Com. v. Schiefelbein, T. ( 2022 )

J-S34023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMPSON GOTTLIEB :
SCHIEFELBEIN :
: No. 1481 WDA 2021
Appellant
Appeal from the Judgment of Sentence Entered December 18, 2020
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0002499-2018
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: December 7, 2022
Thompson Gottlieb Schiefelbein (Appellant) appeals from the judgment
of sentence imposed following his jury convictions of one count each of
aggravated indecent assault - without consent, aggravated indecent assault
by forcible compulsion, and indecent assault - without consent.1 We affirm.
In October 2018, then 17-year-old K.S. (Victim), who is autistic, sent
nude photographs of herself to an eighteen-year-old female vocational and
technical school (vo-tech) classmate. N.T., 8/17/20, at 149, 163-73. Without
obtaining the Victim’s permission, the classmate forwarded the photographs
to Appellant, her ex-boyfriend. Id.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3125(a)(1), (2), and 3126(a)(1).
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On October 22, 2018, the Victim attended a meeting with her high-
school principal Ryan Yates (Principal Yates), several school officials, and her
mother to discuss the photographs. Id. at 68. The Victim disclosed that, on
Friday, October 19, 2018, she arranged for Appellant to pick her up from
school and take her home. Id. The Victim stated Appellant did not drive her
home but instead drove her to his house. Id. at 69. Appellant took the Victim
to his bedroom, took off his pants, grabbed her, and stated he wanted to have
sex. Id. at 69, 72, 108. The Victim claimed she told him “no,” ran from the
residence, and waited for Appellant, who eventually drove her home. Id. at
69.
On October 23, 2018, however, the Victim notified Principal Yates she
had not told him everything. Id. at 73. She stated when she and Appellant
were in his bedroom, he took off his pants, grabbed her, pulled down her
pants, and tried to have vaginal intercourse with her. Id. at 73-74. The
Victim further said Appellant had choked her. Id. at 104. The Victim told
Principal Yates there was a sanitary pad in her bathroom garbage can that she
had used because she began bleeding after the assault. Id. at 42-43.
That same day, Sexual Assault Nurse Examiner Megan McLevey (Nurse
McLevey) examined the Victim. Deposition Transcript, 7/30/20, at 30-31.2
Nurse McLevey testified the Victim told her that during the assault, Appellant
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2 Nurse McLevey’s testimony was given by videotape deposition. The
Commonwealth played it for the jury during trial. See N.T., 8/18/20, at 160.
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had kissed her chest, took off her bra, and bit her nipple. Id. at 57. The
Victim’s mother gave Nurse McLevey the Victim’s used sanitary pad as part of
the exam. Id. at 63-64. The State Police Crime Lab tested the pad and found
Appellant’s DNA on it. N.T., 10/19/20, at 49-50.
On October 31, 2018, the police conducted a video-recorded interview
with Appellant. Id. at 23-24, 27-31. Appellant initially denied to police that
he knew the Victim. Id. at 27. However, when police indicated a school
surveillance video showed Appellant picking the Victim up in his car, Appellant
admitted this but claimed he drove her directly home. Id. at 27-28. Appellant
later conceded that he did take the Victim to his house, hugged her and laid
with her on a bed. Id. at 29-30. When questioned further, Appellant
acknowledged he touched the Victim inappropriately over her clothing, and
tried to have consensual sex with her but he could not insert his penis into the
Victim’s vagina. Id. at 30-31. Both Appellant and the Victim agreed they had
exchanged sexually explicit texts, but the Victim said she had not planned on
actually having sex with Appellant. Id. at 174-75.
A jury trial took place in August 2020. On August 24, 2020, the jury
convicted Appellant of the above charges but acquitted him of two counts of
rape by threat of forcible compulsion, and one count each of rape by forcible
compulsion, involuntary deviate sexual intercourse, sexual assault,
aggravated indecent assault by threat of forcible compulsion, indecent assault
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by threat, and strangulation.3 On December 10, 2020, the trial court
sentenced Appellant to an aggregate term of 36 – 72 months in prison.
On December 15, 2020, Appellant filed a timely post-sentence motion,
which included a request for appointment of new counsel, and for an extension
of time to file supplemental post-sentence motions. On December 18, 2020,
the trial court issued an amended sentencing order, which did not advise
Appellant of his appeal rights. On December 18, 2020, the trial court granted
Appellant an additional 30 days to file a supplemental post-sentence motion.
On January 19, 2021, new counsel filed a motion for another extension
of time to file supplemental post-sentence motions. The trial court granted
the motion and gave counsel an additional 30 days to file supplemental post-
sentence motions. On February 2, 2021, the trial court granted Appellant an
additional thirty days to file supplemental post-sentence motions upon his
receipt of the trial transcripts. The trial court docket demonstrates the
transcripts were filed on February 19 and 23, 2021. On March 17, 2021, the
trial court entered an order giving Appellant credit for time served. The order
did not advise Appellant of his appeal rights.
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318 Pa.C.S.A. §§ 3121(a)(2), 3121(a)(2), 3123(a)(1), 3124.1, 3125(a)(2),
3126(a)(3), and 2718(a)(1).
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On July 16, 2021, Appellant filed a supplemental post-sentence motion,
which the trial court denied on November 9, 2021. The instant appeal
followed.4
There is a timeliness issue with Appellant’s filing of his notice of appeal.
However, we view the events leading to the filing as constituting a breakdown
in the court’s process.5 We therefore review the merits of Appellant’s five
issues:
1. Whether the Commonwealth presented sufficient evidence to
prove the sexual offense for which the Appellant was
convicted[?]
2. Whether the trial court erred in allowing the jury to hear
testimony of the [V]ictim having been diagnosed with
autism[?] …
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4 Appellant and the trial court complied with Pa.R.A.P. 1925.
5 Generally, appellate courts cannot extend the time for filing an appeal. See
Pa.R.A.P. 105(b). Accordingly, this Court, on January 7, 2022, issued a rule
to show cause why the appeal should not be quashed as untimely. Appellant
filed a response on January 25, 2022, arguing the delays were caused by the
withdrawal of trial counsel, the appointment of new counsel, and the time
needed for new counsel to obtain and review the trial transcripts. We
discharged the rule to show cause on February 2, 2022, and directed the
matter to the attention of the merits panel.
The record reflects the December 17, 2020, and March 17, 2021 orders
amending Appellant’s sentence and granting him credit for time-served did
not advise Appellant about the timeliness requirement for his appeal, and that
filing an untimely post-trial motion would not toll the appeal period. The
court’s failure to advise Appellant of his rights constitutes a breakdown in the
court’s processes. See Commonwealth v. Patterson, 940 A.2d 493, 498
(Pa. Super. 2007) (compiling cases in which the “courts of this Commonwealth
have held that a court breakdown occurred in instances where the trial court
... either failed to advise Appellant of his ... appellate rights or misadvised
him”); Pa.R.A.P. 907.
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3. Whether the [t]rial [c]ourt erred by not giving an immediate
curative instruction to the jury to disregard the above-
referenced testimony relating to the [V]ictim’s autism
diagnosis[?] …
4. Whether the [t]rial [c]ourt erred when it failed to allow the text
messages, admitted as evidence during the trial, to be
published to the jury upon the jury’s request during their
deliberations[?]
5. Whether the jury’s verdict was against the weight of the
evidence presented by the Commonwealth at trial[?]
Appellant’s Brief at 3 (reordered).
In his first issue, Appellant contends the evidence was insufficient to
sustain the verdicts. Id. at 12-15. Specifically, Appellant maintains the
Commonwealth “failed to prove lack of consent beyond any reasonable doubt.”
Id. at 13.
When reviewing a sufficiency challenge, we determine “whether the
evidence at trial, and all reasonable inferences derived therefrom, when
viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to establish all elements of the offense beyond a reasonable
doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation
omitted). “Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
(citation omitted). “In conducting this review, the appellate court may not
weigh the evidence and substitute its judgment for the fact-finder.” Id.-6-
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Here, we are constrained to find Appellant waived his sufficiency claim.
In Appellant’s Pa.R.A.P. 1925(b) concise statement, Appellant claimed the
Commonwealth failed “to present[] sufficient evidence to prove the elements
of the sexual offenses charged.” Concise Statement of Errors Complained of
on Appeal, 12/29/21, at 2 (unnumbered). However, Appellant did not identify
the element(s) of the crime(s) purportedly not proven by the Commonwealth’s
evidence.
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.
2013) (citation omitted). Where a 1925(b) statement “does not specify the
allegedly unproven elements[,] … the sufficiency issue is waived [on
appeal].” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008) (citation and emphasis omitted). Moreover, “[t]he Pa.R.A.P. 1925(b)
statement must be sufficiently ‘concise’ and ‘coherent’ such that the trial
court judge may be able to identify the issues to be raised on
appeal[.]” Commonwealth v. Vurimindi, 200 A.3d 1031, 1038 (Pa. Super.
2018) (emphasis added). “[A] Rule 1925(b) statement is a crucial component
of the appellate process because it allows the trial court to identify and focus
on those issues the party plans to raise on appeal.” Id.-7-
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Here, the trial court adopted its decision denying post-trial motions as
its Rule 1925(a) opinion. See Order, 12/30/21, at 1 (unnumbered). While
that opinion generally addressed the sufficiency of the evidence underlying
Appellant’s convictions, it did not discuss the claim now raised in Appellant’s
brief, namely, the Commonwealth failed to prove lack of consent. As
Appellant’s Rule 1925(b) statement failed to specify what elements of the
offenses he was challenging and did not identify his challenge with sufficient
specificity for the trial court to ascertain the nature of the challenge, Appellant
waived his sufficiency of the evidence claim. See Vurimindi, supra;
Garland, supra; Williams, supra.Even if Appellant had preserved his sufficiency challenge, his claim
would not merit relief. In his brief, Appellant concedes the Victim’s trial
testimony that Appellant had sexually assaulted her, and that the Victim made
the same claims to the nurse who had conducted the sexual assault
examination and to Principal Yates. Appellant’s Brief at 13; N.T., 8/20/20, at
104-09; Deposition Transcript, 7/30/20, at 56-58; N.T., 8/17/20, at 73-74.
Appellant argues, however, the jury should have disregarded this trial
testimony, and should have credited the Victim’s sexually-explicit texts as
showing consent. Appellant’s Brief at 14-15; N.T., 8/20/20, at 174-75.
It is settled that “the uncorroborated testimony of the complaining
witness is sufficient to convict a defendant of sexual offenses.”
Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005)
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(citation omitted). Further, Appellant’s claim that the jury should have
discredited the Victim’s trial testimony goes to the weight, not the sufficiency
of the evidence. See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160
(Pa. Super. 2007) (finding claim jury should not have believed victim’s version
of events goes to weight, not sufficiency of evidence). Thus, even if Appellant
had not waived this claim, it would not merit relief.
In his second issue,6 Appellant contends “the trial court erred in allowing
the jury to hear testimony of the [V]ictim having been diagnosed with autism.”
Appellant’s Brief at 9. Appellant maintains this was in contravention of the
trial court’s pre-trial ruling that no witnesses were allowed “to mention or
make reference to the [Victim] having been diagnosed with autism.” Id.Appellant claims the trial court erred by “not giving an immediate curative
instruction to the jury to disregard the above-referenced testimony.” Id.Appellant argues the record “clearly shows the jury improperly considered the
[V]ictim’s diagnosis as part of their deliberations in reaching a verdict.” Id.We disagree.
The record is not clear about the circumstances under which the Victim’s
autism diagnosis came up; Appellant filed no written motions in limine to limit
testimony regarding the Victim’s autism diagnosis. Rather, our review
discloses the topic arose during an off-the-record discussion prior to the start
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6Appellant conflates his second and third issues in his brief. See Appellant’s
Brief at 9-11.
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of trial. See N.T., 8/17/20, at 12. When the parties went on the record, they
indicated the issue would arise during Principal Yates’ testimony, the Victim’s
mother’s testimony, and the Victim’s testimony. Id. At that time, the trial
court stated:
I … want the testimony steered away from anybody testifying that
she has an autism diagnosis. She has a specialized education plan
[(IEP)] based upon the things [the Commonwealth] just said and
that I think is acceptable.
Id. at 14. The trial court later clarified:
As I said … we will see how the testimony develops. If at some
point we get into … a medical dissertation or rendering of medical
opinions or … something beyond what a principal and an educator
would or could conclude based upon their observations and review
of her IEP … I would sustain an objection to that, so we will
see how it unfolds.
Id. at 16 (emphasis added).
During Principal Yates’ direct examination, the following occurred:
A. [Principal Yates:] [The Victim] was a student in our life skills
program, which typically, give or take, on any given year we have
… anywhere from five to seven students … in our life skills
program.
So you kind of get to know those students pretty well just
because it’s always kind of a small group.
Q. [The Commonwealth:] And what is the —
A. When I say “pretty well”, I just mean, like their needs and their
schedules, who’s their aides, thing[s] like that.
Q. Can you tell us what the life skills program is?
A. Well, it’s a program … that serves … from the special education
field the … students with more severe disabilities. In [the
Victim’s] case she is diagnosed with autism. She is —
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THE COURT. Do you have an objection?
[Defense Counsel:] Objection, Judge.
THE COURT: That would be sustained.
Id. at 57. The Commonwealth then asked its next question. Defense counsel
did not request a curative instruction and did not move for a mistrial.
Later, during cross-examination, defense counsel sought to elicit
information about whether the Victim needed assistance getting on and off
the bus between the high school and the vo-tech school:
Q. [Defense Counsel:] We’ll keep it simple. [The Victim] had an
IEP plan; correct?
A. [Principal Yates:] Yes.
Q. Did that IEP plan have something in place to make sure that
she got on the bus from [high school] to go to vo-tech?
A. I’m not trying to be challenging with you, but that’s a
document, that, unless, Your Honor, you tell me to discuss it
that’s, that’s a private document.
Q. Well, sir —
A. I mean, if I’m not allowed to say in the beginning about her
autism I’m not thinking I should be discussing a student’s IEP.
THE COURT: Let’s go to side bar, and I’ll find out where
you’re going with this.
Id. at 93. During the lengthy sidebar discussion, defense counsel complained
about Principal Yates’ second use of the term “autism” and stated if it
continued, “I’m going to be forced to ask for a mistrial.” Id. at 95; see also
id. at 94-95. However, defense counsel did not request a curative instruction
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and did not move for a mistrial. Id. at 95. Principal Yates’ cross-examination
concluded without further incident. Id.
The next morning, prior to the testimony of the Victim’s mother, the
trial court revisited its ruling. N.T., 8/18/20, at 4-6. The trial court ruled the
Victim’s mother could testify about the Victim’s “communication challenges”
and “certain limitations that she has in being able to provide descriptions.”
Id. at 4. Defense counsel objected to any testimony that would go beyond
the fact the Victim had a “special needs diagnosis.” Id. at 5. However, the
trial court ruled:
That’s fair. And certainly I’ll entertain any objection [the defense
wants] to place on the record in front of the jury, with the
understanding that part of mom’s testimony would be limited in
the fashion [the Commonwealth] just described.
Id. at 6. Mother then proceeded to testify in accordance with the parameters
set by the trial court; she never mentioned the word “autism” and defense
counsel made no objections during her testimony. See id. at 10-75.
Later that day, the Commonwealth played the video deposition of Nurse
McLevey, which took place prior to the trial court’s ruling on the parameters
of testimony regarding autism. At two points during her testimony, both in
response to questions by the Commonwealth about why Nurse McLevey had
the Victim’s mother sign a consent form for the medical examination, Nurse
McLevey stated her understanding that the Victim had been diagnosed with
autism. Deposition Transcript, 7/30/20, at 35 and 37. Defense counsel did
not object to the testimony at the time it was taken, or when it was played at
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trial. Id. Moreover, defense counsel did not seek to redact those portions of
the video deposition prior to it being played to the jury. N.T., 8/18/20, at
157-60.
In its direct examination, the Commonwealth asked the Victim if she
had been diagnosed with autism; she replied, “Yes.” N.T., 8/19/20, at 88.
She then explained she had problems forming memories, and problems with
times and dates, but was able to tell the jury what had happened to her. Id.
at 88-89. Defense counsel did not object to this testimony.
During deliberations, the jury informed the court of its confusion7 about
whether a person with the Victim’s disability was capable of consenting to
sexual contact. N.T., 8/21/20, at 5. After a lengthy discussion with the trial
court, the parties agreed to have the trial court reread the standard jury
instructions for forcible compulsion and consent. Id. at 5-18, 26-29. The trial
court then read the following instruction, which had been agreed to by the
parties:
Now, it should be clear to the jury that notwithstanding the
reference that you may have heard in this case relating to autism
and the IEP, those references do not mean that the [V]ictim
cannot consent. Those references do not mean that the
[V]ictim cannot consent.
In this case and in all cases that relate to the question of consent
you may consider … all the testimony you heard during the course
of this trial to determine whether [the Victim] gave consent, and
you must consider such factors as the [V]ictim’s age and
mentality.
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7 The text of the question is not contained in the notes of testimony.
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Id. at 29 (emphasis added). As noted above, defense counsel participated in
the drafting of this charge, and when asked if the trial court “missed
anything[,]” defense counsel replied, “No, sir.” Id. at 31.
To the extent Appellant challenges the adequacy of the trial court’s
response to alleged breaches of the trial court’s ruling, i.e., that the court did
not give an immediate cautionary instruction or sua sponte declare a mistrial,
the claim is waived. See id. It is well-settled that failure to lodge a
contemporaneous objection results in waiver of a claim on appeal. See
Commonwealth v. May, 887 A.2d 750, 758 (Pa. 2005) (“To the extent the
claims would sound in trial court error, they are waived due to the absence of
contemporaneous objections.”); Commonwealth v. Dougherty, 860 A.2d
31, 37 (Pa. 2004) (failure to object results in appellate waiver);
Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa. Super. 2009) (noting
where defendant objects and trial court sustains objection, failure to request
either curative instruction or mistrial constitutes waiver on appeal);
Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (finding
claim trial court erred in failing to give cautionary instruction waived where
defendant did not request one).
As our recitation above demonstrates, Appellant made a single objection
to the use of the term “autism,” during Principal Yates’ testimony, which the
trial court sustained, and to which Appellant made no further objection. Thus,
any claim regarding this issue is not before this Court; the trial court did not
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adversely rule on Appellant’s objection. See Epstein v. Saul Ewing, LLP, 7
A.3d 303, 314 (Pa. Super. 2010) (declining to address issue where trial ruling
benefitted appellant).
Even if not waived, Appellant’s claim does not merit relief. “It is within
a trial judge’s discretion to declare a mistrial sua sponte upon the showing of
manifest necessity, and absent an abuse of that discretion, we will not disturb
his or her decision.” Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa.
Super. 2002). Absent a motion by a defendant, a “trial judge may declare a
mistrial [sua sponte] only for reasons of manifest necessity.” Pa.R.Crim.P.
605(B) (emphasis added). Thus, a trial court exercises the power to declare
a mistrial sua sponte “with the greatest caution, under urgent circumstances,
and for very plain and obvious causes[.]” Commonwealth v. Owens, 445
A.2d 117, 120 (Pa. Super. 1982) (citations omitted).
The trial court’s opinion does not address its failure to declare a mistrial
sua sponte. Nevertheless, we conclude no error resulted. As the trial court
tacitly acknowledged in its opinion, its initial decision that only a medical
expert could testify about the Victim’s autism diagnosis was not supported by
law:
[C]ase law suggests that lay testimony on a victim’s mental
disability is admissible in sexual assault cases. In Com. v.
Crosby, “the victim’s mother testified at length regarding her
daughter’s brain[-]injured status and limited mental capacity.”
791 A.2d 366, 370 (Pa. Super. 2002). In Com. v. Provenzano,
the fifteen-year-old victim’s mental disability was established
through “the testimony of the victim’s ‘life skills’ teacher,” who
testified that “the victim had an IQ of 50 and the decision-making
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capacity of an elementary school student.” 50 A.3d 148, 152 (Pa.
Super. 2012). In Crosby and Provenzano, the victim’s mental
disability was not merely a factor to be considered when
determining consent or forcible compulsion but was an essential
element of Indecent Assault under 18 Pa.C.S. § 3126(a)(6), which
requires proof beyond a reasonable doubt that “the complainant
suffers from a mental disability which renders complainant
incapable of consent.” No medical expert testified in either
Crosby or Provenzano.
The mother in Crosby and the “life skills” teacher in Provenzano
presented lay testimony on the victim’s mental capacity based on
their own knowledge and experience. Such testimony was not
only admissible but was deemed competent to establish an
essential element of a crime beyond a reasonable doubt. Here,
[the Victim’s] mother, her principal, and [the Victim] herself
testified as to the limitations and challenges [the Victim]
experienced as a result of her condition. That testimony was
based on the witness’s own experience with [the Victim’s]
condition and did not purport to be medical expert testimony.
Nurse McLevey specified that her notation of [the Victim’s] autism
was merely based on the mother’s report and not her own medical
opinion. [Appellant] seems to argue not that these witnesses
were incompetent to testify as to their own experiences with [the
Victim’s] condition, but rather that the word “autism’’ cannot be
uttered by anyone but a doctor. The [trial c]ourt sustained
any objections [Appellant’s] counsel made to explicit
mentions of “autism,” though [Appellant] allowed a few to pass
without objection. With or without objection, none of the
mentions of autism were prejudicial because they were all
made within the context of the witness’s own personal
knowledge and experience dealing with [the Victim]. That
[the Victim] had been diagnosed with autism was a simple fact of
life for these witnesses, and none of them testified about the
effects of that diagnosis on [the Victim’s] mental capacity in a
manner beyond their own education or experience.
Evidence of [the Victim’s] mental capacity was relevant,
admissible, and appropriate for the jury’s consideration. The
victim’s mental capacity is a relevant factor in determining
essential elements of some of the crimes charged against
[Appellant], including the element of lack of consent and the
element of forcible compulsion. See Pennsylvania Suggested
Standard Criminal Jury Instructions § 15.3126A (“When
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considering consent, the age and mentality of the victim must be
considered”) and § 15.3121A (victim’s mental condition is
relevant to forcible compulsion).
Trial Court Opinion, 11/9/21, at 22-23 (emphases added). See also,
Commonwealth v. T.J., 2017 WL 2211388, at *2-3 (Pa. Super. May 19,
2017) (unpublished memorandum) (evidence sufficient to sustain charge of
indecent assault of person with mental disability where victim’s sister, nurse
who conducted sexual assault exam, and investigating officer all testified
victim was autistic and mentally challenged). The trial court’s analysis is
supported by the law; we discern no error or abuse of discretion.
Moreover, Appellant’s reliance on this Court’s decision in
Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super. 2007) is misplaced.
Padilla does not concern the failure of a trial court to sua sponte declare a
mistrial or lay testimony about a victim’s mental health status. Instead, it
concerns whether a defendant was entitled to a new trial when a
Commonwealth witness violated the trial court’s pre-trial ruling and testified
the defendant had recently been released from prison. Padilla, 923 A.2d at
1192. In that case, despite the defendant’s filing, and the trial court’s grant,
of a motion in limine to preclude testimony about his prior incarceration, a
police officer testified the defendant had “just got out jail[.]” Id. Defense
counsel requested a mistrial, which the trial court initially granted. See id. at
1192-93. However, after an objection by the Commonwealth, the court
changed its mind. Id. After requesting briefing by both parties, the court
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ultimately instructed the jury “to disregard the remarks made by this witness
at this particular time.” Id. at 1193. In finding the trial court erred in not
granting a mistrial, this Court relied on the following: (1) the trial court
specifically precluded this testimony prior to trial; (2) it is settled law that
evidence of past crimes is not admissible absent certain specific
circumstances; and (3) the trial court’s inadequate response, first by initially
seeming to grant then denying defense counsel’s motion for mistrial and by
issuing a curative instruction that was “too vague to have cured the prejudice.”
Id. at 1194-96.
Here, as discussed, we are unable to determine from the record how the
issue of the Victim’s autism diagnosis arose and the trial court’s ruling on the
issue was less than absolute. As the trial court later acknowledged, to the
extent it did rule lay witnesses could not refer to Victim’s being diagnosed with
autism, the ruling was not supported by case-law. Appellant largely failed to
object, never requested a cautionary instruction, and never sought a mistrial.
Thus, under the circumstances of this case, Padilla does not support
Appellant’s claim he was entitled to either a mistrial or the grant of new trial.
Appellant’s second issue is both waived, and even if not, does not merit relief.
In his third issue, Appellant appears to contend the trial court’s
instruction issued in response to the jury’s inquiry regarding ability to consent
was inadequate. See Appellant’s Brief at 9-11. Appellant also implies the
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trial court erred in failing to sua sponte declare a mistrial or grant a new trial
because of juror misconduct. Id. Again, we are constrained to find waiver.
The standard governing our review of a challenge to jury instructions is
as follows:
When reviewing a challenge to part of a jury instruction, we must
review the jury charge as a whole to determine if it is fair and
complete. A trial court has wide discretion in phrasing its jury
instructions, and can choose its own words as long as the law is
clearly, adequately, and accurately presented to the jury for its
consideration. The trial court commits an abuse of discretion only
when there is an inaccurate statement of the law.
Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008) (citation
omitted).
This Court has stated:
In order to preserve a claim that a jury instruction was
erroneously given, the [a]ppellant must have objected to the
charge at trial. See Commonwealth v. Spotz, 84 A.3d 294, 318
n.18 (Pa. 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general
exception to the charge to the jury will not preserve an issue for
appeal. Specific exception shall be taken to the language or
omission complained of.”); Pa.R.Crim.P. 647(B) (“No portions of
the charge nor omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury
retires to deliberate.”). As our Supreme Court has explained:
The pertinent rules, therefore, require a specific
objection to the charge or an exception to the trial
court’s ruling on a proposed point to preserve an issue
involving a jury instruction. Although obligating
counsel to take this additional step where a specific
point for charge has been rejected may appear
counterintuitive, as the requested instruction can be
viewed as alerting the trial court to a defendant’s
substantive legal position, it serves the salutary
purpose of affording the court an opportunity to avoid
or remediate potential error, thereby eliminating the
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need for appellate review of an otherwise correctable
issue.
Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, 224
(Pa. 2005) (footnotes and citations omitted); see
Commonwealth v. Garang, 9 A.3d 237, 244-245 (Pa. Super.
2010) (citations omitted); Commonwealth v. Moury, 992 A.2d
162, 178 (Pa. Super. 2010) (citations omitted).
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014).
In Parker, trial counsel objected to the court’s charge on flight at the
charging conference. Id. However, counsel did not object to the charge when
given and, when asked, did not propose any changes. Id. We held, because
of this, the appellant had waived the issue on appeal. Id.Here, Appellant challenges the charge issued in response to the jury’s
inquiry regarding ability to consent. However, Appellant assisted in drafting
the answer to the jury’s question, did not object to the answer, and did not
take an exception. Thus, Appellant waived any challenge to the jury
instruction. Parker, 104 A.3d at 29.
Appellant also claims he was entitled to a sua sponte declaration of a
mistrial or a new trial based upon juror misconduct. Appellant complains “a
juror conduct[ed] research outside of deliberations about the autism
spectrum. … The record shows the [] juror … was permitted to remain on the
jury despite his outside research.” Appellant’s Brief at 9. Appellant contends
the conduct of this juror resulted in Appellant being “at a complete
disadvantage.” Id.
As this Court has explained,
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the refusal of a new trial on grounds of alleged misconduct of a
juror is largely within the discretion of the trial judge. When the
facts surrounding the possible misconduct are in dispute, the trial
judge should examine the various witnesses on the question, and
his findings of fact will be sustained unless there is an abuse of
discretion.
Commonwealth v. Cosby, 224 A.3d 372, 426 (Pa. Super. 2019) (internal
quotation marks omitted), reversed on unrelated grounds, 252 A.3d 1092(Pa. 2021).
While “[t]he right to be judged by a fair and impartial jury of one’s peers
is, of course, firm and well-established,” our Supreme Court has held “that
not every act of juror misconduct warrants the declaration of a mistrial.”
Commonwealth v. Flor, 998 A.2d 606, 639 (Pa. 2010) (citations omitted).
Rather, “[o]nly when there has been prejudice to the accused does an act of
juror misconduct require the granting of a new trial.” Id.Our review shows no grounds for relief. Appellant bases his claim on
the jury’s inquiry, which included autism terminology that had not been used
at trial. N.T., 8/21/20, at 7, 21-23. The trial court questioned the juror who
had authored the note, in the presence of both counsel. Id. at 23-26. The
juror testified that he conducted no outside research but had employment
experience in mental health and related fields and his knowledge came out his
“life experience.” Id. at 24; see id. at 24-26. The trial court recognized the
juror as a high-school classmate and confirmed, based on its own
personal knowledge, the juror had work experience in both mental-
health and juvenile justice. Id. at 24-25. Defense counsel accepted the
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juror’s explanation and requested removal of the juror or a mistrial. Id. at
25. Thus, Appellant’s claim that juror misconduct mandated either the sua
sponte declaration of a mistrial and/or a new trial is not supported in the
record. Appellant’s third issue is both waived and does not merit relief.
In his fourth issue, Appellant contends the trial court “erred when it
failed to allow the text messages, submitted as evidence during the trial, to
be published to the jury upon the jury’s request during their deliberations.”
Appellant’s Brief at 11; see also id. at 11-12. Again, we are constrained to
find waiver.
“A trial court’s decision as to which exhibits may be taken out with the
jury is within the sound discretion of the trial court and will not be reversed
absent an abuse of that discretion.” Commonwealth v. Hawkins, 701 A.2d
492, 512 (Pa. 1997). Additionally, “the jury may take with it such exhibits as
the trial judge deems proper” with the exception of trial transcripts,
confessions, and the information or indictment. Pa.R.Crim.P. 646(A) & (C).
The texts in question do not fall within the limitations set forth in Rule 646(C).
Therefore, publication to the jury was purely within the discretion of the trial
court. Hawkins, 701 A.2d at 512.
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Here, the trial exhibits are not included in the certified record.8 Thus,
we are reliant on the discussion in the trial transcripts. The record reflects
the jury asked to see “Defense Exhibit B and others.” N.T., 8/20/20, at 100.
The parties agreed Defense Exhibit B was a large “packet” of text messages,
not all of which had been placed into evidence at trial; they also acknowledged
the parties’ previous agreement that Defense Exhibit B would not be sent out
with the jury. See id. at 100-03. The Commonwealth was unable to recall
which of the text messages it referred to during trial; defense counsel initially
stated he knew which text messages he referenced at trial, but later admitted
this was an approximation. Id. Defense counsel accepted that Defense
Exhibit B could not be published to the jury in its entirety because it contained
materials not used at trial. Id. at 103. Defense counsel stated that, if
necessary, he could try to redact Defense Exhibit B but, contrary to counsel’s
averment on appeal, at no point did he inform the court that he had done so.
Id. at 101; Appellant’s Brief at 12. Defense counsel also pointed out that
pictures of some of the text messages had gone out to the jury as part of
another defense exhibit. Id. at 104.
Ultimately, the trial court ruled that, given the difficulties discussed
above, and the vague nature of the jury’s request, it would not give the jury
____________________________________________
8 “Appellant has the duty to ensure that all documents essential to his case
are included in the certified record.” Commonwealth v. Walker, 878 A.2d
887, 888 (Pa. Super. 2005).
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Defense Exhibit B. Id. at 104. However, the court cautioned, if the jury came
back with a more specific request for some of the text messages, it would
reconsider its ruling. Id. Defense counsel did not object to this ruling, did
not take an exception and, in fact, stated: “Thanks, your Honor.” Id. at 107.
Thus, Appellant waived this claim. See May, 887 A.2d at 758; Dougherty,
860 A.2d at 37.
Moreover, even if not waived, this claim would not entitle Appellant to
relief. At trial, the parties agreed the jury was not entitled to have the entire
Defense Exhibit B. The parties also agreed that the exhibit was voluminous.
Based on the representations made during the discussion, it is not clear that
Defense Exhibit B could be easily redacted. The trial court informed the jury
that it could make a “more specific” request, the court would revisit the issue.
N.T., 8/20/20, at 108. The jury did not do so. Under these circumstances,
we discern no abuse of the trial court’s discretion in not publishing Defense
Exhibit B to the jury. See Hawkins, 701 A.2d at 512. Appellant’s fourth
issue is both waived and does not merit relief.
In his fifth issue, Appellant contends the verdict is against the weight of
the evidence. Appellant’s Brief at 15-16. Appellant claims the
highly prejudicial autism testimony, the lack of an immediate
curative instruction, the absence of any physical evidence, the
overwhelming evidence of consent shown through the text
messages, a juror conducting research outside of deliberations
about the autism spectrum, and the [t]rial [c]ourt’s decision to
not allow the jury to have the text messages in deliberations …
tainted [the jury as a whole].
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Id. at 16.9
“A weight of the evidence claim concedes that the evidence is sufficient
to sustain the verdict but seeks a new trial on the grounds that the evidence
was so one-sided or so weighted in favor of acquittal that a guilty verdict
shocks one’s sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa. Super.
2016) (citation omitted). “Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth. v. Widmer,
744 A.2d 745, 753 (Pa. 2000) (citation omitted).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination of whether the
verdict is against the weight of the evidence.
Id. (citation omitted).
____________________________________________
9 To the extent Appellant also contends the verdict was against the weight of
the evidence because the trial court dismissed a juror who discussed the case
with a third party, see Appellant’s Brief at 16; N.T., 8/21/20, at 31-56, he
waived the claim because he did not raise it in his post-sentence motions.
See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal”). Moreover, our review of the
record discloses the position taken by counsel now, that this juror’s presence
tainted jury deliberations, directly contradicts counsel’s statement at trial that,
while the juror’s actions were “noxious,” counsel was not sure they rose to the
level of dismissal and substitution of an alternate juror. N.T., 8/21/20, at 49.
The record reflects, that, after an off-the-record discussion, the parties agreed
to dismiss the juror and substitute the first alternate juror. Id. at 52-53.
Defense counsel did not object or take an exception. Id.
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The trial court addressed this claim in its opinion, citing relevant law and
concluding the claim was meritless. See Trial Court Opinion, 11/9/21, at 21.
The trial court’s determination is supported by the evidence, and we discern
no abuse of discretion or error. Accordingly, we adopt the trial court’s analysis
with regard to Appellant’s fifth issue. See id.
For the reasons discussed above, Appellant’s issues do not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2022
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