J.   S70005/18

NON-PRECEDENTIAL DECISION                    - SEE SUPERIOR COURT I.O.P.         65.37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

MELVIN IRVIN DAVIS,                                        No. 497 EDA 2017

                               Appellant


            Appeal from the Judgment of Sentence, August 22, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0015706-2013


BEFORE:     GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JANUARY 07, 2019

        Melvin Irvin Davis appeals from the August 22, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following his convictions in          a    jury trial of unlawful contact with minor
(relating to sexual            offenses), corruption   of minors,     indecent assault

(complainant less than 13 years of age), and rape of          a   child.' The trial court

imposed an aggregate sentence of 25 to 50 years of imprisonment.                     We

affirm.

        The trial court set forth the following:

              Complainant, A.G., lived with her mother and sister
              .   .in Philadelphia, Pennsylvania. At that time, A.G.
                      .


              was 9 and 10 years old. Because the home was
              located close to West Mill Creek Playground, A.G.

'    18 Pa.C.S.A. §§ 6318(a)(1),            6301(a)(1)(ii), 3126(a)(7), and 3121(c),
respectively.
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                  went there almost every day to play with her friends.
                  While playing at the park, A.G. met a girl named
                  [A.], who was [appellant's] niece. [A.] invited A.G.
                  to [appellant's] house on Parrish Street, which is also
                  located near the park. While [A.] was upstairs using
                  the bathroom, [appellant] told A.G. she was pretty,
                  then approached A.G. and pulled down her pants;
                  she asked him to stop and [appellant] said no. He
                  then proceeded to pull down her underwear and
                  licked her "private part." A.G. stated that she had
                  contact with [appellant] on several occasions, and
                  that she was inside of his Parrish Street residence
                  during many of those times.

                  Following that incident and on several other
                  occasions, [appellant] gave A.G. money after
                  performing oral sex on her. [Appellant] only gave
                  money to her after he licked her private part. A.G.
                  also testified that [appellant] penetrated her with his
                  penis on several occasions. In one instance, A.G.
                  was sitting on the couch, at which point [appellant]
                  pulled down her pants and her underwear, then
                  penetrated her with his penis while saying "oohs and
                  aahs." She testified that [appellant] also used his
                  fingers to penetrate her vagina, and that it was
                  "really scary" and hurt her. She stated that this
                  occurred more than one time. Finally, A.G. testified
                  that [appellant] gave her money several times after
                  "licking [her] private parts.["] However, A.G. did not
                  tell anyone about [appellant's] behavior, as he
                  threatened that that [sic] if she were to tell anyone,
                  he would kill her family.

Trial court opinion, 12/21/17 at 2-3 (record citations omitted; some brackets

in   original).

         Following appellant's convictions,

                  [s]entencing was deferred for the preparation of a
                  Mental Health Report, presentence investigation
                  report ("PSI") and a report by the Sex Offenders
                  Assessment Board ("SOAB report"). On August 22,
                  2016, [appellant] filed a motion for Extraordinary


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               Relief and a motion to vacate the child advocate.
               Both motions were denied.        On that same date,
               [appellant] was sentenced to 20-40 years for Rape of
               a Child to be served consecutively with 5-10 years
               for Unlawful Contact With a Minor. [Appellant] was
               also sentenced to 3 1/2 to 7 years for Corruption of
               Minors and Indecent Assault.[2] On September 1,
               2016, [appellant] filed a Post -Sentence Motion. The
               motion was denied by operation of law on January 3,
               2017.    On February 1, 2017, [appellant] filed a
               timely notice of appeal. On June 9, 2017, the [trial]
               court issued an order pursuant to Pa.R.A.P. 1925(b)
               directing counsel to file a Statement of Matters
               within twenty-one days from the date of the order.
               [Appellant] filed a 1925(b) statement on June 27,
               2017.

Id. at   1-2 (record citations omitted).

         Appellant raises the following issues for our review:

               [1.]   Did   not the trial court err and abuse its
                      discretion when it denied [appellant's] motion
                      for mistrial, in violation of his rights to due
                      process and a fair jury trial under the state and
                      federal constitutions, when it was discovered
                      during jury deliberations that spectators had
                      coached a child complaining witness during her
                      testimony, as such misconduct was prejudicial
                      and was not discovered by parties until after
                      the close of trial, thus preventing effective
                      remedy such as complete cross-examination?

               [2.]   Did   not the trial court err and abuse its
                      discretion when it replaced juror number
                      twelve     with  an     alternate juror    after
                      deliberations had begun where evidence was
                      insufficient to establish that juror number
                      twelve could not fulfill his duties and the trial
                      court failed to thoroughly question the

2 The record reflects that the sentences imposed for the unlawful contact

with minor and corruption of minors convictions were to run concurrently
with the consecutive sentences.

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                            alternate or      to   properly  instruct   the
                            reconstituted jury, thereby further prejudicing
                            [appellant] and violating his rights to due
                            process and a fair jury trial?

Appellant's brief at 3.

                    With regard to the denial of mistrials, the following
                    standards govern our review:

                            In criminal trials, the declaration of a
                            mistrial serves to eliminate the negative
                            effect wrought upon a defendant when
                            prejudicial elements are injected into the
                            case or otherwise discovered at trial. By
                            nullifying the tainted process of the
                            former trial and allowing a new trial to
                            convene, declaration of a mistrial serves
                            not only the defendant's interests but,
                            equally important, the public's interest in
                            fair trials designed to end in just
                            judgments. Accordingly, the trial court is
                            vested with discretion to grant a mistrial
                            whenever the alleged prejudicial event
                            may reasonably be said to deprive the
                            defendant of a fair and impartial trial. In
                            making its determination, the court must
                            discern      whether      misconduct     or
                            prejudicial error actually occurred, and if
                            so,  .   .  assess the degree of any
                                         .


                            resulting prejudice. Our review of the
                            resulting    order   is    constrained   to
                            determining whether the court abused its
                            discretion.

Commonwealth v. Hogentogler,                      53 A.3d 866, 877-878 (Pa.Super. 2012),

appeal denied, 69 A.3d 600                   (Pa. 2013) (citations omitted).   "The remedy

of   a   mistrial   is an   extreme remedy required 'only when an incident        is   of such

a    nature that its unavoidable effect is to deprive the appellant of           a     fair and

impartial tribunal.' Id. at 878 (citations omitted).


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             To obtain relief on a claim that the trial court abused
             its discretion in responding to spectator conduct at
             trial, appellant must show that the spectator's
             actions caused actual prejudice or were inherently
             prejudicial. Commonwealth v. Philistin, 565 Pa.
             455, 774 A.2d 741, 743 (Pa. 2001); see Carey v.
             Musladin, 549 U.S. 70, 73, 127 S. Ct. 649, 166 L.
             Ed. 2d 482 (2006). The U.S. Supreme Court has
             held it is still an open question as to whether
             spectator versus state conduct can be inherently
             prejudicial. Carey, 549 U.S. at 76 (citing Holbrook
             v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed.
             2d 525 (1986)). The trial court has discretion to
             determine whether a party was prejudiced by a
             spectator's conduct. Philistin, 774 A.2d at 743;
             Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d
             1062, 1072 (Pa. 1995).         The trial court may
             implement any appropriate remedy requested,
             including offering a remedial instruction, removing
             the responsible spectator, or declaring a mistrial.
             See,     e.g., Bracey,      662   A.2d      at    1072;
             Commonwealth v. Johnson, 542 Pa. 384, 668
             A.2d 97, 104-05 (Pa. 1995); Commonwealth v.
             Styles, 494 Pa. 524, 431 A.2d 978, 980-81 (Pa.
             1981).     "[U]nless the unavoidable effect of the
             incident is to deny the defendant a fair trial, there is
             no error." Philistin, 774 A.2d at 743; Johnson,
             668 A.2d at 104.

Commonwealth v. Sanchez, 36 A.3d 24, 47                   (Pa. 2011).

        Furthermore, the law does not presume that spectator conduct               is

inherently and irremediably prejudicial.            Id.    An appellant must develop

factual or legal support in favor of   a   finding of actual prejudice. See id.

       Appellant first complains that the trial court abused its discretion in

denying its motion for    a   mistrial when, during jury deliberations, it was

discovered that four jurors observed spectators "coaching" A.G. during her

testimony and, according to appellant,          a   mistrial was required because "it


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was too late for the defense to effectively combat such misconduct through

cross-examination or argument, or even for the [trial court] to offer [an]

effective curative instruction." (Appellant's brief at 12.)

         The record reflects that during deliberations, the   jury submitted the
following question:     "Are we to consider the reactions of members of the

audience?" (Notes of testimony, 5/3/16 at 78.) The trial court's answer to

the question was, "No." (Id.) The jury later submitted the following:        "It
was observed by members of the       jury that members of the audience were
coaching [A.G.] during her testimony. That's why we want to know if their

reactions are to be considered." (Id. at 93-94.) Appellant then moved for      a


mistrial, which the trial court denied.     (Id. at 94.) The trial court then
summoned the foreperson, Juror No. 6, into chambers because the trial

court saw the:

               need to ascertain what they're referring to. Because
               someone could be making a face that has nothing to
               do with -- remember, there were people in this
               audience that had nothing to do with this case,
               nothing, that were audience [sic], and they may
               have reacted to something because of what they
               heard, and that could be perceived that way. So
               that's what I'm saying. We need to see what they're
               talking about before we jump ahead of ourselves and
               conclude that it's coaching when it could be a
               reaction, something they saw in the audience from
               people who have nothing to do with anything.

Id. at   97.

         When the foreperson arrived in chambers, the following colloquy took

place:


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            THE COURT:      Concerning Question No. 4, it was
            observed by members of the jury that members of
            the audience were coaching [A.G.] during her
            testimony, that's why we want to know if her
            reactions are to be considered, now, what are you
            referring to?

            JURY FOREPERSON:       A couple members of the jury
            said they   saw whoever was sitting in the audience --

            THE COURT:       Who in the audience, like on what
            side?

            JURY FOREPERSON: Wherever that group was that
            was sitting back in the audience while [A.G.] was
            testifying, they were, like, nodding to her or trying to
            coach her in some kind of way.

            THE COURT:    Well, how -- that's what we're trying to
            get at. What did you observe?

            JURY FOREPERSON:        I didn't observe it.

            THE COURT: You      didn't observe it?

            JURY FOREPERSON:        No, a couple other members.

            THE COURT:     So you   didn't see anything?

            JURY FOREPERSON:        I did not.

            THE COURT:     Okay.

            JURY FOREPERSON:      And a lot of us did not.        We
            were focused on the witness.

            THE COURT:   Okay. Without saying -- do you know
            what numbers, who observed --

            JURY FOREPERSON:       No, because we're not sitting in
            order. We're just sitting around the table throwing
            things back and forth.
J.   S70005/18

                 THE COURT:     Okay.     But you're saying you didn't
                 observe anything?

                 JURY FOREPERSON:       I did not.

Id. at 99-100.
        The trial court then excused the     jury foreperson, summoned each juror
into chambers individually, and asked each juror whether he or she had

observed any behavior from the audience.             (Id. at 101-109.) In addition to
the foreperson (Juror No. 6), Juror Nos. 2, 3, 4, 5, 8, 10, and 11 answered

in   the negative. (Id. at 99-108.)

        Juror No.   1    responded that he or she had observed "three people that

walked out with [A.G.]" who were shaking their heads at A.G. during her

testimony.        (Id. at 102.)      When the trial court asked whether that

observation would affect Juror No.            l's ability   to be fair and impartial,

Juror No.    1   stated that he or she was "still considering everything" and that

the observation was not "making or breaking my decision." (Id. at 103.)

        Juror No.    7   responded that he or she saw two women "smiling and

nodding" during A.G.'s testimony.          (Id. at 105.) Juror    No. 7   further stated

that his or her observation would not affect the juror's ability to be fair and

impartial. (Id.)

        Juror No. 9 responded that he or she noticed "some people just, like,

nodding their head and smiling" during [A.G.'s] testimony and that it "could

have been just, like, reassuring."       (Id. at 106.) Juror   No. 9 stated   that what



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he or she observed would             not affect the juror's ability to be fair and

impartial. (Id. at 106-107.)

         Juror No. 12 responded that he3 saw "two ladies" that were "shaking

their head[s]" during [A.G.'s] testimony. (Id. at 108.) Juror No. 12 further

stated that his observation would affect his ability to be fair and impartial

because      he    felt "they were coaching the witness."             (Id. at 109.)
Juror No. 12 added that the observation "made me sick to my stomach."

(Id.)
         After the trial court excused Juror No. 12 from chambers, defense

counsel again moved for          a   mistrial.   (Id. at 109-110.)   In denying the

motion, the trial court explained that:

                 [o]nly four people said they saw something. All
                 three of them indicated it had no effect on them,
                 that they could be fair and impartial, except the last
                 one. There's only one person that said he felt it
                 made him sick to his stomach, and we're talking
                 about nodding and smiling. That's what the behavior
                 was.

Id. at    111.

         Subsequently, the trial court voir dired Juror No. 13, an alternate,

who stated, among other things, that he4 had followed the trial court's final

instructions to the jury, was able to proceed as an impartial and unbiased

juror, and did not observe any behavior               in   the audience.    (Notes of


3    A reading of the   transcript reveals that Juror No. 12's gender   is male.

4    A reading of the   transcript reveals that Juror No. 13's gender   is male.


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testimony, 5/4/16 at 12-13.) The trial court then removed Juror No. 12 and

replaced him with Juror No 13.             (Id. at 13-14.)       The trial court then

instructed the reconstituted jury to disregard past deliberations and start

deliberations anew. (Id. at 14-15.)

       Appellant complains that the trial court abused its discretion in denying

his motion for a mistrial because "prejudice was established, and it was too

late for effective    curative    action    or   remedy" because he could           not

cross-examine A.G.       with    respect to      the   alleged   spectator coaching.

(Appellant's brief at 24-26.)       In order to establish prejudice, however,

appellant must demonstrate that he was denied            a   fair trial. See Sanchez,

36 A.3d at 47.    Stated differently, appellant's bald assertion that "prejudice

was established" is not enough; rather, appellant must show how the trial

court's remedy of replacing Juror No. 12 with Juror No. 13 denied him           a   fair

trial. Appellant has failed to do so.

       The record clearly reflects that three of the four jurors who observed

spectator behavior stated that their observations would not affect their

ability to be fair and impartial.           (Id. at 102-103, 105-107.)           Only

Juror No. 12 stated that he could not be fair and impartial.            (Id. at 108.)
The trial court properly excused Juror No. 12 who stated that he could not

be    fair and impartial and replaced him with Juror No. 13 who, during

voir dire, stated that   he was able to proceed as an impartial and unbiased




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juror and that he did not observe any behavior        in the audience.      (Notes of

testimony, 5/4/16 at 12-13.) We find no abuse of discretion.

       Appellant next complains that the trial court abused its discretion when

it excused Juror No. 12 and impaneled Juror No. 13. In his brief, appellant

attempts to raise five claims of error in this regard.        First, appellant claims

that the trial court violated "standards and procedures [that] have been

developed in Pennsylvania to insure the integrity of the jury function when

replacing   a   deliberating juror"; specifically, Pa.R.Crim.P. 645 (seating and

retention of alternate jurors).    (Appellant's brief at 29, 31-32 (unnecessary

capitalization omitted).) Second, appellant claims that "the trial court failed

to establish that Juror Twelve could not continue deliberations, or that he

was    otherwise disqualified and      needed   to    be    replaced." (Id. at 32

(unnecessary capitalization omitted).) Third, appellant claims that "the trial

court failed to insure that the alternate juror called to replace Juror Twelve

had    not been exposed to any improper outside influence or that the

remaining jurors could begin deliberations anew."           (Id. at   35 (unnecessary

capitalization omitted).) Fourth, appellant claims that "the trial court failed

to properly instruct the reconstituted      juror."        (Id. at 36 (unnecessary
capitalization omitted).)      Finally, appellant claims that "removing Juror

Twelve because of his reaction to witness coaching further compounded the

prejudicial errors created by spectator misconduct and violated the integrity

of the jury function." (Id. at 38 (unnecessary capitalization omitted).)
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       The record reflects that after the         jury informed the trial court of
spectator behavior during A.G.'s testimony, appellant moved for          a   mistrial

several times.   (Notes of testimony, 5/3/18 at 94, 109-110, 113; 5/4/16 at

9, 17).   Appellant also made     a   motion to retain Juror No. 12 because "you

can't effectively restart deliberations."        (Notes of testimony 5/4/16 at 9.)

Appellant further argued that because the "truth -determining process has

been tainted" by the spectator misconduct, "a mistrial is required."         (Id. at
11.)    In his post -sentence motion, appellant raised the following issue with

respect to Juror No. 12:   "It   was error and an abuse of discretion to dismiss

juror number twelve (12), who said that the coaching made him sick to his
stomach." (Appellant's post -sentence motion, 9/1/16 at 1.) Therefore, with

respect to Juror No. 12's dismissal, the issue that appellant arguably

preserved below is that the trial court abused its discretion because it "failed

to establish that Juror Twelve could not continue deliberations, or that he

was otherwise disqualified and needed to be replaced."            (Appellant's brief

at 32 (unnecessary capitalization omitted).) Appellant waives the remaining

claims that he attempts to raise within this issue for failure to preserve them

below.    See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.").

       That being said, our resolution of appellant's first issue, above,

necessarily resolves appellant's claim of error with respect to removal of

Juror No. 12. To be clear, though, we note that:



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             [t]he decision to discharge a juror is within the
             sound discretion of the trial court and will not be
             disturbed absent an abuse of that discretion. This
             discretion exists even after the jury has been
             [e]mpanelled and the juror sworn. Our Supreme
             Court explained that a finding regarding a
             venireman's      impartiality      is    based upon
             determinations of demeanor and credibility that are
             peculiarly within a trial [court]'s province.
                                                         .  [Its]
                                                             .   .


             predominant function in determining juror bias
             involves credibility findings whose basis cannot be
             easily discerned from an appellate record. It is the
             appellant's burden to show that the jury was not
             impartial. Further, this Court has found that per se
             prejudice does not result where a juror becomes
             upset during the trial.

Commonwealth v. Rush, 162 A.3d 530, 537 (Pa.Super. 2017), appeal
denied, 170 A.3d 1049        (Pa. 2017) (citations, emphasis, and quotation

marks omitted).

        Here, when the trial court asked Juror 12 what he had observed, the

following took place:

             JUROR [NO. 12]:     I seen [sic] the two ladies that
             were sitting right here, and they were -- when the
             victim was on the stand, they were saying yes and
             no.

             THE COURT: You could hear --

             JUROR [NO. 12]: They were shaking     their head[s].

             THE COURT:     Okay. Anything else?

             JUROR [NO. 12]: That was it.

             THE   COURT:     Would   that affect your ability to
             continue deliberations and be fair and impartial as a
             juror?



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             JUROR [NO. 12]: Yes, ma'am.

             THE COURT:    It would?
             JUROR [NO. 12]: Yes, ma'am.

             THE COURT:    It would affect you?
             JUROR [NO. 12]: Yes, ma'am.

             THE COURT:    How would it affect you?

             JUROR [NO 12]:    I felt that they were -- that they
             were coaching the witness. It kind of made me sick
             to my stomach.

Notes of testimony, 5/3/16 at 108-109.

        Undoubtedly, the record belies appellant's claim that the trial court

failed to establish that Juror No. 12 could not continue with deliberations or

that he was otherwise disqualified and needed to be replaced. The record

clearly demonstrates that Juror No. 12 stated that as         a   result of his

observations, he could not continue deliberating and that he could not be fair

and impartial. The trial court did not abuse its discretion when it discharged

Juror No. 12.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn,

Prothonotary

Date: 1/7/19




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