Opinion
13 WDA 2023 J-A09035-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. RAMONTA YANCEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered November 29, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005750-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant Ramonta Yancey appeals from the judgment of sentence imposed after a jury found him guilty of first-degree murder, robbery of a motor vehicle, tampering with evidence, and conspiracy. Appellant argues that the trial court abused its discretion by denying his motion for a mistrial based on statements by his co-defendant's counsel during both opening and closing remarks to the jury. We affirm.
18 Pa.C.S. §§ 2502(a), 3702(a), 4910(1), and 903(a)(1), respectively.
The trial court summarized the relevant facts of this matter as follows:
On September 12, 2019, at approximately 9:44 a.m., McKeesport Police received a 9-1-1 call for a report of an unconscious female (Tameka Dallas) found in a wooded area on a hillside in Renzie Park, in the McKeesport section of Allegheny County.
Allegheny County [Police Department] homicide detective Scott Klobchar, along with other detectives, arrived at the scene at
approximately 10:30 a.m. and met with McKeesport Police Captain Christopher Halaszynski and Officer Bryan Morris. Upon processing the scene, grass impressions and footprints were discovered in the grassy area between the parking lot and hillside where the victim's body was discovered. The victim's body was dressed in a sunflower sundress and pink open toed sandals. The strap on the dress was torn exposing her left breast. The ligature found tied around the victim's ankles had a distinctive pattern with blue/green flowers intertwined with an orange vine pattern. The area where the body was discovered was a heavily wooded hillside covered with foliage including trees, branches, and weeds. A small bottle of Gatorade was located near the victim's foot, as well as a bottle of hand sanitizer and a cigarillo wrapper. An ATM receipt, dated September 6, 2019, was located near the wood line where the body was discovered. A GSR (gunshot residue) test was performed on the victim's hands while at the scene.
An autopsy was performed on September 13, 2019, which showed ligature marks on the victim's shins, ankles, and neck. Additionally, her body was partially covered in vegetation, grass, soil, and dirt, as well as insects on her face/neck area and in her organs. Scleral and petechial hemorrhages were discovered in the victim's eyes. The victim's death was found to have resulted from ligature strangulation and the manner of death ruled a homicide.
During the course of the investigation, law enforcement located surveillance cameras on the exterior of the deck hockey building in the park. Allegheny County [Police Department] homicide detective Kevin McCue reviewed the footage from September 11, 2019, and observed an unknown silver sedan enter the park from Eden Park Boulevard and drive toward Arboretum Drive at 11:13 p.m. The vehicle then proceeded toward the area where the victim's body was discovered. The vehicle remained in the area for approximately four minutes before departing the parking lot. The footage showed that the vehicle left the park in the same direction that it entered at 11:17 p.m. A License Plate Reader (LPR) identified the vehicle as a 2007 Chevy Impala bearing a temporary registration of LBF#0239, registered to a Mitchell's Auto Sales in Duquesne, PA.
Allegheny County [Police Department] homicide detectives Greg Renko and Nicole DePaoli obtained information from Mitchell's Auto Sales documenting the sale of the Chevy Impala to the victim on August 17, 2019, with an address listed for her at 3952 Monroeville Blvd., Apt. A1, Monroeville, PA 15146.
The victim's cell phone number was listed on the sales receipt.
The detectives further investigated the location/travel of the victim's vehicle using the LPR, and found that after leaving Renzie Park the vehicle was driven to the Bridgeville, Heidelberg, and North Versailles areas; all within close proximity to Wal-Mart locations. Detectives responded to the Wal-Mart location in North Versailles and obtained video footage from loss prevention which showed the victim's vehicle enter the parking lot at approximately 12:35 p.m. on September 12, 2019. The video further showed Appellant and [Daron Parks,] his co-defendant[,] exit the vehicle and walk toward the entrance of the store. Appellant was wearing a white t-shirt with a "Pirates" logo on the front, gray shorts, black socks and black shoes.
Video footage from inside the store showed Appellant approach the Eco ATM (a stand-alone kiosk which allows individuals to trade in used cell phones for cash). While Appellant was seen holding a cell phone in his hand, he failed to complete the transaction and exited the store. He returned to the victim's vehicle and entered the driver's side while the co-defendant entered the passenger side. The vehicle then exited the parking and traveled west on Route 30. The victim's vehicle was eventually recovered in South Strabane Township, Washington County. During the subsequent search of the vehicle, the white t[-]shirt Appellant was observed wearing in the Wal-Mart footage was recovered.
Detectives subsequently contacted Appellant's paramour, Jasmine Madden, and obtained consent to search her cell phone in which photos, taken a few days before the homicide, were recovered depicting Appellant and Madden sitting on sheets identical to the distinctive flowered pattern on the ligatures found on the victim. As a result of the photos recovered during the search of her phone, detectives obtained Madden's consent to search her apartment. During the course of the search a fitted sheet matching the ligatures found on the victim was recovered. No flat sheet or pillow case were ever recovered.
A search warrant obtained for the victim's cell phone records revealed multiple cellular communications between the victim and Appellant in the late evening hours on the night of the homicide. Appellant's cell phone call records were subsequently submitted to the FBI for geographical cellular location. The data recovered showed that Appellant's cell phone was used in or near Renzie
Park between 11:12 p.m. and 11:17 p.m. on the night of the homicide, which coincided with the time the victim's vehicle entered the park near where her body was later discovered. Further investigation showed cellular communications between Appellant and the co-defendant in the late afternoon hours on the day of the homicide. Additionally, Appellant's cellphone and the victim's cellphone were found to overlap at the same geographical locations prior to her phone being turned off at approximately 10:55 p.m. on September 11, 2019. The victim's cell phone was never recovered during the search of the scene, her vehicle, or residence. . . .Trial Ct. Op., 7/6/23, at 6-10 (some formatting altered and citations omitted).
Appellant and his co-defendant were arrested and charged in connection with the homicide. Following a joint jury trial, both Appellant and his co-defendant were found guilty of first-degree murder, robbery of a motor vehicle, tampering with evidence, and conspiracy.
On November 29, 2022, the trial court sentenced Appellant to an aggregate term of life imprisonment without the possibility of parole. Appellant did not file post-sentence motions. On December 26, 2022, Appellant filed a timely appeal, and both the trial court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues:
1. Whether the trial court abused its discretion or erred as a matter of law when the trial court denied a motion for mistrial after co-defendant's counsel presented unsupported untruths in her opening argument?
2. Whether the trial court abused its discretion or erred as a matter of law when the trial court denied a motion for mistrial after co-defendant's counsel told the jury [in her closing statement] that there was other evidence that was not presented implying that the untruths said in her opening
argument were true and that there was more evidence that showed Appellant's guilt?Appellant's Brief at 7.
Both of Appellant's claims relate to the trial court's denial of his motion for a mistrial, and we review a trial court's denial a motion for a mistrial under the following standard:
It is well-settled that the review of a trial court's denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. 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. A trial court may 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. It is also settled that a mistrial is not necessary where cautionary instructions are adequate to overcome any potential prejudice. The law presumes that a jury will follow the trial court's instructions.Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super. 2021) (citations and quotation marks omitted); see also Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010) (noting that a mistrial is an extreme remedy). Moreover, statements made by a co-defendant's counsel are not evidence. See Commonwealth v. Brown, 925 A.2d 147, 158 (Pa. 2007).
As noted, the challenged comments in this case were made by co-defendant's counsel and not by the prosecutor; however, "[i]t is well established that a prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with logical force and vigor." Commonwealth v. D'Amato, 526 A.2d 300, 309 (Pa. 1987) (citations and quotation marks omitted). "Counsels' remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony." Id. (citations omitted). Importantly, "not every intemperate or uncalled for remark by the prosecutor requires a new trial." Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa. Super. 2001) (citation omitted). "[C]omments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Id. (citation omitted). "Furthermore, the prejudicial effect of the prosecutor's remarks must be evaluated in the context in which they occurred." Id. (citing D'Amato, 526 A.2d at 309).
Our standards reflect a consensus of the profession that the courts must not lose sight of the reality that "a criminal trial does not unfold like a play with actors following a script." Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976). It should come as no surprise that "in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused." Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 379, 41 L.Ed. 799 (1897).
* * *
Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.D'Amato, 526 A.2d at 310 (citation omitted and some formatting altered). We must consider whether Appellant received a fair trial, not a perfect trial. See Commonwealth v. Rayner, 153 A.3d 1049, 1058 (Pa. Super. 2016). Finally, we note that the trial court is in the best position to assess the effect of an allegedly prejudicial statement on the jury, and as such, the trial court's decision to grant or deny a mistrial will not be overturned absent an abuse of discretion. Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007).
Opening
Appellant first argues that he was denied a fair trial when his co-defendant's counsel made statements in her opening remarks to the jury that were untruthful and not supported by the evidence that was subsequently developed at trial. See Appellant's Brief at 34-36. Specifically, Appellant refers to the following portions of the opening statement from his co-defendant's counsel:
How many of you would want to be charged with the behavior of somebody that you were hanging out with, how many of you?
I remember a long time ago, my mother used to say, be careful about the people who you hang out with, because you are often judged by the company that you keep. Now that was true, but that was about reputation and how people view you socially, but certainly not for a conviction of a crime.
We believe the evidence will show that Ms. Dallas had a relationship with [Appellant]. We believe that Ms. Dallas believed she was going on a date, that's why she had that beautiful sundress on. We believe that the motivation for the death was a fight that those two had.
We believe the evidence will show that the connection to Ms. Dallas is completely tied to [Appellant]. [Appellant] attempted - the evidence will show, I'm sorry - the evidence will show [Appellant] attempted to sell Ms. Dallas's car, after the fact, to his half sister. It was not . . . [co-defendant's] half sister, it was [Appellant's], . . . I believe that was his half sister, and she decided to tell her boyfriend to rent the car.
Now, the Commonwealth said that Ms. Dallas was getting up, she was doing better, and you're wondering, better from what?
We believe that the evidence will also show that she often rented her vehicle out for crack.
I don't want to confuse you, that still has nothing to do with what we believe the evidence will show, that she was in a relationship with [Appellant].
And I don't want to say, nothing but an argument, because that's a still pretty huge and how the assault increased and finally wound up to her demise.
Now, you're wondering, am I going to go off over [co-defendant]? We believe that [co-defendant] did hang out - or we believe that the evidence will show that [co-defendant] did hang out with [Appellant].
We believe the evidence will show that there was a conversation between the two of them. You'll see some text messages, and we believe the evidence will show that [co-defendant] agreed to meet up with [Appellant] at [Appellant's] girlfriend's house. You'll hear about that. And you'll hear about Ms. Madden, that [is] another female friend of [Appellant's].
We believe the evidence will show, and you'll hear that they were all supposed to hang out and chill, maybe smoke a little marijuana, maybe some harder drugs, but just to chill.
Would anyone want to be held responsible for hanging out with somebody who did something terrible?
We believe the evidence will show that [Appellant] drove the car. You heard [Appellant's counsel] say that the car keys and the phone were in [co-defendant's] hands.
We believe the evidence will show that [Appellant] gives [co-defendant] the keys and tells him to go outside.
. . . .
The Commonwealth said that she'll be able to prove the conspiracy. And she told you, they didn't write it down. And we don't have the conversation. I'm asking you to listen, listen specifically for that conspiracy.
I will also like for you to think about all of the connections that you will hear and who that connection is to.
I believe the evidence will show that [Appellant] and Ms. Dallas were connected intimately.Appellant's Brief at 36-39 (quoting N.T. Trial Vol.1, 9/19-21/22, at 48-53) (emphases in Appellant's Brief).
Appellant asserts that his co-defendant's counsel told the jury that the evidence would reflect that Appellant and the victim were involved in an intimate relationship, the victim's death resulted from a fight between Appellant and the victim, the victim was connected only to Appellant and not the co-defendant, the victim rented out her vehicle in exchange for drugs, and the co-defendant was only present casually to smoke marijuana. See id. at 36-39. Appellant argues that in a sidebar discussion during the testimony of the final witness, co-defendant's counsel informed the trial court that she had no witnesses to call, and this revealed that the co-defendant's counsel's opening remarks were not supported by the record and prompted Appellant's counsel to object and request a mistrial. See id. at 39-42. Appellant's counsel also asserted that there was no evidence of an intimate relationship between the victim and Appellant or use of crack cocaine, and the trial court should have granted a mistrial. See id. at 43-55.
The Commonwealth responds that the trial court did not abuse its discretion in refusing to grant a mistrial and asserts that the co-defendant's counsel's remarks addressed evidence she reasonably believed would be presented during the trial and were, therefore, proper opening remarks. See Commonwealth's Brief at 26-30. The Commonwealth notes that when Appellant's counsel moved for a mistrial, the co-defendant's counsel responded that there was evidence that she believed would be introduced that was not presented, including the victim's drug use and the relationship between Appellant and the victim. See id. at 30. Further, the Commonwealth argues that the trial court twice instructed the jury that any statements made by counsel at trial were not evidence. See id. at 31-32.
The trial court addressed Appellant's first claim of error as follows:
The statements made during the co-defendant's [counsel's] opening and closing arguments were not evidence, and the jury was instructed by the [trial c]ourt numerous times during trial on how to consider those arguments in relation to the evidence actually presented. Here, the [trial c]ourt copiously instructed the jury during its opening remarks, closing instructions, as well as a curative instruction regarding the weight accorded to arguments made by counsel.
Appellant has wholly failed to meet its burden of establishing prejudice. The [trial c]ourt finds that Appellant was not prejudiced by the innocuous statements [of co-defendant's counsel]. The jury was clearly able to weigh the evidence, presented during trial objectively and render a true verdict. . . .Trial Ct. Op., 7/6/23, at 11-12 (citations omitted). The trial court further explained:
It is well settled that the purpose of opening statements is to apprise the jury of how the party believes the case will develop or attempt to be proven. Further, opening statements are not evidence and courts generally afford counsel a reasonable latitude when presenting opening arguments to the jury. As such, [c]ourts regularly instruct juries that they are to consider only the evidence presented at trial when reaching a verdict. . . .
Here, co-defendant's counsel made an opening statement based upon facts she believed would be proven or could be proven during trial. The [trial c]ourt f[ound] that such statements are not evidence and were nothing more than a trial strategy and not an act of impropriety. As such, Appellant was not prejudiced in the mind of jury so that they were unable to weigh the evidence presented during trial objectively and render a true verdict. Further, the [trial c]ourt gave instructions to the jury during its opening and closing instructions, as well as a cautionary instruction, during the trial emphasizing the primacy of their recollection over the opening or closing remarks of counsel. This was more than sufficient to overcome any prejudice now advanced by Appellant. Finally, juries are presumed to have followed a [c]ourt's instructions. As such, this claim is without merit.Id. at 14-15 (citations omitted).
After review, we discern no abuse of discretion by the trial court in denying Appellant's motion for a mistrial following co-defendant's counsel's opening remarks to the jury. See Gilliam, 249 A.3d at 274. The record reflects that in its pretrial instructions, the trial court instructed the jury that any remarks made by counsel were not evidence, and that the jury was to consider only the evidence properly presented and admitted. See N.T. Trial Vol.1, 9/19-21/22, at 17-21. Moreover, at the close of evidence, the trial court again instructed the jury that any comments made by counsel were not evidence. See N.T. Trial Vol.2, 9/22-23/22, at 226-27, 230-31. It is axiomatic that the jury is presumed to follow the trial court's instructions. See Gilliam, 249 A.3d at 274.
On this record, we conclude there was no error or abuse of discretion in the trial court's finding that co-defendant's counsel's statements were comments concerning what she reasonably believed the evidence adduced at trial would show, and we agree with the trial court that co-defendant's counsel's comments did not have the unavoidable effect of depriving Appellant of a fair trial by preventing the jury from weighing the evidence and rendering a true verdict. See Gilliam, 249 A.3d at 274; Chmiel, 777 A.2d at 466. Accordingly, Appellant is not entitled to relief.
Moreover, we note that co-defendant did not testify, and that the evidence referred to by co-defendant's counsel which was not presented at trial would not have been the sole factual support for Appellant's conviction because there was ample evidence of Appellant's guilt presented to the jury that was overwhelming. See, e.g., Commonwealth v. Parker, 882 A.2d 488, 493-95 (Pa. Super. 2005) (concluding that the Commonwealth's display of a handgun in its opening statement served no legitimate purpose, but that the trial court's failure to prevent the display of the handgun was harmless as the evidence of the appellant's guilt was overwhelming); Commonwealth v. Perez, 477 A.2d 554, 555 (Pa. Super. 1984) (per curiam) (stating that even if remarks made by the Commonwealth in the opening address were in error, the error was harmless). The record reflects that the evidence established that on September 11, 2019, there was repeated phone contact between Appellant's phone and victim's phone and calls were placed between Appellant's phone and the victim's phones in McKeesport. See N.T. Trial Vol.1, 9/19-21/22, at 427. These calls occurred between 9:26 p.m. and 10:55 p.m. See id. at 428-29. During this time, co-defendant's phone was also located in the McKeesport, in the same area as Appellant. See N.T. Trial Vol.2, 9/22-23/22, at 96. Further, Jasmine Madden, who was Appellant's girlfriend, testified that Appellant and his co-defendant were both at Madden's apartment on that evening. See N.T. Trial Vol.1, 9/19-21/22, at 367, 369-70. Later that night, Appellant's cell phone location was tracked to the area of Renzie Park area where the victim's body was found. Appellant's phone arrived in this area at 11:16 p.m., and then departed the area a short time later. See N.T. Trial Vol.2, 9/22-23/22, at 88-89. Near Renzie Park where the victim's body was discovered, a camera at a hockey rink recorded a car matching the victim's silver four-door sedan approach and park at approximately 11:13 p.m. The video showed the vehicle stop at the park with its lights off, and then, about four minutes later, the vehicle's lights were turned on, and the car drove out of the park. See N.T. Trial Vol.1, 9/19-21/22, at 144-46, 155. Additionally, earlier in the day on September 11, 2019, the victim was recorded driving her car. See N.T. Trial Vol.1, 9/19-21/22, at 176-77. However, later in the day and into the next morning, Appellant and his co-defendant were using the victim's car. See id. at 190-92, 231, 248. That next morning, on September 12, 2019, Appellant and his co-defendant were recorded on video entering a Walmart store and using an ecoATM machine. See id. at 248-49, 253-54. An ecoATM machine is plugged into a cell phone, and it makes a cash offer on the phone. See id. at 249-50. Appellant was holding a cell phone in his left hand at the ecoATM machine. See id. Moreover, on September 12, 2019, Appellant was trying to sell the victim's car for $800. See N.T. Trial Vol.1, 9/19-21/22, at 322. Further, during the search of Appellant's cell phone, there were pictures from a few weeks prior to the murder showing Appellant and his co-defendant dressed in the same clothes they were seen wearing on the night of the murder. See id. at 417-19. Other photos on the phone revealed Appellant and Madden sitting on a bed with floral sheets. See id. at 424-25. These floral sheets were identical to the ligature found tied around the victim's legs. See id. at 538-41. Madden further testified that she had not seen that floral sheet after September 11, 2019. See id. at 379. Additionally, jeans belonging to Appellant's co-defendant were found stained with blood matching the victim's DNA. See id. at 413, 493. Finally, police discovered that beginning around 8:30 a.m. on September 12, 2019, before the victim's body was discovered, numerous internet searches were conducted from Appellant's cell phone seeking information from local news websites including Channel 11. See id. at 435-36. One search was specifically for: "[b]ody found in McKeesport park." Id. at 436. Accordingly, despite co-defendant's counsel's remarks, the direct and circumstantial evidence which was admitted at trial reasonably supports the jury's verdict.
Closing
In his second issue, Appellant argues that the trial court abused its discretion in denying a mistrial based on comments that co-defendant's counsel made during her closing statement to the jury. See Appellant's Brief at 56-58. Appellant emphasized the challenged portions of co-defendant's counsel's closing as follows:
Now you didn't hear everything, and I'm not going to tell you why you didn't hear everything but you often don't because there are laws, there are rules, and that's the reason why you don't hear certain things.
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So it was said that you didn't hear anything about domestic violence. You didn't hear anything about taking Tameka Dallas's car because that was the motive. You didn't hear one sentence either from any of the detective's mouths or any other witness say that [Appellant and co-defendant] had this conversation that they were going to steal her car.
* * *
We don't know where exactly Ms. Dallas was murdered. We have her car so that's exactly what we're considering. So she's in the passenger's seat, she is strangled by [Appellant] who is in the driver's seat, because remember she's coming to him.
* * *
My client is not - and you didn't hear that, but he's not from that area. He's not [from] McKeesport. He's not from Monroeville. He's not from the east. He's not from Pittsburgh or in another city or state. But he's from the suburbs further out.
* * *
I suggested that it was a domestic, I did it and there was a reason.
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Let's talk about the coded messages of my client. You have to understand that you're not getting everything. And I can't tell you what you're not getting. [Co-defendant] did speak in code. . . .
. . . .
Now I want to tell you that [co-defendant] wanted to tell them what his exposure was, what's going on and I can't tell you anything else because there's more to it. And you can't consider it so I can't tell you anything. I'll get in trouble. But I would like for you to not - and I know you're sick of hearing it - to check your common sense at the door on that one.
* * *
If it was never about the car, if it was about, why are you bringing a-hole to our date. Or maybe she liked him. Maybe she thought he was handsome. Maybe she flirted with him. Maybe it was something more sinister. I don't know. I don't know.Appellant's Brief at 56-58 (quoting N.T. Trial Vol.2, 9/22-23/22, at 159-82) (emphases in Appellant's Brief).
The record reflects that after co-defendant was arrested, he spoke to an unknown female in code on the telephone. See N.T. Trial Vol.1, 9/19-21/22, at 459-62. Detective Nicole DePaoli testified without objection that co-defendant was recorded speaking in phrases on the phone where the first letter of each word spelled out his coded messages. See id. The coded messages revealed the words: "clothes" and "girl's blood." See id. at 461-62. The de-coded messages led police to co-defendant's clothes, which were stained with blood that matched the victim's DNA. See id. at 413, 458-59, 490-94.
Appellant contends that his co-defendant's counsel relayed to the jury that it did not hear all the facts of the case, suggested that Appellant and the victim had a domestic dispute or argument, and Appellant asserts that a curative instruction could not cure the prejudice. See id. at 59-60.
The Commonwealth responds that the trial court's instructions cured any error by repeatedly informing the jury that counsel's remarks are not evidence, informing the jurors that a jury never hears everything that is possibly relevant to a trial, and that the jury is only permitted to consider the evidence that was properly admitted. See Commonwealth's Brief at 34-38. Moreover, the Commonwealth contends that co-defendant's counsel's statements did not preclude the jury from rendering a true verdict, and further, the jury clearly did not credit co-defendant's counsel's statement because the jury found co-defendant guilty on all charges. See id. at 34.
After the co-defendant's counsel finished her closing, Appellant's counsel objected and asked for a mistrial and asserted that the co-defendant's counsel suggested the murder may have been caused by a domestic dispute between the victim and Appellant, and the co-defendant's counsel said that the jury did not hear all of the evidence. See N.T. Trial Vol.2, 9/22-23/22, at 186. The trial court denied the mistrial and stated that it would provide a curative instruction. See id. at 191. The trial court then explained to the jury:
I told you in my opening remarks and I'll repeat this again. You may have been referenced - you haven't heard everything that is in reference to certain dynamics, domestic violence, or aggression.
The only evidence that you are allowed to consider is the evidence that was presented in [c]ourt and the reasonable inferences that flow from the actual evidence. So the notion that you haven't heard everything, you are to disregard that.
In every criminal trial, no jury hears everything. That's why I'm here, to let evidence in and not let evidence in for various legal reasons.Id. at 193-94.
In its opinion, the trial court addressed Appellant's challenge to co-defendant's counsel's closing as follows:
Appellant alleges in his [next] claim that the trial court abused its discretion or erred as a matter of law when the trial court denied a motion for mistrial after co-defendant's counsel told the jury that there was other evidence that was not presented implying that the untruths she said in her opening argument were true and that there was more evidence that showed Appellant's guilt. This, claim is without merit.
Here, the statements made during the co-defendant's closing argument are again, only arguments by counsel and not evidence; and the jury was so instructed. As such, Appellant was not prejudiced in the mind of jury so that they were unable to weigh the evidence presented during trial objectively and render a true verdict. As previously noted, the [trial c]ourt gave ample instructions and another curative instruction, which are presumed to be followed by the jury, during trial regarding these issues, and the weight to be accorded to arguments made by counsel. Said instructions were more than sufficient to overcome any perceived prejudice to Appellant.Trial Ct. Op., 7/6/23, at 16 (some formatting altered and citations omitted).
After review, we discern no abuse of discretion. See Gilliam, 249 A.3d at 274; see also Laird, 988 A.2d at 638. As stated, remarks made by counsel are not evidence. See Brown, 925 A.2d at 158. Here, the trial court was in the best position to weigh the effect of co-defendant's counsel's statements during her closing. See Rega, 933 A.2d at 1016. After considering the arguments of counsel, the trial court concluded that a mistrial was not warranted and provided a cautionary instruction to the jury addressing co-defendant's counsel's remarks. See N.T. Trial Vol.2, 9/22-23/22, at 193-94. As noted, we must consider whether Appellant received a fair trial, not a perfect trial. See Rayner, 153 A.3d at 1058. A mistrial is an extreme remedy, and the record reflects that in the case at bar, when Appellant objected and moved for a mistrial, the trial court considered the circumstances and context, denied the mistrial, and provided a cautionary instruction, to which Appellant's counsel objected. See N.T. Trial Vol.2, 9/22-23/22, at 192-95, 266; Trial Ct. Op., 7/6/23, at 16. We reiterate that the jury is presumed to follow the trial court's instructions. See Gilliam, 249 A.3d at 274. On this record, we conclude that the trial court did not abuse its discretion in denying Appellant's motion for a mistrial and Appellant is not entitled to relief. Accordingly, we affirm.
See Laird, 988 A.2d at 638.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Dubow joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.