J-A01003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

WILLIAM DAULTON

                         Appellant                     No. 179 WDA 2016


          Appeal from the Judgment of Sentence November 10, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000263-2015


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                    FILED MAY 22, 2017

      William Daulton appeals from the aggregate judgment of sentence of

thirty to sixty years incarceration imposed following his jury convictions for

rape of a child, rape by forcible compulsion, and related sexual offenses. We

affirm.

      We adopt the trial court’s recitation of the facts.

             Briefly, the evidence presented at trial established that
      when [C.E.] was 10 years old, the Defendant, her step-father,
      asked her to massage his back and after she did so, he placed
      her hand on his penis. He then pulled her into the bathroom,
      pushed her onto the floor, pulled down her pants and had
      vaginal intercourse with her. Afterwards, she was instructed not
      to tell her mother. The assaults continued at various times and
      in various rooms of the house, with the Defendant pulling her
      pants down, bending her over a chair or the washing machine
      and penetrating her from behind.



* Retired Senior Judge assigned to the Superior Court.
J-A01003-17



      The family moved several times and [C.E.] testified that the
      assaults occurred several times in each new house. At various
      times in each residence, [C.E.]'s younger sisters, [S.G.] and
      [C.G.], walked in on the assaults and saw the Defendant with his
      pants off moving back and forth against [C.E.], but were too
      young to understand what they were seeing. At one point, [C.G.]
      told her mother what was happening, but her mother did nothing
      to stop the abuse. Eventually the family moved to California and
      [C.E.], [S.G.], and [C.G.] were removed to foster care due to
      unrelated issues with their mother. Once in foster care, [C.E.]
      told her foster mother what had been happening and her foster
      mother contacted the authorities.

Trial Court Opinion, 6/28/16, at 2-3. At the time of trial, C.E. was seventeen

years old. N.T., 8/11-13/15, at 30.

      Appellant proceeded to a jury trial on August 11, 2015.         The jury

returned its verdict and Appellant was sentenced as previously set forth. He

filed timely post-sentence motions, which were denied.        Appellant filed a

timely notice of appeal complied with the trial court’s order to file a concise

statement of matters complained of on appeal. The trial court has filed its

opinion in response and the matter is now ready for our review. Appellant

raises three issues for our consideration.

      I. Did the trial court abuse its discretion by refusing to allow the
      defense to impeach a main eyewitness with her prior
      inconsistent statements denying abuse by the Appellant?

      II. Did the trial court abuse its discretion by allowing a police
      officer to present expert testimony when that person was not
      qualified as an expert and no expert report was provided to the
      defense?

      III. Did the trial court deprive the Appellant of a fair and
      impartial trial when, throughout the trial, the court ridiculed
      defense counsel before the jury, objected to evidence for the


                                      -2-
J-A01003-17



      Commonwealth, failed to allow the defense to state objections
      and make a proper record, failed to make the Commonwealth
      state reasons for its objections, failed to allow defense counsel to
      impeach main witnesses, and refused to allow defense counsel to
      properly prepare for an expert witness who was never even
      qualified as an expert?

Appellant’s brief at 6.

      The first allegation of error pertains to Appellant’s attempt to elicit

from C.G. an admission that, when she spoke to social workers in California,

she denied all allegations of sexual abuse. The challenged exchange was as

follows:

      Q.     And you would talk with [social workers] about whether or
             not you were ever abused or neglected or sexually abused,
             correct?

      A.     Correct.

      Q.     Isn't it true that you told these social workers in 2013 that
             you denied all abuse and neglect and reported that you
             were not afraid of your mother or stepfather William
             Daulton?

             [COMMONWEALTH]: Your Honor, I'm going to object. She
             is not the victim in this case.

             [APPELLANT]: This is a prior inconsistent statement.

             THE COURT: Sustained.

             [APPELLANT]: Your Honor, Rule 803.1 covers prior
             inconsistent statements. If she made them, I'm allowed to
             get into them not for substantive evidence but for
             impeachment. If she denied any abuse before, the jury
             should be allowed to hear it.

             THE COURT: The objection is sustained.



                                      -3-
J-A01003-17



N.T., 8/11-13/15, at 113-14.

        “The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Shull, 148 A.3d 820, 845

(Pa.Super. 2016) (citation omitted).           Impeachment of witnesses through

prior inconsistent statements is governed by Pennsylvania Rule of Evidence

613.1

        (a) Witness's Prior Inconsistent Statement to Impeach. A
        witness may be examined concerning a prior inconsistent
        statement made by the witness to impeach the witness's
        credibility. The statement need not be shown or its contents
        disclosed to the witness at that time, but on request the
        statement or contents must be shown or disclosed to an adverse
        party's attorney.

        (b) Extrinsic Evidence of a Witness's Prior Inconsistent
        Statement. Unless the interests of justice otherwise require,
        extrinsic evidence of a witness's prior inconsistent statement is
        admissible only if, during the examination of the witness,

              (1) the statement, if written, is shown to, or if not
              written, its contents are disclosed to, the witness;

              (2) the witness is given an opportunity to explain or
              deny the making of the statement; and

              (3) an adverse party is given an opportunity to
              question the witness.

____________________________________________


1
  Pennsylvania Rule of Evidence 803.1, cited by Appellant at trial in response
to the objection, permits the use of prior inconsistent statements for
substantive purposes, provided one of three conditions is met. Appellant’s
brief correctly discusses Rule 613.



                                           -4-
J-A01003-17



     This paragraph does not apply to an opposing party's statement
     as defined in Rule 803(25).

Pa.R.E. 613.

     Preliminarily, we note that the Commonwealth claims that Appellant is

obligated to prove the existence of a prior inconsistent statement.

“[C]ontrary to the premise of the appellant’s argument, the record does not

establish that the victim’s sister had made a prior inconsistent statement at

all.” Commonwealth’s brief at 11.

     This omission is not an impediment to our review. Whether or not the

record demonstrates that C.G. actually made a prior inconsistent statement

is immaterial to Appellant’s claim. Rule 613(a) and 613(b) serve different

purposes. C.G. testified on direct examination that she observed Appellant

raping C.E. Accordingly, Appellant was permitted, pursuant to Rule 613(a),

to ask C.G. whether she had previously denied observing Appellant raping

C.E. If C.G. were to agree, that admission would directly impeach her direct

examination    irrespective   of   any   extrinsic    evidence   thereof.       “An

inconsistent statement may be proved by getting the witness on the

stand to admit making it. But where, as here, the witness does not admit

making   the   inconsistent   statement,   it   may    be   proved   by     extrinsic

evidence[.]”    Commonwealth v. Brown, 448 A.2d 1097, 1103-04

(Pa.Super. 1982) (emphasis added). In this case, C.G. neither admitted nor




                                     -5-
J-A01003-17



denied making the statement. Hence, the Commonwealth does not address

Appellant’s actual complaint.

       Nevertheless, we find no error.           The prosecutor’s objection to this

question stated, “[C.G.] is not the victim here.” This objection thus did not

seek to preclude Appellant from cross-examining C.G. regarding prior

inconsistent statements; instead, it merely objected to the phrasing of the

question.

       We agree that the objection was properly sustained on this ground.2

Appellant’s framing of the question was highly ambiguous: “Isn’t it true . . .

that you denied all abuse and neglect[?]” N.T., 8/11-13/15, at 113. The

question at issue ambiguously referred to all abuse and neglect, which would

include a prior statement regarding Appellant raping C.G., but also abuse

inflicted upon C.G. herself. Indeed, the challenged question directly followed

Appellant’s query, “And you would talk with them about whether or not you

were ever abused or neglected or sexually abused, correct?” Id. (emphasis

added). Following the trial court’s ruling, nothing prevented Appellant from

asking a more focused question. We therefore find that the trial court did

not abuse its discretion in sustaining the objection.          Commonwealth v.

O’Drain, 829 A.2d 316, 322, n.7 (Pa.Super. 2003) (this Court may affirm if

there is any basis on the record to support the trial court’s action).
____________________________________________


2
    The trial court’s opinion does not address this particular claim.



                                           -6-
J-A01003-17



        Appellant’s second issue is that the trial court improperly permitted the

Commonwealth to present an expert witness opinion through Detective

Sylvester Wright, employed by the City of Pittsburgh Police’s Sex Assault

division. The entirety of the challenged testimony was as follows.

        Q.    In your experience as investigator in child sex assault
              cases, is it more common that children wait weeks,
              months, or even years before reporting a sexual assault?

        A.    Yes.

        Q.    What are some of the reasons that you have determined to
              be the cause of the delay?

        A.    Scared, unsure of themselves, no support, embarrassed.

N.T., 8/11-13/15, at 145. This testimony was introduced over Appellant’s

objection.    The Commonwealth’s direct examination of Detective Wright

started as follows:

        Q.    How are you currently employed?

        A.    Pittsburgh Police.

        Q.    With what division?

        A.    Sex Assault.

        Q.    How long have you been employed in that capacity?

        [APPELLANT]: Your Honor, we will stipulate to the qualifications
        if it will save time.

        [COMMONWEALTH]: That's fine.

N.T.,    8/11-13/15,    at   142.    Questioning    then   resumed,    and   the

Commonwealth asked how Detective Wright received information from

                                       -7-
J-A01003-17



authorities in California and whether he investigated the residences in

Pittsburgh for evidence.   Id. at 142-44.   The Commonwealth then segued

into the topic of delayed reporting. Appellant then objected.

     Q.    In your experience, do you often have children report a
           sex assault right away?

     A.    No.

     Q.    Have you found in your experience that it is more common
           for them to go several weeks, months or even years before
           they report sex assault?

     [APPELLANT]: Objection, Your Honor. I believe now the district
     attorney is getting to expert opinion testimony.

     THE COURT: I thought you stipulated to his qualifications.

     MR. LEFF: As to a detective, but [sic] as an expert in this field.
     Moreover, the rules require that I be given a report if they
     wanted to offer those opinions.

     THE COURT: Overruled.

Id. at 144-45.    The trial court’s opinion finds that counsel’s stipulation

waived any claims regarding the testimony.

     [D]efense counsel stipulated to Detective Wright's qualifications.
     Given the defense presented, it was not unreasonable to expect
     that the Commonwealth would attempt to question Detective
     Wright regarding his experience with child victims, and if trial
     counsel intended to make a serious challenge to such testimony
     by arguing that Detective Wright lacked the qualifications and
     experience to answer such a question, then he should not have
     volunteered to stipulate to the detective's qualifications. As with
     the issues discussed more fully below, the instant claim is
     reflective of defense counsel's trial practice skills and does not
     actually concern any errors made by this Court. This claim must
     fail.



                                    -8-
J-A01003-17



Trial Court Opinion, 6/28/16, at 7. Our standard of review is well-settled.

      The admission of expert testimony is a matter of discretion for
      the trial court, and will not be disturbed absent an abuse of
      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,
      as shown by the evidence or the record, discretion is abused.

Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015) (citation

omitted).

      We agree that any claim respecting Detective Wright’s qualifications

has been waived. This stipulation is admittedly not the model of clarity and

the Commonwealth did not seek to qualify Detective Wright as an expert in

any particular field following this stipulation. We note that the admission of

such testimony is specifically governed by statute.

      (a) Scope.--This section applies to all of the following:

            (1) A criminal proceeding for an offense for which
            registration is required under Subchapter H of
            Chapter 97 (relating to registration of sexual
            offenders).1

            (2) A criminal proceeding for an offense under 18
            Pa.C.S. Ch. 31 (relating to sexual offenses).

      (b) Qualifications and use of experts.—

            (1) In a criminal proceeding subject to this section, a
            witness may be qualified by the court as an expert if
            the witness has specialized knowledge beyond that
            possessed by the average layperson based on the
            witness's experience with, or specialized training or
            education in, criminal justice, behavioral sciences or
            victim services issues, related to sexual violence,

                                       -9-
J-A01003-17



              that will assist the trier of fact in understanding the
              dynamics of sexual violence, victim responses to
              sexual violence and the impact of sexual violence on
              victims during and after being assaulted.

              (2) If qualified as an expert, the witness may
              testify to facts and opinions regarding specific
              types of victim responses and victim behaviors.
       ....

42 Pa.C.S. § 5920 (emphasis added). See Commonwealth v. Olivo, 127

A.3d 769 (Pa. 2015) (“Section 5920 is clearly a rule of evidence. . . . [it]

merely provides the substantive authorization to present that testimony.”).

Herein, Detective Wright was qualified as an expert pursuant to counsel’s

stipulation.3 Therefore, the trial court did not err in admitting the evidence.

       Relatedly, Appellant argues that he was entitled to an expert report

pursuant to Rule of Criminal Procedure 573, which governs pretrial

discovery. The Rule states in pertinent part:

       (B) Disclosure by the Commonwealth.

       (1) Mandatory. . . .
            ...

____________________________________________


3
   Appellant argues in his brief that “Defense counsel stipulated to Detective
Wright’s qualifications as a Pittsburgh police officer.” Appellant’s brief at 27.
That stipulation is nonsensical. Detective Wright was qualified as a police
officer by virtue of the fact that the City of Pittsburgh employed him as one.
Thus, it is unclear what other topic would have been covered by the
stipulation aside from Detective Wright’s expert opinions stemming from his
experience as a sexual crimes detective.              See Commonwealth v.
Ratsamy, 934 A.2d 1233 (Pa. 2007) (police officer qualified as expert for
purposes of opining defendant possessed drugs with intent to deliver).



                                          - 10 -
J-A01003-17



            (e) any results or reports of scientific tests, expert
            opinions, and written or recorded reports of
            polygraph examinations or other physical or mental
            examinations of the defendant that are within the
            possession or control of the attorney for the
            Commonwealth;
      ...

     (2) Discretionary With the Court.
           ...
           (b) If an expert whom the attorney for the
           Commonwealth intends to call in any proceeding has
           not prepared a report of examination or tests, the
           court, upon motion, may order that the expert
           prepare,    and    that   the   attorney   for  the
           Commonwealth disclose, a report stating the subject
           matter on which the expert is expected to testify;
           the substance of the facts to which the expert is
           expected to testify; and a summary of the expert's
           opinions and the grounds for each opinion.
     ...
Pa. R. Crim. P. 573.        Herein, Appellant does not claim that the

Commonwealth had a report in its possession and failed to turn it over in

violation of Rule 573(B)(1)(e). Additionally, Appellant does not argue that

he lacked notice that the Commonwealth intended to call Detective Wright.

Thus, he was not deprived of the opportunity to request that the

Commonwealth generate a report pursuant to Rule 573(B)(2)(b). No relief

is due.

      Appellant’s final issue claims that the trial court acted improperly

throughout the course of the trial to a degree that his right to a fair and

impartial trial was infringed in violation of due process.     We note that

Appellant did not move for a mistrial or otherwise present this issue to the



                                    - 11 -
J-A01003-17



trial court during trial.   Rather, he raised the claim for the first time in a

post-sentence motion for a new trial. However, there is a natural concern

that a party who believes he has angered a judge will not wish to incur

further wrath by requesting a mistrial or otherwise draw attention to the

issue. Since the Commonwealth does not suggest that the claim has been

waived, we shall address it.

      In Commonwealth v. Rayner, 153 A.3d 1049 (Pa.Super. 2016), we

set forth the applicable standard of review when assessing a claim that a

defendant’s due process rights were violated based on a trial judge’s

remarks and conduct. The analysis applies principles of bias.

      [J]udicial remarks during the course of a trial that are critical or
      disapproving of, or even hostile to, counsel, the parties, or their
      cases, ordinarily do not support a bias or partiality challenge.
      They may do so if they reveal an opinion that derives from an
      extrajudicial source; and they will do so if they reveal such a
      high degree of favoritism or antagonism as to make fair
      judgment impossible. ... Not establishing bias or partiality,
      however, are expressions of impatience, dissatisfaction,
      annoyance, and even anger, that are within the bounds of what
      imperfect men and women, even after having been confirmed as
      [ ] judges, sometimes display. A judge's ordinary efforts at
      courtroom administration—even a stern and short-tempered
      judge's ordinary efforts at courtroom administration—remain
      immune. However, [a] judge's remarks to counsel during trial do
      not warrant reversal unless the remarks so prejudice the jurors
      against the defendant that it may reasonably be said [that the
      remarks] deprived the defendant of a fair and impartial trial.

Id. at 1060 (quoting Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa.

Super. 2014) (alterations in original)). This analysis presents a question of

law and our standard of review is de novo.

                                      - 12 -
J-A01003-17



        In support of his contention that the trial judge’s actions denied him a

fair and impartial trial, Appellant alleges that the trial court: (1) failed to

require the Commonwealth to state the grounds for some of its objections;

(2) did not permit him to make a record regarding the denial of his pre-trial

motion requesting additional jury voir dire questions; (3) improperly

permitted expert testimony; (4) improperly foreclosed him from impeaching

C.G.;    (5)   sua   sponte     interrupted     Appellant’s   questioning   without

corresponding objection by the Commonwealth; and (6) criticized counsel’s

legal skills in front of the jury.

        We begin our analysis by discarding the first four listed complaints as

irrelevant to this claim. First, Appellant asserts that the trial court erred by

not requiring the Commonwealth to state specific grounds for several

objections.    Appellant does not cite any authority requiring a trial court to

require a party to specifically state grounds for objection, nor does he

suggest that the objections were improperly sustained.           Second, Appellant

fails to explain why a court is obligated to permit a party to state on the

record its reasons for wanting to ask a particular voir dire question.          We

address the third and fourth matters together, as both allegations simply

repeat the foregoing two points of error raised on appeal, which we have

disposed of supra.

        We now turn to Appellant’s core allegation that the trial court

improperly interjected during the case and “demonstrated a negative

                                       - 13 -
J-A01003-17



attitude towards the defense counsel, which likely reflected on the overall

defense and the defendant.” Appellant’s brief at 34. We highlight the most

egregious of these comments, in which the trial court criticized counsel’s

attempt to simultaneously refresh a witness’s recollection and impeach the

witness.

     Q.    Would it refresh your recollection if you were to look at a
           transcript of that interview?

     A.    Yes.

           [COUNSEL]: Your Honor, may I approach the witness?

           THE COURT: Certainly.

     Q.    If you could, to yourself, read maybe the first eight lines of
           this.

     A.    (The witness complies).

     Q.    Isn’t it true that you were asked: “And did he have a
           condom?”

     A.    He didn’t have a condom.

     Q.    You were asked that?

     A.    Yes.

     Q.    And you said: “No, no, he never wore condoms when he
           did it to me.”

           THE COURT: [Counsel], I’m not sure if you know how to
           impeach through prior testimony. I’d be glad to give you a
           refresher course.

N.T., 8/11-13/15, at 73-74. See also id. at 76 (“Q. And isn’t it true that

you told--; THE COURT: No.      Now you say do you remember what your




                                     - 14 -
J-A01003-17



response was.”); id. at 82 (“If you would do it correctly according to the

rules of evidence.”) (responding to Commonwealth objection).

      We agree that these comments were improper.             We now address

whether the cumulative effect of these comments entitles Appellant to a new

trial. Appellant relies upon three cases, each of which granted a new trial:

Commonwealth        v.   Claiborne,     102    A.2d   900   (Pa.Super.   1953);

Commonwealth        v.   Horvath,      285     A.2d   185   (Pa.   1971);   and

Commonwealth v. Stallone, 126 A. 56 (Pa. 1924).              We briefly discuss

each case.

      In Claiborne, the judge frequently interrupted testimony and made

remarks throughout trial, leading the opinion to state:

      These caustic and scathing, and, for the most part, frivolous
      interjections, and others to which we shall not refer, delineate
      the tawdry pattern of the trial. They offended the most
      rudimentary sense of ‘justice judicially administered’. Perhaps
      none constitute[s] reversible error but taken together
      they indicate an unjudicial and trifling approach to a
      serious legal problem, serious at least to appellant, as his
      sentence proves.

Id. at 902 (emphasis added). Appellant highlights the emphasized language

in support of his argument. However, Claiborne did not grant a new trial

on these grounds. The opinion immediately segued into a discussion of the

trial judge’s cross-examination of the appellant during his testimony.

“Howbeit, unquestionably the trial judge's merciless cross-examination of

appellant was clear reversible error.” Id. at 902.



                                      - 15 -
J-A01003-17



       In Horvath, supra our Supreme Court granted a new trial on two

independent grounds, the second of which is relied upon by Appellant. 4 Prior

to commencing trial, the court admonished defense counsel for failing to

enter a notice of appearance and lectured counsel about delays in selecting

the jury and commencing trial.          When defense counsel interjected to offer

his side of the story, the judge asked more questions, sarcastically

concluding with, “Those are the answers you get, members of the jury.” Id.

at 188. Horvath concluded that these comments warranted a new trial. Its

disposition on that ground did not cite or discuss any case law, instead

relying upon the Canons of Judicial Ethics.

       This conduct by the trial court falls far below the standards set
       forth in the second paragraph of Canon 15 of the Canons of
       Judicial Ethics:

              Conversation between the judge and counsel in court
              is often necessary, but the judge should be studious
              to avoid controversies which are apt to obscure the
              merits of the dispute between litigants and lead to its
              unjust disposition. In addressing counsel, litigants,
              or witnesses, he should avoid a controversial manner
              or tone.
       Our system of submitting legal matters, including, as in the
       instant case, the determination of whether the state has the
       right to deprive a man of his liberty, to a fair impartial jury
____________________________________________


4
   The other ground warranting reversal was the trial judge’s remarks during
closing instructions. Despite the fact that burglary charges had been dropped
due to insufficient evidence, the judge told the jury, “[Y]ou will recall they
were arrested and charged with burglary.” Horvath, supra at 186.




                                          - 16 -
J-A01003-17



      depends on strong efforts by all concerned to keep the
      atmosphere in which the case is tried fair and impartial. When a
      judge subjects counsel for one of the litigants to undeserved oral
      criticism, the delicate balance upon which the creation of such an
      atmosphere depends may be affected. The jury is bound to
      remember the incident and the danger is too great that the party
      represented by the lawyer thus criticized may be prejudiced.

Id. at 188.

      Finally, in Stallone, the Court also granted a new trial due, in part, to

a judge’s remarks towards counsel.      The judge told defense counsel, “You

know that is not proper examination[.]” Counsel protested, which prompted

the judge to respond, “You have no right to lecture the court, and I want you

to cut it out. I have taken all I am going to take from you.”        Stallone,

supra at 57. However, as in Claiborne, the conduct standing alone did not

warrant a new trial. “In this case we feel the trial judge went beyond the

discretion vested in him in the conduct of the trial and by his manner and

language possibly deprived defendant of the fair and impartial trial to

which he is constitutionally entitled.” Id. (emphasis added).        Relief was

granted due to the judge’s comments in addition to a host of other errors.

      We now proceed to examine the cases in which reviewing courts

refused to grant a new trial.    The Commonwealth draws our attention to

Commonwealth v. McGuire, 488 A.2d 1144 (Pa.Super. 1985), wherein the

appellant complained that the trial court “through various interruptions of

trial counsel and other interjections into the trial proceedings, prejudiced the

jury against him and thus prevented a fair and impartial trial.” Id. at 1152.

                                     - 17 -
J-A01003-17



Specifically, the judge sarcastically asked, “Do you, counselor?” when the

defense attorney asked a police officer, who acted as an undercover agent,

whether he habitually used drugs.     The judge also sua sponte warned the

lawyer not to castigate the same witness for using false names in connection

with his undercover duties. Id. at 1153. We denied the request for a new

trial, stating, “We are satisfied that these remarks, which were directed

solely at counsel and not appellant, did not reach such a level where it could

be concluded that appellant was denied a fair and impartial trial.”    Id. at

1153.

        As this passage demonstrates, we do not automatically assume that

comments directed towards counsel invariably color the jury’s perception of

the defendant.    Commonwealth v. Hudson, 820 A.2d 720 (Pa.Super.

2003), further illustrates this point. In Hudson, defense counsel concluded

her cross-examination of a Commonwealth witness, who had admitted that

she could not identify Hudson as one of the perpetrators, by remarking “I

appreciate your honesty.”      Id. at 723.    The next day, the trial court

reprimanded counsel in front of the jury for intruding on the jury’s function

of assessing credibility, telling the panel that the comment “was offensive to

me. And I think it should be offensive to you[.]” Hudson argued that the

judge denied him “a fair and impartial trial by making prejudicial remarks

directly to the jury.”   Id. at 723 (quoting Hudson’s brief).   We concluded




                                    - 18 -
J-A01003-17



that this comment did not warrant a new trial, because the criticism was

strictly limited to counsel and could not have contributed to the verdict.

       Although the judge was critical of [defense counsel], his criticism
       was directed toward her individually and not toward Hudson. We
       fail to see how the court's remarks can be viewed as projecting
       an adverse inference upon the defendant or his case. The
       instructions did not, as Hudson argues, reflect the court's opinion
       as to the credibility of [the witnesses]. The effect upon the jury
       of either [counsel]'s remark or the trial court's instructions, if
       there was any at all, would have been slight. We have no doubt
       that this isolated incident could not have had a substantial
       influence on the outcome of the case, especially given the
       overwhelming evidence of Hudson's guilt. On this record, there
       was no prejudice to Hudson and his argument fails.

Id. at 724–25.5

       As is evident from these authorities, there is not a firm guide in

determining whether and when a trial court’s conduct crosses the threshold

from unwise and regrettable commentary to depriving the defendant of his

right to a fair trial. The inquiry is necessarily fact-intensive even though it

ultimately poses a question of law.

       After careful review of these precedents and the trial transcript, we

find that the challenged conduct does not rise to the required level of

prejudice necessary to grant a new trial. Unlike Claiborne, this case does

not involve the “merciless cross-examination” of the defendant, nor did the

____________________________________________


5
  Hudson noted that the trial court’s criticism was deserved in the sense the
remark was improper. Nevertheless, the reasoning regarding the divide
between criticisms of counsel and criticism of the defendant is categorical.



                                          - 19 -
J-A01003-17



trial court commit a litany of legal errors as in Stallone.          Horvath

represents a closer case factually, but even in that case the judge committed

clear error by telling the jury to consider that the defendants therein were

arrested for burglary, even though that charge had been dropped.

      Hence, we conclude that the present circumstances             are more

comparable to McGuire and Hudson than the cases cited by Appellant. The

trial court’s comments were critical only of Appellant’s counsel’s legal skills

and thus the judge’s ire was not directed towards Appellant.      Nor did the

trial court mock or belittle counsel’s line of questioning, as opposed to

counsel’s attempts to pursue those topics. As in Hudson, we do not doubt

that the comments did not have a substantial influence on the outcome of

this case.   The jury’s decision ultimately came down to whether the jury

believed C.E. or Appellant, who testified in his own defense, not whether the

jury thought that Appellant’s counsel was a skillful advocate.

      While we ultimately find that Appellant was not prejudiced and he

received a fair and impartial trial, we remind the trial court that a judge

“occupies [an] exalted and dignified position; he is the one person to whom

the jury, with rare exceptions, looks for guidance, and from whom the

litigants expect absolute impartiality.”   Commonwealth v. Myma, 123 A.

486, 487 (Pa. 1924). While a trial judge has wide discretion in maintaining

order and insuring an orderly trial, those goals can surely be achieved

without denigrating a lawyer’s skills in front of the jury.      Furthermore,

                                    - 20 -
J-A01003-17



counsel is presumed effective, and it is not the role of the court to assess

trial counsel’s performance during trial. Hence, we express our disapproval

of the trial court’s comments, even though they do not warrant the grant of

a new trial.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




                                   - 21 -
