.S. § 780-

113(a)(3), and possession of a controlled substance (marijuana), 35 P.S. § 

780-113(a)(16). A jury trial commenced in May of 2014 and, at the close 

thereof, Appellant was convicted of both crimes. On July 14, 2014, the court 

sentenced Appellant to three years’ probation for PWID, and no further 

penalty for his possession offense. Appellant filed a timely notice of appeal, 
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and also timely complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Herein, 

Appellant presents one question for our review:

Did not the lower court err in denying [A]ppellant’s request 

for a mistrial where Officer Branyan’s trial testimony that 

[A]ppellant had previously been arrested was an inadmissible 

statement of unrelated, prior criminal activity which, by virtue of 

its prejudicial impact, required that a mistrial be granted?

Appellant’s Brief at 3.

We begin by noting that:

The standard of review we apply when addressing a motion for 

mistrial is well settled.

In criminal trials, the 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 interests 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.

Commonwealth v. Hogentogler, 53 A.3d 866, 877–878 (Pa. 

Super. 2012) (citation omitted), appeal denied, 620 Pa. 720, 69 

A.3d 600 (2013).

It is also well established that evidence of other crimes, 

wrongs, or acts may not be presented during trial against a 

criminal defendant as either character or proclivity evidence. 

Pa.R.E. 404(b); Commonwealth v. Padilla, 923 A.2d 1189, 
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1194 (Pa. Super. 2007), appeal denied, 594 Pa. 696, 934 A.2d 

1277 (2007).

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.

Padilla, supra at 1194–1195 (citations and quotation marks 

omitted). “If evidence of prior criminal activity is inadvertently 

presented to the jury, the trial court may cure the improper 

prejudice with an appropriate cautionary instruction to the jury.” 

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 

2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (2009). 

Commonwealth v. Thompson, 106 A.3d 742, 752–53 (Pa. Super. 2014), 

appeal denied, 134 A.3d 56 (Pa. 2016). 

We now summarize the context in which prior bad act evidence was 

commented on by Officer Branyan at Appellant’s jury trial. During defense 

counsel’s cross-examination of Officer Branyan, counsel attempted to 

demonstrate that the officer had misidentified Appellant as the person who 

sold narcotics. In this regard, defense counsel suggested that Rashee 

Sullivan closely resembles Appellant and was the person that Officer 

Branyan saw selling drugs. See N.T. Trial, 5/12/14, at 99 (defense counsel’s 

questioning Officer Branyan about the fact that “Sullivan and [Appellant] 

look alike”); id. at 100-101 (defense counsel’s asking Officer Branyan about 

the similar height, build, facial hair, and race of Sullivan and Appellant). 

On re-direct examination, the Commonwealth sought to show that 

Officer Branyan could tell the difference between Appellant and Sullivan 
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because he knew Appellant prior to the narcotics transactions in 2012. To 

demonstrate this point, the Commonwealth asked the officer: “Outside of 

this event that happened on December 4th, 2012, had you had prior contact 

with [Appellant]?” Id. at 110. Officer Branyan replied, “I believe we locked 

him up.” Id. (emphasis added). Defense counsel immediately objected, 

and the court sustained the objection and struck the officer’s testimony. Id. 

The Commonwealth then continued to question the officer, eliciting 

testimony that the officer had had “contact” with Appellant when he was a 

juvenile. Id. at 111. 

Defense counsel subsequently requested a mistrial based on Officer 

Branyan’s comment regarding Appellant’s prior incarceration. Id. at 117. 

The court denied that request, but offered to give a curative instruction. Id. 

at 118. After conferring with Appellant, defense counsel requested the court 

provide the following charge:

You heard Officer Branyan testify that he had contact with 

[Appellant] when [Appellant] was a juvenile. This was 

completely improper. You may not consider this testimony as 

accurate in evaluating the merits of this chase [sic]. However, 

you may consider the improper motives of Officer Branyan and 

this deliberate impropriety when assessing his credibility or lack 

thereof. 

N.T. Trial, 5/13/14, at 6. The court refused to give this curative instruction, 

concluding that “it was inaccurate and misleading,” as Officer Branyan’s 

“testimony was truthful and the court had no evidence before it as to any 

potential motive for the officer’s testimony.” TCO at 5. However, the court 

offered to draft a curative instruction, or to permit defense counsel to 
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propose another charge. Id. at 8. Defense counsel declined, stating that if 

the court would not give the above-quoted instruction, he did not want any 

instruction at all. Id. Consequently, no curative instruction was provided, 

and there was no further mention of Officer Branyan’s remark regarding 

Appellant’s prior incarceration. At the close of the trial, the court provided a 

general jury instruction that Appellant was presumed to be innocent 

throughout trial, that his arrest and criminal charges were not evidence of 

his guilt, and that the jury must assess, based on the evidence presented at 

trial, whether the Commonwealth had met its burden of proving him guilty 

beyond a reasonable doubt. Id. at 138-39.

Now, on appeal, Appellant contends that the court erred by denying 

his motion for a mistrial. First, Appellant challenges the trial court’s 

conclusion that the Commonwealth did not intentionally elicit the at-issue 

comment by Officer Branyan. See TCO at 5 (“The statement was not 

intentionally elicited by the Commonwealth as the prosecutor was trying to 

elicit the fact that Officer Branyan knew the difference between [Appellant] 

and Sullivan.”). Appellant argues that “[t]here is no factual record 

supporting [the court’s] post hoc conclusion....” Id. Instead, he maintains 

that the record supports a conclusion that the prosecutor intentionally 

elicited Officer Branyan’s remark by asking “a question to her police witness 

about ‘prior contact’ with [A]ppellant,” which is “practically a term of art 

meaning prior arrests in this context.” Id. at 12-13 (emphasis added). 

Appellant insists that, at the very least, the prosecutor “assumed the risk” 
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that her question would elicit Officer Branyan’s improper testimony. Id. at 

13 (citing Commonwealth v. Gaerttner, 484 A.2d 92, 100 (Pa. Super. 

1984) (finding that the prejudicial response by the witness was clearly in 

response to the prosecutor’s question and, noting that “[w]hen the question 

was asked, the prosecutor either knew what the answer would be, in which 

case there was an intentional and improper introduction of evidence of prior 

criminal activity, or he did not know what the answer would be and assumed 

the risk”).

We are compelled to agree with Appellant that the prosecutor should 

have at least expected that her question could elicit a response from Officer 

Branyan about Appellant’s prior arrest or incarceration. The prosecutor was 

aware that Officer Branyan had arrested Appellant in 2008 for criminal 

trespass. See N.T. Trial, 5/12/14, at 117-18. Therefore, her question to 

the officer regarding his ‘prior contact’ with Appellant assumed the risk that 

he would refer to that 2008 arrest and/or imprisonment. 

Next, we must determine if the prejudice suffered by Appellant due to 

the officer’s comment warrants a new trial. In this vein, the trial court 

concludes that defense counsel’s strategic decision to forego a curative 

instruction waived Appellant’s ability to plead prejudice on appeal. See TCO 

at 6. In support of its decision, the court cites Commonwealth v. Miller, 

481 A.2d 1221 (Pa. Super. 1984). There, a defense witness improperly 

commented about Miller’s prior incarceration. Id. at 1222. Defense counsel 

moved for a mistrial, which the court denied. Id. However, the court 
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offered to provide a curative instruction. Id. Defense counsel refused, 

reasoning that he did not want to “draw further attention to the remark.” 

Id. at 1223. On appeal, this Court declared that, “[w]hen counsel chooses 

to refuse appropriate curative instructions for this legitimate tactical reason, 

the defense may not plead prejudice on appeal.” Id. (citing 

Commonwealth v. Quartman, 385 A.2d 429, 432 (Pa. Super. 1978) 

(stating that “counsel's decision to forego curative instructions [regarding an 

improper reference to the defendant’s post-arrest silence] may prove to 

have been a tactical error; it is likewise irremediable. In every case, it is a 

tactical decision to be made by defense counsel, and the rendering of an 

unfavorable verdict should not entitle a defendant, who did not elect to 

protect himself to the maximum [extent] in his first trial, to an automatic 

retrial.”)). Based on Miller, the trial court concludes that Appellant cannot 

plead prejudice on appeal.

In response, Appellant argues that he did not waive his right to assert 

prejudice, relying primarily on Commonwealth v. Durant, 407 A.2d 1311 

(Pa. Super. 1979). In Durant, a prosecution witness was asked whether 

she knew where Durant lived, to which she replied, “Yes, but I didn’t know 

he was here in the city. ... I didn’t know he was out of jail, really.” Id. at 

1311 (emphasis in original). Durant’s counsel moved for a mistrial, which 

was denied. Id. Counsel then refused the court’s offer of a curative 

instruction. Id. On appeal, this Court overlooked counsel’s strategic 

decision, reasoning that curative instructions would have been inadequate 
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“[b]ecause of the nature of the testimonial reference....” Id. at 1312. We 

stressed that the prejudice caused to Durant was high, noting that the 

comment about Durant’s prior time in jail came from a witness with “a 

strong desire ... to convict” Durant, and the remark “served only to convey 

to the jury that [Durant] had been convicted of a crime in the past.” Id. 

Our review of Durant convinces us that our decision therein was 

limited to the specific facts and circumstances of that case. Nothing in the 

language of the Durant decision suggests that we intended to create a 

general holding that defense counsel may reject a court’s offer of a curative 

instruction, yet plead uncured prejudice on appeal. In any event, Miller was 

decided after Durant, and Miller holds, as a general proposition, that 

counsel’s decision to forego a cautionary instruction, in the specific context 

of improper remarks pertaining to the defendant’s prior bad acts, precludes 

the defendant from asserting prejudice on appeal. Thus, Miller calls into 

question Durant’s continued validity.1, 2

____________________________________________

1 We add that an en banc panel of this Court reiterated the Miller holding in 

Commonwealth v. Norman, 549 A.2d 981, 986 (Pa. Super. 1988) (en 

banc) (noting, as an alternative basis for affirming Norman’s judgment of 

sentence, that the defendant could not plead, on appeal, that he was 

prejudiced by a detective’s testimony that he advised the victim that 

Norman was “dangerous,” where defense counsel refused a curative 

instruction regarding that improper testimony) (quoting Miller, 481 A.2d at 

1223) (“When counsel chooses to refuse appropriate curative instructions for 

[a] legitimate tactical reason, the defense may not plead prejudice on 

appeal.”). 
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Consequently, Appellant’s reliance on Durant is unconvincing, and we 

agree with the trial court that under Miller, defense counsel’s decision to 

refuse a curative instruction precludes him from arguing, on appeal, that he 

suffered uncured prejudice warranting a new trial. Therefore, we ascertain 

no abuse of discretion in the court’s decision to deny Appellant’s motion for a 

mistrial.

Judgment of sentence affirmed.

Judge Dubow joins this memorandum. 

Judge Musmanno joins this memorandum and files a concurring 

statement in which Judge Dubow joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016

(Footnote Continued) _______________________

2 Appellant also cites Gaerttner, which discussed Durant, and 

Commonwealth v. Laughman, 452 A.2d 548 (Pa. Super. 1982). 

However, in both Gaerttner and Laughman, cautionary instructions were 

provided following inadvertent comments about the defendants’ prior bad 

acts. Thus, neither the Gaerttner nor Laughman panels specifically ruled 

on the issue of waiver based on defense counsel’s decision not to have a 

cautionary instruction provided to the jury.