Com. v. Fultz, O., Jr. ( 2019 )

J-S65036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORTHELLO LEE FULTZ, JR. :
:
Appellant : No. 579 MDA 2018
Appeal from the Judgment of Sentence Entered February 2, 2018
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000177-2017
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 05, 2019
Orthello Lee Fultz, Jr. appeals from the judgment of sentence entered
on February 2, 2018, after a jury found him guilty of possession with intent to
deliver or manufacture a controlled substance; operating a methamphetamine
laboratory and illegal dumping of methamphetamine waste; and use or
possession of drug paraphernalia.1 Fultz maintains that the trial court
committed error when it denied his motion for a mistrial and his request for a
curative instruction to the jury. We affirm.
The relevant facts and procedural history of this case are as follows. On
February 8, 2017, Trooper Shane Varner and Trooper Daniel Cherry arrived at
Fultz’s residence to investigate whether methamphetamines were being
manufactured at the residence. After searching the residence and questioning
____________________________________________
1 35 P.S. §§ 780-113(a)(30); 780-113.4(b)(1); and 780-113(a)(32),
respectively.
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Fultz, the troopers determined that Fultz was manufacturing
methamphetamines in his garage. At trial, Trooper Varner testified on direct
examination that Fultz advised him that he learned “how to cook meth off of
a biker in the ‘80s.” N.T., Trial, 11/13/17, at 39. Defense counsel did not
object to the testimony at that time.
On cross examination, Trooper Varner testified to the following:
Q: And Mr. Fultz didn’t admit that he was making or
manufacturing methamphetamine?
A: Actually, when he had asked me that, I recall that outside when
we were sitting where they had the burn pit there or whatever, he
at one time did say something to the effect of it all belonged to
him.
Q: So you are just remembering that?
A: I was. After he had asked me that, yes. It’s in my report?
Q: I didn’t receive - -
A: It’s part of the whole report. I’m sorry, it’s not my report. It’s
Trooper Guido’s report. I did a supplemental. It’s attached to his
report.
Q: So that statement is someplace in Trooper Guido’s report?
A: It should be.
Q: would it assist you in your recollection if I were to show you a
copy of Trooper Guido’s report?
A: It would be on my supplemental attached to his report.
Id. at 41-42.
Following this, the trial court called counsel to side bar. Defense counsel
informed the court that the Commonwealth had not supplied him with the
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supplemental report and argued that the Commonwealth had violated Brady
v. Maryland, 373 U.S. 83 (1963) and Pa.R.Crim.P. 573(B)(1). N.T., Trial at
44-45. The Commonwealth responded that it had no prior knowledge of the
supplemental report and did not have it in its possession. Id. at 46-47. The
trial court declined to grant a mistrial and decided it would instead instruct the
jury to disregard Trooper Varner’s testimony about Fultz’s alleged admission.
Id. at 55.
During the side bar discussion, defense counsel also raised an objection
to Trooper Varner’s testimony that Fultz allegedly said “he learned how to
cook meth in the ‘80s from an old biker friend”:
And, Your Honor, the statement that Mr. Varner made we
also object to. The first time we ever heard of this statement
where Mr. Fultz supposedly said he related that he learned how to
cook meth in the ‘80s from an old biker friend, that was only in
this report as well. We have never heard that statement before
either. So both that statement and the statement that he related
that all the stuff was his are the two items of new information that
we were previously unaware of. And if the [c]ourt is inclined to
issue a corrective instruction to the jury, we would request that it
be made on both of those statements.
Id. at 51-52. The trial court overruled the objection because “[i]t wasn’t
objected to at the time.” Id. at 54. However, when the jury returned, the trial
court gave the following curative instruction:
Ladies and gentlemen of the jury, we had discussed some
things with regard to the previous testimony. So what I will
instruct you on is the last portion of Trooper Varner’s testimony
indicated that Mr. Fultz made a statement that, quote, all items
belonged to me. That was contained in a supplemental report that
the Commonwealth did not know existed, defense counsel didn’t
know existed until the day of trial.
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So with regard to that supplemental report, I’m just advising
you you can’t take that statement into consideration as far as
testimony or evidence here today with regard to the charges
against Mr. Fultz. Do you understand that?
Id. at 56.
The jury found Fultz guilty of the above-referenced charges and the trial
court subsequently sentenced him. This timely appeal followed.
On appeal, Fultz raises the following issues:
I. Whether the trial court erred when it denied [Fultz’s] motion
for mistrial after Trooper Shane Varner testified that [Fultz]
had admitted that all items related to the manufacture of
methamphetamine belonged to him and that this alleged
statement was contained in a supplemental police report
and the alleged inculpatory statement(s) therein were never
provided to the defense prior to trial in violation of Brady
v. Maryland and Pa.R.Crim.P. 573(B)?
II. Whether the trial court erred when it denied [Fultz’s]
request for curative instruction or corrective statement
concerning Trooper Varner’s testimony that [Fultz] told
Varner a biker friend had taught him to cook
methamphetamine in the 1980’s?
Fultz’s Br. at 7.
We review the grant or denial of a motion for a mistrial for an abuse of
discretion as “[t]he trial court is in the best position to assess the effect of an
allegedly prejudicial statement on the jury.” Commonwealth v. Simpson,
754 A.2d 1264, 1272 (Pa. 2000). “An abuse of discretion may not be found
merely because an appellate court might have reached a different conclusion,
but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous.”
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Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (citation
omitted).
A mistrial is appropriate “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.” Simpson, 754 A.2d at 1272. Thus, “a mistrial is not necessary where
cautionary instructions are adequate to overcome any possible prejudice.” Id.
Fultz claims that a mistrial was necessary because of the
Commonwealth’s alleged violation of Brady and Rule 573(B)(1), in failing to
provide the supplemental report. Fultz candidly admits that Brady does not
warrant relief for this claim since Brady concerns “the withholding of
exculpatory or potentially exculpatory evidence by the prosecution.” Fultz’s
Br. at 18. Nevertheless, he maintains “[n]o curative instruction could possibly
mitigate the prejudicial effect of the statement that was improperly introduced
by Trooper Varner . . . particularly where the curative instruction in this
particular case likely had the effect of reinforcing the substance of Trooper
Varner’s testimony.” Fultz’s Br. at 21.
A defendant establishes a Brady violation where he or she
demonstrates “that exculpatory or impeaching evidence, favorable to the
defense, was suppressed by the prosecution, to the prejudice of the
defendant.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008).
Prejudice occurs in the Brady context if “the evidence suppressed [is] material
to guilt or punishment.” Id.-5-
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Pennsylvania Rule of Criminal Procedure 573(B)(1) reads:
In all court cases, on request by the defendant, and subject to any
protective order which the Commonwealth might obtain under this
rule, the Commonwealth shall disclose to the defendant’s attorney
all of the following requested items or information, provided they
are material to the instant case. The Commonwealth shall, when
applicable, permit the defendant’s attorney to inspect and copy or
photograph such items.
Pa.R.Crim.P. 573(B)(1).
Here, the trial court concluded that a Brady violation did not exist and
therefore a mistrial was not appropriate. It stated:
Nothing was presented to this Court, either on the day of trial or
since the day of trial, to indicate the supplemental report
contained any information favorable to [Fultz] either because it
was exculpatory or because it could have been used for
impeachment purposes. The only information presented to this
Court regarding the supplemental report was that it contained an
inculpatory statement made by [Fultz].
Moreover, this [c]ourt cannot say the Commonwealth’s
failure to disclose the supplemental report amounts to a Brady
violation as no argument was offered to prove that the evidence
was material to [Fultz’s] guilt or innocence. Material requires more
than a mere possibility that the disclosed information might have
helped the defense or affected the outcome of the trial. In [Fultz’s]
case, had the alleged inculpatory statement not been raised in
Trooper Varner’s cross-examination, there would still have been
sufficient evidence for a reasonable jury to return a verdict of
guilty on the crimes charged.
Trial Court 1925(a) Opinion (“TCO”), filed May 1, 2018, at 2-3 (unpaginated).
The court also concluded that it addressed any issue by giving a curative
instruction pursuant to Rule 573(E), which reads:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with
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this rule, the court may order such party to permit discovery or
inspection, may grant a continuance, or may prohibit such party
from introducing evidence not disclosed, other than testimony of
the defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E).
The court’s reasoning is supported by the record and does not misapply
the law. No relief is due under Brady because Fultz failed to demonstrate that
the report contained exculpatory or impeaching evidence. Additionally, the
curative instruction given adequately addressed any prejudice that resulted
from Trooper Varner’s testimony. The instruction told the jury to disregard
Trooper Varner’s testimony. As such, we conclude that the trial court did not
abuse its discretion.
Next, Fultz maintains that the trial court erred when it denied his request
for a curative instruction regarding Trooper Varner’s testimony that Fultz
learned the process of cooking methamphetamines from a biker. The
Commonwealth argues that Fultz has waived this issue because he did not
object to the testimony. However, Fultz argues that “[t]here was no basis for
an objection at the time of Varner’s testimony on direct examination.” Fultz’s
Br. at 24.
In addressing this issue, the trial court stated the following:
This [c]ourt first notes that an objection was not raised by [Fultz]
at the time Trooper Varner initially made the statement in
question. Further, it was the discretion of this [c]ourt that a
curative instruction was not necessary following Trooper Varner’s
testimony as the statement in question indicated only that [Fultz]
was once told how to produce methamphetamine. The statement
was not an admission that he had even manufactured
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methamphetamine or that he currently was manufacturing
methamphetamine. Therefore, it is the opinion of this [c]ourt that
the statement was not so inflammatory or prejudicial so as to
render the jury incapable of returning a fair verdict.
TCO at 5 (unpaginated). We agree with the reasoning of the trial court.
“[I]t is within the sound discretion of the trial court to determine
whether a curative instruction is necessary.” Commonwealth v. Sanchez,
82 A.3d 943, 982 (Pa. 2013). “The purpose of contemporaneous objection
requirements respecting trial-related issues is to allow the court to take
corrective measures and, thereby, to conserve limited judicial resources.”
Commonwealth v. Sanchez, 36 A.3d 24, 42 (Pa. 2011).
While Fultz raised an objection to the testimony later in the proceeding,
he lodged no objection at the time of the testimony; he therefore waived this
issue for appellate review. See Commonwealth v. Griffin, 412 A.2d 897,
901 (Pa.Super. 1979) (stating that crux of waiver doctrine is that issues not
raised below in a timely manner are “foreclosed for purposes of appellate
review” and “in a timely manner requires contemporaneous objection”); see
also Pa.R.A.P. 302(a) (issues not raised below may not be raised for the first
time on appeal).
Even if Fultz had properly preserved this issue, we would conclude that
it lacks merit. As the trial court pointed out, Trooper Varner’s testimony “was
not an admission that [Fultz] had ever manufactured methamphetamine or
that he currently was manufacturing methamphetamine.” TCO at 5
(unpaginated). As such, we conclude that the trial court did not abuse its
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discretion by denying Fultz request for a curative instruction. Therefore, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/05/2019
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