J

- A05044

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN OLIEMULLER

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2479 EDA 2021
Appeal from the Judgment of Sentence Entered September 9, 2021

In the Court of Common Pleas of Lehigh County Criminal Division at CP

- 15

- CR

- 0002916

- 2019

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MAY 23, 2023

Steven Oliemuller (Appellant) appeals from the judgment of sentence

imposed after a jury convict ed him of third degree murder. 1 We affirm.

T he trial court summarized the follow ing facts :
On June 18, 201 [8] , at approximately 8:18 a.m., Pennsylvania State Police [PSP] responded to a 9

- 1

- 1 call at 7245 McFettridge Lane, Lower Milford Township, Lehigh County , for the report of a possible drug overdose. Upon arrival, Troopers observed an unconscious female, lat er identified as Alexus Quay [the Victim] , on the floor of a first

- floor bedroom.

... [ Appellant] informed police about his romantic relationship with the [Victim]

. He admitted he was the only one at the residence with her and last saw [the Victim] the night before sitting on the deck of the [ ir] residence. Trooper [Steven ] Furlong testified that first

- responders were concerned that the case was not a drug overdose because of the significant injuries found on [the Victim’s] body. Police observed signifi cant physical injuries to [the Victim’s] head, stomach, back, arms, and legs. The

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. § 2502 (c)

.J

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- 2

-

injuries included open wounds and what appeared to responders

as “ drag marks. ” Straw and other debris were observed on her body and her hair was wet.

Troopers inspected th e residence and discovered red stains

on a second

- floor bedroom mattress and pillow. A framing hammer was observed on the floor at the foot of the bed. The door to the bedroom was damaged and numerous articles of clothing were strewn across the side yard of the residence. Water was discovered on the kitchen, living room, and hallway floors leading to the bedroom where [the Victim’s] body was found. A prescription pill bottle and screwdriver were located on the deck where [Appellant] indicated he las t saw [the Victim]

. [Appellant] exhibited injuries to his hands, forearms, and face [,] which appeared to responders as scratches and a fat lip.

Trial Court Opinion, 11/10/20, at 2

- 3.

The Commonwealth charged Appellant with murder by criminal

information filed August 1, 2019 . Thereaf ter, the Commonwealth fil ed notice

of intent to present prior bad acts evidence at trial. Appellant filed a response

seeking to preclude th e evidence. The trial court entered an order grant ing

the Commonwealth’s request on Nov ember 10, 2020.

Trial commenced June 8, 2021, and concluded with the jury’s guilty

verdict on June 17, 2021. F orensic pathologist Rameen Starling

- Roney had

testified that the Victim’s manner of death was homicide, and the cause of

death was blunt

- force trauma to various par t s of the body . N.T., 6/9/21, at

201. Dr. Starling

- Roney not ed the presence of prescription medication and

meth amphetamine ( m eth) in the Victim’s body , but ruled out drug overdose

as the cause of death

. Id. at 201

- 05. He also o pined that th e blunt force

trauma could not have been caused accidentally. Id. at 204

- 05.J

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- 3

-

M ultiple witnesses testified about Appellant’s meth use and the

behav ioral changes it caused

. See , e.g. , N.T., 6/9/21, at 108

- 09, 127

- 33;

N.T., 6/1 0/21, at 42

- 83; N.T. , 6/15/21, at 40

- 148; N.T., 6/16/21, at 123

- 59.

The witnesses testified that Appellant became paranoid and violent when using

m eth

. See id. The w itnesses also testified that Appellant used meth on the

weekend of the Victim’s murder; this testimony was confirmed by drug test

results

. See N.T., 6/14/01, at 204

- 05 (Appellant’s uri ne tested positive for

m eth).

Specifically, Appellant’s cousin, Chuck Gischel (Gischel) , testified he and

Appellant regularly used m eth. N.T., 6/15/21, at 274

- 75. Gischel testified

that he observed Appellant use meth in the late evening of Saturday , Ju ne 16,

2018 , and/or the early morning of Sunday June 17, 2018. Id. at 278

- 79. He

also saw Appellant ingest m eth later in the morning o f June 17, 2018

. Id. at

284.

Appellant’s sister’s former boyfriend , Charles Price (Price) , testified that

he and Appellant us ed m eth ( and other drugs ) . N.T., 6/10/21, at 50

- 51. Price

relayed that on the Saturday before the Victim’s death, the Victim and

Appellant attended a birthday party for Price’s daughter. Id. at 48, 50

- 51.

The next evening, Appellant called his sister, Hal eigh Oliemuller (Hal ei gh) , and

Price overhead Appellant state that he would “drag [Price] with a chain.” Id.

at 52. Appellant threatened t hat if Price did not go to Appellant’s home,

Appellant would come to Price. Id. at 53. Price described Appellant’s voiceJ

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as “irate, a little frantic” and “stressed and angry.” Id. Price explained that

Appellant acted this way when he used meth

. Id. at 74. After speaking wi th

Appellant, Price took his family , sometime between 10:00 and 11:00 that

Sunday night, to a hotel because he “ wasn’t taking any chances.” Id. at 56.

Price testifi ed that Appellant “definitely sounded upset” and Price was afraid

of Appellant. Id. at 56

- 57. Price and his family spent two nights at a hotel in

Landsdale

. Id. at 58

- 59. They then spent another two nights at a hotel in

Colmar, even though they had lear n ed about the Victim’s death , because Price

“wasn’t taking any chances.” Id. at 58

- 59, 79. Price stat ed that he wanted

to “make sure [his] family was safe.” Id. at 80.

Price further testifi ed that Appellant had hit him with a closed fist while

using meth , and Price was “afraid” o f Appellant “at times

. ” Id. at 60, 63

- 64.

After hitting Price, Appellant “shot a couple rounds into the wall [ of Appellant’s

home ]” with a .22 firearm. Id. at 65. On another occasion, when Appellant

was using meth and Price refused to lend him a car , A ppellant slapped Price

across the face. Id. at 67

- 68. Price described Appellant as “very paranoid ...

agitated [, and ] though t everybody was out to get him

. ” Id. at 75.

Appellant’s sister, Ha leigh , testified reluctantly ; consequently, the

Commonwealth introduce d her grand jury testimony. N.T., 6/15/21, at 40

-

148. Haleigh stated that the Victim would stay at her house when Appellant

and Gischel were using drugs. Id. at 56

- 60. Hale i gh admitted she , Appellant

and Gischel use d m eth the wee kend of the Victim’s death. Id. at 61, 98

- 101.J

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-

She agree d that Appellant’s behavior changed when he used m eth and he

would experience hallucinations. Id. at 65

- 70. Through her grand jury

testimony, Hal eigh corroborated Price’s testimony about getting “weird”

phone calls from Appellant on the night of June 17, 20 18

. Haleigh’s grand

jury testimony further confirmed that after warning Appellant’s former

paramour, Ashley Swartley (Swartley) , about Appellant’s behavior , she, Price , and their children quickly left their residence and stayed at two out

- of

- county

hotels for four nights. Id. at 123

- 42.

Swartley testified that she had been involved with Appellant for over 15

years an d they shared two children. N.T., 6/16/21, at 123

- 25. She averred

that Appellant’s meth use was a factor in the end of their relationship. Id. at

126. Swartley did not want the couple’s children around Appellant when he

was using drugs , so she would ta ke the children and stay away from Appellant

for days at a time. Id. Swartley stated that when she started leaving with

the children , Appellant “ would be very upset, aggressive, wanting us to come

hom e. If I wouldn ’ t bring the kids home [ , he ] threatened to kill me and kill

my family. ” Id. at 127. She described that when Appellant used meth :
He believed there were people outside on the property at times. He believed that there were drones flying over the property and watching us.

At one p oint [, Appellant said] there was a box of puppies dropped off on our porch

... and I went out and there was not a box of puppies on the porch.J

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Id. at 128. Swartley test i fi ed that Appellant could become violent when using

meth, and described him grabbing he r, shoving her against a wall, and

pushing her to the ground. Id. at 129. Swartley recalled an incident where

Appellant took her phone , disabled her car , and prevented her from leaving

the home because he believed people were watching. Id. at 129

- 30. Swartley

recounted incidents which occurred within two months of the Victim’s death , when the Victim contacted Swartley and asked her to pick up the children

because the Victim was concerned about Appellant’s drug use and some of his

associates

. Id. at 141

- 46. Lastly, Swartley testified that Haleigh called her

on the night of June 17, 2018 to ask if she and Price could stay with her

because Appellant was threatening to kill Hal ei gh and Price. Id

. at 155.

Michelle Halbsgut (Halbsgut), the Victim’s instructor at the Pennsylvania

Institute for Massage Therapy, testified to the change in the Victim’s behavior,

from being a model student in January 2018, to missing classes in March 2018.

N.T. , 6/1 5/21, at 305

- 06, 309

- 10. Halbsgut explained that part of massage
training involve s students practicing on one an other, and in March 2018,

Appellant was often unable to be massaged because her body was covered

with bruises. Id. at 308, 316

- 21.

Trooper Ed ward Prentice testified that upon seeing the Victim’s body , he

questioned Appellant , who did not give direct answers, and had a “s haky”

v oi ce and “visibly shaking” hands. N.T. , 6/9/21, at 109. Trooper Prentice

stated that Appellant agree d to go to the police barracks, where he was seatedJ

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in an area with windows 6

- 9 feet from the ground

. Id. at 131. Appellant

repeatedly said that he saw some one outside, even though it was im possible.

Id. Appellant also maintained there was someone in an air vent and he heard

“tapping” noises in the hallway. Id. Later, Appellant threw a book at Trooper

Prentice. Id. at 132. Trooper Prentice opin ed that Appellant was coming

down from a m eth high

. Id. at 145. Trooper John McGranahan also

encountered Appellant that day , and described him as “very combative.” N.T.,

6/10/21, at 113.

April Coope r , a psychiatric evaluator at Lehigh Valley Hospital, evaluated

Appellant the evening of June 18, 2018 . N.T., 6/15/21, at 25

- 26. She

described Appellant as having a “blunted affect.” Id. at 28. She relayed that

Appellant admitted to using m eth that day. Id. at 29

- 30. Appellant told Ms.

Cooper the police brought him to the hospital because he was hallucinating ,
but he believed the police “were messing with him and berating him. ... [The

police] were hiding behind [] a curtain in a window, and [Appellant ] ... threw

something at the window.” Id. at 31. Ms. Cooper concluded Appellant did

not have a psychiatric disorder, and his hallucinations were the result of drug

use. Id. at 32.

The Co mmonwealth also elicited testimony from two jailhouse

informants , Jason Swiderski (Swiderski) and Daniel Santiago (Santiago)

. Both

men had extensive criminal records, and received favorable consideration inJ

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pending cases in return for their testimony. N.T., 6/14/ 21, at 92

- 95 ; N.T. , 6/15/21, at 212

- 14.

Swiderski testified that Appellant told him he and the Victim were using

m eth ; Appellant was giving the Victim drugs to calm her down ; and “he beat

her up, slapped her around[.]” N.T., 6/14/21, at 106. Swiderski claimed

Appellant admitted “he beat the li ving shit out of her and he gave her a hot

shot, mother of all shots

.... ” Id. at 108. Appellant then “found out after

seeing her on the ground that she was dead.” Id. Appellant disputed these

claims, and his counsel cross
- examined Swiderski extensively , impl ying that

Swiderski would say anything to get a favorable deal from the Commonwealth.

See id. at 118

- 86.

Santiago testified Appellant told him and Santiago’s friend , “Huey , ” that

Appellant “had an argument with his girlfriend because he slipped something

into her drink ... he pushed her[,] and her head hit something[,] and she was

on the floor.” N.T., 6/15/21, at 226. Appellant related that he ”black ed out
and started hitting” the Victim, and “ could not recall what he hit her with.”

Id. D efense counsel cross
- examined Santiago, and suggested Santiago would

l ie to get favorable treatment. Id. at 230

- 64.

On June 17, 2021, t he jury convicted Appellant of third

- degree murder.

On September 9, 2021 , the trial court sentenced Appellant to 20

— 40 years
in prison. Appellant successfully sought permission to appeal nunc pro tunc

. Appellant appealed and on March 8, 2022, this Court remanded the case forJ

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Appellant to file a Pa.R.A.P. 1925(b) statement as ordered by the trial court.

Appellant and the t rial court have since complied with Rule 1925.

Appellant raises three issues for review:

1. Did the trial court err in admitting prior bad acts testimony about [Appellant’s] prior domestic abuse and prior drug use from [Swartley ] ?

2. Did the trial court err in denying [Appellant’s] request for a mistrial when two PSP Troopers testified to his pre

- arrest silence, his request for an attorney and invocation of his 5 th and 14 th Amendment rights u nder the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution as such evidence was used against [Appellant] as evidence of guilt?

3. Did the trial court err in not giving the jury an instruction on involuntary manslaughter?

A ppellant’s Brief at 3.

In his first issue, Appellant contends the trial court wrongly admitted

“character testimony” from Swartley. Appellant’s Brief at 25. Appellant

maintains

all of her testimony except that small portion about her observations of [th e Victim] on June 16 th and 17 th of 2018 should have been inadmissible as some of it was irrelevant but all of its probative value was outweighed by the prejudice, especially considering the sequencing of the witnesses called, Swartley was the last called by the Commonwealth right after the lead investigator from the PSP. Admissible [ sic ] of this testimony was error, and the Commonwealth cannot show beyond a reasonable doubt that the verdict would be the same even if such testimony was not admitted.

Id.J

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-

Our scope and standard of review concerning the admission of prior bad

act s is well settled :

The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion

. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of that evidence

. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inf erence regarding a material fact

. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.

Evidence of prior bad acts committed by a defendant is not admissib le solely to show the defendant’ s bad character or his propensity for committing bad acts

. However, evidence of prior bad acts is admissible where there is a legitimate reason for the evidence, such as to establish: 1) motive; 2) intent; 3) abse nce of mistake or accident; 4) a common scheme or plan; and 5) identity

. The evidence may also be admissible to impeach the credibility of a testifying defendant; to show that the defendant has used the prior bad acts to threaten the victim; and in situat ions where the bad acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development.

Commonwealth v. Page , 965 A.2d 1212, 1219 (Pa. Super. 2009) (citation

and emphasis omitted).

Appellant has wa ived his claim that the trial court erred in admitting

irrelevant

— and unspecified

— portions of Swartley’s testimon y . In his

response to the Commonwealth’s notice of intent to use prior bad acts

evidence, Appellant did not challenge the relevance , but argued the evidence

was not proper Rule 404(b) evidence. Response to Commonwealth’s Petition

to Admit Prior Bad Acts, 10/20/20, at 1

- 7. During Swartley’s testimony,J

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Appellant raised a single objection to a portion of her testimony on relev ance
grounds and the trial court sustained the objection. N.T., 6/16/21, at 156

-

58.

It is well

- established that [a] party complaining, on appeal, of the admission of evidence in the court below will be confined to the specific objection there made. If counsel states the grounds for an objection, then all other unspecified grounds are waived and cannot be raised for the first time on appeal.

Commonwealth v. McGriff , 160 A.3d 863, 871

- 72 (Pa. Super. 2017)

(emphasis added). B ecause Appellant either fai led to object or objected on

different grounds, he waived any challenge to Swartley’s testimony based on

relevance.

Appellant also argues the trial court improperly admitted Swartley’s

testimony about his drug use because it did not demonstrate “a true di stinct

pattern of crime” and was not “ modus operandi .” Appellant’s Brief at 21; see
generally id. at 21

- 27. However, the trial court did not permit the testimony

to show a signature or pattern crime , but to demonstrate Appellant’s

state of mind at the time of the Victim’s death, the lack of accident or absence of mistake, [Appellant’s] motive for the killing, as well as to show the natural progression of events leading up to [the Victim’s] death.

Trial Court Opinion, 11/10/20, at 12. With respect to Swartley’s testimony

about domestic violence, the trial court did not admit it as “pattern” evidence , but because it “demonstrate[d Appellant’s] intent to kill and the absence of

accident or mistake at the time of the offense.” Id. at 13. Appellant doesJ

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not cite any l a w or argue that the trial court erred in admitting Swartley’s

testimony for these reason s. See Appellant’s Brief at 21

- 27.

Eve n if we were to assume, arguendo , that Swartley’s testimo ny was
wrongly admitted, we would find any error harmless because Swartley’s

testimony was cumulative. The harmless error doctrine “reflects the reality

that the accused is entitled to a fair trial, not a perfect trial.” Commonwealth

v. Hairston , 84 A.3d 657, 671 (Pa. 2014).

Harmless error exists if the record demonstrates either: (1) the error did not prejudice the defendant or the prejudice was de minimis ; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which w as 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

co ntributed to the verdict.

Id. at 671

– 72.

As discussed above, the record demonstrates Gischel, Price, and Hal ei gh

testified about Appellant’s history of meth use , and in particular, his use of

meth in the days preceding the Victim’s death. N.T., 6/10/21, at 50

- 51; N.T.,

6/15/21, at 61, 98

- 101, 274

- 75, 278

- 79, 284. Price and Hale i gh testified that

Appellant’s personality change d when he used meth, and he became paranoid,

hallucinat ed , and acted violent ly

. N.T., 6/10/21 , at 52, 56

- 57, 60, 64

- 65, 67

-
68, 74

- 75; N.T., 6/15/21, at 65

- 70, 123

- 42. Troopers Prentice and

McGranahan, as well as the psychiatric evaluator , Cooper, had observed

Appellant under the influence of meth shortly after the Victim’s death andJ

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corroborated th e testimony of Gischel, Price, and Haleigh

. See N.T., 6/9/21,

at 131

- 32; N.T., 6/10/21, at 113; N.T., 6/15/21, at 28

- 32.

In addition, Price and Hal eig h testified that Appellant threatened them

when he called the night before the Victim’s death, and as a result, they took

their family to stay at a hotel out of the county

. N.T., 6/10/21, at 53, 55

- 59,

80; N.T., 6/15/21, 123

- 42. Hal ei gh testified that the Victim did not like to be

around Appellant when he and Gischel were using drugs and would stay at

Hal ei gh’s house. N.T., 6/15/21, at 56

- 60. Halbsgut testified about the Victim

having bruises on her body prior to her death. N.T., 6/15/21, at 316

- 21.

Thus, Swartley’s testimony was cumulative of other witnesses’ testimony

. Appellant’s first issue does not merit relief. See Hairston , 84 A.3d at 671

-

72.

In his second issue, Appellant claims t he trial court erred in denying his

motion for a mistrial after Trooper s Prentice and McGranahan testified that

while at the police station and served with search warrants for his clothes and

person , Appellant requested counsel. N.T., 6/9/21, at 129; N.T., 6/10/21, at

113. 2 Appellant’s Brief at 27

- 30 . Appellant argues the Commonwealth “ used

_________________ __________ ______ ____ _______

2 Appellant waived his claims regarding other purportedly improper testimony by Trooper Prentice and psy chiatric evaluator Cooper concerning his silence

. Appellant did not object to the testimony or raise it in his motion for a mistrial

. See N.T., 6/9/21 , at 168

- 69; N.T ., 6/15/21, at 31. Appellant sought a mistrial on the basis that Troopers Prentice and McGranahan improperly commented on his pre
- arrest silence , not on the basis, advance d on appeal , that their testimony Appellant was not acting like a grief

- stricken person constituted (Footnote Continued Next Page)J

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-

these refences ... about [Appellant’s] pre

- and post

- arrest silence ... as

evidence of guilt against him.” Appellant’s Brief at 29.

Initially, the record does not support Appellant’s contention that

Troopers Prentice and McGranahan commented on his post

- arrest silence. The

above in cidents occurred at the police station prior to Appellant’s arrest. See

N.T., 6/9/21, at 129

- 34; N.T., 6/15/21, at 31

- 33. Thus, th ere is no basis for

Appellant’s claim regarding his post

- arrest silence. T o the extent Appellant

aver s violation of his rights under the Pennsylvania Constitution, Appellant

waived the issue because it is not developed in his brief. See Appellant’s Brief

at 27

- 30. See also Commonwealth v. Wise , 171 A.3d 784, 791 (Pa. Super.

2017) (issue waived where appellant provided an undeveloped argument and

neglected to cite to controlling case law) . Thus, we only address Appellant’s

claim that the trial court erred in denying a mistrial where Troopers Prentice

and McGranahan improperly commented on Appellant’s pre
- arrest silence

.

_________________ __________ ______ ____ _______ impr oper comments on his pre

- arrest silence . N.T., 6/10/21, at 117

- 21; Appellant’s Brief at 29. “ [O] ne must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter .” Keffer v. Bob Nolan’s Auto Service, Inc. , 59 A.3d 621, 645 (Pa. Super. 2012) ; see also Commonwealth v. Baumhammers , 960 A.2d 59, 73 (Pa. 2008) (to pre serve issue, party must make timely and specific objection to ensure the trial court has opportunity to correct alleged error)

. Appellant cannot raise a new legal theory on appeal. See Commonwealth v. Truong , 36 A.3d 592, 598

- 99 (Pa. Super. 2012) ( en banc ).J

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We review the denial of a motion for mistrial for an abuse of discretion.

Commonwealth v. Chamberlain , 30 A.3d 381, 42 2 (Pa. 2011). We have

explained:

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. A trial court may grant a mistrial only where the inciden t 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. It is also settled that a mistrial is not necessary where cauti onary instructions are adequate to overcome any potential prejudice

.
Commonwealth v. Gilliam , 249 A.3d 257, 274 (Pa. Super. 2021) (emphasis

added, citations omitted), appeal denied , 267 A.3d 1213 (Pa. 2021). Trial

c ourts “ must consider all surrounding circumstances before finding that

curative instructions were insufficient and the extreme remedy of a mistrial is

required.” Commonwealth v. Manley , 985 A.2d 256, 266 (Pa. Super.

2009) (citation omitted).

“The Fifth Amendment was enacted to protect against self

- incrimination,

whether [the suspect is] in custody or not, charged with a crime, or merely

being questioned during the investigation of a crime.” Commonwealth v.

Molina , 33 A.3d 51, 63 (Pa. Super. 2 01 1 ) ( en banc ) (citation omitted). “[T]he

government may not use

... silence as substantive evidence of guilt when a

defendant chooses not to testify.

... [That silence] may also not be used

against a defendant who remained silent during the investigation of a crime.”

Id. (citation omitted).J

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-

T he Fifth Amendment “does not impose a prima facie bar against any

mention of a defendant ’ s silence.” Id. (emphasis added). Instead, the Fifth

Amendment protects against the prosecution ’ s exploitation of a defendant ’ s
right to remain silent. See id. “[A] mere reference to pre
- arrest silence does

not constitute reversible error where the prosecution does no t exploit the

defendant ’ s silence as a tacit admission of guilt.” Commonwealth v. Adams ,
104 A.3d 511, 512

- 13 (Pa. 2014).

Here , the Commonwealth asked Trooper Prentice about Appellant’s

demeanor during questioning immediately after police discover ed the Victim’s

body. N.T., 6/9/21, at 108

- 09. As to Appellant’s demeanor at the police

barracks , the Commonwealth asked :
Q. Would you describe for the jury anything you observed about [Appellant’s] behavior and demeanor during that time?

A. For the search warrant to be executed on the clothing, he was argumentative about all of that. He request ed private counsel.

[Defense Counsel]: Objection. Can we a pproach, Judge?

* * *

[Defense Counsel]: I believe that my client’s indication [ sic ] that his 5 th Amendment rights is not permissible in this evidence.

The Court: So what are you asking the court to do?

[Defense Counsel]: I’m going to ask for a very strong curative instruction, Your Honor

.

* * *

The Court: Okay. I’ll give an instruction. Okay.J

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- All right. Ladies and gentlemen of the jury, I’m going to sustain that objection. You are to totally disregard that response. Okay?

Id. at 129

- 30 ( emphasis added ). Appellant did not object further or

otherwise seek relief.

The next day, the Commonwealth questioned Trooper McGranahan

about Appellant’s behavior when the trooper attempted to serve Appellant

with a body search warrant :
Q. Was [Appellant] cooperative?

A. No.

Q. What do you mean?

A. He was very combative. He wouldn’t let us take any photographs of him. He kept arguing and fighting with us

. He kept repeating h e wanted to talk to a lawyer.

N.T., 6/10/21, at 113.

Defense counsel objected , noting it was the second time a t rooper

mentioned Appellant’s invocation of his Fifth Amendment rights , and

requested a mistrial. Id. at 113

- 14. After hearing argument, the trial court

denied the motion, stating:

Okay. I’m sati sfied that a detailed curative instruction or cautionary instruction will suffice at this point, but I certainly respect defense counsel’s position on this.

I would ask both of you just to instruct your witnesses before they get on the stand, don’t mention anything of that nature in the future. All right? Because the third time around, you may not be so lucky. Okay.

***J

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-

Just so the record is clear, I do not fin d that there’s a manifest necessity for a mistrial.

N.T., 6/10/21, at 121

- 22; see als o id. at 114

- 22. The trial court then

instructed the jury to disregard testimony about Appellant’s request for

counsel because ,
that testimony under the Pennsylvania and the United States Constitution, that any individual who is the subject of an investig ation has that right; however, that’s not something that normally come s out in trial, and it should not come out in trial. So I am directing you to totally disregard that testimony. It’s not to be considered in your determination of whether [Appellant] i s guilty or not guilty in this case. All right? So that testimony is stricken.

Id. at 123. Defense counsel did not object to the instruction or seek further

redress

.
Our review reveals the troopers did not explicit ly reference Appellant’s

right to remain silen t and the Commonwealth did not “exploit [Appellant’s]

silence as a tacit admission of guilt.” Adams , 104 A.3d at 513. The testimony

from Trooper s Prentice and McGranahan was “ contextual and brief

. ” See id.

at 518

. T he re was no f urther mention of Appellant’s pre
- arrest silence or his

invocation of right to counsel

. See Adams , 104 A.3d at 515

. Finally, the trial

court gave a sufficient curative instruction

. We presume a jury follows a

court’s instructi on. See Commonwealth v. Speight , 854 A.2d 450, 458 (Pa.

2004)

. W e cannot conclude that the trial court erred in denying Appellant’s

request for a mistrial. Thus, A ppellant’s second issue does not merit relief.J

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- 19

-

In his final issue, Appellant argues he was entitled to a jury instruction

on involuntary manslaughter. Appellant’s Brie f at 30

- 31. Appellant contends

the evidence indicated the Victim

may have been hit by her own car, or injured and moved through [Appellant’s house], or was moved by someo ne, multiple times. Furthermore, both jail

- house witnesses presented [testimony] against [Appellant ; ] Santiago and Swiderski mentioned some type of incident where [Appellant] admitted to drugging [the Victim] shorty before her death. The science sho ws [the Victim] died of blunt force injuries, but it’s ultimately speculation as to what specifically caused them. Apart, or perhaps in conjunction with the drugging, Appellant could have assaulted [the Victim] and his further negligence and recklessness led to her death.

Id.

Pertinently :
In reviewing a jury charge, we determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. We must view the charge as a whole; the trial court is free to use its own form of expressi on in creating the charge. A trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Moreover, it is well

- settled that the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal.

Commonwealth v. Williams , 176 A.3d 298, 314 (Pa. Super. 2017) (citations

omitted , emphasis added ).

The Crimes Code provides :
A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful ac t in a reckless or grosslyJ

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-

negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

18 Pa.C.S.A. § 2504(a).

Furthermore:

D efendants are generally entitled to instructions that they have requested and that are supported by the evidence

. Commonwealth v. Markman , 591 Pa. 249, 916 A.2d 586, 607 (2007); Commonwealth v. DeMarco , 570 Pa. 263, 809 A.2d 256, 261 (2002) (“Where a defendant requests a jury instruction on a defense, the trial co urt may not refuse to instruct the jury regarding the defense if it is supported by evidence in the record.”); Commonwealth v. Browdie , 543 Pa. 337, 671 A.2d 668, 673

– 74 (1996) (“[W]e hold that a trial court shall only instruct on an offense where the offe nse has been made an issue in the case and where the trial evidence reasonably would support such a verdict.”). We have explained that the reason for this rule is that “instructing the jury on legal principles that cannot rationally be applied to the fact s presented at trial may confuse them and place obstacles in the path of a just verdict.” Commonwealth v. Taylor , 583 Pa. 170, 876 A.2d 916, 925

– 26 (2005) (quoting Commonwealth v. White , 490 Pa. 179, 415 A.2d 399, 400 (1980)). A criminal defendant must, therefore, “establish that the trial evidence would ‘reasonably support’ a verdict based on the desired charge and may not claim entitlement to an instruction that has no basis in the evidence presented during trial.” Id. (citin g Commonwealth v. Carter , 502 Pa. 433, 466 A.2d 1328, 1332

– 33 (1983)).

Commonwealth v. Hairston , 84 A.3d 657, 668 (Pa. 2014) (emphasis

added). “ An instruction on involuntary manslaughter is not required unless it

has been mad e an issue in the case and the facts would support such a

verdict. ” Commonwealth v. Fletcher , 986 A.2d 759, 791 (Pa. 2009).

I nvoluntary manslaughter was never at issue in th is case. There is no
record support for Appellant’s claim that the Commonwealth suggested the

Victim was hit by a car. While Santiago and Swiderski testified Appellant toldJ

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- 21

-

them he gave the Victim drugs and she died while he was assaulting her,

Appellant strongly implied that both men were lying. See N.T., 6/14/21, at

106

- 08 , 118

- 86; N.T., 6/15/21, at 226, 230

- 64.

In his opening, defense counsel argued the Commonwealth, “zeroed in

on [Appellant] at the expense of what actually happened.” N.T., 6/9/21, at

19. Counsel asserted the “mess” in the house was not caused by a “gr eat

brawl , ” but because Appellant “had millions of projects going on, also while

on m eth.” Id. at 21. Counsel argued :
You’ll say, man, those photos, man, they didn’t match up, why didn’t [the Commonwealth] investigate this. Think about that, be intellec tually curious. Why didn’t the detectives do this, why didn’t the trooper do this, and think about it and say, man, I wish they did more, and you’re going to say, why didn’t they do more? Well, they are focusing on [Appellant] because [Appellant] can be an asshole and he was an asshole to them that night.

Id. a t 22. Counsel also pronounced that Appellant , “didn’t murder her.” Id.

at 23.

Appellant’s defense was that he d id not cause the Victim’s death , but

police focused only on him and thus conducted a tainted and shoddy

investigation. See , e.g. , N.T., 6/9/21, at 244

- 78 ( defense counsel implying

trooper did not properly investigate the case); N.T., 6/11/21, at 133

- 35

( defense counsel referencing lack of seri ou s injuries to Appellant despite

Commonwealth’s claim that he beat the Victim to death); id. at 141 ( defense

counsel criticizing investigators for taking videos only inside the home ); id. at

146

- 47 ( defense counsel criticizing investigators for not using drug dogs); id.J

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- 22

-

at 156 ( defense counsel implying investigators tampered with evidenc e at

crime scene ); N.T., 6/14/21, at 85 ( defense counsel criticizing serologist about

delays in testing items for blood); N.T., 6/1 6/21, at 77

- 78 ( defense counsel

cross
- examining lead investigator about failure to conduct a grid search of the

property or use metal detectors)

. Appellant’s defense was incompatible with the crime of involuntary

manslaughter. See Fletcher , 986 A.2d at 791; see also Commonwealth

v. Wright , 865 A.2d 894, 917 (Pa. Super. 2004) ( defendant not entitled to

instruction on involuntary manslaughter where he denies committing an y act
causing the victim’s death )

. Therefore, Appellant’s final issue does not merit

relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023