J    -S12022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                                1   IN THE SUPERIOR COURT OF
                                                                      PENNSYLVANIA
                                   Appellee

                              v.

DANA DEANGELA NUNNALLY

                                   Appellant                        No. 1083 MDA 2016


              Appeal from the Judgment of Sentence March 9, 2016
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0003944-2015

BEFORE:      PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                             FILED MARCH 20, 2017

         Dana Deangela Nunnally appeals                 nunc pro tunc from the judgment of
sentence imposed March 9, 2016, in the Dauphin County Court of Common

Pleas.     The trial court sentenced Nunnally to an aggregate term of 23

months' county probation after                a   jury found him guilty of, inter a/ia, simple
assault' for punching his ex -girlfriend in the head during an argument. On

appeal, he argues the trial court erred in failing to grant him               a   mistrial when

the victim referred to his prior bad acts, and in denying his post -sentence

motion seeking        a       new trial based on the weight of the evidence.            For the

reasons below, we affirm.




1-   See 18 Pa.C.S.       §   2701(a)(1).
J   -S12022-17



        The facts underlying Nunnally's arrest are summarized by the trial

court as follows:

              On June 9, 2015, the Harrisburg City Police Department
        was dispatched to 1163 Derry Street in response to a 911 call.
        Upon arrival, Officer Garrett Miller (hereinafter "Officer Miller")
        encountered the victim, Vicki Butler (hereinafter "Ms. Butler"),
        on the third (3rd) floor of the apartment. [Nunnally] and his
        daughter, Chynna Nunnally (hereinafter ["Chynna"]), were also
        in the apartment.     [Ms.] Butler told Officer Miller what had
        transpired.
              [Nunnally] and [Ms.] Butler were in a romantic relationship
        and living together, along with [Nunnally's] daughter, at the
        time of the incident.     Earlier in the evening on June 9th,
        [Nunnally], Ms. Butler and [Chynna] went to the Café on Derry
        Street together for approximately one (1) hour and all consumed
        alcoholic beverages.
                When they returned to the apartment, [Nunnally] and
        [Chynna] began smoking marijuana. Ms. Butler stated that the
        smell gives her headaches, and had asked them to do it on the
        other side of the house. Ms. Butler and [Nunnally] got into an
        argument over this, and eventually Ms. Butler went to lie down.
        Thereafter, [Nunnally] got into an argument with [Chynna] and
        eventually went into the bedroom and lay in bed with Ms. Butler.
        [Nunnally] and Ms. Butler began arguing over the smell of the
        marijuana smoke again, and Ms. Butler called [Nunnally] an
        offensive name. This upset [Nunnally], causing him to grab Ms.
        Butler in a choke -hold and punch[] her in the head. Ms. Butler
        testified that [Nunnally] hit her at least three (3) to four (4)
        times in the head.
              At some point, Ms. Butler was able to break free, grabbed
        her cell phone and cigarettes and went out on the back porch.
        While she was on the back porch, Ms. Butler called 911. Ms.
        Butler returned inside once the police officers had arrived on
        scene. Officer Miller stated that Ms. Butler appeared visibly
        upset and was bleeding from the head. Officer Miller spoke to
        [Chynna], but he stated that it was not a good conversation as
        [she] was not cooperative with him. Thereafter, police officers
        went into the bedroom where [Nunnally] was, woke him up and
        placed him under arrest for domestic violence. A search incident

                                       - 2 -
J   -S12022-17


        to arrest revealed a small bag of marijuana in his right front
        pocket.    Ms. Butler was transported to the hospital, and
        [Nunnally] was transported to the booking center.
Trial Court Opinion, 8/24/2016, at 3-4 (record citations omitted).

        Nunnally was subsequently charged with simple assault, possession of

a    small amount of marijuana, and possession of drug paraphernalia.2                      On

January 13, 2016, following      a    two-day jury trial, he was convicted of all

charges. On March 9, 2016, the trial court sentenced Nunnally to                    a   term of

23 months' county probation for simple assault, and                 a   concurrent 30 days'

probation for possession of marijuana.         No   further punishment was imposed
on the paraphernalia charge.         Nunnally filed   a   timely post -sentence motion
challenging the weight of the evidence, which the trial court denied on March

29, 2016. That same day, Nunnally filed        a    notice of appeal.

        Thereafter, the trial court ordered Nunnally to file            a   concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                         When

Nunnally failed to comply with the court's order, the trial court filed                      a

statement in lieu of an opinion, asserting all of Nunnally's issues on appeal

were waived. See Statement in Lieu of Rule 1925(a) Opinion, 5/10/2016.

Nunnally     subsequently    discontinued       his       appeal.           See    Notice    of

Discontinuance, 514 MDA 2016, dated 5/18/2016.




2
  See 18 Pa.C.S. § 2701(a)(1), and 35 P.S. §§ 780-113(a)(31)(i) and
(a)(32), respectively.



                                          -3
J -S12022-17




          On June 1, 2016, counsel filed a              timely petition for post -conviction
relief,3 seeking reinstatement of Nunnally's direct appeal rights nunc pro

tunc, based on counsel's ineffectiveness for failing to file                a   Rule 1925(b)

statement.        The court granted Nunnally's petition on June 10, 2016,

specifically permitting him to file       a   post -sentence motion nunc pro tunc.

See Order, 6/10/2016. Nunnally filed            a       post -sentence motion on June 20,

2016, asserting the verdict was against the weight of the evidence.                     See
Post -Sentence Motion, 6/20/2015.               The trial court denied the motion

on June 23, 2016, and this          timely appeal followed.4
          In his first issue on appeal, Nunnally contends the trial court

erred when it denied his request for                a    mistrial following testimony by
Butler that the police had been to their home and handcuffed Nunnally
"many times"        in the past.    See N.T., 1/12-13/2016, at 49. He further
argues that while the trial court gave              a    curative instruction, the charge
did not "cure the prejudice [the testimony] caused." Nunnally's Brief

at 13.

           Our review of    a   trial court's ruling denying        a   defendant's motion
for   a   mistrial is well -settled:


3   See Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

4   On July 11, 2016, the  trial court directed Nunnally to file a Pa.R.A.P.
1925(b) concise statement. Nunnally complied with the court's order, and
filed a concise statement on June 19, 2016.



                                           -4
J   -S12022-17


        The decision to declare a mistrial is within the sound discretion
        of the court and will not be reversed absent a "flagrant abuse of
        discretion." Commonwealth v. Cottam, 420 Pa.Super. 311,
        616 A.2d 988, 997 (1992); Commonwealth v. Gonzales, 415
        Pa.Super. 564,609 A.2d 1368,1370-71 (1992). A mistrial is an
        "extreme remedy ... [that] ... must be granted only when an
        incident is of such a nature that its unavoidable effect is to
        deprive defendant of a fair trial." Commonwealth v. Vazquez,
        421 Pa.Super. 184, 617 A.2d 786, 787-88 (1992) (citing
        Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603
        (Pa.1986), and Commonwealth v. Brinkley, 505 Pa. 442,480
        A.2d 980 (Pa.1984)).
Commonwealth v. Manley, 985 A.2d 256, 266                   (Pa. Super. 2009)

(quotation omitted), appeal denied, 996 A.2d 491 (Pa. 2010). Further,
while it is well -settled that references to     a   defendant's prior criminal
activity are not permitted to demonstrate        a   defendant's bad character
or proclivity for criminal behavior,

        [n]ot all references which may indicate prior criminal activity
        require reversal. Mere passing references to criminal activity will
        not require reversal unless the record indicates that prejudice
        resulted from the reference. Commonwealth v. Blystone, 555
        Pa.  565, 725 A.2d 1197, 1204-05 (1999). "The nature of the
        reference and whether the remark was intentionally elicited by
        the Commonwealth are considerations relevant to the
        determination    of    whether  a   mistrial  is   required."
        Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162,
        1165 (1981) (citation omitted).
Commonwealth v. Guilford, 861 A.2d 365, 370                 (Pa.   Super. 2004).

Moreover,

        "If evidence of prior criminal activity is inadvertently presented
        to the jury, the trial court may cure the improper prejudice with
        an    appropriate     cautionary   instruction   to    the   jury."
        Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super.
        2008), appeal denied, 600 Pa. 739, 964 A.2d 1 (2009). It is
        imperative for the trial court's instruction to be "clear and


                                       -5
J   -S12022-17


        specific, and must instruct the jury to disregard the improper
        evidence." Id.
Commonwealth v. Thompson, 106 A.3d 742, 753            (Pa. Super. 2014).

        Nunnally's complaint focuses on Butler's response to the prosecutor's

question, "What happened once the officer came?" Butler testified:

        A. I don't even know. I don't even remember. I-if I   -
                                                            there's
        been so many times they came and cuffed him for
        different times,  and it's been back in June. I know the day
        they asked me if I was okay, did I want an ambulance, I
        remember that and I said yes. And they took me down, put me
        in the thing, the bed or gurney whatever and took me to the
        hospital.
N.T.,   1/12-13/2016, at 49 (emphasis supplied).         After Butler's direct

examination was completed and the jury left the courtroom for          a   break,

counsel for Nunnally requested     a   mistrial based on the above testimony.

See id. at 59. When the trial court denied the motion, counsel requested       a

curative instruction.   The court stated it would be "happy to entertain       a

curative instruction" and asked counsel to draft one. See id. at 60.

        Once the testimony was completed and the      jury was excused from
trial, the court discussed several points for charge submitted by the parties.

With regard to the issue herein, the court stated:

        [D]efense counsel has requested an instruction to the effect of
        testimony regarding prior contact with police and/or detention
        prior to the June 9th, 2015 indent (sic) may not be considered as
        substantive or circumstantial evidence in determining the
        outcome of this case or something to the effect that in reference
        to the issues of what occurred on the 9th.
              I'm inclined to grant the substance of that proposed
        instruction.



                                       -6
J   -S12022-17



Id. at    123.   However, the next day, the trial court provided the following

jury instruction with regard to Nunnally's prior       bad acts:

               Furthermore, the defendant is presumed innocent
         throughout this trial unless and until you conclude based upon
         careful and impartial consideration of the evidence that the
         Commonwealth has proven his guilt beyond a reasonable doubt.
               The reason I'm emphasizing that, there has been on
         several occasions through the course of the trial where there's
         reference to an arrest on a matter or detention on a matter.
         Again, an arrest is a means by why a charge is initiated; it's not
         evidence of a charge. So therefore, you can't consider an arrest
         as having any direct or indirect or circumstantial evidence of
         anything. So that's why that presumption is so important.
Id. at 125-126.      Counsel for Nunnally did not object to the court's charge as

given, and, indeed, when asked at the conclusion of the charge if there was

anything else that "should be added or clarified," counsel responded, "No."

Id. at   142.

         On appeal, Nunnally claims the          testimony of Butler prejudiced him

because her comment gave the impression that police were called to the

apartment so often, she had            a   difficult time remembering the specific
incident on trial.        See Nunnally's Brief at 12.     He states:   "It   can [] be

inferred that [Nunnally] broke the law and possibly incurred some criminal

charges from those numerous police contacts."             Id. at 13-14. Further,    he

argues the court's curative instruction "does not cure the prejudice [the

comment] caused." Id. at 13.

         Preliminarily,    we   note   Butler's    comment     regarding     Nunnally's

purported prior bad acts was           a   passing reference, and not intentionally


                                            -7
J   -S12022-17



elicited by the Commonwealth.      See Guilford, supra.      Indeed, after she

made the comment, the prosecutor did not question Butler regarding the

"many times" the police were called to the apartment, but rather, re -focused

the examination on her visit to the hospital. See N.T., 1/12-13/2016, at 49-

50.    The court explained in its opinion:   "This Court does not believe Ms.

Butler's single statement rises to the level of prejudice required for         a

mistrial."    Trial Court Opinion, 8/24/2016, at 9.     We find no abuse of

discretion.

        Moreover, while we agree the cautionary instruction provided by the

trial court was less than specific in advising the jury to disregard Butler's

reference to possible prior criminal activity, we find any challenge to the jury

charge waived. As noted above, the trial court explicitly asked both counsel

if there was anything that needed to be "added or clarified" and Nunnally's

counsel responded, "No." N.T., 1/12-13/2016, at 142. Accordingly, no relief

is   warranted.

        In his second issue, Nunnally contends the verdict      is   against the

weight of the evidence.       He underscores    Chynna's testimony that she

observed the argument between Nunnally and Butler, and               never saw

Nunnally punch Butler.     See Nunally's Brief at 14-15.     Further, Nunnally

maintains there was no physical evidence recovered at the scene to

corroborate Butler's accusation that Nunnally punched her repeatedly in the

head. See id. at 15. He explains:



                                     -8
J   -S12022-17


         Officer Garrett Miller testified no blood evidence was found or
         collected at the scene, and no blood was found on [Nunnally] or
         his clothes. Officer Miller testified that he did not find any blood
         evidence inside the apartment.           No blood was found on
         [Nunnally's] hands. No blood was found on [Nunnally's] clothes.
         No blood was found on the bed where the incident was alleged to
         have taken place.

Id. at   15.

         Our review of   a   weight claim   is   well-established:5

         The weight of the evidence is a matter exclusively for the finder
         of fact, who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. A new trial is
         not warranted because of "a mere conflict in the testimony" and
         must have a stronger foundation than a reassessment of the
         credibility of witnesses. Rather, the role of the trial judge is to
         determine that notwithstanding all the facts, certain facts are so
         clearly of greater weight that to ignore them or to give them
         equal weight with all the facts is to deny justice. On appeal, our
         purview is extremely limited and is confined to whether the trial
         court abused its discretion in finding that the jury verdict did not
         shock one's conscience. Thus, appellate review of a weight claim
         consists of a review of the trial court's exercise of discretion, not
         a review of the underlying question of whether the verdict is
         against the weight of the evidence. An appellate court may not
         reverse a verdict unless it is so contrary to the evidence as to
         shock one's sense of justice.
Commonwealth v. Rosser, 135 A.3d 1077, 1090                       (Pa. Super. 2016) (en

banc), quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.

Super. 2015), appeal denied, 125 A.3d 1196 (Pa. 2015) (citations omitted).




5 We note Nunnally properly preserved his weight of the evidence claim by
raising the issue in a timely post -sentence motion before the trial court.
See Pa.R.Crim.P. 607(A)(3).


                                             -9
J   -S12022-17



        Upon our review of the record, we find no reason to disturb the ruling

of the trial court. Although both Nunnally and Chynna testified that he did

not assault Butler, the jury was free to believe Butler's testimony to the

contrary. Considering Chynna            is   Nunnally's daughter, and, admittedly, had

been drinking on the night of the incident,6 we agree with the trial court's

determination that the jury's credibility assessment does not shock one's

sense of justice.        See Trial Court Opinion, 8/24/2016, at 8.        Furthermore,

the lack of blood evidence on Nunnally or in the bedroom where the assault

occurred     is   irrelevant.    Officer Miller testified that when he arrived at the

scene, he found Butler "visibly upset and bleeding from the head."                N.T.,

1/12-13/2016, at 77.              Based      upon the witnesses' testimony and the

circumstantial        evidence     presented,     the jury's   determination   Nunnally

assaulted Butler is not "so contrary to the evidence as to shock one's sense

of justice."      Rosser, supra, 135 A.3d at 1090.             Accordingly, we find no

abuse of discretion on the part of the trial court in denying Nunnally's weight

challenge.

        Judgment of sentence affirmed.




6   See N.T., 1/12-13/2016, at 105.



                                              - 10 -
J   -S12022-17




Judgment Entered.




J         Seletyn,
     ._,eph D.       Es   .


Prothonotary


Date: 3/20/2017
