Com. v. Howarth, E. ( 2019 )

J-S38045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERINN HOWARTH :
:
Appellant : 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.
* Retired Senior Judge assigned to the Superior Court.
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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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2Appellant 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.
4Appellant 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 cross-
examination 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 post-
arrest 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
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