Com. v. Kovatto, N. ( 2018 )


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  • J-S14028-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
    :
    :
    v.                             :
    :
    :
    NICHOLAS C. KOVATTO,                       :
    :   No. 2059 EDA 2017
    Appellant               :
    Appeal from the Judgment of Sentence May 25, 2017
    In the Court of Common Pleas of Bucks County Criminal Division at
    No(s): CP-09-CR-0000450-2016
    BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.
    MEMORANDUM BY McLAUGHLIN, J.:                               FILED MAY 11, 2018
    Nicholas C. Kovatto appeals from the judgment of sentence entered
    following his jury trial convictions for homicide, possession of a controlled
    substance with intent to deliver, persons not to possess firearms, and three
    counts each of receiving stolen property and possessing instruments of crime.1
    Kovatto claims the trial court erred in denying his motion to sever the firearm
    and drug charges from the homicide charge and in denying his motion for a
    mistrial after the Commonwealth presented evidence of his pre-arrest silence.
    We affirm.
    ____________________________________________
    *    Retired Senior Judge assigned to the Superior Court.
    1 18 Pa.C.S.A. § 2501(a), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§
    6105(a)(1), 3925(a), and 907(a), respectively.
    J-S14028-18
    The trial court set forth the facts and procedural history, which we adopt
    and incorporate herein. Trial Court Opinion, filed Sept. 21, 2017, at 1-7.2
    Kovatto raises the following issues on appeal:
    A. Did the trial court err in denying [Kovatto’s] motion for
    severance of the gun and drug charges from the homicide
    charge filed against him?
    B. Did the trial court err in denying [Kovatto’s] motion for a
    mistrial when the Commonwealth presented evidence in
    which [Kovatto] exercised his Fifth Amendment right to
    remain silent?
    Kovatto’s Br. at 4 (unnecessary capitalization and trial court answers omitted).
    Kovatto first maintains the trial court erred in denying his motion to
    sever the firearm and drug charges from the homicide charge. He argues that
    the Commonwealth presented no evidence that the victim owed Kovatto
    money or that the victim used drugs. Consolidating the charges forced Kovatto
    to explain why the drugs had no connection to the homicide. He further argues
    there was no evidence that he possessed the firearm found at the location of
    the homicide. Although acknowledging that one of the guns found at his
    residence was stolen at the same time as the firearm used in the homicide,
    he claims that allowing evidence of the firearms found at his residence forced
    him to “explain possession of guns that had no connection with the homicide.”
    Kovatto’s Br. at 13. He claims that the jury was “left to speculate” that he
    ____________________________________________
    2 The trial court opinion cites the March 16, 2017 transcript to support that it
    received evidence of Kovatto’s prior conviction and found him guilty of persons
    not to possess firearms. This, however, occurred on March 20, 2017. N.T.,
    3/20/17, at 115-16.
    -2-
    J-S14028-18
    owned the firearm found on the property because “if you have one gun you
    must have others.” 
    Id. A motion
    to sever “is addressed to the sound discretion of the trial
    court.” Commonwealth v. Melendez-Rodriguez, 
    856 A.2d 1278
    , 1282
    (Pa.Super. 2004) (en banc) (quoting Commonwealth v. Jones, 
    610 A.2d 931
    , 936 (Pa. 1992)). Pennsylvania Rule of Criminal Procedure 583 governs
    severance of offenses and provides that “[t]he court may order separate trials
    of offenses . . . if it appears that any party may be prejudiced by offenses . .
    . being tried together.” Pa.R.Crim.P. 583. When addressing a motion to sever,
    courts must determine “[1] whether the evidence of each of the offenses
    would be admissible in a separate trial for the other; [2] whether such
    evidence is capable of separation by the jury so as to avoid danger of
    confusion; and, if the answers to these inquiries are in the affirmative, [3]
    whether the defendant will be unduly prejudiced by the consolidation of
    offenses.”     
    Melendez-Rodriguez, 856 A.2d at 128s
      (quoting
    Commonwealth v. Collins, 
    703 A.2d 418
    , 422 (Pa. 1997)) (alterations in
    original).
    We conclude the trial court did not abuse its discretion in denying the
    motion to sever the firearm and drug charges from the homicide charge. The
    trial court found that the motion was meritless,3 reasoning that the evidence
    ____________________________________________
    3 In its Pennsylvania Rule Of Appellate Procedure 1925(a) opinion, the trial
    court concluded that Kovatto waived his motion to sever by not including it in
    -3-
    J-S14028-18
    of the drug-related offenses were admissible in the homicide trial because the
    evidence “sheds light on [Kovatto’s] possible motive,” and the drug and
    firearm-related     evidence     was    admissible   to   demonstrate   the   natural
    development of the facts. Trial Ct. Op. at 9. The trial court noted the offenses
    were linked because one of the firearms located in Kovatto’s residence and
    the firearm used in the homicide had been stolen at the same. 
    Id. at 9.
    The
    trial court further found that the jury was able to separate the homicide charge
    from the firearm and drug charges, noting the Commonwealth presented
    evidence of each crime separately and the court issued separate instructions
    for each crime. 
    Id. at 9-10.
    Further, the trial court found Kovatto did not suffer
    prejudice. 
    Id. at 10.
    After review of the record, the parties’ briefs, and the
    relevant law, we affirm on the basis of the well-reasoned opinion of the
    Honorable Jeffrey L. Finley, which we incorporate herein. 
    Id. at 7-10.
    Kovatto next claims the trial court erred in denying his motion for
    mistrial based on the presentation of evidence that Kovatto had exercised his
    Fifth Amendment right to remain silent. He maintains that the Commonwealth
    presented the testimony of Officer Matthew Mergen that Kovatto said he was
    “done” talking to establish that Kovatto had something to hide, “thereby
    influencing the jury to think he was hiding his role in the killing.” Kovatto’s Br.
    at 15.He argues that the trial court offered to issue a cautionary instruction,
    ____________________________________________
    his omnibus pre-trial motion and addressed the merits. Trial Ct. Op. at 8. At
    the time of the hearing, the trial court stated it denied the motion on the
    merits. N.T., 3/13/17, at 6-7.
    -4-
    J-S14028-18
    while noting it would bring the comment more attention, and instructed the
    Commonwealth to skip the portion of the video in which Kovatto stated he
    was “done.” 
    Id. Kovatto maintains
    the trial court’s statements prove the court
    “had concern over the impact the statement would have on the jury.” 
    Id. Because “[t]he
    trial court is in the best position to assess the effect of
    an allegedly prejudicial statement on the jury,” we review a trial court’s
    decision to grant or deny a motion for a mistrial for an abuse of discretion.
    Commonwealth v. Rega, 
    933 A.2d 997
    , 1016 (Pa. 2007) (quoting
    Commonwealth v. Simpson, 
    754 A.2d 1264
    , 1272 (Pa. 2000)). A trial court
    should grant a mistrial 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.” 
    Id. (quoting Simpson,
    754 A.2d at 1272).4
    The trial court denied the motion for a mistrial, noting that the “‘mere
    revelation of a defendant’s pre-arrest silence does not establish innate
    prejudice [where] it was not used in any fashion that was likely to burden
    defendant’s Fifth Amendment right’ or create an inference of guilt.” Trial Ct.
    Op. at 13 (quoting Commonwealth v. Adams, 
    39 A.3d 310
    , 318 (Pa.Super.
    2012)) (alteration in original). It reasoned that the Commonwealth offered the
    reference to Kovatto’s silence “for the narrow purpose of describing the extent
    ____________________________________________
    4 The Commonwealth argues the claim is waived. We, however, decline to find
    waiver. Kovatto made a motion for mistrial close in time to the challenged
    testimony and prior to the video, which would have repeated the testimony,
    and the trial court addressed the merits of the motion.
    -5-
    J-S14028-18
    and focus of [the] investigation, rather than substantive evidence of guilt.”
    
    Id. at 14.
    It, therefore, concluded the reference did not violate Kovatto’s Fifth
    Amendment right. We agree and conclude the trial court did not abuse its
    discretion in denying the motion for mistrial. After review of the record, the
    parties’ briefs, and the relevant law, we affirm on the basis of the well-
    reasoned opinion of the Honorable Jeffrey L. Finley, which we incorporate
    herein. 
    Id. at 10-14.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/11/18
    -6-
    Circulated 04/18/2018 03:33 PM
    IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
    CRIMINAL DIVISION
    COMMONWEALTH OF PENNSYLVANIA                                                       opTlONAL
    No. CP-09-CR-0000450-2016
    NICHOLAS KOVATTO
    OPINION
    Nicholas Kovatto ("Appellant") appeals to the Superior Court of Pennsylvania following
    his conviction on March 20, 2017 and sentencing on May 24, 2017. Pursuant to Pennsylvania
    Rule of Appellate Procedure 1925(a), we file this Opinion in support of the Court's ruling.
    1.     FACTUAL AND PROCEDURAL HISTORY
    On November 1 3, 2015, at approximately 5:30 p.m., Appellant arrived at the residence of
    his friend, James Cressman. l N.T., 3/15/17, p. 130. Mr. Cressman resides at 160 Richlandtown
    Pike, Richland Township, Bucks County. 
    Id. at 126.
    Mr. Cressman's property contains two single
    family residences and multiple sheds. N.T., 3/16/17, p. 121. One of these sheds is referred to as
    the "Tiki Bar." 
    Id. at 11,
    122. Located in front of the Tiki Bar is a parking area where several motor
    vehicles were parked on the evening of November 13, 2015. Id- at 123.
    Approximately ten to fifteen minutes after Appellant arrived at Mr. Cressman's
    residence, Appellant and Mr. Cressman entered one of the sheds, where they talked, consumed
    beer, and smoked marijuana. N.T., 3/15/17, p. 131-32, 134. While still inside the shed,
    Appellant and Mr. Cressman heard a motor vehicle approaching the residence. 
    Id. at 132.
    Mr.
    I
    Although Mr. Cressman resides at 160 Richlandtown Pike, the property is actually owned by Mr.
    Cressman's girlfriend. However, this Court will refer to the property as that of Mr. Cressman's for
    purposes of clarity and ease of reference.
    1
    Cressman looked out of the shed and noticed his friend, Eric Kramer, ("the victim") getting out
    of the vehicle. 
    Id. at 134.
    Mr. Cressman yelled out to the victim that they were "out in the shed".
    
    Id. Defendant and
    the victim were acquaintances who were known to argue "a lot . .
    about money". N.T., 3/17/17, p. 23. The last few times Defendant and the victim saw each other,
    Mr. Cressman noticed "nit-picking" between the two men. N.T., 3/15/1 7, p. 178.
    As the victim was walking up the driveway towards the shed, Appellant exited the shed
    and collided with the victim. 
    Id. at 134-35.
    -Mr. Cressman remained inside the shed where he
    heard a brief scuffle between the two men followed by three popping sounds. 
    Id. at 135,
    162.
    Mr. Cressman then looked out of the shed and observed the victim laying on the ground. 
    Id. at 135.
    Appellant was standing over the victim. N.T., 3/15/17, p. 135. Mr. Cressman heard another
    "pop" and saw a flash of light. 
    Id. Mr. Cressman
    fled to the edge of the property and continued
    running through the woods away from the property. Id, at 135-36.
    Mr. Cressman called his girlfriend, Cristine Johnson, to tell her that "Nicky shot Eric"
    and that "Eric is dead". N.T., 3/16/17, pp. 7-8. Ms. Johnson urged Mr. Cressman to call 911 to
    report the shooting. 
    Id. at 9.
    Mr. Cressman first called his friend, Charles Wrecsics, who lives
    down the street, to ask him to pick him up. N.T. 3/15/17, p. 140. Mr. Wrecsics picked Mr.
    Cressman up and drove towards Mr. Wrecsics's home. 
    Id. Mr. Cressman
    then called 911 and
    "told them everything." 
    Id. at 142.
    Two 911 calls were received by Bucks County Emergency Communications on the
    evening of November 13, 2015. N.T. 3/15/17, p. 28. The first call was made by Carol Walch, a
    friend of Ms. Johnson, at 6:32 p.m. See Commonwealth's Exhibit C-10. Ms. Walch relayed to the
    dispatcher that a shooting occurred at 160 Richlandtown Pike and that the shooter was "Nick
    Kavoco" [sic]. See Commonwealth's Exhibit C-10. The second call was made by Mr. Cressman
    at 6:37 p.m. N.T., 3/15/17,p. 101.
    2
    Following the first 911 call, Officer John Burke and Officer Matthew Mergen of the
    Richland Township Police Department were dispatched to 160 Richlandtown Pike. 
    Id. at 40.
    Upon arriving at the residence, the officers parked their respective vehicles at the end of the
    driveway. 
    Id. at 46.
    The property was very dark with no street lights to illuminate the area.
    
    Id. Officer Mergen
    approached the property from the left and used a flashlight intermittently to
    illuminate the area. N.T. 3/15/17, p. 51. Upon approaching the residence, Officer Burke
    noticed movement inside the Tiki Bar. 
    Id. at 112.
    Officer Burke identified himself as a police
    officer and instructed the person, later identified as Appellant, to exit the Tiki Bar. 
    Id. Officer Burke
    approached Appellant and engaged him in conversation in an attempt to
    find out what had occurred on the property earlier in the evening. 
    Id. at 114.
    Officer Mergen
    made his way towards the Tiki Bar and joined Appellant and Officer Burke. N.T., 3/15/17, p.
    52. Officer Burke patted Appellant down for officer safety and found no weapons. 
    Id. at 98,
    115. Officer Burke directed Appellant to sit down in a nearby chair. 
    Id. at 52.
    Appellant
    remained seated and smoked a cigarette and drank a beer throughout the conversation. Id, at 55.
    Appellant expressed that he was not sure why the police were called to the property and stated
    to the officers that they "were not really needed here." N.T., 3/15/17, pp. 54, 114.
    Officer Mergen informed Appellant he was being audio and video recorded on Officer
    Mergen's mobile video recorder. 
    Id. at 54.
    At this point, Appellant became unwilling to
    cooperate verbally. 
    Id. However, upon
    request by Officer Mergen, Appellant provided his
    driver's license as photo identification. 
    Id. The driver's
    license displayed the name Nicholas
    Kovatto, the named shooter in the911 call. N.T. 3/15/17, p. 54. Officer Mergen asked Appellant
    whether the address listed on his driver's license was an accurate address. 
    Id. 3 Appellant
    told Officer Mergen that he was "done" talking to the officers. 
    Id. Officer Bryan
    Lockwood of the Quakertown Borough Police Department broadcasted via
    police radio that he was on the phone with Mr. Cressman, who stated that the victim's body was
    located near a shed and that Mr. Cressman observed the shooting. 
    Id. at 55-56.
    Officer Mergen
    then informed Appellant that he was going to detain him and placed Appellant in handcuffs.
    N.T., 3/15/17, p. 56. Officer Burke continued to survey the property and located the victim less
    than one minute later laying between two vehicles outside the shed. 
    Id. at 56.
    The victim was
    deceased. 
    Id. at 117.
    Appellant was taken into custody and transported to the Richland             Police
    Department. 
    Id. at 81.
    The clothing Appellant was wearing, including a hooded sweatshirt, dark-
    colored work pants, and apair of boots was removed and placed into evidence bags. N.T.,
    3/17/17, p. 81. The right boot contained a dried blood stain. 
    Id. at 151.
    The hooded sweatshirt
    and right boot were sent for DNA analysis, along with a buccal swab obtained from Appellant
    and a dried blood sample from the victim. 
    Id. at 166.
    The blood on Appellant's right boot was
    determined to be that of the victim. 
    Id. at 169.
    Dr. Ian Hood, accepted as an expert witness in forensic pathology on behalf of the
    Commonwealth, conducted an autopsy of the victim and subsequently prepared an autopsy
    report. N.T. 3/16/17, pp. 35, 37. The victim sustained five gunshot wounds to the head. 
    Id. at 41.
    Dr. Hood determined that all oftheshots were taken within close range. 
    Id. at 55.
    Specifically, Dr. Hood testified that the shooter was as close as "a few inches away" from the
    victim and as far as a foot away. 
    Id. at 41,
    55. The bullets recovered from the victim's head were
    .22-caliber gilding metal washed bullets. N.T. 3/16/17, p. 42. A sixth bullet was recovered from
    the collar of the victim's hooded jacket. 
    Id. at 47.
    4
    On November 15, 2015, a search warrant was executed on Appellant's apartment. 
    Id. at 169-70.
    The police officers found a .32-caliber Jennings semi-automatic pistol, which had been
    reported stolen in a residential burglary in Berks County in May of 2015, a .44-caliber Smith
    and Wesson revolver, which was reported stolen in the late 1980's, and various ammunition,
    including .22-caliber ammunition that matched the bullets recovered from the victim's head. 
    Id. at 171,
    178, 181, 183, 184. Also seized from Appellant's apaflment was approximately eight
    grams of methamphetamine, a tally sheet, a digital scale, glassine baggies typically used to
    package drugs, and $1750. 
    Id. OnNovember 18,
    2015, a grid search was conducted at 160 Richlandtown Pike by the
    Philadelphia Fire and Rescue Team and the Temple University Police cadets. N.T., 3/16/17, p.
    141. A Taurus .22-caliber revolver was recovered in the woods of the property buried under a
    brick paving stone. 
    Id. at 143,
    144. The ground surrounding the brick paving stone was wet and
    muddy from precipitation that had occurred on November 13, 2015. 
    Id. at 99;
    N.T., 3/17/17, p.
    174. However, the brick paving stone was not sunken into the ground, was completely dry, and
    had dry, crumbled dirt on top of it. N.T., 3/16/17, p. 99. The revolver contained seven empty
    shell casings and two live rounds. 
    Id. at 147.
    The revolver was stolen from the same residence as
    the .32 caliber handgun found in Appellant's apartment. N.T. 3/16/17, p. 113.
    Appellant was charged with criminal homicide? possession of methamphetamine with
    intent to deliver,3 three counts of receiving stolen property,4 three counts of possessing an
    instrument of crime,5 and possession of firearm prohibited.6
    On July 7, 2016, Appellant filed an omnibus pre-trial motion. On July 22, 2016,
    Appellant filed a motion to sever the possession of firearm prohibited charge from the remaining
    charges. On August 10, 2016, the Court heard numerous pre-trial motions filed by both parties.
    5
    Appellant's Motion to Sever was granted by agreement ofthe parties. On February 23, 2017,
    Appellant filed a second motion to sever, requesting severance of the drug and gun-related
    charges from the homicide charge. On March 13, 2017, the Court denied Appellant's second
    motion to sever.
    A five-day jury trial commenced on March 13, 2017. On March 20, 2017, Appellant was
    found guilty of all counts. Immediately following the return of the verdict, Appellant waived his
    right to a jury trial on the severed charge of possession of firearm prohibited. The Court
    incotporated the testimony from the jury trial and received into evidence a certified copy of
    conviction, detailing Appellant's criminal history. N.T., 3/16/17, p. 115. Appellant was
    subsequently found guilty of the severed charge of possession of firearm prohibited. 
    Id. at 11516.
    Sentencing was deferred pending completion of a pre-sentence investigation.
    2
    18 Pa.C.S.A. § 2501(a).
    3
    35 Pa.C.S.A. §
    4
    18 Pa.C.S.A. § 3925(a).
    18 Pa.C.S.A. § 39250.
    6
    18 Pa.C.S.A. §
    On May 24, 2017, Appellant was sentenced to life imprisonment plus an aggregate term
    of fifteen (15) to thirty (30) years incarceration. On June 23, 2017, Appellant filed a notice of
    appeal. On June 26, 2017, this Court entered an order directing Appellant file a concise statement
    of errors complained of on appeal within twenty-one days.
    11.     STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
    6
    On July 12, 2017, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b),
    Appellant filed his Statement of Errors Complained of on Appeal, set forth verbatim herein:
    1. Whether the trial court erred in denying the Appellant's motion for severance of the
    gun and drug charge from the homicide charges filed against him?
    2. Whether the trial court erred in denying the Appellant's motion for a mistrial when
    the District Attorney played a video for the judge in which the Appellant exercised
    his Fifth Amendment right to remain silent?
    111. DISCUSSION
    First, Appellant contends that the Court erred by denying the motion to sever the gun and
    drug-related charges from the homicide charge. The decision whether to grant severance rests
    within the sound discretion of the court and will not be disturbed absent a manifest abuse of
    discretion. See Commonwealth v. Grillo 
    917 A.2d 343
    (Pa. Super. Ct. 2007). Pennsylvania Rule
    of Criminal Procedure 583 provides that a court may order separate trials of offenses if it appears
    that any party may be prejudiced by offenses being tried together. Pa.R.Crim.P. 583. A request
    for severance must generally be made in the omnibus pretrial motion or it is considered waived
    unless a later filing is permitted pursuant to Pennsylvania Rule of Criminal Procedure 579. see
    Pa.R.Crim.P. 578; Pa.R.Crim.P. 579.
    Where the defendant moves to sever offenses, the court must consider: (l) whether the
    evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether
    such evidence is capable of separation by the jury so as to avoid the danger of confusion; and (3)
    whether the defendant will be unduly prejudiced. See Commonwealth v. Lark, 
    543 A.2d 491
    (Pa.
    1988).
    7
    Appellant's request to sever the drug and gun-related charges from the homicide charge
    was raised for the first time in his February 22, 2017 Motion to Sever. This filing came nearly
    eight months after the filing of his omnibus pre•trial motion. Accordingly, in denying
    Appellant's Motion to Sever, the Court first found that the request for severance was waived due
    to Appellant's failure to include it in his omnibus pre-trial motion, as required by Pennsylvania
    Rule of Criminal Procedure 578. Nonetheless, the Court proceeded to analyze the Motion
    pursuant to the three-prong test applicable to requests for severance set out by the Pennsylvania
    Supreme Court.
    First, the evidence of each of the offenses would have been admissible in a separate trial
    for the others. It is well-settled that evidence of other crimes is not admissible against a defendant
    solely to show his bad character and his propensity for committing criminal acts. Commonwealth
    v. Banks 
    521 A.2d 1
    (Pa. 1987). However, evidence of other crimes may be admissible under
    particular circumstances "where the evidence is relevant for some other legitimate purpose and
    not merely to prejudice the defendant by showing him to be a person of bad character."
    Commonwealth v. Buchanan, 
    689 A.2d 930
    , 932 (Pa. Super. Ct. 1997) (citing Commonwealth
    v. Clanool, 
    495 A.2d 176
    (Pa. 1985).
    Specifically, evidence of other crimes is admissible to demonstrate (1) motive; (2) intent;
    (3) absence of mistake or accident; (4) a common scheme, plan or design; or (5) the identity of
    the person charged with the commission ofthe crime on trial. 
    Lark, 543 A.2d at 497
    .
    Additionally, evidence of other crimes may be admissible where the evidence is part of the history
    of the case and foxms part of the natural development of the facts. See 
    id. Here, the
    evidence of the drug-related offenses sheds light on Appellant's apparent motive
    in murdering the victim. On the evening of the murder, Mr. Cressman informed Officer
    Lockwood that Appellant and the victim frequently argued about money—presumably because
    8
    the victim owed Appellant money. Defense counsel even acknowledged that an argument exists
    that the drugs found in Appellant's apartment were the reason for the murder, although defense
    counsel ultimately contended that there is no factual support for such a theory. See N.T.,
    3/16/17, p. 115
    Additionally, the drug and gun-related offenses were admissible to demonstrate the
    natural development of the facts. The discovery ofthe drugs and stolen guns was a natural
    consequence of the search executed following Appellant's arrest for murder. The offenses
    therefore occurred as part of the same event.
    Furthermore, the offenses were also linked because the .32-caliber handgun found in
    Appellant's apartment after the murder was committed was stolen from the same residence at the
    same time as the murder weapon found buried on the property where the victim was murdered.
    As the Pennsylvania Supreme Court stated in Lark, Appellant "forged his linkage of events and
    he deserves to be tried jointly on them." Lark 
    543 A.2d 491
    at 500 (quoting the trial court
    opinion).
    Second, the jury was capable of separating the homicide from the gun and drug-related
    crimes. Although the circumstances surrounding the offenses formed a logical chain of events as
    discussed above, the crimes involved distinguishable acts. The homicide involved the shooting
    death of the victim whereas the remaining offenses involved Appellant' s possession of guns and
    thugs in his apartment. The Commonwealth presented evidence of each crime separately and
    called witnesses in a logical order that demonstrated that the homicide was committed and then
    the guns and drugs were subsequently found by police officers executing a search wanant on
    Appellant's apartment. Further, the crimes themselves require different elements be proven and
    9
    which clearly require independent evaluation by thejury. The Court's clear instructions to the jury
    regarding the different offenses further diminished any danger of confusion.
    Finally, Appellant did not suffer undue prejudice. "Prejudice" is not prejudice in the sense
    that the defendant will be linked to crimes for which the defendant is being prosecuted, but rather
    it is prejudice that would occur if evidence tended to convict the defendant only by showing his
    or her propensity to commit crimes or because of a jury's inability to separate evidence or to avoid
    cumulating evidence. Commonwealth v. Collins, 
    703 A.2d 418
    (Pa. 1997).
    There is clearly no such undue prejudice present in this case. The jury heard evidence of
    distinct, although interrelated, crimes that required different elements be proved and heard
    testimony from different witnesses as to each crime.
    Next, Appellant challenges the Court's denial of his Motion for Mistrial following the
    admission of testimony from Officer Matthew Mergen of the Richland Township Police
    Department mentioning Appellant's pre-arrest refusal to speak with Officer Mergen and Officer
    John Burke. Appellant argues that Officer Mergen's testimony 1 violated Appellant's right to
    remain silent pursuant to the Fifth Amendment to the Constitution of the United States.
    Appellant challenges the following testimony:
    Deputy District Attorney:       Can you just please describe to the members of the jury
    what happened as you approached [Appellant] and Officer
    Burke?
    Officer Mergen: Officer Burke was trying to glean what infomation might come from Mr.
    Kovatto. He acted as though he didn't know why we were there; he didn't know why we were
    1
    Although Appellant's second error complained of on appeal contends that the basis for Appellant's
    motion for mistrial derived from a video recording in which Appellant invoked his right to remain silent,
    a review of the transcript demonstrates that the motion for mistrial arose following Officer Mergen 's
    testimony on direct examination wherein he mentioned that Appellant did not wish to speak to the
    officers. Thus, the Court will discuss Appellant's argument as it relates to Officer Mergen's testimony
    rather than the portion ofthe video recording in which Appellant states that he is "done talking" to the
    officers because that portion was not even played in the jury's presence.
    10
    called there. He talked to us for a short time until I advised him that I was audio and video
    recording on my camera. At that point he became unwilling to cooperate verbally. I was trying to
    inquire as to what his current address was. And he had provided me his operator's license, his
    PA's operator's license. I was trying to question him as to whether that was the accurate address
    or not and he pretty much said, I'm done talking to you. Those were some of the responses that
    he had given to Officer Burke as well. Just trying to find out what was going on. N.T. 3/15/17,
    pp. 54-55.
    Defense counsel did not object to the foregoing testimony. Direct examination proceeded for a
    fewmore minutes until the Commonwealth requested to play the video recording. 
    Id. at 57-38.
    At that point, defense counsel did not object to the recording, but requested to approach the bench.
    
    Id. at 58.
    Defense counsel made an oral motion for mistrial, arguing that Officer Mergen' s
    testimony that Appellant stated that he was "done" talking to the officers amounted to
    commentary on Appellant's assertion of his Fifth Amendment right to remain silent. 
    Id. at 58-59
    The Court denied the Motion, but asked whether defense counsel wished for the Court to give a
    cautionary instruction to the jury. N.T., 3/15/17, p. 59. Defense counsel responded
    affirmatively. 
    Id. The Court
    asked for defense counsel's input as to the substance of the
    cautionary instruction, expressing the Court's concern that the insttuction may serve to further
    emphasize the statement. 
    Id. Defense counsel
    ultimately withdrew the request for a cautionary
    instruction. 
    Id. at 60.
    Immediately following this discussion at sidebar, the Commonwealth requested the video
    recording of Officer Mergen's conversation with Appellant, recorded by Officer Mergen' s
    mobile video recorder, be played for the jury. N.T., 3/15/17, pp. 57-58. Defense counsel objected
    and a second discussion regarding Appellant's statement was conducted at sidebar. rd.
    11
    at 61. The Court permitted the Commonwealth play the video. "Id. Although the Court did not
    find that Appellant's statement rose to the level of asserting his right to remain silent, the Court
    instructed the Commonwealth skip over the statement at issue in the video. 
    Id. Pennsylvania Rule
    of Criminal Procedure 605 governs mistrials and permits a defendant
    move for a mistrial when "an event prejudicial to the defendant occurs during trial".
    Pa.R.Crim.P. 605(B). Whether to grant the "extreme remedy of a misfrial" is a matter within the
    discretion of the trial court. Commonwealth v. Boczkowski, 
    846 A.2d 75
    , 94-95 (Pa. 2004). "A
    trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said
    to deprive the defendant of a fair and impartial trial." Commonwealth v. Jones, 
    668 A.2d 491
    ,
    502-04 (Pa. 1995), cert. denied, 
    519 U.S. 826
    (1996).
    Both the Fifth Amendment to the United States Constitution and Article l, Section 9 of
    the Pennsylvania Constitution protect an individual's right not to be compelled to be a witness
    against himself. See U.S. Const. amend. V; Pa. Const. artl I, § 9. This privilege protects an
    individual from being compelled to speak before arrest. Commonwealth v. Molina 
    33 A.3d 51
    ,
    57 (Pa. Super. Ct. 2011). Further, the Commonwealth is prohibited from using a "non-testifying
    defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime
    charged as such use infringes on a defendant's right to be free from self-incrimination." 
    Id. at 62.
    Nonetheless, this rule does not prohibit any mention of a defendant's silence, but rather,
    "guards against the exploitation" of a defendant's right to remain silent. Commonwealth v.
    Adams 
    39 A.3d 310
    , 318 (Pa. Super. Ct. 2012). Accordingly, the "mere revelation of a
    defendant's pre-arrest silence does not establish innate prejudice [where] it was not used in any
    fashion that was likely to burden defendant's Fifth Amendment right" or create an inference of
    guilt. 
    Id. (quoting MQJju,
    33 A.3d at 56).
    12
    In Molina, the Pennsylvania Superior Court found that the defendant' s right to remain
    silent was not violated where the detective who investigated the defendant' s potential
    involvement in the disappearance of another person testified that the defendant had refused to
    meet the detective at police headquarters to discuss the matter. 
    Molina, 33 A.3d at 54
    , 56. The
    Court reasoned that defendant's right to remain silent was not violated because this "testimony
    was originally offered to denote the extent and focus ofthe police investigation". 
    Id. at 56.
    Further, the reference to the defendant's silence was not "used in any fashion that was likely to
    burden [the defendant's] Fifth Amendment right or to create an inference of an admission of
    guilt." 
    Id. Similarly, in
    Commonwealth v. Guess, 
    53 A.3d 895
    (Pa. Super. Ct. 2012), a detective's
    reference during direct examination to the defendant's pre-arrest silence did not violate the
    defendant's right to remain silent because his silence was not offered as substantive evidence of
    guilt. 
    Guess 53 A.3d at 905
    . In Guess the detective was dispatched to the report of a burglary in
    progress. 
    Id. at 898.
    Upon his arrival, he encountered two males in the parking lot that fit the
    description of the suspects that had been provided to him, 
    Id. The detective
    identified himself
    and inquired whether the two men lived on the premises. 
    Id. The two
    men responded that they
    did not live there, but were visiting a friend. 
    Guess 53 A.3d at 898
    . Then asked to provide the
    name of the friend, the two men did not respond. 
    Id. At trial,
    the detective referenced this
    prearrest silence during direct examination. 
    Id. Here, similar
    to Molina and Guess, Officer Mergen's reference to Appellant's silence was
    offered for the narrow purpose of describing the extent and focus of his investigation, rather than
    as substantive evidence of guilt. Officer Mergen's reference to Appellant's silence was limited to
    13
    describing he and Officer Burke's encounter with Appellant and the steps he took in conducting
    his investigation. Thus, this reference did not violate Appellant's right to remain
    silent. Additionally, because the mere revelation of pre-arrest silence does not establish innate
    prejudice, this Court did not abuse its discretion in finding that Appellant did not suffer such
    prejudice that would deprive him of a fair and impartial trial. Accordingly, the Court properly
    denied Appellant's Motion for Mistrial.
    IV. CONCLUSION
    For the foregoing reasons, this Court perceives that the issues of which Appellant has
    complained in this appeal are without merit.
    BY THE COURT:
    LEY, P.J.
    DATE:                  2112011
    14
    COMMONWEALTH VS. NICHOLAS KOVATTO
    No. CP-09-CR-0000450-2016
    Copies Sent To:
    Monica Furber, Esquire
    District Attorney's Office
    100 North Main Street
    Doylestown, PA 18901
    Attorneyfor the Commonwealth
    Joseph Haag, Esquire
    Public Defender's Office
    100 North Main Street
    Doylestown, PA 18901
    AND
    Nathan Criste, Esquire
    Public Defender's Office
    100 North Main Street
    Doylestown, PA 18901
    Attorneyfor the Defendant