J-S38045-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERINN HOWARTH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2301 EDA 2018

Appeal from the Judgment of Sentence Entered July 3, 2018

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

No(s): CP-23-CR-0007376-2016

BEFORE: OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED OCTOBER 11, 2019

Appellant, Erinn Howarth, appeals from the judgment of sentence 

imposed after a jury found her guilty of robbery, aggravated assault, burglary, 

firearms not to be carried without a license, and conspiracy to commit 

burglary.

1

 We affirm.

The facts underlying this appeal are as follows:

On August 23, 2016, a robbery occurred at the home of Dennis

McCarthy. McCarthy’s adult daughter, Beth Anne McCarthy, also 

lived at the home; Ms. McCarthy returned home at her usual hour, 

only to open the door and be bludgeoned. The perpetrators then 

proceeded to bind Ms. McCarthy with electrical cords, including 

one around her neck, and left her bleeding on a bedroom floor. 

The second victim, the seventy-five-year-old Mr. McCarthy, was 

held at gunpoint and bound, just hours after returning home from 

a month-long stay in the hospital for broken ribs and a punctured 

lung. Mr. McCarthy was able to partially free himself from his 

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1 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 3502(a)(1), 6106(a)(1), and 903, 

respectively. 
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bindings and crawl into the adjacent bedroom to his daughter. 

The burglars saw him and retied his binds. They later took every 

telephone in the home so the two could not call for help. The 

burglars removed the safe from the home, along with other 

belongings, and left their victims helpless. The homeowner was 

able to free himself once he believed the burglars had left; he 

crawled outside and was eventually able to summon help from a 

neighbor. He and his daughter were taken to the hospital, where 

he was released the same night, though his daughter would 

remain for nine (9) days. She continues to suffer a stutter, brain 

damage, and neuropathy from her bindings resulting in a limp. 

Trial Court Opinion at 2-3 (not paginated) (citations to the record omitted).

Appellant was charged with various offenses the day after the incident. 

Also charged related to the incident was Ricardo Johnson, Appellant’s 

boyfriend, but Mr. Johnson entered a guilty plea and agreed to testify against 

Appellant. A two-day jury trial was held on April 25 and 26, 2018; Appellant

did not testify or present evidence at trial. At the conclusion of trial, the jury 

found Appellant guilty of the above-identified offenses.2 On July 3, 2018, the 

trial court sentenced Appellant to an aggregate term of imprisonment of 20 to 

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2 Appellant was found not guilty of possession of an instrument of a crime, 18 

Pa.C.S. § 907(a), conspiracy to commit robbery, and conspiracy to commit 

aggravated assault. 
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40 years.3 Appellant filed a post-sentence motion, which was denied on July 

13, 2018. This timely appeal followed.4

Appellant presents the following issue on appeal:

Whether the trial court erred in the failure to grant a mistrial by 

[Appellant] following a direct breach of [Appellant’s] right to 

silence under the Fifth Amendment of the United States 

Constitution and Article 1 Section [9] of the Pennsylvania 

Constitution.

Appellant’s Brief at 4 (unnecessary capitalization omitted). 

Our review of a trial court’s decision granting or denying a mistrial is 

limited to determining whether a trial court abused its discretion. 

Commonwealth v. Smith, 131 A.3d 467, 474-75 (Pa. 2015). “An abuse of

discretion will not be found based on a mere error of judgment, but rather 

exists where the court has reached a conclusion which overrides or misapplies 

the law, or where the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will.” Commonwealth v. Frein, 206 

A.3d 1049, 1072 (Pa. 2019) (citation and internal quotation marks omitted). 

Our Supreme Court has recognized that a mistrial is an “extreme remedy,” 

Commonwealth v. Travaglia, 28 A.3d 868, 879 (Pa. 2011), and as such 

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3 Appellant received a sentence to 78 to 156 months on the robbery offense, 

84 to 168 months on the aggravated assault offense, 42 to 84 months on the 

burglary offense, 36 to 72 months on the firearm offense, and 9 to 18 months 

on the conspiracy offense. The robbery, aggravated assault, burglary, and 

firearm offense sentences were each imposed consecutively, while the 

conspiracy sentence was imposed concurrently to the firearms offense.

4 Appellant filed her Pa.R.A.P. 1925(b) concise statement of errors complained 

of on appeal on October 1, 2018. The trial court issued its opinion on 

November 27, 2018.
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“may be granted 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. Johnson, 107 A.3d 52, 77 (Pa. 2014) (citation omitted). 

“Likewise, a mistrial is not necessary where cautionary instructions are 

adequate to overcome any possible prejudice.” Id. (citation omitted).

“Both the Fifth Amendment of the United States Constitution and Article 

1, Section 9 of the Pennsylvania Constitution protect an individual’s right not 

to be compelled to be a witness against himself.” Commonwealth v. 

Adams, 39 A.3d 310, 316 (Pa. Super. 2012), aff’d, 104 A.3d 511 (Pa. 2014). 

“The accused in a criminal proceeding has a legitimate expectation that no

penalty will attach to the lawful exercise of his constitutional right to remain

silent.” Commonwealth v. Mitchell, 839 A.2d 202, 212 (Pa. 2003). Our 

Supreme Court “has been consistent in prohibiting the post-arrest silence of 

an accused to be used to his detriment.” Id. at 213; see also 

Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super. 2010). Even 

where reference is made to the defendant’s post-arrest silence, however, the 

effect of the reference may still be cured through prompt and adequate 

cautionary instructions to the jury. Moury, 992 A.2d at 176. 

The comment at issue in this case took place during the crossexamination of Detective Anthony Ruggieri of the Delaware County District 

Attorney’s Office, who was present when a search warrant was executed at 

Mr. Johnson’s house; Appellant, who also resided at the house, was discovered 
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by police during the search hiding in an adjoining garage. Detective Ruggieri 

also interviewed Mr. Johnson on at least two occasions following the search. 

During the cross-examination, Appellant’s counsel asked Detective Ruggieri 

whether he had interviewed Mr. Johnson’s mother and sister, who were 

present at the house during the search, regarding Mr. Johnson’s or Appellant’s 

whereabouts between the time of the burglary and when the police arrived to 

perform the search. N.T., 4/26/18, at 52. Detective Ruggieri responded that 

he did not attempt to interview Mr. Johnson’s mother and sister. Id. The 

following exchange then took place:

[Counsel:] And so, again, there are people who could fill some 

holes for us and say that either [Appellant] came back with Mr. 

Johnson or she was there the whole time, correct? They could be 

neutral. They’re not connected to this case, they’re not charged 

in this case, correct? They could give us that information?

[Detective Ruggieri:] Yes.

[Counsel:] Okay.

[Detective Ruggieri:] Just as well as your client could have.

Id. at 53.

Appellant’s counsel immediately objected and moved for a mistrial. Id. 

The trial court then recessed the jury and heard oral argument from counsel. 

Id. at 54-58. The trial court determined that, in light of the fact that the 

comment regarding Appellant’s silence was isolated and not elicited by the 

Commonwealth, a mistrial was not warranted and that instead the court would 

issue a cautionary instruction and an additional charge during the final 

instruction. Id. at 58-60. After recalling the jury, the trial court instructed 
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the jury that they were to disregard the above-quoted exchange between 

Appellant’s counsel and Detective Ruggieri. Id. at 63-64. The trial court 

stated that Appellant enjoyed an absolute constitutional right to remain silent 

and therefore the jury should not draw an inference of guilt or other adverse 

inference based upon the fact that Appellant did not provide any information 

to Detective Ruggieri.5 Id. at 64. In addition, during the final instruction, the 

trial court reiterated the cautionary instruction and further stated that 

Appellant is presumed innocent and she was not required to testify at trial. 

Id. at 479-80, 482.

Initially, we observe that Detective Ruggieri’s statement clearly 

referenced the fact that Appellant did not provide information to investigators 

regarding the burglary of the McCarthy home. While Detective Ruggieri’s 

comment did not specifically reference Appellant’s failure to volunteer 

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5 The trial court instructed the jury in full as follows:

Ladies and gentlemen of the jury, . . . you heard testimony from

Detective Ruggieri regarding information that the detective did or did 

not receive from [Appellant]. You are to disregard this portion of the 

testimony as this has no bearing or relevance and you are not to 

consider it in this case. [Appellant] is under no obligation to give any

information or not give information to detectives and, again, you are not 

to consider this in this case at all. [Appellant] has an absolute right 

founded on the Constitutions of the United States and the 

Commonwealth of Pennsylvania to remain silent, a constitutional right 

we all enjoy. You must not draw any inference of guilt or any other

inference adverse to [Appellant] from the fact that she did not provide 

any information and exercised the constitutional right and protection

universal to each and every one of us.

N.T., 4/26/18, at 63-64.
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information to investigators after her arrest as opposed to her pre-arrest 

conduct which is not afforded the same protection, it is reasonable to assume 

that the jury would have interpreted Detective Ruggieri’s testimony as 

referring to Appellant’s post-arrest silence in light of the fact that Appellant 

did not appear to have contact with police until after she was arrested. Cf.

Mitchell, 839 A.2d at 214 (holding that prosecutor’s ambiguous question 

regarding the defendant’s failure to previously identify who had committed 

the murders for which he had been accused without any clear reference to a 

time frame raised an inference that the question related to both the 

defendant’s pre-arrest and post-arrest silence); Commonwealth v. Clark, 

626 A.2d 154, 156 (Pa. 1993) (holding that jury would reasonably assume 

that a prosecutor’s open-ended question to defendant regarding statements 

to police embraced the defendant’s post-arrest silence). 

Nevertheless, even when an impermissible reference to an accused’s 

silence is made, a mistrial may be avoided where a prompt and adequate 

cautionary instruction is given. Moury, 992 A.2d at 176. In evaluating 

whether cautionary instructions can cure a reference to an accused’s postarrest silence, four factors must be considered: (1) the nature of the reference 

to the accused’s silence; (2) how it was elicited; (3) whether the prosecutor

exploited it; and (4) the promptness and adequacy of the cautionary 

instruction. Id. 

Each of these factors weighs in favor of a conclusion that the cautionary 

instructions were sufficient to overcome the prejudice from Detective 
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Ruggieri’s comment and ensure that Appellant received a fair trial. First, 

Detective Ruggieri’s reference to Appellant’s post-arrest silence was brief and 

vague, not identifying any specific instance when she was questioned or any 

specific information investigators sought from her. Second, the prosecutor 

had no role in eliciting the reference to Appellant’s silence as it occurred during 

Appellant’s counsel’s cross-examination of the witness. Third, the prosecutor 

did not exploit the reference in her examination of Detective Ruggieri or in 

closing arguments and, in fact, suggested to the trial court that cautionary 

instructions be given immediately and during the final instruction. N.T.,

4/26/18, at 58-59. Finally, the cautionary instruction occurred immediately 

upon the jury’s return to the courtroom and the instruction adequately 

addressed the harm by asking the jury to disregard Detective Ruggieri’s 

comment and reminding the jury of Appellant’s constitutional right to remain 

silent and that no inference may be drawn from her decision to exercise that 

right.

In sum, because the reference to Appellant’s post-arrest silence was 

brief, not elicited or exploited by the prosecutor, and the trial court promptly 

issued the cautionary instruction, we conclude that any prejudice was cured

by the instruction. See Moury, 992 A.2d at 177 (holding that police officer’s 

testimony that defendant invoked his right to an attorney and did not want to 

talk to the police was cured by prompt cautionary instruction “[g]iven the 

limited reference to [the defendant’s] initial decision to have an attorney 

present” and where the comment was not purposefully elicited or exploited by 
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the Commonwealth); Commonwealth v. Anderjack, 413 A.2d 693, 698-

700 (Pa. Super. 1979) (holding that a prompt cautionary instruction overcame 

any prejudice resulting from police officer’s testimony that defendant refused 

to sign a waiver form and speak with the police because the reference was an 

“implicit rather than explicit statement that [the defendant] had chosen to 

remain silent,” defense counsel elicited the reference, and the prosecutor did 

not exploit it).

Even if we were to find that the trial court’s cautionary instruction did 

not cure the prejudice to Appellant, we would conclude that any error 

associated with the reference to Appellant’s post-arrest silence was harmless

because the Commonwealth presented overwhelming evidence of Appellant’s 

guilt at trial.

Harmless error exists where: (1) the error did not prejudice the 

defendant or the prejudice was de minimis; (2) the erroneously 

admitted evidence was merely cumulative of other untainted 

evidence which was substantially similar to the erroneously 

admitted evidence; or (3) the properly admitted and 

uncontradicted evidence of guilt was so overwhelming and the 

prejudicial effect of the error was so insignificant by comparison 

that the error could not have contributed to the verdict. The 

Commonwealth has the burden of proving harmless error beyond 

a reasonable doubt.

Commonwealth v. Radecki, 180 A.3d 441, 461 (Pa. Super. 2018) (citations 

and quotation marks omitted; some formatting).

At trial, Maura McCarthy, another of Mr. McCarthy’s adult daughters, 

testified that Appellant, who had previously worked for and been in an intimate 

relationship with Mr. McCarthy, stopped by the house between noon and 3 pm
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on August 23, 2016, the date of the burglary, to retrieve a bikini that she had

left at the house. N.T., 4/25/18, at 49-52, 55, 66, 84-85. Maura McCarthy 

gave the bikini to Appellant who placed it in her backpack and left. Id. at 52-

54. After the burglary, Maura McCarthy found the same backpack, containing 

the bikini and a cell phone, in an upstairs bedroom of Mr. McCarthy’s home. 

Id. at 58-61. The cell phone contained various selfie photographs of Appellant 

and numerous text messages showing Appellant planning the burglary with 

Mr. Johnson and other individuals. N.T., 4/26/18, at 25-42. Location data 

extracted from the phone showed that it was at Mr. McCarthy’s house at 5:09 

pm on August 23, 2016, the time that the burglary occurred. N.T., 4/25/18, 

at 94, 234; N.T., 4/26/18, at 21. A retired police officer who lived in an 

apartment building next to Mr. McCarthy’s house testified that he saw 

Appellant and a thin black man walking down a shared driveway between the 

buildings at 5:35 pm on that same day; Appellant was wearing striped 

leggings, an article of clothing that Mr. McCarthy also identified one of the 

burglars as wearing. N.T., 4/25/18, at 32-36, 93. Further, Mr. Johnson 

testified that he and Appellant planned and carried out the burglary; Mr. 

Johnson stated that, during the burglary, Appellant repeatedly hit Ms. 

McCarthy in the head with a gun and kicked her, believing that Ms. McCarthy 

had recognized her. Id. at 239-63. Mr. Johnson testified that he mistakenly 

left Appellant’s backpack, with her phone inside, at Mr. McCarthy’s house. Id.

at 265, 268. Police executed a search warrant at Mr. Johnson’s house on the 
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day after the burglary and discovered Mr. McCarthy’s safe and other personal 

property taken during the burglary. Id. at 204-16. 

Because the properly admitted and uncontroverted evidence adduced at 

trial overwhelmingly demonstrated Appellant’s guilt, the trial court’s decision 

to issue a cautionary instruction and not to grant a mistrial following Detective 

Ruggieri’s single, unsolicited reference to Appellant’s post-arrest silence would 

not amount to more than harmless error. See Moury, 992 A.2d at 177-78. 

Based on the foregoing, Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judge Ott joins the Memorandum.

Judge Dubow Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/19