Com. v. Smith, S., Com. v. Smith, S. No. 977 MDA 2016

Stewart C. Smith was tried and convicted by a jury of sexual assault, indecent assault without consent, and simple assault stemming from an alleged rape of his then-girlfriend; initial aggregate sentence was 7–14 years, later reduced on PCRA resentencing to 4½–10 years.
During trial the Commonwealth elicited testimony and made several references to Smith’s prior crimes, parole status, and incarceration (including during closing argument).
Trial counsel moved for a mistrial only immediately after the Commonwealth’s closing argument; no mistrial motions were made when earlier references occurred.
Smith filed postconviction litigation (PCRA) that resulted in resentencing; he appealed the May 16, 2016 sentencing order and denial of his post-sentence motion and raised several claims on appeal concerning due process, mistrial, manifest necessity, and double jeopardy.
The trial court found Smith’s Rule 1925(b) concise statement too vague to preserve some claims; the Superior Court reviewed preserved claims and found no prejudice from the Commonwealth’s passing references and otherwise deemed some issues waived.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Smith)	Held
1. Whether continual references to incarceration and prior crimes violated due process	Commonwealth: references were either elicited by defense or incidental and not prejudicial	Smith: repeated references deprived him of a fair trial and violated due process	Waived due to vagueness in Smith’s Rule 1925(b) statement; Court did not reach merits
2. Whether trial court erred by denying mistrial after closing argument references	Commonwealth: references were passing, partly repetition of Smith’s testimony, not intentionally prejudicial	Smith: requested mistrial after closing; argued prejudice from references to parole/prison	Denial of mistrial was not an abuse of discretion; references were passing and no prejudice shown
3. Whether trial court should have declared mistrial sua sponte (manifest necessity)	Commonwealth: no manifest necessity; defendant must move for mistrial when event disclosed	Smith: judge should have declared mistrial sua sponte due to prejudicial references	Waived (not preserved in trial or in concise statement); Court did not address merits
4. Whether convictions should be discharged under double jeopardy due to intentional references	Commonwealth: references not intentional or prejudicial; double jeopardy inapplicable	Smith: intentional references require discharge under double jeopardy	Waived (not preserved); Court did not reach merits

Commonwealth v. Smith, 131 A.3d 467 (Pa.) (standards for due process claim review)
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (Rule 1925(b) requirements and waiver for vague concise statements)
Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super.) (concise statement must specify errors; vagueness waives issues)
Commonwealth v. Messersmith, 860 A.2d 1078 (Pa. Super.) (mistrial standard; abuse of discretion review)
Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super.) (consideration of nature and intent of references to past crimes)
Commonwealth v. Valerio, 712 A.2d 301 (Pa. Super.) (mere passing references to prior crimes do not require reversal absent prejudice)
Commonwealth v. Bell, 562 A.2d 849 (Pa. Super.) (failure to request mistrial when event occurs forfeits appellate review)
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (defendant’s right to self-representation and Faretta/Grazier procedure)