J-S43039-19

                                2019 PA Super 308

 COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TERRY LEE MEREDITH                         :
                                            :
                    Appellant               :     No. 1937 MDA 2018

    Appeal from the Judgment of Sentence Entered September 21, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0004246-2017


BEFORE:    GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                     FILED: OCTOBER 15, 2019

      Appellant Terry Lee Meredith appeals the judgment of sentence entered

by the Court of Common Pleas of Dauphin County after he was convicted of

Involuntary Deviate Sexual Intercourse (IDSI) and Strangulation. Appellant

argues that the trial court erred in (1) finding a child witness competent to

testify and (2) refusing to grant a mistrial based on his father’s contact with

one of the jurors. After careful review, we affirm.

      Appellant    was   charged     with   IDSI,    Strangulation,   and   False

Imprisonment in connection with the July 20, 2017 assault of Alicia Suarez

(“the victim”). Before trial commenced, Appellant indicated that he wished to

proceed pro se. After conducting a colloquy to assess Appellant’s waiver of

his right to counsel, the trial court permitted Appellant to represent himself

and appointed standby counsel.




____________________________________
* Former Justice specially assigned to the Superior Court.
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      The following factual background was developed at trial: At the time of

the instant offenses, the victim and Appellant were romantically involved and

lived together with the victim’s two children, twelve-year old C.W. and six-

year old M.S.     The couple had dated in high school and had recently

reconnected through social media.

      The victim recalled that, in July 2017, Appellant had become controlling

and abusive.     On July 20, 2017, Appellant confronted the victim with

allegations that she had appeared in a pornography video. The victim claimed

that Appellant repeatedly slapped her with an open palm, choked her, kicked

her, verbally assaulted her, and threw her into the bedroom. The victim feared

Appellant had taken her firearm as he kept reaching for his pocket.

      Thereafter, Appellant entered the bedroom and found the victim lying

on her stomach. Appellant straddled the victim, pulled her pants down, spit

on his penis, forced his penis into her anus, and ejaculated inside of her.

Appellant continued to beat her up and then told her to take a shower. The

victim saw her twelve-year-old son, C.W., watching as Appellant choked her.

      The next day, the victim told Appellant that she needed to go to the

hospital as she was spitting blood. Appellant agreed, demanded that she tell

hospital personnel that she fell down the stairs, and called 9-1-1 to report that

the victim fell down the stairs. C.W. also told the police that the victim fell

down the stairs. When the victim was out of the home and safely away from

Appellant, she revealed to a female paramedic that she had been beaten,

strangled, and raped.

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       Responding officers and attending medical personnel testified to various

physical signs that corroborated the victim’s account that she had been

attacked and raped. Detective Ashley Baluh noticed the victim was visibly

upset and had abrasions on her face, eye, lips, and thigh.             In addition,

Detective Baluh noted a handprint-shaped bruise on the victim’s leg that

looked like a “palm and fingertips.”           Notes of Testimony (N.T.), 6/25/18 -

6/28/18, at 145. Jodi Yocum, a registered nurse, performed a sexual assault

examination and also discovered injuries to both of the victim’s thighs and two

small tears in the victim’s rectum. N.T. at 180-83.

       C.W. was found to be a competent witness and permitted to testify at

trial. C.W. indicated that at the time of the incident, he lived with his mother,

younger brother, and Appellant. C.W. recalled that on that day, the victim

and Appellant had a big argument about a “porn video.” N.T. at 293. C.W.

indicated that he saw Appellant choke the victim and put his arms around the

victim’s neck. On cross-examination, the defense presented the jury with a

portion of the C.W.’s videotaped interview at the Children’s Resource Center.1

       The prosecution also presented two recorded phone calls that Appellant

made from prison, in one of which Appellant admitted to choking the victim.

       At the conclusion of trial, the jury convicted Appellant of IDSI and

Strangulation, but acquitted him of False Imprisonment. On September 21,
____________________________________________


1 Neither Appellant nor the trial court provided this Court with any detail in
regard to C.W.’s testimony in the CRC interview. While the video recording
was played for the jury, the exhibit was not placed in the certified record
before this Court.

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J-S43039-19



2018, the trial court sentenced Appellant to an aggregate term of 13 to 26

years’ imprisonment followed by three years of state supervised probation.

Appellant was read his post-sentence rights and again indicated his desire to

represent himself.

      On October 1, 2018, Appellant filed a pro se post-sentence motion. On

October 29, 2018, the Commonwealth filed a response.           On November 7,

2018, the trial court denied Appellant’s post-sentence motion. On November

19, 2018, Appellant filed a pro se notice of appeal.

      On November 23, 2018, Appellant filed a pro se “Application Form for

the Assignment of Counsel.” The trial court appointed the Dauphin County

Public Defender’s Office to represent Appellant. Thereafter, Appellant filed a

counseled Concise Statement of Errors Complained of on Appeal pursuant to

the trial court’s direction for Appellant to comply with Pa.R.A.P. 1925(b).

      Appellant raises two issues for our review on appeal:

      I.    Did not the [trial] court err in denying [Appellant’s] request
            for a hearing to prove that a Commonwealth witness, a
            minor, was incompetent to testify because he had a
            “tainted” recollection under the standards adopted by the
            Pennsylvania Supreme Court in Delbridge I and Delbridge
            II?

      II.   Did not the trial court err in denying [Appellant’s] motion for
            mistrial when there was a reasonable likelihood of prejudice
            stemming from a third party’s contact with some of the
            jurors and the entire jury panel’s ensuing discussion of
            safety concerns?

Appellant’s Brief, at 6.




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      We first review Appellant’s claim that the trial court erred in finding C.W

to be competent to testify at trial. Specifically, Appellant asserted that C.W.’s

recollection was tainted, as he allegedly changed his testimony after hearing

a conversation between his mother and his grandmother. We are guided by

the following principles:

      Our standard of review recognizes that “[a] child's competency to
      testify is a threshold legal issue that a trial court must decide, and
      an appellate court will not disturb its determination absent an
      abuse of discretion.” Commonwealth v. Washington, 554 Pa.
      559, 722 A.2d 643, 646 (1998) (citation omitted) (emphasis
      added). Our scope of review is plenary. Commonwealth v.
      Delbridge (“Delbridge II”), 580 Pa. 68, 859 A.2d 1254, 1257
      (2004).

      Every witness is presumed competent. Pa.R.E. 601(a). A party
      who challenges the competency of a minor witness must prove by
      clear and convincing evidence that the witness lacks “the minimal
      capacity ... (1) to communicate, (2) to observe an event and
      accurately recall that observation, and (3) to understand the
      necessity to speak the truth.” Commonwealth v. Delbridge
      (“Delbridge I”), 578 Pa. 641, 855 A.2d 27, 40 (2003).

      The Pennsylvania Supreme Court has defined “taint” as “... the
      implantation of false memories or distortion of actual memories
      through improper and suggestive interview techniques[.]” Id. at
      30, 35. Within the three-part test described above, “[t]aint speaks
      to the second prong ..., the mental capacity to observe the
      occurrence itself and the capacity of remembering what it is that
      the witness is called upon to testify about.” Id. at 40 (citation
      omitted, emphasis in original, brackets omitted).

      In discussing testimonial competency, Pennsylvania courts have
      clearly and unequivocally stated that taint is only “a legitimate
      question for examination in cases involving complaints of sexual
      abuse made by young children.” Delbridge I, 855 A.2d at 39
      (emphasis added). When a witness is at least fourteen years old,
      he or she is entitled to the same presumption of competence as
      an adult witness. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307,
      310 (1959). In Commonwealth v. Judd, 897 A.2d 1224


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      (Pa.Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291
      (2006), this Court held that because the juvenile sexual assault
      victim “was fifteen years old when she testified at trial ..., any
      issue with her ability to correctly remember the events in question
      is properly a question of credibility not of taint.” Judd, 897 A.2d
      at 1229 (emphasis added). Further, the concerns underlying the
      three-part test for evaluating the testimonial competency of
      minors “become less relevant as the witness's age increases,
      ultimately being rendered totally irrelevant as a matter of law by
      age fourteen.” Id. (emphasis added). In Commonwealth v.
      Moore, 980 A.2d 647 (Pa.Super.2009), this Court reiterated that
      the critical age for purposes of conducting a taint hearing is not
      the age at the time of the crime but the age at the time of trial.
      Moore, 980 A.2d at 648, 652 (where the minor witness was
      thirteen at the time of the crime but fourteen at the time of trial,
      the witness “did not require a competency hearing. Any issues
      regarding [the witness]'s observation of the incident in question
      is a question of credibility and does not implicate taint.... [prior
      decisions of the Pennsylvania courts] preclude a competency
      hearing for [a] fourteen-year-old....”).

Commonwealth v. Pena, 31 A.3d 704, 706–707 (Pa.Super. 2011).

      In this case, the trial court conducted a competency evaluation of C.W.,

who was twelve at the time of the crime, but thirteen years old at the time of

Appellant’s trial.   In response to the trial court’s questioning, C.W.

demonstrated to his ability to communicate with the judge, his capacity to

recall previous events such as his previous birthday and Christmas holiday,

his understanding of the difference between the truth and a lie, and his respect

for the value of the truth. Based on this colloquy, the trial court concluded

that C.W. was competent to testify.

      Further, Appellant was given ample latitude to cross-examine C.W. with

respect to his ability to correctly remember the events in question. When

Appellant asked C.W. if his mother told him what to say during his testimony,



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J-S43039-19



C.W. responded that she told him “just to tell the truth and what happened.”

N.T. at 277. C.W. denied that his mother told him the types of questions that

he would be asked at trial. Appellant also questioned C.W. as to whether he

overheard any conversation between his mother and grandmother about

Appellant.   The defense was also permitted to show the jury C.W.’s video

recorded testimony that he gave at the Children’s Resource Center.

      The issue of whether C.W. had the ability to correctly recall the events

at issue was a question of credibility to be resolved by the jury, not a question

of whether C.W. was competent to testify. See Pena, supra. As such, we

conclude that the trial court did not abuse its discretion in finding that C.W.

was competent to testify as a witness in this case.

      Appellant also claims the trial court should have granted a mistrial after

learning that Appellant’s father had contact with one of the jurors. We are

mindful of the following principles:

         A defendant has the right to have his or her case heard by
         a fair, impartial, and unbiased jury and ex parte contact
         between jurors and witnesses is viewed with disfavor.
         Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961,
         972 (2001).

         There is, however, no per se rule in this Commonwealth
         requiring a mistrial anytime there is improper or inadvertent
         contact between a juror and a witness. See
         Commonwealth v. Mosley, 535 Pa. 549, 637 A.2d 246,
         249 (1993) (declining to adopt per se rule which would
         require disqualification of juror anytime there is ex parte
         contact between that juror and witness). Whether such
         contact warrants a mistrial is a matter addressed primarily
         to the discretion of the trial court. Brown, 786 A.2d at 972
         (citation omitted). A trial court need only grant a mistrial
         where the alleged prejudicial event may reasonably be said

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J-S43039-19


            to have deprived the moving party of a fair and impartial
            trial. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d
            261, 282 (2000) (citation omitted).

       Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 532–533
       (2003).    Additionally, the burden is on the party claiming
       prejudice. Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096,
       1115 (2012).

Commonwealth v. McCamey, 154 A.3d 352, 355 (Pa.Super. 2017).

       In McCamey, this Court recognized that such considerations are also

applicable when “the potentially prejudicial contact is between a juror and a

person other than a witness.” Id. at 355 n.2 (citation omitted). In that case,

this Court affirmed the trial court’s decision that there was no basis for a

mistrial after Juror #3 reported that three unknown men outside the district

attorney’s office indicated that she should remember “guilty, guilty, guilty.”

Id. at 355-56. The trial court found this communication did not compromise

the jury as Juror #3 claimed she could keep an open mind and decide the case

based on the evidence and the other jurors confirmed on the record that they

could remain impartial.

       In the instant case, Appellant’s father approached one of the jurors at

the end of the first day of trial. The interaction occurred when the jurors were

walking from the courthouse to the parking garage at the end of the first day

of trial.   Juror #10 indicated that she saw a man approach Juror #9 and

identify himself as Appellant’s father; she did not hear any more of the

substance of the conversation. Juror #9 had actually been dismissed from

the jury panel that day for an unrelated reason, as he had revealed that he

knew one of the witnesses in the trial.

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J-S43039-19



      Alternate Juror #1, who had replaced Juror #9, also witnessed the

interaction and overheard Appellant’s father state that he was a minister and

that he was glad Juror #9 was “a friend of my son.” N.T. at 215. While this

interaction caused the jurors to have a general discussion amongst

themselves about their safety, none of the jurors claimed that the interaction

in question caused them to fear for their own safety. Thereafter, each juror

was questioned individually by the trial court, and all jurors indicated that they

could be fair and impartial.

      Based on the relevant facts, we find that Appellant did not show that

the innocuous interaction of Appellant’s father with a juror deprived him of a

fair and impartial trial. As a result, we conclude that the trial court did not

abuse its discretion in refusing to grant a mistrial on this basis.

      For the foregoing reasons, we affirm.

      Judgment of sentence affirmed.

      Judge Dubow joins the opinion.

      P.J.E. Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2019




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