Com. v. Hill Jr., B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD HILL JR. :
:
Appellant : No. 1819 EDA 2017
Appeal from the Judgment of Sentence January 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015274-2012
BEFORE: PANELLA, J., PLATT, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2018
A jury convicted Bernard Hill, Jr., of burglary and criminal trespass. On
appeal, he raises only a single issue. He contends the court erred when it
denied his objection to the prosecutor’s closing argument. We conclude Hill
did not preserve this argument, and therefore affirm.
At trial, the Commonwealth presented eyewitness evidence that Hill
broke a window in a Philadelphia residence and removed a candle from the
inside windowsill. When the eyewitness confronted him, he cursed and fled
from the scene. He was detained near the scene of the crime wearing clothing
that matched the description given by the eyewitness. When he was escorted
back to the crime scene, the eyewitness positively identified him.
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
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During closing arguments, the prosecutor told the jury:
We both have jobs to do. [Defense counsel’s] job is to represent
Bernard Hill. It is to zealously advocate for his client. It’s to make
sure that he is found not guilty … It’s to do whatever he can for
his client, and if that includes throwing out different theories to
distract you from the facts of the case, to distract you from the
truth, that’s what can happen.
N.T., Jury Trial, 11/2/16, at 143-144. Hill interrupted the argument with the
single word, “objection.” Id., at 143. The prosecutor continued her argument.
Hill contends the court erred in overruling his objection. He asserts the
prosecutor’s argument went beyond the facts of the case and instead focused
on an attack on defense counsel’s integrity.
We have long found that such attacks are improper and dangerous to a
defendant’s rights to a fair trial.
In particular, the prosecutor’s assertion that he must ‘operate
under the truth,’ whereas defense counsel ‘must represent his
client to the best of his ability, whether he isn’t or whether he is
guilty,’ along with the allegation that defense counsel is a ‘not
guilty machine,’ go outside the evidence and beyond any
legitimate inferences of the case at hand. These statements
diver[t] the juror[s’] attention away from their duty of weighing
the evidence impartially, and install in their minds the idea that
defense counsel is hiding the truth from them, the truth being
appellant’s guilt. The prosecutor would have the jury believe that
only his evidence is truthful and that defense counsel is just trying
to get his client ‘off’ by pleading him not guilty. This assertion goes
against the presumption of innocence since it makes it appear that
appellant’s guilt is a foregone conclusion.
Commonwealth v. Long, 392 A.2d 810, 813 (Pa. Super. 1978). See also
Commonwealth v. Sargent, 385 A.2d 484, 485 (Pa. Super. 1978) (finding
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that attacks on the integrity of defense counsel “undercut the fairness of the
trial in a particularly severe way”).
However, Hill failed to preserve this argument for appellate review.
“Even where a defendant objects to specific conduct, the failure to request a
remedy such as a mistrial or curative instruction is sufficient to constitute
waiver.” Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013)
(citation and brackets omitted). As noted, Hill did not request a remedy at the
time of his objection. He did raise the objection again at the end of the
prosecutor’s argument:
I made four objections during closing. You made – you gave an
instruction as to one, so I would assume that instruction was –
that objection’s sustained. And your instruction to disregard was
the remedy the court provided. And the other three were
overruled?
N.T., Jury Trial, 11/2/16, at 183. The court agreed with this interpretation,
and defense counsel responded, “[t]hat’s all I have.” Id.
Hill never requested a mistrial or further curative instructions. The issue
is therefore waived. As this is the only issue presented by Hill on appeal, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Strassburger joins the memorandum
Judge Platt concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/18
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