J.S52011/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
MICHAEL N N. VANN,                          :
                                            :
                          Appellant         :     No. 1119 EDA 2013


             Appeal from the Judgment of Sentence March 22, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0013904-2011

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 06, 2014

        Appellant, Michael N N. Vann, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his jury

conviction of one count of indecent assault by forcible compulsion.1

Appellant asserts he is entitled to a new trial because the verdict was




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3126(a)(2). We note that the trial court states that Appellant

               See Trial Ct. Op., 11/12/13, at 1 n.1. The notes of testimony
indicate that the jury found Appellant guilty of indecent assault with force or
threat of force and indecent assault without consent. N.T., 12/12/12, at 6.
However, the sentencing order indicates that Appellant was convicted of and
sentenced for indecent assault forcible compulsion. See Order, 3/22/13.
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against the weight of the evidence and based upon juror contamination. We

affirm.

      The trial court summarized the facts of this case as follows:

              On August 6, 2011, the Complainant and a female
          friend intended to visit some night clubs in Philadelphia.
          Their plans changed, however, when they encountered two


          television and socialized.
                                  After a few hours, Appellant
                                 leg; although she objected, he
          did so again, and then put his hand on her vagina.
          Complainant moved away from [Appellant], told


          the living room. [Appellant] followed Complainant upstairs
          and told her that her friend had begun to get intimate with
          the other male. [Appellant] told Complainant that he
          would take her home when her friend and the other male
          were finished.     [Appellant] then led the Complainant
          upstairs to a bedroom.




          head. [Appellant] then inserted his penis in her mouth and
          vagina numerous times, as the Complainant objected and
          struggled against him. [Appellant] wore a latex condom.
          Complainant attempted to leave and [Appellant] grabbed
          her and threw her underneath himself. Complainant felt
          pain in her mouth and vagina. She then fled the house,
          barefoot, and disclosed the incident to her mother the next
          day.


          her daughter to the Special Victims Unit of the Philadelphia
          Police Department. Complainant gave a statement to the
          police and underwent a medical examination. Complainant
          was allergic to latex, and her skin broke out in rashes
          when she had contact with latex. Because [Appellant]
          wore a latex condom during the attack, Complainant
          suffered from a rash over a large portion of her face and


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           surrounding her vaginal area.      A warrant was issued for

           police on September 9, 2011.

Trial Ct. Op., 11/12/13, at 2-3 (citations to record omitted).

        Appellant was charged with sexual assault,2 unlawful restraint/serious

bodily injury,3 indecent assault forcible compulsion, indecent exposure,4

simple    assault,5    recklessly   endangering   another   person,6   and   false

imprisonment.7        At trial, he made a motion for mistrial due to juror

contamination; the court denied it.       Appellant was convicted of indecent

assault by forcible compulsion.       On March 22, 2013, he was sentenced to



was not found to be a sexually violent predator, but he was subject to

twenty-

        This appeal followed. Appellant filed a timely court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The trial court filed a

responsive opinion. Appellant raises the following issues for our review:


2
    18 Pa.C.S. § 3124.1.
3
    18 Pa.C.S. § 2902.
4
    18 Pa.C.S. § 3127.
5
    18 Pa.C.S. § 2701.
6
    18 Pa.C.S. § 2705.
7
    18 Pa.C.S. § 2903.




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         I. Did not the trial court unfairly prejudice Appellant and

         mistrial based on juror contamination?

         II. Was Appellant not deprived of due process and of a fair
         trial in violation of the Sixth and Fourteenth Amendments
         of the United States Constitution as well as Article One,
         Section Nine of the Pennsylvania Constitution, because
                                                        . was against
         the weight of the evidence?



      First, Appellant contends the trial court erred when it denied his

motion for a mistrial based on the fact that a juror, who is an attorney,

overheard a conversation between a defense witness and another person

about this case.8    Id.                                 any inappropriate

contact with the jury about the matter before them automatically creates

                                                Id. at 10 (emphasis added).

Appellant avers that the juror did not adequately assure the court that she

could remain impartial, and therefore, the court erred in denying his motion

for a mistrial. Id. We find no relief is due.

      Our standard of review of the denial of a motion for a mistrial is well

established:

           It is well-
         have his case heard by a fair, impartial, and unbiased jury
         and contact among jurors, parties, and witnesses is viewed

8
  At trial, defense counsel made a motion for a mistrial, thus preserving the
issue for review on appeal. See N.T., 12/10/12, at 120. See Pa.R.A.P.
302(a); Pa.R.Crim.P. 605(B) (motion for mistrial shall be made at time event
prejudicial to defendant occurs).



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        mistrial is within the sound discretion of the [trial] court
        and will not be reversed absent a flagrant abuse of
        discretion. A mistrial is an extreme remedy . . . [that] . . .
        must be granted only when an incident is of such a nature
        that its unavoidable effect is to deprive defendant of a fair


Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012) (citations

omitted).

     In Szakal,

        [o]n the third day of trial, during the lunch recess, court
        staff informed the trial court that Commonwealth witness
        Dennis Hawkins (Hawkins) had made statements to the
        jury on the steps of the courthouse. Hawkins, who had
        taken the stand that morning, testified that he was housed
        in the Special Housing Unit (SHU) of the Washington
        County jail with [the defendant], and while incarcerated
        [the defendant] confessed to Hawkins that he had killed
        the victims.    During the court lunch break, Hawkins

        told me everything he did in the SHU. He told me it all.
        He had [the victim] dow

                                 *    *    *

        [T]he trial court conducted a colloquy of the jury to
        determine what, if anything, each juror heard and whether
        the incident affected his or her ability to be fair and
        impartial. The colloquy revealed that only Juror No. 715
                                        Each juror, including No.
        715, indicated that his or her impartiality was not
        affected by the outburst. The trial court found the
                                        Moreover, as the trial court
                     comments of [Hawkins], while improper, did
        not constitute non-testimonial information.     Rather his
        comments about the [SHU] and [the victim] being kicked
        only referred to testimonial information that the jury had
                                                            , [the
        defendant] has failed to prove that he was prejudiced and



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           we cannot conclude that the trial court abused its
           discretion in denying [his] motion for a mistrial.

Id. at 219-20 (citations omitted and emphasis added).        The Szakal Court

found that the defendant was not entitled to relief. Id. at 220.

         In the instant case, the juror in question,9 testified regarding her

contact with the defense witness as follows:

           I saw one [of] the witnesses at church on Sunday, which
           was yesterday.     As soon as I saw the witness, I
           immediately recognized him. So I sort of covered myself

           me.

              Unfortunately that morning I had a flat tire. So I was in
           the parking lot and one of the ministers was helping me
           wi

           bench and the gallery in the courtroom. He was speaking
           to another member of the congregation. I was focused on
           getting my car tire fixed by the helpful minister.

               It occurred to me that the witness was speaking about
           the case. And it occurred to me because I heard the word
           rape. The witness himself was not the one speaking, it
           was another gentleman that was speaking, but he was
           speaking very loud. And what I have been thinking about
           was whether or not a) the witness recognized me as being
           [sic] member of the jury; and b) whether or not this
           conversation was initiated for my benefit.

             So not being able to discern whether or not it was for
           my benefit, I thought it was remiss of me as an officer of

           .

                                   *    *    *


9
    The juror was identified as Juror #7. N.T., 12/10/12, at 111, 114.



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        The Court: Can you tell us what you heard?


        word rape. And the next statement was it should be easy

        like that.

          And then sort of blocked that out, talking to the
        minister about my car. We figured out we need to do
        something else with the tire and that was the end of it.

            The two gentlemen left, the witness got in his car and
        left. . . .

        The Court: But you did not hear the witness say anything?

        The Juror: The witness was not speaking. . . .

        The Court: Do you think this incident would effect [sic]
        your ability to be a fair and impartial juror?



N.T., 12/10/12, at 110-11, 112-13. Defense counsel moved for a mistrial.

Id. at 120. The court denied the motion. Id.

     In the case sub judice, as in Szakal, the court conducted a colloquy to

determine what the juror heard and whether the incident affected her ability

to be fair and impartial.   See Szakal, 50 A.3d at 220.       Analogous to

Szakal, the comment did not constitute nontestimonial information. See id.



impartial to be credible and denied the motion for a mistrial. See id. We

discern no abuse of discretion. Id. at 218.




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      Lastly, Appellant contends the conviction of indecent assault was

against the weight of the evidence.     As a prefatory matter, we consider

whether Appellant has preserved this issue for review on appeal.

      Pennsylvania Rule of Criminal Procedure 607 provides:

            (A) A claim that the verdict was against the weight of
         the evidence shall be raised with the trial judge in a
         motion for a new trial:

            (1) orally, on the record, at any time before sentencing;

            (2) by written motion at any time before sentencing; or

            (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3).

         Moreover, the comment to the rule clearly establishes that
                                                                     a
         challenge to the weight of the evidence must be
         raised with the trial judge or it will be waived.
         Failure to challenge the weight of the evidence presented
         at trial in an oral or written motion prior to sentencing or
         in a post-sentence motion will result in waiver of the claim.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012) (citations

omitted and emphasis added).

      Instantly, Appellant did not challenge the weight of the evidence

before the trial court. Therefore, this issue is waived. See id.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2014




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