Com. v. Hicks, T.

Superior Court of Pennsylvania

Com. v. Hicks, T.

DecidedMarch 4, 2024

Docket1271 WDA 2022

StatusUnpublished

This text of Com. v. Hicks, T. (Com. v. Hicks, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Hicks, T., (Pa. Ct. App. 2024).

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Opinion

J-A22045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : THOMAS PAUL HICKS : : Appellant : No. 1271 WDA 2022

Appeal from the Judgment of Sentence Entered September 26, 2022 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000895-2019

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: MARCH 4, 2024

Appellant, Thomas Paul Hicks, appeals from the judgment of sentence

entered in the Armstrong County Court of Common Pleas, following his jury

trial convictions for rape of a child, statutory sexual assault, involuntary

deviate sexual intercourse with a child, incest of a minor, corruption of minors,

indecent assault, and endangering welfare of children.1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

Appellant is the biological uncle of O.H. (“Victim”).2 At approximately 7:00

a.m. on August 17, 2019, Appellant drove to the residence where nine-year-

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118 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3123(b), 4302(b)(1), 6301(a)(1)(i), 3126(a)(7), and 4304(a)(1), respectively.

2Appellant is the brother of Victim’s mother, S.H. (“Mother”). Mother is married to Victim’s father, C.H. (“Father”). J-A22045-23

old Victim lived with his parents and younger brother. Appellant entered the

residence through the garage and found Victim sleeping on a rocking chair in

the living room. Appellant woke Victim, lifted him out of the rocking chair,

and led him down a flight of steps into the basement. In the basement,

Appellant pulled down Victim’s pants and performed oral sex on Victim.

The assault ended a few minutes later when Father called for the boy

from upstairs. Victim came up the stairs, returned to the rocking chair, and

did not say anything. Appellant came up the stairs shortly thereafter.

Appellant told Father that he was in the basement to fix the furnace. Father

explained that Appellant should not have come to the house unannounced,

and he asked Appellant to leave. Once Appellant left the residence, Father

asked Victim why he was in the basement with Appellant. Victim told Father

that Appellant “carried me downstairs and was sucking on my penis.” (N.T.

Trial, 6/9/22, at 72). After discussing the matter with Mother, Father reported

the incident to police on August 19, 2019. During a forensic interview on

August 20, 2019, Victim recounted the incident from three days earlier. Victim

also told investigators that Appellant had been taking him to the basement

“for years,” and Appellant “does the same thing every time.” (Affidavit of

Probable Cause, dated 8/22/19, at 1).

On December 3, 2019, the Commonwealth filed a criminal information

charging Appellant with various sex offenses. Appellant proceeded to a jury

trial on June 9, 2022. At trial, the Commonwealth presented testimony from

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Victim, Mother, Father, the forensic interviewer, and an investigating officer.

Appellant testified in his own defense, and he presented testimony from his

parents (Victim’s grandparents). After closing arguments, defense counsel

made an oral motion for mistrial. (See N.T. Trial, 6/10/22, at 175-80).

Specifically, defense counsel claimed that the prosecutor committed

misconduct by making unduly prejudicial remarks during his closing

argument. The court denied the motion for mistrial before providing its charge

and sending the jury to deliberate. (Id. at 185-206). Ultimately, the jury

convicted Appellant on all counts.

On September 26, 2022, the court sentenced Appellant to an aggregate

term of fifteen (15) to thirty (30) years’ imprisonment. Appellant did not file

post-sentence motions. Appellant timely filed a notice of appeal on October

25, 2022. On October 26, 2022, the court directed Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Appellant

timely filed his Rule 1925(b) statement on November 15, 2022.

Appellant now raises one issue for this Court’s review:

Did the trial court abuse its discretion when it denied Appellant’s motion for a mistrial after the Commonwealth engaged in repeated prosecutorial misconduct during its closing arguments, which included statements offering facts not in evidence and injecting issues broader than the guilt or innocence of Appellant under the controlling law?

(Appellant’s Brief at 7).

On appeal, Appellant contends that the court should have granted his

motion for a mistrial based upon certain statements the prosecutor made

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during his closing argument. Specifically, Appellant complains about the

prosecutor’s references to: 1) Appellant’s parents providing information to

Appellant’s attorney; 2) Appellant’s parents’ purported duty to protect Victim;

3) a “big family secret” that Appellant molested children; 4) a “family rule”

that Appellant should not be left alone with children; and 5) the amount of

time it should have taken for Appellant to fix the furnace. Appellant also

alleges that the prosecutor should not have called him “creepy Uncle Tom”

throughout the closing argument. Appellant maintains that the prosecutor

made these statements to introduce facts that were not in evidence, and the

statements had the unavoidable effect of prejudicing the jury. Appellant

concludes the prosecutor committed misconduct, and the trial court abused

its discretion by denying his motion for mistrial. We disagree.

Our standard of review of a claim of prosecutorial misconduct during

closing arguments to the jury is whether the trial court abused its discretion.

Commonwealth v. Jones, 191 A.3d 830, 835 (Pa.Super. 2018).

[W]ith specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Our review of a prosecutor’s comment and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. Thus, it is well settled that statements made by the prosecutor to the jury during closing argument will not form the basis for granting a new trial 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 they could not weigh the evidence objectively and render a true verdict. The appellate courts

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have recognized that not every unwise remark by an attorney amounts to misconduct or warrants the grant of a new trial. Additionally, like the defense, the prosecution is accorded reasonable latitude, may employ oratorical flair in arguing its version of the case to the jury, and may advance arguments supported by the evidence or use inferences that can reasonably be derived therefrom. Moreover, the prosecutor is permitted to fairly respond to points made in the defense’s closing, and therefore, a proper examination of a prosecutor’s comments in closing requires review of the arguments advanced by the defense in summation.

Id. at 835-36 (quoting Commonwealth v. Jaynes, 135 A.3d 606, 615

(Pa.Super.

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