Commonwealth v. Culver

51 A.3d 866

2012 PA Super 172

COMMONWEALTH of Pennsylvania, Appellant, No. 1803 WDA 2010,

v.Ryan CULVER, Appellee.

Commonwealth of Pennsylvania, Appellee

v.Ryan S. Culver, Appellant, No. 1821 WDA 2010.

Superior Court of Pennsylvania.

Argued May 15, 2012.

Filed Aug. 21, 2012.

James P. Carbone, Assistant District Attorney, Franklin, for Commonwealth.

Blair H. Hindman, Clarion, for Culver.

BEFORE: MUSMANNO, J., BENDER, J., and STRASSBURGER^*, J.

OPINION BY BENDER, J.:

The Commonwealth, Appellant/Cross–Appellee, appeals from the trial court's order in arrest of judgment, which granted a new trial due to prosecutorial misconduct. Ryan Culver (“Culver”), Appellee/Cross–Appellant, appeals from the trial court's contemporaneous order denying preclusion of retrial based upon double jeopardy grounds. After careful review, we affirm both orders.

The facts underlying Culver's conviction are not germane to the disposition of the instant appeal, however, a brief summary of the facts follows in order to provide context to the prosecutorial misconduct claims.

On January 17, 2008 at approximately 7:30 p.m., a one-year-old male infant, B.C., suffered severe head and facial injuries while in Culver's care. S.F., B.C.'s mother, left B.C. in Culver's care for about fifteen minutes while she made a phone call from a neighboring apartment. There was no evidence of any injury to B.C. when S.F. left B.C. with Culver. When S.F. returned to the apartment 15 minutes later, however, she found B.C. on the floor in the living room with a washcloth inserted into his bleeding mouth. An ashtray was lying next to him. Culver claimed that B.C. had fallen off a stool, hit a nearby table, and then struck the floor. Culver said the ashtray had been knocked off the table and then fell onto B.C., striking his head. During the ensuing six hours, B.C.'s condition deteriorated; he was observed to be lethargic, had staring episodes, and appeared to be more off-balance than usual. Finally, B.C. was taken to the hospital in the early morning hours of January 18, 2008.

At the hospital, the treating emergency room physician, Dr. Randy Boggess, found that B.C. had suffered a myriad of injuries, the least of which were numerous cuts and bruises to his mouth, face, and head. The most serious injury discovered was an occipital skull fracture. Dr. Boggess testified that such an injury required a significant application of force, and he did not believe that the injury was consistent with Culver's version of events. Furthermore, Dr. Boggess testified that the numerous cuts and bruises on various parts of B.C.'s head and face were also not consistent with Culver's story of how B.C. came to be injured.

Following the initial examination, B.C. was then transported to Children's Hospital. Once there, he was examined by Dr. Janet Squires, a child abuse consultant. She found that B.C.'s injuries were far more consistent with abuse rather than with an accidental fall. She determined that B.C. had suffered a minimum of four distinct impacts to the face, in addition to the impact that injured the back of his skull. Of particular note was the injury to the frenulum, the thin bridge of tissue that connects the gum to the upper lip. She indicated that such an injury was unlikely to have been cause by accident and was instead highly suggestive of physical abuse.

As the investigation continued, Culver's account of the events causing B.C.'s injuries changed, including Culver's account of his own involvement in causing the injuries. State Trooper Mark Russo (Russo) testified that on July 1, 2008, Culver told him that he (Culver) had been playing with B.C. by lifting B.C. up by his arms and swinging him around in a circular motion. Culver said he then lost his grip, causing B.C. to slip through his hands and crash into a table and stool on his way to the ground.

Culver admitted to Russo that his initial account of events was fabricated. He told Russo that he placed the ashtray next to B.C. in order to make it look like it had fallen off the table onto B.C. Culver said he staged the scene to cover up his own involvement in causing B.C.'s injuries, and to substantiate the injury to B.C.'s skull. Culver said he had been using prescription medications recreationally, and that he was fearful that S.F. would think ill of him if he revealed the real cause of B.C.'s injuries. He also told Russo he had been worried because he feared getting into trouble with authorities due to his use of someone else's prescription medication. This version of events, including Culver's admission that he had lied previously about the real cause of B.C.'s injuries, was memorialized in a statement that was ultimately admitted into evidence.

After a four day trial that ended on March 19, 2010, Culver was convicted of aggravated assault and endangering the welfare of children.¹ On May 25, 2010, Culver was sentenced to a mandatory term of 5–10 years' incarceration for aggravated assault, and a consecutive term of 5 years' probation for endangering the welfare of children. Culver filed timely post-sentence motions on June 4, 2010.

In his post-sentence motions, Culver sought arrest of judgment premised upon a claim of prosecutorial misconduct.² The trial court held a hearing on the post-sentence motions on September 9, 2010, at which time additional testimony was received by the court. On October 25, 2010, the trial court issued an order and supporting opinion granting Culver a new trial due to prosecutorial misconduct. The trial court also denied Culver's double jeopardy claim to preclude retrial.

The Commonwealth appealed the order granting a new trial, and Culver appealed the double jeopardy determination. In the Commonwealth's appeal, the Commonwealth raises several related claims that collectively assert that the trial court abused its discretion, or otherwise committed errors of law, when it granted Culver's post-sentence motion for arrest of judgment based upon prosecutorial misconduct. The Commonwealth contends that certain alleged acts of misconduct did not occur, that those acts of misconduct that might have occurred were nonetheless cured by cautionary instructions given to the jury, that particular misconduct claims had been waived by Culver and that, ultimately, the purported acts of prosecutorial misconduct did not, individually or collectively, deprive Culver of a fair trial. In Culver's appeal, he claims that retrial is barred by application of his double jeopardy rights because he alleges that the prosecutor intentionally engaged in misconduct for the purpose of denying him a fair trial. We will address the Commonwealth's appeal first.

Procedural Misconduct

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. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, ... assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with [the] law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.

Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa.Super.2008) (internal citations and quotation marks omitted) rev'd on other grounds,604 Pa. 437, 986 A.2d 114 (2009). Thus, we review the trial court's determination that a new trial was warranted due to prosecutorial misconduct for abuse of discretion. We cannot reverse that judgment unless it is clear that the trial court misapplied the law or acted unreasonably in the exercise of its discretion.

In its opinion, the trial court found several instances of prosecutorial misconduct that the court concluded had collectively contributed to its finding that Culver had been prejudiced to the point where he had been deprived of a fair and impartial trial. First, “[d]espite instruction by the Court to cease doing so [during both opening and closing arguments], the [prosecutor] continued to physically intimidate the Defendant during his closing argument by invading the personal space of the Defendant and his attorney by pointing his finger in their faces.” Trial Court Opinion (T.C.O.), 1/5/11, at 17. Contributing to this finding was the fact that the prosecutor “was yelling and menacing as he repeatedly put his finger in the faces of the Defendant and defense counsel.” Id. at 18.

Second, the trial court found that the prosecutor made a series of statements asserting his personal beliefs during closing arguments. Specifically, the prosecutor told the jury that Culver was “the most unreliable historian we're ever going to meet[,]” “probably the most unreliable, unbelievable person that you are ever going to come across[,]” and that Culver was “lying, lying, lying, lying, and lying.” Id. at 18 (citing N.T., 3/19/10, at 109, 140, 141). The prosecutor also told the jury during closing arguments that Culver was “somewhat the compulsive or pathological liar....” N.T., 3/19/10, at 115.

Third, the trial court found that the prosecutor told the jury during opening argument that certain evidence would be presented that, it would later be revealed, did not exist. The prosecutor stated during...