J-S66012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,       IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                  Appellee

                    v.

THERESA GORDON ISABELLA,

                         Appellant                  No. 485 MDA 2014


          Appeal from the Judgment of Sentence September 9, 2013
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003829-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 18, 2014

      Appellant, Theresa Gordon Isabella, appeals from the judgment of

sentence of an aggregate term of seven years’ probation, imposed after she

was convicted by a jury of numerous counts of forgery, stalking, and

harassment. We affirm.

      The trial court summarized the evidence presented at Appellant’s jury

trial as follows:

            The pertinent facts set forth in the 535 pages of the trial
      record demonstrate that [Appellant] resided in property
      adjoining the Yurick family home and Mr. Yurick’s in-laws. The
      jury found [Appellant] engaged in a course of conduct mostly
      consisting of submitting fraudulent written documents that
      caused numerous magazine subscriptions to be delivered to
      James and Heather Yurick, among others. The Commonwealth
      presented eleven witnesses, to include those victimized by
      [Appellant], all of whom verified they did not order the various,
      numerous publications but notwithstanding received the
      magazines and bills due and owing therefore. The victims were
      compelled to spend countless hours contacting publishers in
      order to stop the unwanted subscriptions, eliminate the bills, and
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     obtain copies of the order forms to investigate the source
     therefore.

           Charmaine Maynard, a friend of [Appellant’s], testified
     [Appellant] did not like the Yurick children.      She stated
     [Appellant] set her alarm in order to walk her dog (a German
     Shepherd) near the Yurick children at the time the children
     would walk to the school bus stop and/or home in an attempt to
     annoy and/or scare them. She further testified [Appellant]
     attempted to cajole her into calling or making a written
     complaint to the bank where Sally Yurick was employed.13
     Notably, this witness was recalled at trial because [Appellant]
     informed her “you’ll be sorry[,”] a statement which occurred
     outside the courtroom subsequent to Maynard’s testimony.
             13
                  Sally Yurick is married to James Yurick’s father.

            Additionally, and by way of history, the Commonwealth
     presented the testimony of Chief Winters who noted complaints
     from both parties during the time frame at issue. In addition to
     the fraudulent magazine subscriptions, he verified complaints
     received from the Yuricks relating to concerns [Appellant]
     frequently walked her German Shepherd dog between the Yurick
     children and the school bus stop and/or family residence, which
     served to further exacerbate the situation. The Chief detailed
     efforts wherein he attempted to reason with [Appellant] by
     sharing the Yurick’s concerns, to no avail.14
        14
          Other incidents are set forth in the testimony related to
        [Appellant’s] annoying conduct such as throwing walnuts
        against the Yurick home and placing animal feces along
        the property line.

           The Chief testified that based upon the information
     received with the passage of time, coupled with verification of
     other witnesses, it became apparent to him there was sufficient
     evidence to warrant further investigation of [Appellant’s]
     involvement in the fraudulent activities surrounding the
     magazine subscriptions. Accordingly, he enlisted the assistance
     of the Pennsylvania State Police to conduct handwriting analysis
     on the various publication order forms. To assist in the analysis,
     the Chief was able to obtain a civil complaint filed by [Appellant]
     in 2007 from a local Magistrate’s office. Thereafter, he applied
     for and obtained a search warrant for handwriting exemplars
     from [Appellant] for analysis.


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           Corporal Mark Gardner of the Pennsylvania State Police
     was called on behalf of the Commonwealth. He is employed as a
     Questioned Document Examiner in the Forensic Document Lab.15
     He testified he examined the various questioned documents and
     the known standards of [Appellant].       Upon completing the
     handwriting analysis, he testified with the requisite degree of
     certainty that [Appellant] authored the questioned documents
     that served to place the magazine orders.16
        15
           The Corporal was qualified as an expert and admitted
        without objection.
        16
           We note that to the extent the expert’s opinion was
        legally insufficient as it related to analysis of certain
        questioned documents, those counts (Counts 1, 2, 3, and
        5 of 4136 of 2012) were dismissed by the Court.

Trial Court Opinion (TCO), 5/19/14, at 3-5.

     Based on this evidence, the jury convicted Appellant of multiple counts

of the above-stated offenses and she was sentenced to an aggregate term of

seven years’ probation. Appellant filed a timely notice of appeal, as well as

a timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Herein, she raises three issues for our review:

     A. Whether the [t]rial [c]ourt erred in denying [Appellant’s]
     Motion for Mistrial when the jury was tainted by an alternate
     juror who expressed to the other jurors that she was going
     through similar neighbors’ issues, and felt sympathy to the
     alleged victims in this case?

     B. Whether the [t]rial [c]ourt erred in denying [Appellant’s]
     Motion for a Mistrial due to [the] Commonwealth’s Attorney’s
     prosecutorial misconduct in attempting to intimidate a character
     witness of [Appellant’s]?

     C. Whether many of the exhibits, which were photocopies,
     should not have been admitted as they are not the best
     evidence?




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Appellant’s Brief at 4.1

        Appellant’s first and second issues involve the court’s denial of her

motions for a mistrial, which we review under the following standard:

        The denial of a motion for a mistrial is assessed on appellate
        review according to an abuse of discretion standard. The central
        tasks confronting the trial court upon the making of the motion
        were to determine whether misconduct or prejudicial error
        actually occurred, and if so, to assess the degree of any resulting
        prejudice.

Commonwealth v. Kerrigan, 920 A.2d 190, 199 (Pa. Super. 2007)

(quoting Commonwealth v. Sanchez, 907 A.2d 477, 491 (Pa. 2006)

(internal citation omitted)).

        First, Appellant contends that the court should have granted her

motion for a mistrial “when an alternate juror began to complain aloud, in

the vicinity of the other members of the jury, [about] her potential bias in

favor of the victims because she had similar problems with her neighbors.”

Appellant’s Brief at 18. Appellant also claims that

        [i]t was established that [the] [a]lternate [juror] brought a
        notebook from her van into the courthouse that contained
        information she compiled regarding her situation, which was, in
        her account, very similar to the facts of the instant case. During
        a break, she repeatedly told several of the other jurors about
        how she was currently dealing with a situation with her
        neighbors in which she was being harassed. Most significantly,
        … several other jurors overheard [the] [a]lternate [juror] state
        that she “sympathized” with Mr. Yurick the alleged victim in this
        case.



____________________________________________
1
    We have reordered Appellant’s issues for ease of disposition.


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Id. at 19. Appellant avers that “[t]his alternate juror’s conduct amounted to

an extraneous influence that prejudiced the jury against [Appellant].”        Id.

Thus, she maintains that a mistrial was warranted.

        In Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012), our Supreme

Court stated:

         An extraneous influence may compromise the impartiality and
        integrity of the jury, raising the specter of prejudice. See Carter
        by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d 1010,
        1015–16 (1992) (plurality). The relevant inquiry is whether the
        extraneous influence caused “a reasonable likelihood of
        prejudice.” Id. at 1016; see also Commonwealth v. Bradley,
        501 Pa. 25, 459 A.2d 733, 739 (1983) (requiring showing that
        contact between member of the jury and court officer resulted in
        “a reasonable likelihood of prejudice” to defendant.). In making
        the “reasonable likelihood of prejudice” determination, the court
        must consider: “(1) whether the extraneous influence relates to
        a central issue in the case or merely involves a collateral issue;
        (2) whether the extraneous influence provided the jury with
        information they did not have before them at trial; and (3)
        whether the extraneous influence was emotional or inflammatory
        in nature.” Carter, 604 A.2d at 1017 (footnote omitted). The
        burden is on the party claiming prejudice. Id.

Id. at 1115.

        In explaining why it denied Appellant’s motion for a mistrial, the trial

court emphasized that after learning of the alternate juror’s conduct, the

court

        dismiss[ed] her and questioned all the remaining jurors
        individually. While some jurors (not all) heard the utterances of
        [the] [a]lternate [j]uror …, all jurors questioned confidently
        assured this court and counsel that the statements would not
        affect their ability to be fair and to follow the [c]ourt’s
        instructions.    As our Superior Court aptly stated in
        Commonwealth v. Miller, [371 A.2d 1362, 1366 (Pa. Super.
        1977),] while “…the defendant is entitled to a trial by a panel of


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      impartial and indifferent jurors, [citation omitted] … [t]here is
      nothing … which guarantees a perfect trial.”

            Based upon the individual colloquy with each of the jurors
      and having concluded there existed no resulting prejudice, we
      believe that we properly exercised our discretion in denying the
      motion seeking a mistrial.

TCO at 6 (footnoted omitted).

      Appellant argues that the court’s conclusion that she was not

prejudiced by the alternate juror’s conduct was erroneous because the court

applied “a subjective standard in determining if the jurors were influenced

by [the] [a]lternate [juror’s] actions[,]” not “whether an objective, typical

juror would be affected.”     Appellant’s Brief at 20.     In support of this

argument, Appellant relies on our Supreme Court’s decision in Carter.

However, for the reasons that follow, we find Carter distinguishable from

the present case.

      In Carter, the question before the Court was whether certain jurors’

viewing of a television broadcast “was a proper basis for impeaching the

jury’s verdict.”    Carter, 604 A.2d at 1012 (citations omitted; emphasis

added).   In answering this question, the Court examined “[t]he rule in

Pennsylvania … that a juror is incompetent to testify as to what occurred

during deliberations.” Id. at 1013. The Court explained:

      This rule is often referred to as the “no impeachment” rule.
      However, in order to accommodate the competing policies in this
      area, a narrow exception has been recognized. The exception
      permits “post trial testimony of extraneous influences which
      might have affected [prejudiced] the jury during deliberations.”
      Under this exception, the juror may testify only as to the
      existence of the outside influence, but not as to the effect



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      this outside influence may have had on deliberations.
      Under no circumstances may jurors testify regarding their
      subjective reasoning processes.

Id. (citations omitted) (emphasis added). The Court further held:

      Once the existence of a potentially prejudicial extraneous
      influence has been established by competent testimony, the trial
      judge must assess the prejudicial effect of such influence.
      Because a trial judge is precluded from considering evidence
      concerning the subjective impact of an extraneous influence on
      any juror, it has been widely recognized that the test for
      determining the prejudicial effect of an extraneous influence is
      an objective one. In order to determine whether an extraneous
      influence is prejudicial, a trial judge must determine how an
      objective, typical juror would be affected by such an influence.

Id. at 1016 (citations omitted).

      In our view, Carter only precludes a court from considering “the

subjective impact of an extraneous influence” on jurors’ deliberations and/or

verdict.   Here, the jurors were questioned on the second day of trial, well

before they began deliberating or reached a verdict. See N.T. Trial, 7/29-

7/31/14, at 108-139. The court asked the each of the jurors if they believed

they were able to disregard the alternate’s conduct and proceed impartially

in spite of it, and the jurors all indicated that they were able to do so. Id. at

121-136.      Consequently, the court concluded that Appellant was not

prejudiced by the alternate juror’s ‘extraneous influence.’           This pre-

deliberation, pre-verdict evaluation of the subjective impact of the alternate

juror’s conduct on the other jurors did not violate Carter.         Accordingly,

Appellant has not convinced us that the court erred in denying her motion

for a mistrial.




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        In Appellant’s second issue, she maintains that the trial court should

have granted her motion for a mistrial when the Assistant District Attorney

(ADA) “made intimidating comments” to one of Appellant’s character

witnesses, Pia Taggart.2 Appellant’s Brief at 23. The court summarized the

factual basis for Appellant’s claim as follows:

              As it relates to the allegations of prosecutorial misconduct,
        the record is clear the … []ADA[] spoke to [Pia Taggart] … prior
        to her testimony. [Ms. Taggart] was employed as a pro se staff
        attorney working in the Federal Court in Scranton, Pennsylvania.
        The ADA had prior contact with [Ms. Taggart] unrelated to this
        case via telephone and, although the two never met, the ADA
        approached [Ms. Taggart] prior to her testifying to introduce
        herself. In the course of conversation, the ADA acknowledged
        that she told [Ms. Taggart] “… just be careful because this
        woman is capable of retaliation.” While counsel for [Appellant]
        alleged [Ms. Taggart] … was intimidated giving rise to the motion
        for a mistrial, this Court denied the motion finding no resulting
        prejudice.20
             20
                 Parenthetically, we note             [Ms.   Taggart]   testified
             enthusiastically for [Appellant].

TCO at 6-7.

        Appellant initially claims that the trial court erred in ruling on her

motion for a mistrial “prior to hearing any testimony” from Ms. Taggart.

Appellant’s Brief at 25.               Appellant maintains that without such testimony,
____________________________________________
2
  Appellant also claims the ADA made improper comments to several other
character witnesses in addition to Ms. Taggart. However, Appellant’s Rule
1925(b) statement only challenged the ADA’s comments to Ms. Taggart;
Appellant did not refer to any remarks made by the ADA to other witnesses.
Therefore, Appellant has only preserved her claims regarding the ADA’s
remarks to Ms. Taggart. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).


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there is no way to know if the ADA’s improper remark to Ms. Taggart

impacted her testimony.       However, Appellant cites no legal authority

indicating that the court was required to hear testimony from Ms. Taggart

regarding the impact of the ADA’s comment. Moreover, considering that Ms.

Taggart was Appellant’s character witness, it is curious that she is unable to

elucidate how Ms. Taggart’s actual testimony following the ADA’s comment

differed from the testimony Appellant expected Ms. Taggart to proffer.

      In any event, as we stated supra, in ruling on Appellant’s motion for a

mistrial based on the ADA’s remark, the trial court was required to evaluate

“whether misconduct or prejudicial error actually occurred, and if so, to

assess the degree of any resulting prejudice.” Kerrigan, 920 A.2d at 199.

The trial court undertook this evaluation, stating:

            Initially, we note that although the ADA’s contact with the
      witness was perhaps ill-advised, in our judgment it was rather
      innocuous and we fail to see evidence of any intimidation.
      Moreover, general guidance from our Superior Court
      demonstrates that “…a new trial is not mandated every time a
      prosecutor makes an improper remark. To constitute reversible
      error the language must be such that its ‘unavoidable effect
      would be to prejudice the jury, forming in their minds fixed bias
      and hostility towards the defendant, so that they could not weigh
      the evidence and render a true verdict.’” [Commonwealth v.
      Smith, 433 A.2d 489, 495-96 (Pa. Super. 1981) (citations
      omitted).] Here, the jury was not exposed to the statement and
      we see no other prejudice. Accordingly, [Appellant’s] second
      error complained of is without merit[,] as we believe we
      exercised appropriate discretion in denying a mistrial.




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TCO at 7 (footnote omitted). Based on the court’s analysis, we ascertain no

abuse of discretion in its decision to deny Appellant’s motion for a mistrial.

Accordingly, Appellant’s second issue is meritless.

      Finally, Appellant challenges the trial court’s admission of certain

documentary evidence.

      [A]n appellate court may reverse a trial court’s ruling on the
      admissibility of evidence only upon a showing that the trial court
      abused its discretion. “An abuse of discretion is more than just
      an error in judgment and, on appeal, the trial court will not be
      found to have abused its discretion unless the record discloses
      that the judgment exercised was manifestly unreasonable, or the
      result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Fisher, 764 A.2d 82, 86 (Pa. Super. 2000) (citation

omitted).

      Appellant     argues   that   “the   trial   court    erred   when    it   allowed

photocopies of several magazine subscription cards to be admitted into

evidence[,]”   as    those   “photocopies     were    not    the    best   evidence….”

Appellant’s Brief at 21.     Appellant maintains that the Commonwealth was

required to produce the original subscription cards at trial. In support of this

argument, Appellant relies on Pennsylvania Rule of Evidence 1002, which

incorporates the common law ‘best evidence’ rule, and states: “An original

writing, recording, or photograph is required in order to prove its content

unless these rules, other rules prescribed by the Supreme Court, or a statute

provides otherwise.” Pa.R.E. Rule 1002.

      However, our Court has stated that “Rule 1002 is applicable only in

circumstances where the contents of the writing, recording or photograph


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are integral to proving the central issue in a trial.”             Commonwealth v.

Fisher,       764      A.2d   82,    88   (Pa.   Super.   2000)    (citation     omitted).

“Consequently, if the Commonwealth is introducing a writing, recording, or

photograph at trial, Rule 1002 requires that the original be introduced only if

the Commonwealth must prove the contents of the writing, recording or

photograph to establish the elements of its case.” Id. (citations omitted).

        Here, Appellant did not object to the admission of the photocopies on

the basis that the content of the magazine subscription cards was a central

issue    at   trial.      Instead,   Appellant    objected   to   the   copies    because

“photocopies have a tendency to be distorted, enlarged, et cetera….” N.T.

Trial, 7/29/14-7/31/14, at 50.            This objection involves an issue with the

appearance of the photocopies, not their content. On appeal, she reiterates

this same argument, again failing to challenge the admission of the

photocopies because their content was a pertinent trial issue.                 Therefore,

she has failed to convince us that the best evidence rule applied to preclude

the admission of these photocopies.

        In any event, even if the best evidence rule did apply to this evidence,

we also agree with the trial court that the photocopies were admissible

under Pa.R.E. 1003. That rule states: “A duplicate is admissible to the same

extent as the original unless a genuine question is raised about the original's

authenticity or the circumstances make it unfair to admit the duplicate.” The

photocopies at issue here constitute ‘duplicates.’           See Pa.R.E. 1001(e) (“A

‘duplicate’ means a copy produced by a mechanical, photographic, chemical,


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electronic, or other equivalent process or technique that accurately

reproduces the original.”).

      Instantly, Appellant did not argue at trial that the circumstances of her

case made it unfair to admit the photocopies.       Additionally, she did not

argue that there was a genuine question regarding the authenticity of the

originals.    Instead, as stated    supra, Appellant simply claimed       that

“photocopies have a tendency to be distorted, enlarged, et cetera….” N.T.

Trial, 7/29/14-7/31/14, at 50.     While on appeal, Appellant asserts that

“there is a genuine question as to the authenticity of the handwriting

contained in the original documents,” and also argues that “under the

circumstances of this case, it would be unreservedly unfair to admit a

duplicate in lieu of the original[,]” these arguments were not raised at the

time Appellant objected to the admission of the photocopies. Accordingly,

these arguments have not been preserved for our review.           See Pa.R.E.

103(a)(1)(A), (B) (stating “[a] party may claim error in a ruling to admit …

evidence only” if the party “makes a timely objection … and … states the

specific ground, unless it was apparent from the context[]”). As such, even

if the best evidence rule applied, Appellant has not convinced us that the

court abused its discretion in admitting the at-issue evidence.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2014




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