J-A05001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : FRANKLIN JOSEPH SABOLCIK : : Appellant : No. 892 WDA 2015
Appeal from the Judgment of Sentence May 4, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015022-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 13, 2017
Appellant, Franklin Joseph Sabolcik, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his jury trial convictions of theft by unlawful taking or disposition and
receiving stolen property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant became the vice president of White Oak Animal Safe Haven in
2010. As vice president, Appellant was responsible for the day-to-day
operations of the shelter and had access to the shelter’s bank accounts.
After a few checks bounced in 2012, the shelter’s bank contacted Ina Jean
Marton, the president of White Oak Animal Safe Haven. Ms. Marton ____________________________________________
1 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively. J-A05001-17
confronted Appellant about the shelter’s increased operating expenses and
the bounced checks, and Appellant assured her everything was fine. About
six months later, Ms. Marton learned of a second shelter bank account,
which Appellant had opened without her knowledge or permission. Appellant
was the only person with access to this second account. When shelter
finances continued to be an issue, Ms. Marton fired Appellant. During an
ensuing inspection of the shelter’s bank accounts, Ms. Marton discovered
Appellant had made many unauthorized purchases. Ms. Marton
subsequently contacted police, who further investigated the matter.
On January 22, 2014, the Commonwealth charged Appellant with theft
by unlawful taking or disposition, theft by deception, and receiving stolen
property. Appellant proceeded to a jury trial on February 3, 2015. At trial,
Appellant presented the testimony of Andrew Richards, a private
investigator, who conducted his own investigation into the unauthorized
charges. During the Commonwealth’s cross-examination, Mr. Richards
mentioned he had limited opportunities to talk to Appellant during his
investigation due to Appellant’s incarcerated status. The court immediately
held a sidebar discussion with Appellant’s counsel and the Commonwealth,
where counsel requested a mistrial. The court denied counsel’s motion for
mistrial, and counsel asked for a curative instruction. The court agreed to
issue a curative instruction and gave counsel a brief recess to draft an
instruction for the jury. The court then read the instruction to the jury
-2- J-A05001-17
without further objection by counsel. On February 5, 2015, the jury
convicted Appellant of theft by unlawful taking or disposition and receiving
stolen property. The court deferred sentencing pending the preparation of a
pre-sentence investigation (“PSI”) report.
On May 4, 2015, the court sentenced Appellant to an aggregate term
of eleven and one-half (11½) to twenty-three (23) months’ imprisonment.
Appellant timely filed a notice of appeal on June 3, 2015. On July 7, 2015,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied
on July 27, 2015.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR IMPROPERLY COMMENTED ON [APPELLANT’S] ABSOLUTE RIGHT TO REMAIN SILENT BY ASKING A DEFENSE WITNESS, A PRIVATE INVESTIGATOR, WHETHER [HE HAD] QUESTIONED [APPELLANT] IN CONNECTION WITH HIS INDEPENDENT INVESTIGATION INTO FINANCIAL IMPROPRIETIES AT THE WHITE OAK ANIMAL SAFE HAVEN?
(Appellant’s Brief at 5).
Our standard of review of the denial of a motion for a mistrial is as
follows:
[R]eview of a trial court’s denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will…discretion is abused.
-3- J-A05001-17
Commonwealth v. Chamberlain, 612 Pa. 107, 175-176, 30 A.3d 381, 422
(2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017
(2012) (internal citations and quotation marks omitted). “A trial court may
grant a mistrial only where the incident upon which the motion is based is of
such 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. Fletcher, 41 A.3d 892, 894 (Pa.Super. 2012), appeal
denied, 618 Pa. 683, 57 A.3d 67 (2012). “[A] mistrial is not necessary
where cautionary instructions are adequate to overcome any possible
prejudice.” Id. at 894-95. “[W]hether the exposure of the jury to improper
evidence can be cured by an instruction depends upon a consideration of all
the circumstances.” Commonwealth v. Morris, 513 Pa. 169, 177, 519
A.2d 374, 377 (1986). Significantly, “juries are presumed to follow the
instructions of a trial court to disregard inadmissible evidence.”
Commonwealth v. Simpson, 562 Pa. 255, 272, 754 A.2d 1264, 1272
(2000), cert. denied, 533 U.S. 932, 121 S.Ct. 2556, 150 L.Ed.2d 722
(2001).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Kevin G.
Sasinoski, we conclude Appellant’s issue on appeal merits no relief. The trial
court opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed June 8, 2016, at 8-11)
-4- J-A05001-17
(finding: record belies Appellant’s allegation that court abused its discretion
when it denied Appellant’s motion for mistrial; Appellant’s argument for
mistrial is based on statement made by defense witness during cross-
examination by Commonwealth, where witness referenced Appellant’s
incarcerated status; court immediately stopped cross-examination and
initiated sidebar discussion; court cautioned Commonwealth against any line
of questioning that could possibly shift burden of proof to Appellant 2; court
also noted Commonwealth did not elicit or expect answer that witness
provided; Appellant’s counsel then made motion for mistrial; court denied
motion for mistrial but offered to provide cautionary instruction; after brief
recess, court read counsel’s cautionary instruction to jury; under these
circumstances, witness’ statement did not deprive Appellant of his right to
fair and impartial trial; further, record belies Appellant’s claim that court
____________________________________________
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J-A05001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : FRANKLIN JOSEPH SABOLCIK : : Appellant : No. 892 WDA 2015
Appeal from the Judgment of Sentence May 4, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015022-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 13, 2017
Appellant, Franklin Joseph Sabolcik, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his jury trial convictions of theft by unlawful taking or disposition and
receiving stolen property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant became the vice president of White Oak Animal Safe Haven in
2010. As vice president, Appellant was responsible for the day-to-day
operations of the shelter and had access to the shelter’s bank accounts.
After a few checks bounced in 2012, the shelter’s bank contacted Ina Jean
Marton, the president of White Oak Animal Safe Haven. Ms. Marton ____________________________________________
1 18 Pa.C.S.A. §§ 3921(a) and 3925(a), respectively. J-A05001-17
confronted Appellant about the shelter’s increased operating expenses and
the bounced checks, and Appellant assured her everything was fine. About
six months later, Ms. Marton learned of a second shelter bank account,
which Appellant had opened without her knowledge or permission. Appellant
was the only person with access to this second account. When shelter
finances continued to be an issue, Ms. Marton fired Appellant. During an
ensuing inspection of the shelter’s bank accounts, Ms. Marton discovered
Appellant had made many unauthorized purchases. Ms. Marton
subsequently contacted police, who further investigated the matter.
On January 22, 2014, the Commonwealth charged Appellant with theft
by unlawful taking or disposition, theft by deception, and receiving stolen
property. Appellant proceeded to a jury trial on February 3, 2015. At trial,
Appellant presented the testimony of Andrew Richards, a private
investigator, who conducted his own investigation into the unauthorized
charges. During the Commonwealth’s cross-examination, Mr. Richards
mentioned he had limited opportunities to talk to Appellant during his
investigation due to Appellant’s incarcerated status. The court immediately
held a sidebar discussion with Appellant’s counsel and the Commonwealth,
where counsel requested a mistrial. The court denied counsel’s motion for
mistrial, and counsel asked for a curative instruction. The court agreed to
issue a curative instruction and gave counsel a brief recess to draft an
instruction for the jury. The court then read the instruction to the jury
-2- J-A05001-17
without further objection by counsel. On February 5, 2015, the jury
convicted Appellant of theft by unlawful taking or disposition and receiving
stolen property. The court deferred sentencing pending the preparation of a
pre-sentence investigation (“PSI”) report.
On May 4, 2015, the court sentenced Appellant to an aggregate term
of eleven and one-half (11½) to twenty-three (23) months’ imprisonment.
Appellant timely filed a notice of appeal on June 3, 2015. On July 7, 2015,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied
on July 27, 2015.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR IMPROPERLY COMMENTED ON [APPELLANT’S] ABSOLUTE RIGHT TO REMAIN SILENT BY ASKING A DEFENSE WITNESS, A PRIVATE INVESTIGATOR, WHETHER [HE HAD] QUESTIONED [APPELLANT] IN CONNECTION WITH HIS INDEPENDENT INVESTIGATION INTO FINANCIAL IMPROPRIETIES AT THE WHITE OAK ANIMAL SAFE HAVEN?
(Appellant’s Brief at 5).
Our standard of review of the denial of a motion for a mistrial is as
follows:
[R]eview of a trial court’s denial of a motion for a mistrial is limited to determining whether the trial court abused its discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will…discretion is abused.
-3- J-A05001-17
Commonwealth v. Chamberlain, 612 Pa. 107, 175-176, 30 A.3d 381, 422
(2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2377, 182 L.Ed.2d 1017
(2012) (internal citations and quotation marks omitted). “A trial court may
grant a mistrial only where the incident upon which the motion is based is of
such 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. Fletcher, 41 A.3d 892, 894 (Pa.Super. 2012), appeal
denied, 618 Pa. 683, 57 A.3d 67 (2012). “[A] mistrial is not necessary
where cautionary instructions are adequate to overcome any possible
prejudice.” Id. at 894-95. “[W]hether the exposure of the jury to improper
evidence can be cured by an instruction depends upon a consideration of all
the circumstances.” Commonwealth v. Morris, 513 Pa. 169, 177, 519
A.2d 374, 377 (1986). Significantly, “juries are presumed to follow the
instructions of a trial court to disregard inadmissible evidence.”
Commonwealth v. Simpson, 562 Pa. 255, 272, 754 A.2d 1264, 1272
(2000), cert. denied, 533 U.S. 932, 121 S.Ct. 2556, 150 L.Ed.2d 722
(2001).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Kevin G.
Sasinoski, we conclude Appellant’s issue on appeal merits no relief. The trial
court opinion comprehensively discusses and properly disposes of the
question presented. (See Trial Court Opinion, filed June 8, 2016, at 8-11)
-4- J-A05001-17
(finding: record belies Appellant’s allegation that court abused its discretion
when it denied Appellant’s motion for mistrial; Appellant’s argument for
mistrial is based on statement made by defense witness during cross-
examination by Commonwealth, where witness referenced Appellant’s
incarcerated status; court immediately stopped cross-examination and
initiated sidebar discussion; court cautioned Commonwealth against any line
of questioning that could possibly shift burden of proof to Appellant 2; court
also noted Commonwealth did not elicit or expect answer that witness
provided; Appellant’s counsel then made motion for mistrial; court denied
motion for mistrial but offered to provide cautionary instruction; after brief
recess, court read counsel’s cautionary instruction to jury; under these
circumstances, witness’ statement did not deprive Appellant of his right to
fair and impartial trial; further, record belies Appellant’s claim that court
____________________________________________
2 After the court stopped cross-examination and cautioned the Commonwealth against any line of questioning that could shift the burden of proof to Appellant, defense counsel made an objection and requested a mistrial to preserve the record. Counsel’s two-prong objection claimed: (1) the Commonwealth deliberately induced a response, which implicated Appellant’s right to remain silent; and (2) the defense witness’ reference to Appellant’s incarcerated status prejudiced the jury. With respect to the first prong of counsel’s objection, the court noted it stopped the line of questioning before any reference to Appellant’s right to remain silent occurred; and the response by the defense witness was both unsolicited and unanticipated by the Commonwealth. With respect to the second prong of counsel’s objection, the court issued a cautionary instruction, drafted by defense counsel, which instructed the jury not to draw an adverse inference from Appellant’s incarcerated status. Thus, we agree with the trial court that Appellant received a fair and impartial trial.
-5- J-A05001-17
“forced” Appellant’s counsel to draft curative instruction; counsel indicated
desire for cautionary instruction and agreed to prepare one as reasonable
and necessary precaution to avoid any prejudice to Appellant; record reveals
counsel expressed no opposition to this course of action; therefore, court
properly denied motion for mistrial, and cautionary instruction read to jury
was sufficient to cure any potential undue prejudice from witness’
statement).
Moreover, to the extent Appellant challenges the content of the
cautionary instruction, Appellant’s counsel drafted the language read to the
jury and did not object to its content at any time. Appellant cannot now
complain on new grounds that the instruction itself was inadequate. See
Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa.Super. 2003), appeal
denied, 575 Pa. 691, 835 A.2d 709 (2003) (explaining failure to make
timely, specific objection to jury instruction waives challenge to content of
jury instruction on appeal). Accordingly, we affirm on the basis of the trial
court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/13/2017
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