J-S35020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DALE HODGES

                            Appellant                 No. 1588 WDA 2016


               Appeal from the PCRA Order September 21, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002490-2012


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DALE HODGES

                            Appellant                 No. 1589 WDA 2016


               Appeal from the PCRA Order September 21, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002482-2012


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                               FILED JULY 27, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        Appellant, Dale Hodges, appeals from the order entered September

21, 2016, denying his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §9541-9546. We affirm.

        In 2012, Appellant was arrested and charged with multiple sex crimes

perpetrated against two minor victims.           At both dockets, Appellant was

charged with involuntary deviate sexual intercourse with a child (“IDSI”),

aggravated indecent assault, indecent assault, corruption of minors, and

endangering the welfare of a child (“EWOC”).1 The cases were consolidated

for trial. During the second day of trial, jurors informed the court that they

had had some difficulty hearing victim M.R.’s testimony presented during the

first day of trial. See Notes of Testimony (N.T.), Trial, 5/19/14, at 78-79.

The jurors indicated that although they had not heard all of the testimony,

they heard enough to render an impartial verdict.           Id.   The trial court

resumed trial without objection by the parties. Id. Following trial, the jury

found Appellant guilty of all charged offenses. Id.

        Appellant filed an untimely post trial motion seeking a new trial on the

basis that the jurors were not able to hear all of the evidence and that he

had newly discovered evidence that another individual the victims had

claimed abused them was physically incapable of causing the abuse.           See

N.T., 9/29/14.        Appellant presented no evidence in support of this


____________________________________________


1
    18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), 6301(a)(1), and 4304(a).



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contention, and the court denied the motion.           On September 29, 2014,

Appellant was sentenced to an aggregate term of fifteen to thirty years of

incarceration on both dockets, each sentence included mandatory minimum

sentences.

      Appellant appealed his judgment of sentence, arguing that the court

had erred in denying his motion for a mistrial with regard to jurors’ difficulty

hearing M.R.    See Commonwealth v. Hodges, 133 A.3d 78 (Pa. Super.

2015).     This Court found that he had not preserved that issue, but sua

sponte vacated his judgment of sentence due to the imposition of mandatory

minimums. Id. On March 8, 2016, the court resentenced Appellant on both

dockets to an aggregate of one hundred forty-seven months to three

hundred eleven months.

      On March 31, 2016, Appellant timely and pro se filed a petition seeking

PCRA relief.    Counsel was appointed and filed an amended petition on

Appellant’s behalf, claiming that trial counsel was ineffective for failure to

make a timely motion for mistrial when jurors had difficulty hearing the

victims’ testimony.    The trial court sent Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.

The trial court then dismissed Appellant’s petition.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.           The trial court issued a

responsive opinion. In November 2016, this Court consolidated Appellant’s

appeals.

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        On appeal, Appellant raises the following question for our review:

        Whether the lower court abused its discretion and committed
        legal error in denying [Appellant’s] PCRA petition in that
        [Appellant] was afforded ineffective assistance of counsel for
        failing to assert a timely objection to the decision of the court to
        resume the trial after the jury disclosed that some members of
        the jury had difficulty hearing the testimony and had not in fact
        heard the record in its entirety?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

        We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.      Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

        Appellant contends that counsel provided ineffective assistance for his

failure to timely object and make a motion for mistrial where jurors informed

the court they had difficulty hearing testimony. See Appellant’s Brief at 4.

Appellant claims that no plausible rationale existed for trial counsel not to

have moved for a mistrial, as the jury’s failure to hear all of the testimony

served as an impediment to a fair trial and undermined confidence in the

jury’s determination to make a meaningful credibility determination. Id. at

6-7. Accordingly, Appellant contends he suffered prejudice as a result. Id.

at 7.



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      We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      With regard to mistrial, “[w]hen an event prejudicial to the defendant

occurs during trial only the defendant may move for a mistrial; the motion

shall be made when the event is disclosed. Otherwise, the trial judge may

declare a mistrial only for reasons of manifest necessity.” See Pa.R.Crim.P.

605(B). The remedy of a mistrial “is an extreme one, and is required only

when an incident is of such a nature that its unavoidable effect is to deprive

the appellant of a fair and impartial trial.”   Commonwealth v. Johnson,

719 A.2d 778, 787 (Pa. Super. 1998) (en banc) (citation omitted).




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     In situations where the record makes it clear that a juror’s hearing

impairment was significant enough to prevent a fair and impartial trial, a

mistrial is required. See Commonwealth v. Brown, 332 A.2d 828, 831-32

(Pa. Super. 1974) (noting that where a juror’s deafness is of such a degree

as to indicate that the juror may not have heard material testimony the juror

must be disqualified). However, where an isolated piece of testimony is not

heard by a juror, a new trial is not necessarily mandated as responses may

be repeated by witnesses or the court reporter. See, e.g., Commonwealth

v. Greiner, 455 A.2d 164, 166-67 (Pa. Super. 1983) (noting that defendant

was prejudiced where juror was unequivocal about his inability to hear some

testimony, and where the discovery was made during jury polling).

     Here, Appellant’s claim has no arguable merit. Appellant cites to no

specific law to support his contention that because the jury indicated it had

problems hearing some of the testimony, he suffered prejudice per se.

Unlike in Greiner, the hearing issues were discovered on the second day of

Appellant’s trial and brought to the court’s attention. The transcript of the

testimony in question reads as follows:

     THE COURT: Ladies and gentlemen of the jury, it’s been
     brought to my attention that there was concern by some
     members of the jury as the ability to hear some of the
     witnesses. And I know we have had some soft voices so far, but
     my question to you is have you been able to hear everything
     that has been testified to so far?

     (whereupon, jurors respond negatively.)

     THE COURT: Okay. No, you haven’t?


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     UNIDENTIFIED JUROR: No, several of them.

     THE COURT: All right. What witnesses were those?

     UNIDENTIFIED JUROR: The first young girl that testified, it
     was very difficult to hear her.

     THE COURT: Okay. Well, it was difficult to hear, but could you
     hear?

     UNIDENTIFIED JUROR: I heard enough, but I don’t know if
     everyone else did.

     UNIDENTIFIED JUROR: Not every word, but enough.

     UNIDENTIFIED JUROR: Difficult.

     THE COURT: All right. Correct me if I’m wrong here, what I
     hear you saying is that you’ve heard – ideally, you would have
     been able to hear easier than what you did, it was difficult to
     hear, but you feel like you have heard enough that you feel that
     you can fairly and impartially render a credibility determination,
     am I correct in that?

     (Jurors respond affirmatively.)

     THE COURT: Is there any juror who disagrees with that, who
     feels that they haven’t heard enough that they wouldn’t be able
     to make a credibility determination?

     (No response.)

     UNIDENTIFIED JUROR: Get more through [sic].

     THE COURT: That’s my next point is going to be from here on
     out, we want to make sure that everyone speaks loud enough,
     but I just want to make sure that at this point in time everybody
     has heard – sufficiently heard, so that you can render a verdict
     in this case.

     (Whereupon, the jurors respond affirmatively.)




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       THE COURT: All right. The record should reflect that the jury
       has affirmed that.

See Notes of Testimony (N.T.), 5/20/14, at 78-79.

       Here, the court noted that each juror had represented that they could

sufficiently determine they heard enough of the testimony to make a

credibility determination.       The inability to hear the testimony was based

upon the soft voice of the witness, not upon the jurors’ being hard of

hearing. See, e.g., Brown, 332 A.2d at 831-32. No juror requested that

the testimony be read back by the court reporter; each juror affirmatively

responded that they could hear enough of the testimony to make a fair and

impartial verdict.2     See, e.g., Greiner, 455 A.2d at 166-67; Brown, 332

A.2d at 831-32. Accordingly, no objection was warranted.

       Based on the above, Appellant’s claim had no arguable merit, as the

trial court had concluded, based on the above colloquy, that the jurors were

able to sufficiently hear the testimony. See Greiner, 455 A.2d at 166-67;


____________________________________________


2
  The first complainant testified on May 19, 2014. See N.T., 5/19/14, at 27-
73. It was this complainant jurors had difficulty hearing.        See N.T.,
5/20/14, at 78. The second complainant testified that same day at length
regarding Appellant’s abuse, and no juror expressed concerns about hearing
her testimony. See N.T., 5/19/14, at 73-112.

As noted above, the jurors indicated they had heard enough to make a fair
and impartial verdict, and based upon the evidence introduced, Appellant’s
claim has no arguable merit. Further, even in the event that jurors had not
heard enough, the transcription of the testimony by the court reporter
indicates that this testimony would have been available to jurors if
necessary.



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Brown, 332 A.2d at 831-32; Springer, 961 A.2d at 1267.   Accordingly,

Appellant is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




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