J-S27024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RALPH W. SUMMERS, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3419 EDA 2017

Appeal from the Judgment of Sentence September 7, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0006926-2016

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 26, 2018

Ralph W. Summers, Jr., appeals from the judgment of sentence entered 

in the Court of Common Pleas of Delaware County. Following a jury trial, 

Summers was convicted of the following offenses: Person not to Possess a 

Firearm,1 Firearms Without License,2 Possession of a Firearm with an Altered 

Serial Number,3 Possession of an Instrument of Crime-Weapon,4 Possession 

of a Controlled Substance,5 Possession with Intent to Deliver a Controlled 

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1 18 Pa.C.S. § 6105.

2 18 Pa.C.S. § 6106(a)(1).

3 18 Pa.C.S. § 6110.2. 

4 18 Pa.C.S. § 907(b).

5 35 P.S. § 780-113(a)(16).
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Substance,6 and Possession of Drug Paraphernalia.7 After our review, we 

affirm.

On September 13, 2016, at approximately 6:30 p.m., officers from the 

Upper and Lower Chichester Police Departments responded to a report of a 

shooting at Willowbrook Apartments. Sergeant Larry Moore of the Lower 

Chichester Police Department and Officer Michael Molineux of the Upper 

Chichester Police Department both participated in a security sweep of the 

buildings. During the sweep, Sergeant Moore found Summers crouched down 

in a laundry room, appearing to put something inside an open bench. When 

ordered to stop, Summers shut the bench lid. Officer Molineux, hearing the 

interaction, joined Sergeant Moore in the laundry room and placed Summers 

in handcuffs. Inside the bench, the officers found a red cooler and a black 

plastic shopping bag. Inside the cooler, the officers found two firearms and

112.34 grams of marijuana in two plastic bags. Inside the black plastic bag 

the officers found a digital scale, rolling papers and small baggies with an 

apple design. Upon further investigation, the officers determined that one of 

the firearms was a toy gun, painted black; the other was a loaded Taurus .40-

caliber semi-automatic. 

Following his arrest, Summers was tried before a jury, the Honorable 

James P. Bradley presiding, and convicted. The court sentenced Summers, 

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6 35 P.S. § 780-113(a)(30).

7 35 P.S. § 780-113(a)(32).
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who had prior robbery and burglary convictions, to an aggregate term of 

imprisonment of 121-242 months. Summers filed a notice of appeal. Both 

Summers and the trial court have complied with Pa.R.A.P. 1925. Summers 

raises the following issues for our review:

1. The trial court erred in preventing Juror #2 of the jury panel 

from answering the question from defense counsel 

regarding the credibility of police officers compared to other 

individuals.

2. The trial court erred in denying the motion for a mistrial by 

defense counsel after a testifying witness for the 

Commonwealth used the name of defendant improperly with 

hearsay testimony.

Appellant’s Brief, at 5.

Summers first argues the court erred during individual voir dire when it 

ruled that a prospective juror did not have to answer a specific question from 

defense counsel. Summers claims this denied him further questioning 

regarding the prospective juror’s impartiality with respect to the credibility of 

a police officer as compared to that of a civilian. 

That the scope of voir dire is in the discretion of the trial court is 

well-settled Pennsylvania law. The opportunity to observe the 

demeanor of the prospective juror and the tenor of the juror’s

answers is indispensable to the judge in determining whether a 

fair trial can be had in the community. Claims of impartiality by 

prospective jurors are subject to scrutiny for credibility and

reliability as is any testimony, and the judgment of the trial court 

is necessarily accorded great weight. Decisions of the trial judge 

concerning voir dire will therefore not be reversed in the absence 

of palpable error. 

Commonwealth v. Ellison, 902 A.2d 419, 423-24 (Pa. 2006) (internal 
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citations and quotations omitted).

Here, prior to voir dire, prospective jurors completed the standard jury 

questionnaire required under Pa.R.Crim.P. 632(H).8 The prospective juror in 

question, Juror #2, answered in the affirmative to question number 8, which

read: “Would you be more likely to believe the testimony of a police officer 

or any other law enforcement officer because of his or her job?” 

Jury selection was held on July 11, 2017, and during voir dire the court 

asked the panel several questions, including those relative to potential 

prejudices of individual jurors. In particular, the court inquired about the 

panel members’ beliefs in the credibility of police officers. The court stated 

that for a response indicating a panelist was more or less likely to find a police 

officer credible than another individual, “neither a yes or a no would disqualify 

you in this particular case.” N.T. Voir Dire, 7/11/17, at 20-21 (emphasis 

added). The court added: 

[Y]ou have to keep in mind that as a juror you have to evaluate 

every single witness that testifies. The mere fact that somebody 

is a police officer does not make him automatically, right, or 

automatically wrong. You have to listen to their testimony. And 

if you feel that it makes sense, then you will take that into 

consideration. If, however, you feel he is either mistaken or 

making this up or whatever I don’t believe him[,] that is fine. But 

it is not the fact that he is wearing a badge that counts. It is the 

quality of his testimony. And you, members of the jury, have the 

ability to decide whether he is credible, whether anybody is 

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8 Rule 632 requires that, prior to voir dire in any criminal case, the prospective 

jurors, including prospective alternate jurors, must complete the 

questionnaire, and that the “trial judge and attorneys must automatically be 

given copies of the completed questionnaires in time to examine them before 

voir dire begins.” Pa.R.Crim.P. 632 - Comment-
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credible. That is your job . . . . Is there anybody that feels 

that they would be unable to honor that or feel because 

they are so pro-police or anti-police, they simply could not 

fairly and impartially sit as a juror in this case? If so, if that 

is the case I would ask you to please rise.

Id. (emphasis added). No panel member rose. 

Thereafter, the court asked defense counsel and the assistant district 

attorney if there was anything either wanted to address on individual voir dire

or to the panel. Defense counsel stated, “I have a number of people and it is 

more strikes than I will be able to use that have answered. I know you have 

given your instruction, but they would be more likely to believe the testimony 

of a police officer.” Id. at 24. Defense counsel requested individual 

questioning of Juror #2 because Juror #2 had a close friend in law 

enforcement and, as defense counsel opined, was therefore “more likely to 

believe the testimony of a police officer.” Id. at 34. 

The court questioned Juror #2 as follows:

THE COURT: Juror #2 please. Good afternoon ma’am. You 

indicated in your questionnaire that you have a relative, a close 

relative, who is a law enforcement person?

JUROR #2: It is just friends.

THE COURT: You also indicated that you would be more likely 

to believe a police officer who testified, correct? 

JUROR #2: I did, I thought about it and then you explained 

it. I feel as though I would be able to do it.

THE COURT: In other words if you heard a police officer 

testify and it didn’t sound accurate or it didn’t sound honest, would 

you disregard it?

JUROR #2: I would.
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THE COURT: Questions?

MR. WRIGHT: I guess my question is you have two different 

people saying the same thing or something different. One is a 

police officer and one isn’t, are you giving more credence to the 

police officer[?]

THE COURT: I am not going to permit her to answer that 

question. It is too speculative. Any other questions? 

MR. WRIGHT: Your Honor I would ask the Court to note my 

objection. I think that is what the question is asking are you more 

likely to believe the testimony—

THE COURT: I have asked the question. But you want to get 

into what if, what if both of them testified equally and I am not 

going to permit that.

Id. at 34 (emphasis added). The court determined that Juror #2’s response 

with respect to her ability to evaluate impartially a police officer’s testimony 

sufficiently addressed this issue. 

In support of his argument, Summers cites to Commonwealth v. 

Penn, 132 A.3d 498 (Pa. Super. 2016). There, Penn was charged with 

possession of a controlled substance in the City of Pittsburgh. During voir 

dire, Penn challenged for cause a prospective juror, R.Z., who indicated that 

she would be more likely to believe the testimony of a police officer. R.Z.

stated that she currently worked as a security officer for a casino. She also 

stated that she previously worked for the California University of Pennsylvania 

Police Department for two years, had served two years in the United States 

Marshals’ apprenticeship program, had completed an internship with the 

Bethel Park Police Department, and that her boyfriend is a police officer in a 
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borough that surrounds the City of Pittsburgh. She acknowledged that she 

was “pretty steeped in law enforcement.” Id. at 500. 

The assistant district attorney asked R.Z. whether, if she were instructed 

by the judge “that you can’t give them any more weight or credibility[,] do 

you think you could follow the instruction and not raise them up because of 

their position?” Id. R.Z. responded, “Yes.” Id. She also stated that, despite

her boyfriend’s position, she would be able to be fair and impartial. Id. The 

questioning continued:

[APPELLANT’S ATTORNEY]: Well, when you—well, when you say 

you think so, I mean, basically the entire Commonwealth case is 

going to be testimony from the police officers. Would it be difficult 

for you to just not believe them because of your experience? I 

mean, you've been a police officer, you've worked with police, 

you’re dating a police officer. I presume you have a certain 

attachment to this profession.

A: Correct.

[APPELLANT’S ATTORNEY]: I'm not going to offend you in any way 

if I am—I apologize, but would it be difficult to not—kinship to the 

police to cause for you not to be able—

A: I think it all comes down to evidence, testimony. So as 

long as I’d—

[APPELLANT’S ATTORNEY]: If they got up there and said, we don’t

know anything and we didn’t see anything, I would understand, 

but if they testify to facts which you believe would be enough to 

convict, would it be hard for you not to believe them because of 

your experience? Would you, as you said before, you would be 

inclined to believe them?

A: (Nods head [in the affirmative].)

[APPELLANT’S ATTORNEY]: I know it’s based on the evidence.

A: Right.
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[APPELLANT’S ATTORNEY]: But there would be an inclination on 

your part, because of your experience, to be more likely to credit 

their testimony?

A: I mean—again, I think it comes down to the evidence 

though.

Id. (citing N.T. Jury Selection, 5/5/14, at 36-40). 

The court denied defense counsel’s challenge for cause, forcing counsel 

to use a peremptory challenge to strike R.Z. The jury convicted Penn and, on 

appeal, Penn argued the trial court erred when it denied his challenge to 

excuse R.Z. for cause, thus forcing him to use his peremptory challenges. This 

Court agreed, stating: 

[I]n this case, R.Z. initially indicated that she was incapable of 

“rendering a fair, impartial and unbiased verdict.” Specifically, in 

the case at bar, the Commonwealth’s entire case rested upon the 

credibility of the police officers, given that the Commonwealth’s 

only two witnesses at trial were City of Pittsburgh Police 

detectives. . . . R.Z. answered “yes” to the written question 

“[w]ould you be more likely to believe the testimony of a police 

officer or any other law enforcement officer because of his or her 

job?”—and R.Z. then unequivocally testified during voir dire that 

she “would be more likely to believe the testimony of a police 

officer,” thus indicating that R.Z. was biased in favor of the police 

and the Commonwealth. Further, as was true in 

[Commonwealth v.]Johnson, [445 A.2d 509 (Pa. Super. 

1982),] R.Z.'s admitted bias in favor of the police rested on a firm 

bedrock, given that R.Z. testified: she currently works as a 

security officer for a casino; she previously worked in the 

California University of Pennsylvania Police Department for two 

years, while she was a student in college; she previously served 

two years in the United States Marshals’ apprenticeship program; 

she previously completed an internship with the Bethel Park Police 

Department; and, her boyfriend is a police officer in a borough 

that surrounds the City of Pittsburgh. Finally, as in Johnson, R.Z. 

eventually testified that she would be able to follow the trial 

court’s instructions and render a “fair and impartial” decision. 

However, in the case at bar, almost immediately after R.Z. 
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testified that she would be able to “be fair and impartial,” R.Z. 

again testified that, “because of [her] experience[,] ... [she] 

would be inclined to believe” the police. Therefore, as we held in 

Johnson, we hold in the case at bar that “[R.Z.'s] eventual 

assurance to the [trial] court that [she] would ‘be fair’ did not 

dispel the force of [her] admissions” of bias. We are thus 

constrained to conclude that the trial court abused its discretion 

when it denied Appellant’s challenge to excuse R.Z. for cause. 

Moreover, we must conclude that the error was not harmless: 

“[w]here, as here, a defendant is forced to use one of his 

peremptory challenges to excuse a prospective juror who should 

have been excused for cause, and then exhausts his peremptories 

before the jury is seated, a new trial will be granted.” Johnson, 

445 A.2d at 514. 

Id. at 504-05 (emphasis added) (some citations omitted). 

We agree with the Commonwealth that Summers’ reliance on Penn is 

misplaced. First, we note that here, unlike in Penn, defense counsel did not 

challenge Juror #2 for cause. Rather, counsel noted his objection to the 

court’s refusal to allow him to question Juror #2 on how she would resolve a 

credibility issue between an officer and a layperson. N.T. Voir Dire, 7/11/17, 

at 34. Further, unlike the prospective juror in Penn, Juror #2 was not 

“steeped in law enforcement.” Penn, 132 A.3d at 500. In fact, Juror #2 

stated that her relationship with the police officer was “just friends,” N.T. Voir 

Dire, 7/11/17, at 34, whereas in Penn the prospective juror’s bias in favor of 

police “rested on a firm bedrock.” 132 A.3d at 505. Additionally, unlike the 

prospective juror in Penn, Juror #2 did not vacillate or qualify her answers 

when the question presented was whether she could evaluate impartially the 

credibility of a police officer. Juror #2 immediately answered that she could 

be fair and impartial, and that she could decide the case based solely upon 
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the evidence presented at trial. The Court’s decision in Penn was based on

the prospective juror’s testimony during voir dire that she “would be more 

likely to believe the testimony of a police officer,” thus indicating her bias in 

favor of the police and the Commonwealth. Id. at 504. Finally, upon 

additional questioning, the prospective juror in Penn reiterated her bias. The

Penn court determined that the individual questioning “did not dispel the force 

of [her] admissions of bias,” id. at 505, whereas here, the individual 

questioning revealed that Juror #2 was unequivocal in her statement that she 

would be able to follow the court’s instruction. 

The trial court examined Juror #2 to determine if she would be able to 

put aside her initial feelings of predisposition and fairly evaluate the evidence 

presented at trial. The court fully explored the matter on individual voir dire

and determined that she could. We conclude, therefore, that defense 

counsel’s request to ask Juror #2 how she would, hypothetically, resolve a 

credibility issue at trial was outside the scope of individual voir dire; the trial 

court, therefore, did not abuse its discretion in refusing defense counsel’s 

request. Ellison, supra. 

Next, Summers argues the trial court erred in denying his motion for a 

mistrial after Summers’ first name was mentioned in Officer Molineaux’s 

testimony. Officer Molineux testified that he and Seargent Moore responded 

to the shooting following an interaction with two women in the Willowbrook 

Apartments parking lot. Officer Molineaux’s testimony began as follows:
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OFFICER MOLINEAUX: Okay. When we originally responded on 

location myself and two other officers from the Upper Chichester 

Township police department, as well as Sergeant Moore from the 

Lower Chichester police department, we were met by two females 

in a red Ford Expedition that were advising us of a subject with a 

gun.

[DEFENSE COUNSEL]: Your Honor, again objection if I’m not going 

to get a chance to question these females. I would object to 

hearsay.

THE COURT: I will sustain that objection. There were two females. 

Let’s continue. As a result of that, did you have a discussion with 

them?

OFFICER MOLINEAUX: We did.

THE COURT: And as a result of that, what did you do next? 

OFFICER MOLINEAUX: As a result of the investigation with these 

two females we had learned that a subject by the name of Ralph 

–

THE COURT: Stop. Don’t tell us what they said. Just tell us what 

you did. 

N.T. Jury Trial, 7/12/17, at 65. At this point, defense counsel asked for a 

sidebar and requested a mistrial, which the court denied. The court then 

instructed the jury as follows:

THE COURT: Ladies and gentlemen, you get into a little bit of an 

evidentiary lesson. You probably all heard at some point in time 

the word hearsay in a movie or a television show. Basically there’s

a rule of evidence that says that hearsay is inadmissible which 

means that if somebody tells you something you can’t say so and 

so told me something. That is not competent evidence. 

Sometimes we will permit hearsay for a limited reason. He was 

permitted to say he had a discussion with these individuals and 

that was offered for one reason and one reason only, that’s to 

explain why he went and did what he did next. What may have 

been said or was not said to him by these individuals is not 

something that you may consider. With that, you may proceed.
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[DEFENSE COUNSEL]: Your Honor, with that I would move to 

strike the last response.

THE COURT: Okay, consider it stricken.

Id. at 67.

“A mistrial is an ‘extreme remedy’ that is only required where the 

challenged event deprived the accused of a fair and impartial trial. The denial 

of a mistrial motion is reviewed for an abuse of discretion.” Commonwealth 

v. Laird, 988 A.2d 618, 638 (Pa. 2010) (citations omitted). See

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). “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.” 

Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (citation and 

quotation marks omitted). When reviewing the trial court’s denial of a motion 

for a mistrial, our standard is abuse of discretion. Further, “a mistrial is not 

necessary where cautionary instructions are adequate to overcome any 

possible prejudice.” Commonwealth v. Fletcher, 41 A.3d 892, 894–95 (Pa.

Super. 2012).

Here, the court’s questioning elicited an unexpected response from the 

officer that mentioned the defendant’s first name. The court immediately 

stopped the officer from continuing, and gave a cautionary instruction. The 

jury was aware that the officers were responding to a call about a man with a 

gun at the apartment complex, and that Summers was discovered during a 
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security sweep of the building, attempting to hide a controlled substance and 

a firearm. Further, the trial court promptly cautioned the jury, instructing it 

to disregard the hearsay statement, and struck the officer’s offending 

testimony. We cannot say that the unavoidable effect of the objectionable 

hearsay prejudiced Summers to the extent of denying him a fair trial. See 

Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super. 2013); see also 

Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super. 2009) (stating 

that “[a] trial court may remove taint caused by improper testimony through 

curative instructions.”). Moreover, it is well settled that “[a] jury is presumed 

to follow a trial court's instructions [.]” Commonwealth v. Reid, 99 A.3d 

470, 501 (Pa. 2014).

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Upon review, we cannot conclude that the trial court abused its 

discretion by denying Summers’ motion for a mistrial. The trial court's 

cautionary instruction alleviated any prejudice caused by Officer Molineaux’s

testimony. Laird, supra. 

Judgment of sentence affirmed.

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9 We also note that the Commonwealth did not elicit this testimony, that it 

was in response to the court’s questioning after sustaining defense counsel’s 

hearsay objection, and that the Commonwealth did not exploit the reference. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/18