J-S43007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FREDERICK S. WALTER, II

                            Appellant                 No. 1348 WDA 2016


             Appeal from the Judgment of Sentence August 9, 2016
               In the Court of Common Pleas of Venango County
    Criminal Division at Nos: CP-61-CR-0000474-2015; CP-61-CR-0000666-
                                     2015


BEFORE: STABILE, SOLANO, and FITZGERALD, * JJ.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 14, 2017

        Appellant, Frederick S. Walter, II, appeals from the August 9, 2016

judgment of sentence entered in the Court of Common Pleas of Venango

County (“trial court”) sentencing him to an aggregate term of 14-30 years’

incarceration. Upon review, we affirm.

        Appellant was charged in docket CR 474-2015 with two counts of

aggravated indecent assault and two counts of indecent assault, 1 stemming

from an incident wherein Appellant digitally penetrated a fourteen-year-old


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), and 3126(a)(8),
respectively.
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girl. On January 23, 2015, Appellant was at K.T.’s 2, residence, assisting her

step-father with a vehicle repair. See N.T. Preliminary Hearing, 9/9/15, at

6-7.3 Appellant led K.T. up to her bedroom to play some music. While in

K.T.’s bedroom, Appellant was drinking rum, and unzipped K.T.’s pants, and

digitally penetrated her vagina.        Id. at 9-10.   K.T. told Appellant to stop,

after which Appellant asked K.T. if she wanted to kiss him, which she

responded in the negative.           Id. at 11.   Shortly after this incident K.T.

reported the assault to her mother. Id.

        In docket CR 666-2015, Appellant was charged with four counts of

aggravated indecent assault and two counts of indecent assault, 4 stemming

from multiple incidents wherein Appellant digitally penetrated E.P., a young

girl, who was between ten and eleven years old.            Multiple incidents took

place and typically involved Appellant going into E.P.’s bedroom at night,

while drinking rum, and digitally penetrating her vagina.         N.T. Preliminary

Hearing, 12/9/15, at 9-12.

____________________________________________


2
    At the time of the assault, K.T. was a fourteen year old girl.
3
   All relevant factual information is derived from the transcripts of the
preliminary hearings held on September 9, 2015, and December 9, 2015.
The transcripts were admitted into evidence at the pretrial hearing on
joinder. As the only challenge pertaining to the facts of the matter sub
judice relate to Appellant’s pretrial objection to joinder, we cite to these
transcripts.
4
 18 Pa.C.S.A. §§ 3125(b), 3125(a)(7), 3125(a)(8), 3126(a)(1), 3126(a)(7),
and 3125(a)(1), respectively.




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        On March 24, 2016, the Commonwealth filed a notice of joinder

pursuant to Pa.R.Crim.P. 582.                  Appellant filed an objection to the

Commonwealth’s notice on March 28, 2016. The trial court held a hearing

on April 4, 2016, at which it admitted into evidence the transcripts of the

preliminary hearings held on September 9, 2015,5 and December 9, 2016.6

The trial court overruled the objection on April 6, 2016.

        On May 19, 2016, Appellant filed a motion in limine seeking to strike

the seven shared jurors that sat on the unrelated case of Commonwealth

v. Mays, CR No. 594-2015. Appellant asserted that following the conclusion

of the Mays trial, Assistant District Attorney Brenda Servidio spoke to

members of the Mays jury regarding inadmissible criminal background

information, specifically, whether that information would have changed the

verdict from not guilty to guilty. The trial court held a hearing on May 20,

2016, on Appellant’s motion.          After hearing from juror number 3, on the

record, the trial court determined that the juror was competent and qualified

to continue serving on the jury. See N.T. Jury Trial Day 1, 5/20/16, at 20-

21.    At the beginning of the jury trial, the trial court questioned the jury

panel as a whole, as to whether any member of the jury, excluding juror

number 3, had any contact with Assistant District Attorney Brenda Servidio,

____________________________________________


5
    In case CR 474-2015.
6
    In case CR 666-2015.




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or overheard any of the conversation discussed above. Id. at 41-42. There

were no additional responses from the jury.

      Following a two-day jury trial held on May 20, and 23, 2016, the jury

convicted Appellant on all counts.       The trial court ordered a presentence

investigation     and   a    Sexual   Offender   Assessment   Board   (“SOAB”)

assessment.      On August 23, 2016, the trial court conducted a sexually

violent predator (“SVP”) hearing, at the conclusion of which it found

Appellant to be a SVP and sentenced him to an aggregate term of 14 to 30

years’ incarceration.       Appellant did not file any post-sentence motions.

Appellant filed a timely notice of appeal on September 7, 2016, and an

amended notice of appeal on September 8, 2016. The same date, the trial

court directed Appellant to filed a concise statement of errors complained of

on appeal.      Appellant filed his concise statement on September 13, 2016,

and the trial court issued a Pa.R.A.P. 1925(a) opinion on October 28, 2016.

      Appellant raises three issues for our review, which we repeat verbatim.

      [I.]   Whether the trial court erred as a matter of law or abused
             its discretion when granting the motion to consolidate CR
             No. 474-2015 and CR No. 666-2015, when there was no
             evidence that cases were similar[,] having a common plan
             or scheme[,] and in fact were two separate and distinct
             cases.

      [II.] Whether the trial court erred as a matter of law or abused
            its discretion by not dismissing the jury panel after
            discovering that the Assistant District Attorney, Brenda
            Serivdo, Esquire, had tainted the jury by talking to a
            shared juror in a prior case about criminal defendants
            having prior records that jurors are not told about.



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      [III.] Whether the trial court erred as a matter of law or abused
             its discretion when the trial court permitted the District
             Attorney to talk about expert evidence in his closing that
             was not presented in trial and the instruction to fix this
             error did not address that the [C]ommonwealth could not
             make this argument but rather said both sides could not
             address expert testimony.

Appellant’s Brief at 5.

      Appellant asserts that the trial court erred when it granted the

Commonwealth’s motion to consolidate cases pursuant to Pa.R.Crim.P. 582

based on a common scheme. “It is well settled that the decision of whether

to join or sever offenses for trial is within the discretion of the trial court,

and such decision will not be reversed on appeal absent a manifest abuse of

that discretion or a showing of prejudice and clear injustice to the

defendant.”    Commonwealth v. Stiles, 143 A.3d 968, 975 (Pa. Super.

2016) (citing Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa.

2010)). “Discretion is abused when the course pursued [by the trial court]

represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.”

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006)

(alteration in orginal) (quoting Commonwealth v. Hood, 872 A.2d 175,

178 (Pa. Super. 2005) appeal denied, 889 A.2d 88 (Pa. 2005)). Rule 528

provides for joinder of certain offenses in certain instances.

      (A)     Standards




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     (1)   Offenses charged in separate indictments or informations
           may be tried together if:

        (a)      The evidence of each of the offenses would be
           admissible in a separate trial for the other and is capable
           of separation by the jury so that there is no danger of
           confusion; or

        (b)      The offenses charged are based on the same act or
           transaction.

Pa.R.Crim.P. 582. “Evidence of other bad acts is not admissible in a criminal

trial in order to prove that the defendant had a propensity to act in such a

manner.”   Commonwealth v. Judge, 897 A.2d 1224, 1231 (Pa. Super.

2006) (citing Pa.R.E. Rule 404(b)(1)). However, it is well established that

“evidence of prior bad acts could be admitted if it were relevant to show: (1)

motive; (2) intent or knowledge; (3) absence of mistake or accident; (4)

common scheme or plan; or (5) identity.”     Id. (citing Commonwealth v.

Sam, 635 A.2d 603 (Pa. 1993), cert. denied, 511 U.S. 1115 (1994)). Thus,

if the evidence tends to show a common scheme or plan, the offenses may

be charged together. In Commonwealth v. Aikens, 990 A.2d 1181 (Pa.

Super. 2010), this Court affirmed a challenge to the admission of a prior

sexual assault under the common scheme exception where the victims were

of similar ages (14 and 15), victims were the defendant’s biological

daughters, his sexual abuse started the same way, and the assaults

occurred in bed. Id. at 1186.

     In the matter sub judice, the assault of K.T., who at the time was 14

years of age, took place in her bedroom, Appellant was drinking rum, and



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Appellant placed his hand in her vagina. Similarly, the assaults of E.P., who

was approximately 10 or 11 years old, took place in her bedroom, Appellant

was drinking rum, and placed his hand in her vagina. Further, Appellant was

not related to either victim, he was dating E.P.’s mother, and was a family

friend of K.T.’s stepfather. Appellant asserts that there were differences in

the timing of the act, specifically that one occurred at night and one

occurred in the morning. Appellant further argues that there were different

people present in the house at the time of the assaults and that E.P. was

sleeping when the assaults occurred, establishes that there is insufficient

commonality between the events.              We disagree.   The similarities in the

assaults “were not confined to insignificant details that would likely be

common elements regardless of who committed the crimes.” Aikens, 990

A.2d at 1186 (quoting Commonwealth v. Hughes, 555 A.2d 1264 (Pa.

1989)).   The victims were of similar ages, the assaults took place in the

victim’s bedrooms, Appellant was drinking rum at the time of each assault,

and the manner of the assaults were similar. Thus, the evidence is similar

and would be admissible in a separate trial to show a common plan or

scheme, and the instances are capable of separation by the jury. Therefore,

the trial court did not abuse its discretion when it permitted the cases to be

tried together pursuant to Rule 582. Appellant’s claim fails.

      Next, Appellant asserts that the jury was tainted via contact in the

hallway with a member of the Venango County District Attorney’s office.

Specifically,   the   assistant   district   attorney   spoke   to   a   juror   about

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inadmissible criminal history evidence in a prior case, and whether if they

heard such evidence would it have changed the jury’s verdict from not guilty

to guilty.    “Pennsylvania law generally requires a showing that ex parte

communications with a jury resulted in prejudice in order to warrant relief.”

Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa. 2014) (citing

Commonwealth v. Ali, 10 A.3d 282, 313 (Pa. 2010)). Prior to ruling on

Appellant’s motion in limine, the trial court questioned the purportedly

tainted juror as follows.

      Q: . . . The court has been made aware that you may have
      overheard a conversation between the Commonwealth and one
      of the other jurors that was involved in the May case. The
      Commonwealth’s attorney was asking him some questions.

      A.       You talking about after the trial?

      Q. After the trial, yes. That’s what we need to inquire about
      right now. Do you recall that? Did you overhear anything?

      A. The DA you mean?

      Q. Yes.

      A. Yes.

      Q. Okay. You know what part of the conversation you heard?

      A. She was talking directly actually to me, and what it was was,
      would it have made any difference if we could have presented
      this extra evidence? I said, well it may have. But I says, that’s
      not how the court system works.. Yeah, there’s stuff that has to
      be suppressed, it’s not related directly to that trial so .. .

      Q. Okay. Now, can you tell us who all was present at that time?

      A.     There was one other juror, also.

      Q. And I did speak with Ms. Servidio and she indicated it was
      [M.B.]?

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     A. The younger, gentleman?

     Q. Yes.

     A. Yes.

     Q. That would’ve been him.       All right.   Were there any other
     jurors around?

     A. Not that I’m aware of.

     Q. Okay. Now, given that position, I just want to make sure
     that doesn’t in any way affect your ability to be fair and impartial
     in this case?

     A. No, because I’m quite aware of the judicial system and
     evidence is evidence. What’s presented here is what decides the
     case not anything else.

     Q. And that is part of the instructions that we give you that you
     cannot consider any other evidence that you may learn about
     this case outside what’s delivered from a witness on the witness
     stand under oath. So, you can follow that instruction?

     A. Yes.

     Q. You believe you can be fair and impartial in this case?

     A. Most definitely, yes.

N.T. Jury Trial Day 1, 5/20/16, at 17-18. It is troubling that an assistant

district attorney would discuss patently inadmissible testimony with a juror,

and ask whether that extremely prejudicial information would have an effect

on a verdict. The fact that this juror was not yet excused from jury duty

service   compounds    the   inexplicable   conduct   of   Attorney   Servidio.

However, the juror was astute and honest and credibly testified that s/he

would remain fair and impartial in this case. Moreover, the juror accurately

explained the role of a juror and that the decision of the jury must be made



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solely on the evidence admitted at trial. Thus, we find that the trial court

did not abuse its discretion when it did not excuse this juror.     Appellant’s

claim fails.

      Next, Appellant asserts the trial court erred in its charge to the jury

when it provided a curative instruction regarding expert evidence.       While

Appellant did object to the Commonwealth’s closing argument, Appellant

failed to object to the trial court’s curative jury instruction.   Pennsylvania

Rule of Criminal Procedure 647 provides that “[n]o 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.”

Pa.R.Crim.P. 647(C). Further, “the mere submission and subsequent denial

of proposed points for charge that are inconsistent with or omitted from the

instructions actually given will not suffice to preserve an issue, absent a

specific objection or exception to the charge.”          Commonwealth v.

Pressley, 887 A.2d 220, 225 (Pa. 2005). As discussed above, Appellant did

not object pursuant to Rule 647(C) before the jury retired to deliberate.

See N.T. Jury Trial Day 2, 5/23/16, at 317-348. Thus, Appellant’s claim is

waived.

      Judgment of sentence affirmed.

      Judge Solano joins the memorandum.

      Justice Fitzgerald concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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