J-S22038-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CURTIS SHABAZ HENDERSON JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 32 WDA 2024

Appeal from the Judgment of Sentence Entered December 4, 2023

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0002528-2021

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 23, 2024

Appellant, Curtis Shabaz Henderson Jr., appeals from the aggregate 

judgment of sentence of 81⁄2 to 17 years’ incarceration, imposed after a jury 

convicted him of various firearm and drug offenses, including possession of a 

firearm by a person prohibited (18 Pa.C.S. § 6105(a)(1)) and possession with 

intent to deliver a controlled substance (35 P.S. § 780-113(a)(30)). On 

appeal, Appellant solely challenges the trial court’s failure to grant a mistrial 

after the jury was informed of his prior bad acts, through testimony of a police 

officer that Appellant was on parole. After careful review, we affirm.

We briefly summarize the facts underlying Appellant’s convictions as 

follows. On July 24, 2021, City of Erie Police Officer Donald Shakespeare and 

his partner were on routine patrol during daylight hours when they “observed 

a silver Chevy Impala with the passenger brake light out.” N.T. Trial, 

10/11/23, at 100. Officer Shakespeare stopped the vehicle, in which Appellant 
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was a backseat passenger. Id. at 101, 102. Ultimately, the vehicle was 

searched pursuant to a warrant, and a gun and drugs were found in the 

backseat where Appellant had been the only person sitting. Id. at 106. 

Appellant was arrested and later charged with various drug and firearm 

offenses. He proceeded to a jury trial in October of 2023. At the close thereof, 

the jury convicted him of all the offenses with which he was charged. On 

December 4, 2023, the court sentenced Appellant to the aggregate term set 

forth supra. He did not file any post-sentence motions. Appellant filed a 

timely notice of appeal on January 2, 2024.

On January 9, 2024, the trial court issued an order for Appellant to file 

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal 

within 21 days. In the order, the court notified Appellant that “[a]ny issue not 

properly included in the Statement timely filed and served pursuant to [Rule] 

1925(b) shall be deemed waived.” Trial Court Order, 1/9/24, at 1 (single 

page). On January 30, 2024, Appellant’s counsel, Anthony Rodrigues, Esq., 

filed a motion for an extension of time to file the Rule 1925(b) statement. On 

January 31, 2024, the court issued an order granting counsel’s motion and 

directing that Appellant’s concise statement be filed by February 21, 2024. 

The court’s order also declared that “[a]ll other terms of the original [Rule] 

1925(b) [o]rder of January 9, 2024[,] remain in effect and are incorporated 

herein by reference.” Trial Court Order, 1/31/24, at 1 (single page). 

Attorney Rodrigues never filed a Rule 1925(b) statement on Appellant’s 

behalf. Thus, on February 28, 2024, the court issued a Rule 1925(a) opinion 
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finding that any issue Appellant seeks to raise on appeal is waived. Trial Court 

Opinion, 2/28/24, at 1. In his brief to this Court, Attorney Rodrigues fails to 

mention the court’s waiver determination, instead presenting argument solely 

related to the single issue he raises on Appellant’s behalf: “Whether the trial 

court erred by denying the defense motion for a mistrial when a witness for 

the prosecution, a policeman, the affiant, on direct[-]examination, responded 

to a question posed by the prosecutor, stat[ing that Appellant] ‘was on 

parole[.’]” Appellant’s Brief at 2 (unnumbered).

We agree with the trial court that Appellant’s issue is waived. See 

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph (b)(4) are 

waived.”); Greater Erie Indus. Development Corp. v. Presque Isle 

Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (“[I]n 

determining whether an appellant has waived his issues on appeal based on 

non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers 

an appellant’s obligation[.] ... [T]herefore, we look first to the language of 

that order.”) (citations omitted). The court’s Rule 1925(b) order clearly

notified Appellant that any issue not raised in a timely-filed statement would 

be deemed waived. Thus, Attorney Rodrigues’s failure to file a Rule 1925(b)

statement on Appellant’s behalf has waived the single issue that Appellant

seeks to raise herein.
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Nevertheless, even if not waived, no relief would be due.1 Preliminarily, 

we note that the brief filed by Attorney Rodriques fails to comply with the 

Pennsylvania Rules of Appellate Procedure. In particular, there is no 

Statement of the Case (Pa.R.A.P. 2117), Statement of Questions Involved 

(Pa.R.A.P. 2116), or Summary of Argument (Pa.R.A.P. 2118). Nevertheless, 

counsel clearly raises in Appellant’s brief the single issue stated above, and 

provides adequate discussion of that claim. Accordingly, we will not dismiss 

this appeal based on Attorney Rodriques’s briefing errors.

Appellant specifically contends that the court erred by denying his 

motion for a mistrial after Officer Shakespeare stated, during directexamination, that Appellant was on parole. We begin by recognizing:

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 

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1 We recognize that Pa.R.A.P. 1925(c)(3) states that, “[i]f an appellant 

represented by counsel in a criminal case was ordered to file and serve a 

Statement and either failed to do so, or untimely filed or served a Statement, 

such that the appellate court is convinced that counsel has been per se

ineffective, and the trial court did not file an opinion, the appellate court may

remand for appointment of new counsel, the filing or service of a Statement 

nunc pro tunc, and the preparation and filing of an opinion by the judge.” 

Pa.R.A.P. 1925(c)(3) (emphasis added). Here, although the trial court did not 

address Appellant’s issue in its opinion, the basis for the court’s decision to 

deny his motion for a mistrial is clear from the discussion between the court 

and parties on the record. See N.T. Trial at 108-116. Moreover, we would 

conclude, for the reasons stated infra, that no relief would be due on 

Appellant’s claim, even had counsel timely raised it in a Rule 1925(b) 

statement. Therefore, we decline to remand pursuant to Rule 1925(c)(3).
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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–[]78 (Pa. 

Super. 2012) (citation omitted)....

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, 1194 (Pa. 

Super. 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–[]95 (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).

Commonwealth v. Thompson, 106 A.3d 742, 752–53 (Pa. Super. 2014).
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In this case, Appellant takes issue with the trial court’s denying his 

motion for a mistrial after the following exchange between the Commonwealth 

and Officer Shakespeare:

[The Commonwealth:] Why would you check if [Appellant] had a

license to carry a firearm?

[Officer Shakespeare:] There is three different reasons. So, one 

of them --

[The Commonwealth:] Let me just rephrase. Why would you think

that you needed to check [Appellant’s] name of whether he can 

carry a firearm and not the other passengers in the car?

[Officer Shakespeare:] So, [Appellant] was on parole --

[The Commonwealth:] No, no.

[Attorney Rodrigues:] Judge, sidebar, please.

N.T. Trial at 108.

The court then recessed the trial and, after the jury was removed,

Attorney Rodrigues argued that a mistrial was warranted because there was 

no way to cure the prejudice caused to Appellant by the jury’s being notified 

that he is “a criminal, a convict.” Id. at 110. After further discussion, the 

court asked the parties to “do some research” on the appropriate remedy, and 

it recessed for an additional 15 minutes. Id. 110-11. When court resumed, 

the Commonwealth notified the court that Officer Shakespeare’s testimony 

was technically incorrect, as Appellant had not been on parole but, rather, he 

had been on probation. Id. at 112. Accordingly, the court suggested that it 

issue the following curative instruct:

THE COURT: I will tell [the jury] we had to take a break to 

straighten out an issue here. The witness on the stand told you 
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that [Appellant] was on parole. I’m here telling you now that that 

is absolutely not the case and [Appellant] was not on parole, and 

you are not to consider in any way, shape, or form that he had 

any prior trouble, whatsoever.

Id. at 116. To this, Attorney Rodrigues replied, “If that’s the way it’s got to 

be, it’s got to be that way.” Id. 

Accordingly, when the jury returned, the court instructed them as 

follows:

THE COURT: Ladies and gentlemen of the jury[,] thank you for 

your patience, we apologize for having to take a break but we had 

to check some things out and clarify some things and make sure 

that we were 100 percent right about this. The witness that was

up here, he mentioned that [Appellant] was on parole, okay. And 

we double and triple checked this[,] and he is not on parole. So, 

I want you to disregard that statement and it’s not relevant at all 

to this proceeding. He definitely is not on parole. [Appellant] sits 

here as innocent as any other human being that might be on trial 

for something. He is presumed to be innocent and he is at this 

stage of this trial an innocent man. So, completely disregard that 

statement. It’s not to affect you in any way, shape, or form, and 

we should be ready to proceed.

Id. at 121-22. Notably, Attorney Rodrigues lodged no objection to the court’s 

instruction. See id. at 122.

Now, on appeal, Appellant argues that Officer Shakespeare’s testimony 

was unduly prejudicial, as “[t]he jury would reasonably infer that [Appellant] 

was previously convicted of a serious crime.” Appellant’s Brief at 5 

(unnumbered). Additionally, Appellant argues that the trial court’s attempt to 

cure the prejudice caused by Officer Shakespeare’s testimony was inadequate, 

arguing as follows:

The court, in the attempt to remedy the error of the tainted 

testimony, instructed the jury that[,] regarding [Appellant], “he 

was not on parole[.”] The only conceivable cure was to inform the 
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jury that [Appellant] did not have a criminal past. “He was not on 

parole” reasonably impl[ied that] the period of parole was expired 

or perhaps ... that [Appellant] was on probation. The statement 

was made by the affiant[, Officer Shakespeare,] and therefore was 

even more prejudicial to ... [A]ppellant. The jury observed the 

affiant seated beside the prosecutor during the trial. He was in a 

position of authority and the position to know the criminal 

background of ... [A]ppellant. The attempt to cure was 

unsuccessful.

Id.

Appellant’s arguments are unconvincing. First, we disagree with 

Appellant’s suggestion that the prejudice in this case is equivalent to other

cases involving prior bad acts evidence. Namely, Appellant contends that this 

case is “undistinguishable” from Commonwealth v. Gaerttner, 484 A.2d 92 

(Pa. 1984), where an inmate testifying for the Commonwealth stated that he 

met Gaerttner “in the County Jail a long time ago.” Id. at 99. Gaerttner 

immediately moved for a mistrial, which the court denied, instead giving a 

curative instruction that the jury must “disregard the answer to where the 

witness met [Gaerttner].” Id. at 100. 

On appeal, we concluded that the trial court erred by denying 

Gaerttner’s motion, stressing that,

[w]here the prosecution witness was himself confined to jail at the 

time of his testimony, the prosecutor did not exercise proper 

precaution in asking the witness, who said he knew [Gaerttner]

for ten years, an irrelevant question as to where he met

[Gaerttner]. The answer was completely responsive to the 

question, and since the prosecutor apparently did not know what 

the answer would be, he ran a substantial risk that the answer 

would be prejudicial to [Gaerttner]. In the circumstances of this 

case, the curative instructions did not remove the prejudice 

suffered by [Gaerttner] and he was denied a fair trial.

Id. at 107.
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Not only was the holding of Gaerttner limited to the specific facts of 

that case, it was also premised significantly on the intentionality – or at least 

the recklessness – of the prosecutor’s question that elicited the prejudicial 

testimony. Here, in contrast, Appellant made no claim below – and makes 

none on appeal – that the Commonwealth’s question was intentionally 

designed to elicit testimony that Appellant was on parole, or that it even risked 

such an answer. 

Moreover, unlike in Gaerttner, here the court not only instructed the 

jury to disregard Officer Shakespeare’s statement, but it repeatedly told them 

that Appellant was not actually on parole. Thus, we find Appellant’s case to 

be more similar to Commonwealth v. Hargrove, 442 A.2d 1175 (Pa. Super. 

1982). There, a witness on cross-examination stated that she believed 

Hargrove “had just got [sic] out of jail somewhere.” Id. at 1176. Hargrove 

moved for a mistrial, which was denied. In cautionary instructions that were 

immediately given, the court not only told the jury to disregard the reference, 

but it also stated that, “[a]s a matter of fact, it is not correct that [] Hargrove 

had just gotten out of jail. He was not in jail.” Id. In affirming the trial 

court’s denial of a mistrial, we emphasized that

the judge gave a prompt and extensive cautionary instruction 

which removed any possible prejudicial effect of the unresponsive 

answer by the witness. Not only did the judge tell the jury to 

ignore the remark, but he went further and told them that 

the witness’ information was factually incorrect. 

Corrective instructions of this nature were sufficient to 

neutralize the effect of the witness’ statement. 

Id. (some internal citations omitted; emphasis added).
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The same is true in the instant case. The trial court immediately 

instructed the jury to not only disregard the officer’s testimony, but it also 

repeatedly stressed that Appellant was not on parole. Accordingly, as in 

Hargrove, the court’s instruction in this case was sufficient to remedy any 

prejudice caused by the isolated reference to Appellant’s being on parole, 

especially where nothing in the record indicates that the testimony was 

intentionally elicited by the Commonwealth. Moreover, to the extent Appellant 

now argues that the trial court’s instruction was inadequate, we observe that 

he offered no input when the court informed the parties of its intended 

instruction, and he lodged no objection after the instruction was given to the 

jury. Therefore, he cannot now complain that the instruction was insufficient. 

Accordingly, even had Attorney Rodrigues preserved Appellant’s issue 

in a timely-filed Rule 1925(b) statement, we would deem his claim meritless.

Judgment of sentence affirmed.

DATE: 07/23/2024