J-S52009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    CLAYTON LEON HALLETT,

                             Appellant                  No. 465 MDA 2018


       Appeal from the Judgment of Sentence Entered February 16, 2018
                 In the Court of Common Pleas of Tioga County
             Criminal Division at No(s): CP-59-CR-0000414-2016


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED: OCTOBER 17, 2018

        Clayton Leon Hallett appeals from the judgment of sentence of an

aggregate term of 7 to 14 years’ incarceration, imposed after a jury convicted

him of various offenses including three counts of aggravated indecent assault.

On appeal, Appellant claims that he is entitled to a new trial based on

prejudicial remarks that the trial court made during his trial, and conduct and

comments by the court at a post-trial hearing. After careful review, we affirm.

        The facts of Appellant’s underlying convictions are not pertinent to the

issues he raises on appeal.          We only note that Appellant was convicted,

following a two-day jury trial in December of 2017, of three counts of

aggravated indecent assault, and one count each of showing sexual activity


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*   Retired Senior Judge assigned to the Superior Court.
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or videos to a minor, indecent assault, and corruption of a minor. Appellant

filed a post-trial motion, alleging that he had discovered that one of the jurors

knew the victim in this case, K.C. On February 16, 2018, the court conducted

a hearing on Appellant’s motion, after which the court denied it. That same

day, the court sentenced Appellant to the aggregate term stated supra.

       Appellant filed a timely notice of appeal. He also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed a short Rule 1925(a) statement on

May 17, 2018. Herein, Appellant raises two issues for our review:
       1) Whether the trial court erred in making comments throughout
          the trial on Appellant’s counsel[’s] questions and in making sua
          sponte remarks to the jury which caused prejudice to
          Appellant?

       2) Whether the trial [court] erred in dismissing Appellant’s
          witness in [the] post[-]trial motion hearing sua sponte and in
          threatening counsel with a report to a higher authority?

Appellant’s Brief at 5.1

       In both of Appellant’s issues, he argues, inter alia, that the trial court

made improper remarks that prejudiced him.            Our Supreme Court has

recognized that,
       [t]he law is clear that not every unwise or irrelevant remark made
       in the course of trial by a judge constitutes grounds for a mistrial
       and that a new trial is required only where the remark is
       prejudicial. Prejudice will be found only where the remark is of
       such a nature, or delivered in such a manner, that it may
       reasonably be held to have deprived the accused of a fair and

____________________________________________


1 We reordered Appellant’s issues to address them in the order in which he
presents them in the Argument section of his brief.

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     impartial trial. Commonwealth v. England, … 375 A.2d 1292
     ([Pa.] 1977). As we noted in England:

        While we do not condone a display of impatience by a trial
        judge, even where he may have been provoked by counsel’s
        dilatory tactics, we recognize that judges are also subject to
        the failings of human beings and cannot be expected to be
        devoid of emotion in the trying or vexing situations they
        may be called upon to confront.

     Id. at … 1300.

Commonwealth v. Jones, 683 A.2d 1181, 1191 (Pa. 1996).

     Here, Appellant initially takes issue with three comments by the court

during defense counsel’s cross-examination of the victim, K.C. Specifically,

the court asked counsel, “Anything else, ma’am?” and, shortly thereafter, the

court again asked counsel, “Are you finished?” N.T. Trial, 12/6/17, at 136,

137. Later, the court interjected, “Ma’am, that’s the third time you’ve asked

that in the last five minutes.” Id. at 138. Appellant argues that these three

comments by the judge “could have shown the jury a prejudice against

defense counsel and[,] thus[,] against [Appellant].” Appellant’s Brief at 9.

More specifically, he avers that “these three comments from the judge swiftly

portray[ed] a bias against [Appellant] and for the victim[,] who [was] being

cross[-]examined by counsel at the time.” Id.

     Appellant’s argument is unconvincing. As the trial court explains, its

“comments to counsel … during the trial … were intended to move the trial

along and require counsel to comply with the Rules of Evidence.” Trial Court

Rule 1925(a) Order, 5/17/18, at 1. Moreover, even if we regarded the court’s

remarks as demonstrating its impatience with defense counsel, the court’s



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statements were not so extreme as to deprive Appellant of a fair trial. Notably,

Appellant does not offer any meaningful discussion of precedential case law

that would support his argument to the contrary. Instead, he improperly cites

an unpublished memorandum decision by this Court,2 and then simply sets

forth the following sentence from Commonwealth v. Kearney, 92 A.3d 51

(Pa. Super. 2014):

       [O]pinions formed by the judge on the basis of facts introduced or
       events occurring in the course of the current proceedings, or of
       prior proceedings, do not constitute a basis for a bias or partiality
       motion unless they display a deep-seated favoritism or
       antagonism that would make fair judgment impossible.

Appellant’s Brief at 9 (quoting Kearney, 92 A.3d at 61). Appellant offers no

analysis of the Kearney decision, nor any explanation of why it supports his

claim that a new trial is warranted in this case. Consequently, he has failed

to demonstrate that he is entitled to such relief.

       Appellant next challenges an instruction provided sua sponte to the jury

by the court during the testimony of K.C. As context for that instruction, and

Appellant’s prejudice argument, we explain the following.          During cross-

____________________________________________


2 See 210 Pa. Code § 65.37 (Superior Court Internal Operating Procedure
65.37 stating: “An unpublished memorandum decision shall not be relied upon
or cited by a Court or party in any other action or proceeding, except that
such a memorandum decision may be relied upon or cited (1) when it is
relevant under the doctrine of law of the case, res judicata, or collateral
estoppel, and (2) when the memorandum is relevant to a criminal action or
proceeding because it recites issues raised and reasons for a decision affecting
the same defendant in a prior action or proceeding. When an unpublished
memorandum is relied upon pursuant to this rule, a copy of the memorandum
must be furnished to the other party and to the Court.”).


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examination of K.C., defense counsel asked her about the fact that, “according

to the police investigation report, [K.C. had] told [her] mother that [she] had

to give [Appellant] a blow job[.]” N.T. Trial, 12/6/17, at 114. K.C. replied, “I

didn’t say that.” Id. The following exchange then occurred:

        [Defense Counsel]: Okay; it’s … in the police report. You didn’t
        say it?

        [K.C.]: Then something must have gotten mixed up --

        [Defense Counsel]: -- okay --

        [K.C.]: -- because I didn’t meant to say it -- if it was switched up
        along three different people’s words.

        THE COURT: I guess this is a good point, Members of the Jury, to
        remind you of the blue car.[3] Just because the question[] [is]
        asked, if the witness says no, you have to put that out of your
        mind.

Id. at 115.

        Then, on the second day of trial, during the jury’s deliberations, the jury

asked to see the police report to resolve a question about the oral sex that
____________________________________________


3   During its opening instructions to the jury, the court stated:
        The questions, which the attorneys put to witnesses, are not,
        themselves, evidence. It is the answers of witnesses which
        provide evidence. You should not assume or guess that a fact is
        true merely because one of the attorneys ask a question which
        assumes or suggests that fact is true. If, for instance, the
        attorney says to a witness: well, isn’t it true that the car was blue,
        and the witness says no, then you can’t assume the car was blue.
        The only reason you could make a finding of fact that the car was
        blue is if some other witness, whom you believe, testified that the
        car was blue or perhaps, you’re shown a photograph of a car,
        which you believe is blue.

N.T. Trial, 12/6/17, at 4-5.


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was referenced in that report. See N.T. Trial, 12/7/17, at 81, 86. In response

to the jury’s question, the court read the following sentence from the police

report: “K.C. told her mother that [Appellant] didn’t have intercourse with her,

but did do oral and made her watch porn.” Id. at 86. The court also informed

the jury that the report was “a synopsis by [a police officer] of his conversation

with [K.C.’s] mother.” Id. at 87. The jury foreperson then stated that, “there

was a question about whether oral sex was performed on [Appellant],” to

which the court responded, “Okay, there is no testimony in this case, to my

recollection, that oral sex was performed.”      Id.   The jury then exited the

courtroom, and the court asked counsel if there was any objection to the

instruction provided, to which the Commonwealth and defense counsel both

responded no. Id. at 87-88.

      Appellant now argues on appeal that “[t]he courts [sic] sua sponte

interjection” during the cross-examination of K.C. “caused prejudice and

confusion with the jury[,] as evidenced by their request during deliberations

for the police report surrounding the issue[,] which counsel was raising in

[her] cross[-]examination of the victim.” Appellant’s Brief at 10.

      Initially, we conclude that Appellant waived this claim by not objecting

to the court’s sua sponte instruction during the cross-examination of K.C. 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.”).     In any event, we would discern

nothing improper about the court’s statement to the jury reminding it of the

instruction it had provided at the outset of the trial, to which defense counsel

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also did not object. Additionally, the record demonstrates that any purported

confusion caused by the court’s remark during the cross-examination of K.C.

was resolved by the court when the jury asked its question during

deliberations.   Defense counsel did not object to the instruction the court

provided in response to that question.     Therefore, Appellant would not be

entitled to relief, even had he preserved this claim for our review.

      In Appellant’s second issue, he challenges the trial court’s conduct and

remarks during the hearing to dispose of his post-trial motion, in which he

claimed to have discovered that one juror knew K.C. and did not disclose this

fact during jury voir dire. At the hearing, Appellant called that juror to the

stand, as well as the juror’s husband, in an attempt to elicit testimony that

the juror (hereinafter, “the wife”) knew K.C., and that her husband

(hereinafter, “the husband”) had told that fact to defense counsel. However,

during the testimony of the wife, she repeatedly denied that she knew or

recognized K.C. When defense counsel’s further questioning did not elicit a

different response, the court interjected, and once again asked the wife if she

had recognized K.C. at trial. N.T. Post-Trial Hearing, 2/16/18, at 7. The wife

reiterated that she had not. Id. The court then excused the witness. Id.

When defense counsel objected, stating that she was not finished examining

the witness, the court replied:

      THE COURT: Yes, you were, ma’am. As far as I’m concerned, the
      [c]ourt has gone way beyond what it should have done in allowing
      you to question jurors about their conduct as jurors. This woman
      has testified, clearly and unequivocally, that she didn’t know who


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      K.C. was; she didn’t recognize her during the trial; and that’s all
      there is to it; and that’s all I want to hear. Call your next witness.

Id.

      Defense counsel then called the husband to the stand. Similar to the

wife, the husband denied that wife knew K.C., and also denied that he had

told defense counsel that his wife recognized K.C. Id. at 9-13. Nevertheless,

defense counsel continued to question the husband about his wife’s knowledge

of K.C. and what he ostensibly told defense counsel related thereto.           The

Commonwealth ultimately objected, pointing out that the wife had already

“testified that she did not know [K.C.]” Id. The court and defense counsel

then had the following exchange:

      THE COURT: Objection’s sustained. Plus [the husband is] already
      -- he [is] denying ma’am. And I got to tell you ma’am, I’m -- I’m
      just about to this point now where I’m thinking about reporting
      this to a higher authority. I don’t understand what you’re doing
      here. This man has now denied, for the last five minutes,
      everything you’ve asked him; and I’m not sure where you’re going
      here.

      [Defense Counsel]: Your Honor, [Appellant] is guaranteed, by the
      Constitution, … a trial by an impartial juror --

      THE COURT: -- I understand that, ma’am. The question is, the
      juror came in, said that she didn’t know the victim at the time and
      didn’t recognize [her]. You’re now trying to impeach her with the
      testimony of her husband --

      [Defense Counsel]: -- yes --

      THE COURT: -- who you ask: didn’t you tell me something? And
      he says: no, I didn’t tell you that. Now, I don’t know how long
      I’m going to let you continue to harass this man.

      [Defense Counsel]: Your Honor, I’m not harassing anyone; this is
      what he --

      THE COURT: -- ask your next question.

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      [Defense Counsel]: Okay. So … I have no further questions.

      THE COURT: Thank you sir, you’re excused; you’re free to leave.
      Next witness, please.

Id. at 13-14.

      Appellant now contends that he was prejudiced by the court’s sua sponte

excusing the wife from the stand because, “[b]y doing so[,] the court shut off

what [A]ppellant asserts would have been fertile ground for evidence

concerning the [wife’s] knowledge and awareness of K.C....” Appellant’s Brief

at 11-12. The record clearly belies Appellant’s prejudice argument, as the

wife repeatedly and adamantly denied recognizing K.C. or having any

knowledge of her. Therefore, even if it was improper for the court to end

counsel’s examination of that witness, Appellant has not demonstrated that

any prejudice resulted.

      The same is true for Appellant’s claim regarding defense counsel’s

exchange with the court during the husband’s testimony. Appellant maintains

that the court “effectively intimidate[d] and shut[] off counsel[’s] proceeding

with her presentation of evidence for her motions.” Appellant’s Brief at 12.

According to Appellant, defense “counsel was so flustered and taken aback by

the court’s position … that she failed to call [Appellant’s] wife[,] who would

have provided further information bolstering the position set forth in

[Appellant’s] motion.” Id. at 13. Appellant avers that “the interaction of the

judge to counsel denied [] [A]ppellant [his] right to due process and a fair

hearing on the post-trial motions and impacted his sixth amendment right to

effective counsel.” Id. at 14.

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      We disagree. While it is apparent that the court was frustrated - and

even angry - with defense counsel’s continuous pursuit of testimony that the

wife and husband seemed unwilling to provide, we discern no prejudice caused

to Appellant.   Appellant merely speculates that defense counsel was ‘too

flustered’ to call another witness, and it is apparent that the court provided

counsel the opportunity to do so after it excused the husband from the stand.

Moreover, this Court stated in Kearney that,

      judicial remarks during the course of a trial that are critical or
      disapproving of, or even hostile to, counsel, the parties, or their
      cases, ordinarily do not support a bias or partiality challenge. They
      may do so if they reveal an opinion that derives from an
      extrajudicial source; and they will do so if they reveal such a high
      degree of favoritism or antagonism as to make fair judgment
      impossible…. Not establishing bias or partiality, however, are
      expressions of impatience, dissatisfaction, annoyance, and even
      anger, that are within the bounds of what imperfect men and
      women, even after having been confirmed as [] judges,
      sometimes display. A judge’s ordinary efforts at courtroom
      administration—even a stern and short-tempered judge’s ordinary
      efforts at courtroom administration—remain immune.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (citations

and emphasis omitted). Thus, based on this record, we do not agree with

Appellant that the court’s remarks to defense counsel during the testimony of

the husband caused Appellant prejudice at the post-trial hearing.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




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