Opinion
J-S44038-16 No. 1873 EDA 2015
08-16-2016
COMMONWEALTH OF PENNSYLVANIA v. JABREE McCREADY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 13, 2015 in the Court of Common Pleas of Delaware County, Criminal Division, No(s): CP-23-CR-0007891-2012 BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jabree McCready ("McCready") appeals from the judgment of sentence imposed following his conviction of third-degree murder. We affirm.
On May 29, 2012, police officers responded to a call at McCready's home. Upon arrival at the home, the police heard a crash. As a result, the police entered the home to investigate and found McCready sobbing, surrounded by broken glass. McCready told police that his mother was upstairs. The police found an upstairs bedroom in disarray. The upstairs bathroom door was locked, but an officer kicked the door open, and found the body of McCready's mother in the bathtub. She appeared to have died from stab wounds a few days prior, as the body was deteriorating. McCready later told the police that he had stabbed his mother because he thought she was going to steal his social security money.
McCready was charged with first- and third-degree murder and voluntary manslaughter. McCready filed a "Notice of Intention to Offer Defenses of Insanity or Mental Infirmity" on October 4, 2013, which stated that he suffered from Schizoaffective Disorder. On October 9, 2014, McCready filed a Motion to Dismiss pursuant to Pa.R.Crim.P. 600 for failure to begin trial within 365 days of the Complaint's filing. The trial court denied the Motion.
A jury trial was held with experts testifying regarding the crime scene as well as McCready's mental capacity. After one such expert, McCready filed a Motion for a Mistrial. The trial court denied the Motion. The jury ultimately convicted McCready of third-degree murder. The trial court imposed a sentence of 20 to 40 years. McCready was also ordered to participate in any programs available for mental health treatment. McCready filed a Post-Sentence Motion, which the trial court denied. McCready filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
McCready raises the following question for our review: "Whether the trial court erred in denying [McCready's] Motion for a Mistrial[,] after the Commonwealth elicited highly prejudicial testimony without providing prior notice to [McCready] of the potential testimony[?]" Brief for Appellant at 3.
Our standard of review in assessing the denial of a mistrial is as follows:
The trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the grant or denial of a mistrial will not be overturned absent an abuse of discretion. A mistrial 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). Moreover,
an abuse of discretion is not simply an error of judgment but an overriding or misapplication of the law. Further, an abuse of discretion will be found if the trial court's judgment was manifestly unreasonable or the result of partiality, prejudice, bias, or ill will as shown by the evidence of record.Commonwealth v. Benson , 10 A.3d 1268, 1274 (Pa. Super. 2010) (citations and internal quotations omitted). Finally, "[a] mistrial is an extreme remedy that is required only where the challenged event deprived the accused of a fair and impartial trial." Commonwealth v. Travaglia , 28 A.3d 868, 879 (Pa. 2011).
"[I]n order to preserve a claim on appeal, a party must lodge a timely objection at trial." Commonwealth v. Montalvo , 956 A.2d 926, 936 (Pa. 2008). Failure to provide a contemporaneous objection renders the issue waived on appeal. See Commonwealth v. Tha , 64 A.3d 704, 713 (Pa. Super. 2013); see also Pa.R.A.P. 302(a). Further, "[w]hen an event prejudicial to the defendant occurs during trial[,] only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity." Pa.R.Crim.P. 605(B) (emphasis added).
In the instant matter, McCready claims that part of Detective David McDonald's ("Detective McDonald") testimony was prejudicial. See Brief for Appellant at 4-10. Detective McDonald testified that someone may have cleaned the crime scene, which would contradict McCready's diminished capacity defense. See id. at 6-8. According to McCready, he was not made aware of this theory prior to trial, and thus asserts that he was prejudiced by not being able to prepare for such testimony. See Brief for Appellant at 6, 9-10.
The relevant testimony is as follows:
[Prosecutor]: The fact that there is no visible blood at the entrance to the bathroom[,] does that mean anything to you or have any significance to you?N.T., 10/28/14, at 84. Immediately following this exchange, the prosecutor changed the line of questioning, and McCready raised no objection to the testimony at this time. Id.
[Detective McDonald]: Either - as - since we have drag marks in the hallway that there is - the subject - the victim in this case, was wrapped in something or that the area was cleaned.
However, during cross-examination, defense counsel asked Detective McDonald about this theory.
[Defense counsel]: Did you smell any cleaning products?
[Detective McDonald]: No I did not.
[Defense counsel]: Okay. And sir, did you see any kind of cleaning products in the house?Id. at 87-88.
[Detective McDonald]: There was a bucket with some water down in the kitchen that had a red tinge to it.
* * *
[Defense counsel]: Sir, but you - that wasn't tested, I assume?
[Detective McDonald]: No it was not.
* * *
[Defense counsel]: Okay. So you're not saying you know or have proof that the scene was cleaned?
[Detective McDonald]: No I do not.
After Detective McDonald's cross-examination, the court took a break. Id. at 90-91. Thereafter, Dr. Frederic Hellman ("Dr. Hellman") took the stand, and both parties conducted examination. Id. at 91-106. After Dr. Hellman's testimony, the parties discussed the admission of exhibits and held a brief sidebar conference, before determining court would continue the following morning. Id. at 107-10. After the trial court dismissed the jury, McCready stated he would be moving for a mistrial on the basis of Detective McDonald's testimony. Id. at 111. McCready indicated that he was unaware of the possibility that this theory might be given, and if the jury believed McCready "had the mental wherewithal to clean up the scene[,]...it may severely impact [McCready's] defense." Id. at 111-12. In response, the prosecution stated the testimony simply appeared to be a possible theory, and that they are "not alleging that [McCready] cleaned the bathroom." Id. at 112. Thereafter, the trial court denied the Motion.
Based on the above facts, we conclude that McCready failed to timely move for a mistrial. See Pa.R.Crim.P. 605(B). Accordingly, this claim is waived. See Commonwealth v. Boring , 684 A.2d 561, 568 (Pa. Super. 1996) (stating that where the admission of prejudicial testimony came during the witness's direct testimony, but defense counsel did not seek a mistrial until after the witness's testimony had concluded, the result was a waiver of the defendant's motion for a mistrial); see also Commonwealth v. Baumhammers , 960 A.2d 59, 73 (Pa. 2008) (stating that "Rule 302(a) has [not] been interpreted as meaning that issues may be raised at any time during the lower court proceeding in order to preserve them. Rather, it is axiomatic that issues are preserved when objections are made timely to the error or offense").
Even if McCready had not waived this claim, we would have concluded that the trial court properly denied the Motion. Our review discloses that the prosecutor did not elicit the testimony in question. See Commonwealth v. Kerrison , 920 A.2d 190, 199 (Pa. Super. 2007) (noting that whether a remark was intentionally elicited is a relevant consideration in determining whether a mistrial is required). Indeed, the prosecutor changed the line of questioning, and subsequently clarified that the Commonwealth was not asserting a theory that McCready cleaned the crime scene. See N.T., 10/28/14, at 84, 112. Further, on cross-examination, Detective McDonald testified that there was no evidence that the crime scene had been cleaned. See id. at 87-88; see also id. at 40 (wherein McCready stated he dragged his mother into the bathroom on a curtain). Because Detective McDonald's statement was isolated, and McCready's cross-examination refuted the theory, we would conclude that McCready suffered no prejudice as a result of Detective McDonald's testimony. See Kerrison , 920 A.2d at 200 (stating that a single, passive reference to prejudicial testimony was insufficient to demonstrate that the trial court abused its discretion in denying a motion for a mistrial).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/16/2016