A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Ryan CULVER, Appellee and
Commonwealth of Pennsylvania, Appellee v. Ryan S. Culver, Appellant, 2012 WL 3570722, 2012 PA Super 172, 1803 WDA 2010, 1821 WDA 2010 (Aug. 21, 2012). This was an appeal from an order of Judge Oliver Lobaugh, President Judge of the Court of Common Pleas of Venango County, Criminal Division, CP–61–CR–0000092–2009. The Panel was composed of Judges MUSMANNOBENDER, and STRASSBURGER. Judge Bender wrote the Opinion.

After a four day trial that ended on March 19, 2010, Culver was convicted of child abuse, i.e., aggravated assault and endangering the welfare of children. On May 25, 2010, Culver was sentenced to a mandatory term of 5–10 years’ incarceration for aggravated assault, and a consecutive term of 5 years’ probation for endangering the welfare of children. In his post-sentence motions, Culver sought arrest of judgment premised upon a claim of prosecutorial misconduct. The trial court held a hearing on the post-sentence motions and on October 25, 2010 granted Culver a new trial due to prosecutorial misconduct. The trial court also denied Culver’s double jeopardy claim to preclude retrial.The Commonwealth, as Appellant/Cross–Appellee, appealed from the trial court’s order which granted a new trial due to prosecutorial misconduct. Ryan Culver cross-appealed from the trial court’s order denying preclusion of retrial based upon double jeopardy grounds.

In its opinion, the trial court found several instances of prosecutorial misconduct that the court concluded had collectively contributed to its finding that Culver had been prejudiced to the point where he had been deprived of a fair and impartial trial. First, despite instruction by the Court to cease doing so, during both opening and closing arguments, the prosecutor, James P. Carbone, Esq., continued to physically intimidate the Defendant during his closing argument by invading the personal space of the Defendant and his attorney by pointing his finger in their faces. The prosecutor “was yelling and menacing as he repeatedly put his finger in the faces of the Defendant and defense counsel”. Second, the trial court found that the prosecutor made a series of statements asserting his personal beliefs during closing arguments. Specifically, the prosecutor told the jury that Culver was “the most unreliable historian we’re ever going to meet”, “probably the most unreliable, unbelievable person that you are ever going to come across” and that Culver was “lying, lying, lying, lying, and lying.” The prosecutor also told the jury during closing arguments that Culver was “somewhat the compulsive or pathological liar….” Third, the trial court found that the prosecutor told the jury during opening argument that certain evidence would be presented that, it would later be revealed, did not exist. The prosecutor stated during his opening argument that “the doctors were sent the statement made by the Defendant to Trooper Russo and that they ‘looked at it’ and that that version of how the injuries were sustained was also inconsistent with the minor child’s injuries.” However, the trial court indicated that the prosecutor misled the Court and the Defendant when giving a proffer regarding what their expert would testify to as he never spoke to her regarding this evidence prior to trial. Finally, the trial court determined that the prosecutorrepeatedly asked leading questions of the Commonwealth’s witnesses over the objections of defense counsel which were repeatedly sustained by the trial court, stating that “it is clear from the record that the trial court showed an intolerance for leading questions that the prosecutor ignored.”

The trial court took various remedial steps in an attempt to alleviate the prejudice caused by the numerous incidences of prosecutorial misconduct, including admonishing the prosecutor at sidebar and providing curative or cautionary instructions to the jury. At one point, when the defense requested a mistrial because the prosecutor had answered a question for his own witness, the trial court denied the motion because at the time of the request, the Court believed that denying the request for a mistrial and giving the jury cautionary instructions would be sufficient to overcome any prejudice to the Defendant. However, after the trial court reviewed the record in its entirety when considering Culver’s post-sentence motions, the trial court found that the cumulative effect of the prosecutor’s behavior during the trial was enough to deny the Defendant a fair trial and prevented the jury from rendering a true verdict.

While Pennsylvania courts do permit some degree of oratorical or rhetorical flair, it is unbecoming of an officer of the court to engage in the acts of intimidation that occurred in this case.  It might be excused that, during the course of the presentation of an opening or closing argument, a prosecutor points his finger at a defendant or defense counsel to emphasize a particular point. It might also be excused that, while lost in the heat of argument, a prosecutor made such a gesture in close proximity to the defense table, unaware that he had inadvertently invaded the personal space of the target. Here, however, such actions were observed on multiple occasions during both the opening and closing statements. The trial court reported that these physically menacing actions were accompanied by yelling and other animated displays, and that the prosecutor continued to engage in these behaviors despite repeated warnings from the trial court. At best, such behaviors demonstrate a lack of professionalism in the courtroom. At worst, they could be interpreted as intentional conduct intended to inflame the passions of the jury or to instigate a reaction from the defendant or his counsel. What is clear is that such behavior has no part in the rational, logical, and contemplative evaluation of the evidence that should occur during a criminal trial. The deprivation of an individual’s liberty should never turn upon the theatrical presentation of arguments or evidence, the volume and tone of an advocate’s voice, or due to physical acts of intimidation. That such behavior occurred in front of a jury only serves to increase its potential prejudicial effect. A jury might well become distracted from their task by the theatrics of an over-zealous prosecutor. Therefore the trial court did not abuse its discretion in determining that these events contributed greatly to denying Culver a fair and impartial trial.

Furthermore, the prosecutor did not merely comment upon Culver’s statement to a trooper in which Culver admitted that his initial account to the victim’s mother and authorities was a lie. The prosecutor also went far beyond fair commentary on the defense argument that Culver’s dishonesty did not constitute substantive proof that a crime had occurred. The prosecutor’s statements during closing arguments were rife with excessive hyperbole that went far beyond permissible oratorical flair when he stated that Culver was “the most unreliable historian we’re ever going to meet,” or that Culver was “probably the most unreliable, unbelievable person that you are ever going to come across.” There also was absolutely no evidence that Culver was a “compulsive or pathological liar”. It is one thing to call the defendant a liar when there is clear evidence supporting that claim, or that his admitted prior fabrications make it more likely that Culver’s revised story also lacked credibility. It is quite another to claim Culver was the most unreliable or most unbelievable person ever, and it was particularly egregious to state or imply that Culver had a psychological condition that makes it impossible for him to tell the truth. Accordingly, the trial court did not abuse its discretion in determining that the prosecutor’s comments during closing arguments constituted prosecutorial misconduct.

The statement that Culver was a compulsive or pathological liar carried the risk that the prosecutor was putting facts before the jury that were not in evidence. The implication of such a statement was that Culver had a psychological condition that rendered him incapable of telling the truth. Such a statement easily could inflame the passions of the jury and cause rampant and unfounded speculation,even if accompanied by a cautionary instruction. Accordingly, there was no abuse of discretion on the part of the trial court in determining that the prosecutor’s repeated hyperbolic statements to the jury concerning Culver’s veracity caused sufficient prejudice as to warrant a new trial.

It was also prosecutorial misconduct for the prosecutor to issue a proffer to defense counsel and the court that it knew to be untrue, even if the prosecutor had correctly made an educated guess regarding the likely nature of the expert’s testimony.The prosecutor told the jury, at the beginning and the end of the case, that certain expert scientific evidence existed that disproved Culver’s claim that the victim’s injuries were accidentally caused. The fundamental question for the jury was whether the victim’s injuries were caused by intentional, reckless, or accidental conduct. The single cautionary instruction issued by the trial court during closing statements did not fully mitigate the prejudice cause by this misconduct because the misconduct spanned the entire duration of the trial, and because no cautionary or curative instruction was given contemporaneous to the misrepresentation to the jury that occurred during the Commonwealth’s opening statement. Indeed, the misconduct began prior to trial when the prosecutor gave a false proffer to the defense. Because this misconduct spanned the entire course of the trial, and because it affected the core issue in the case, the trial court did not abuse its discretion in determining that such misconduct significantly contributed to an unfair trial,despite a limited cautionary instruction that occurred during the closing argument.

The trial court also found that the prosecutor repeatedly used leading questions with the Commonwealth’s witnesses despite the trial court’s admonitions and several sustained objections. The Assistant District Attorney was warned by the Court to stop leading the witnesses on two separate occasions and yet he continued to do so. The trial court showed an intolerance for leading questions that the Assistant District Attorney ignored. The trial court’s concern was that the prosecutor repeatedly refused to follow the instructions of the trial court when directed to do so. The trial court did not abuse its discretion in finding prosecutorial misconduct in this regard. The prosecutor’s refusal to adhere to the trial court’s strict policy on leading questions contributed to the overall prejudice endured as a result of the unbecoming behavior of the prosecutor during the course of the trial.

The trial court concluded that the resultant prejudice from the aforementioned instances of prosecutorial misconduct caused Culver to have been deprived of a fair trial. However, no number of failed claims may collectively attain merit if they could not do so individually. Hence, the trial court’s order granting a new trial cannot stand if none of the individual findings of prosecutorial misconduct warranted a new trial.

The misconduct resulting from the prosecutor’s repeated use of leading questions alone could not constitute sufficient prejudice as to warrant a new trial. However, the prosecutor’s outrageous behavior during opening and closing statements, during which he engaged in acts of physical intimidation, yelling, and otherwise menacing behavior, engendered sufficient prejudice as to warrant a new trial. The prosecutor’s repeated use of excessive hyperbole regarding the veracity of Culver, particularly when the prosecutor referred to Culver as a compulsive or pathological liar, also gave rise to sufficient prejudice as to warrant a new trial. Finally, the prosecutor’s repeated misrepresentations of fact to the defense, to the court, and to the jury with respect to the expert’s opinion of Culver’s statement, were sufficiently prejudicial as to warrant a new trial. Accordingly, the Court concluded that the trial court did not abuse its discretion in determining that the collective misconduct engaged in by the prosecutor in this case resulted in depriving Culver of a fair trial.

The Court also affirmed the trial court’s ruling that double jeopardy does not bar retrial because the prosecutor’s misconduct was not deliberately calculated to deprive Culver of a fair trial. Judge Bender wrote: “We cannot discern a clear intent to deprive Culver of a fair trial where A.D.A. James Carbone’s misconduct could largely be explained by his incompetence or mere indifference to the rights of the accused and the decorum of the court, and where there is also no direct evidence to the contrary.”

Attorney Blair Harry Hindman of Garbarino, Neely, Hindman & Huwar of Clarion represented Culver.

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