J-S73038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     Appellee               :
                                            :
                     v.                     :
                                            :
BENJAMIN WILLIAM LAWRENCE,                  :
                                            :
                      Appellant             :     No. 281 MDA 2017

            Appeal from the Judgment of Sentence April 11, 2016
             in the Court of Common Pleas of Wyoming County,
            Criminal Division at No(s): CP-66-CR-0000444-2013

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 23, 2018

      Benjamin William Lawrence (Appellant) appeals from the judgment of

sentence of an aggregate term of 120 to 240 months of incarceration, imposed

following multiple convictions by a jury for sexual assaults committed against

his two minor stepdaughters. We affirm Appellant’s convictions, but vacate

his sentence and remand for re-sentencing consistent with this memorandum.

      On April 24, 2013, Dylan Barber reported to the Pennsylvania State

Police that his ex-girlfriend, S.L. (born in 1997), and her younger sister, C.L.

(born in 1999), had been raped by their stepfather, Appellant, throughout

their childhoods. Police interviewed S.L., C.L., and Appellant, and eventually

arrested and charged Appellant with numerous sexual assault crimes,




* Retired Senior Judge assigned to the Superior Court.
J-S73038-17


including rape, as a result of this information. Appellant’s first trial on these

charges resulted in a hung jury.

       A second jury trial was conducted from December 14 to 23, 2015, after

which the jury returned guilty verdicts on all counts. On April 11, 2016, the

trial court sentenced Appellant as outlined above. The sentence included

mandatory minimum sentences pursuant to 42 Pa.C.S. § 9718.

       On the same day, counsel for Appellant withdrew his appearance, and

the trial court permitted Appellant to proceed in forma pauperis. On April 13,

2016, appointed counsel for Appellant filed a motion for extension of time to

file post-sentence motions due to the unavailability of trial transcripts. On

April 14, 2016, the trial court ordered Appellant to file a post-sentence motion

within 45 days of the filing of transcripts. Transcripts were filed on August

31, 2016, and Appellant filed a post-sentence motion on October 7, 2016. A

hearing was held, and on January 23, 2017, the trial court denied Appellant’s

post-sentence motion.    Appellant timely filed a notice of appeal, and both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant sets forth numerous issues for our review. We

begin with Appellant’s challenge to the sufficiency of the evidence to sustain

his convictions. See Appellant’s Brief at 13-16. Specifically, Appellant argues

that

       there [were] extreme variations in the alleged victim[s’] stories
       as to when the abuse occurred, and in fact if the abuse occurred
       at all…. Because of the inconsistencies in the evidence presented
       by the Commonwealth as well as the inherent unreliable nature of

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      the evidence, in conjunction with all the overwhelming evidence
      presented by the defense, it cannot be said that [Appellant] was
      proved guilty of the sexual abuse allegations brought against him
      beyond a reasonable doubt.

Id. at 15-16.

      Before we reach the merits of this issue, we consider whether Appellant

has preserved this issue for appeal.

      In order to preserve a challenge to the sufficiency of the evidence
      on appeal, an appellant’s Rule 1925(b) statement must state with
      specificity the element or elements upon which the appellant
      alleges that the evidence was insufficient. Such specificity is of
      particular importance in cases where, as here, the appellant was
      convicted of multiple crimes each of which contains numerous
      elements that the Commonwealth must prove beyond a
      reasonable doubt.

Commonwealth v. Richard, 150 A.3d 504, 518 (Pa. Super. 2016) (quoting

Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016) (internal

citations omitted)).

      Instantly, Appellant’s concise statement of errors complained of on

appeal sets forth the following sufficiency-of-the-evidence issue: “[Appellant]

contends that there was insufficient evidence to justify a conviction.      Age,

being an essential element of the offense, must be established beyond a

reasonable doubt.      The age of the alleged victims was never established,

whatsoever.” Concise Statement or Errors Complained of on Appeal,

3/2/2017, at ¶ 5; see also id. at ¶ 20 (same). However, on appeal he does

not claim that the Commonwealth failed to prove the victims’ ages; rather, he




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contends   the   Commonwealth’s     evidence   that   abuse    took   place   was

inconsistent and unreliable. See Appellant’s Brief at 11-16.

      Because the sufficiency-of-the-evidence issue set forth in Appellant’s

concise statement is different than the one he argues on appeal, we hold that

he has waived this issue. 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.”).

      Appellant next argues that the jury verdict was contrary to the weight

of the evidence. See Appellant’s Brief at 16-17. However, Appellant did not

include this issue in his concise statement; therefore, it is waived.1 See

Pa.R.A.P. 1925(b)(4)(vii).

      We now turn to Appellant’s claims of prosecutorial misconduct.

Appellant sets forth four separate allegations of prosecutorial misconduct: 1)

an inappropriate reference to Appellant’s exercise of his Fifth Amendment

rights, see Appellant’s Brief at 19-20; 2) an inappropriate attempt to establish

an investigating officer as an expert on credibility, see id. at 20-21; 3) an

inappropriate attempt to reference Appellant’s extramarital sexual relationship

with a key defense witness, see id. at 21-22; and 4) an inappropriate

reference to Irish Spring soap, see id. at 22. He then suggests that “[a]ll of


1Even if Appellant had presented a weight-of-the-evidence claim in his concise
statement, it would have been waived for his failure to include it in his post-
sentence motion. See Pa.R.Crim.P. 607(A)(3) (“A claim that the verdict was
against the weight of the evidence shall be raised with the trial judge in a
motion for a new trial … in a post-sentence motion.”).
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the errors together cannot be said to have been harmless error” and that “the

conduct of the district attorney was intentional and highly prejudicial to

[Appellant].” Id. at 22.

        Before we address these four purported instances of prosecutorial

misconduct, we consider which of these errors is preserved for our review. In

his concise statement, Appellant sets forth a boilerplate claim that “[t]he

purposeful and inappropriate misconduct of the [Commonwealth] prejudiced

the jury in such a way that [Appellant] was stricken of rights to a fair trial and

impartial jury.” Statement of Errors Complained of on Appeal, 3/2/2017, at

¶ 12.    In that statement, however, he also set forth specifically two of the

four aforementioned instances of purported prosecutorial misconduct. See id.

at ¶ 6 (“[Appellant] contends that the District Attorney (‘DA’) engaged in

conduct rising to the level of reversible error when he disregarded an express

and specific order from the Judge and provided statement into the record,

immediately after being ordered not to do so, that Appellant exercised his 5th

and 6th Amendment rights during the initial investigation into the matter in

question.”); id. at ¶ 8 (“[Appellant] contends the DA willfully disregarded a

sustained objection when he utilized expressly unauthorized parlor tricks and

antics including, inter alia, using Irish Spring Soap to identify [Appellant] by

smell of the soap.”).

        We have observed that “[t]he court’s review and legal analysis can be

fatally impaired when the court has to guess at the issues raised. Thus, if a


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concise statement is too vague, the court may find waiver.” Commonwealth

v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011). Based on the foregoing,

the trial court was left “to guess at the issues raised” with respect to the other

two instances of misconduct, therefore we conclude the issues regarding the

extramarital affair and the officer being an expert on credibility are waived.

Id. at 415.

      We now turn to the preserved instances of prosecutorial misconduct.

Appellant contends that the Commonwealth made improper references

“related to [Appellant’s] exercise of his Fifth Amendment right to remain

silent.” Appellant’s Brief at 19. Appellant goes on to argue that despite the

trial court’s ruling at sidebar that Appellant’s silence could not be discussed,

the Commonwealth blatantly disregarded the trial court’s instructions. See

Appellant’s Brief at 19. Thus, Appellant argues the trial court erred by not

granting a mistrial on this basis. Id. at 20.

      We provide the following background.        According to the affidavit of

probable cause signed by Trooper Stephen Scoble of the Pennsylvania State

Police, Appellant was interviewed May 24, 2013 around 10:00 pm. During the

course of that interview, Appellant asked Trooper Scoble “if he could leave.”

Affidavit of Probable Cause, 8/8/2013, at 2.          Trooper Scoble informed

Appellant “he could leave at any time he wished. [Appellant] then stood up”

and left. Id.




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      At trial, Trooper Scoble, who was now employed by the Pennsylvania

State Police as a polygraph examiner, was called to testify about this

interview.   While discussing his qualifications, the Commonwealth asked

Trooper Scoble about training he had received to become a polygraph

examiner.    Appellant objected, arguing that Trooper Scoble should not be

permitted to discuss whether he “observed … signs of deception” while

interviewing Appellant. N.T., 12/17/2015, at 231.       The trial court then

permitted the Commonwealth to question Trooper Scoble about his training

only. In addition, the Commonwealth agreed it would not ask Trooper Scoble

about the point of the interview when Appellant “requested counsel.” Id. at

232. Trooper Scoble then testified about his interview with Appellant, and the

following exchange occurred:

      [The Commonwealth:] And then what did you ask [Appellant]
      when he started talking about [S.L.] going to Puerto Rico with her
      Spanish Club? What did you ask him?

      [Trooper Scoble:] I asked him why he was changing the subject.

      [The Commonwealth:] Okay. How did he reply?

      [Trooper Scoble:] He asked if he could leave.

N.T., 12/17/2015, at 261.

      Appellant immediately objected, and at sidebar asked the trial court to

grant a mistrial because the Commonwealth “just commented on [Appellant’s]

right to remain silent.” Id.   After argument, the trial court overruled the




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objection. Appellant asked for a cautionary instruction, which the trial court

granted. Id. at 264.

      Appellant’s issue on appeal implicates Appellant’s pre-arrest silence,

and the following case law applies.2

      [O]ur Supreme Court has held that “a mere reference to pre-
      arrest silence does not constitute reversible error where the
      prosecution does not exploit the defendant’s silence as a tacit
      admission of guilt.” Commonwealth v. Adams, [] 104 A.3d 511,
      513 ([Pa.] 2014) (Opinion Announcing the Judgment of the
      Court). In doing so, the plurality in Adams stated that “[w]hile
      we have interpreted the constitutional right against self-
      incrimination generally to prohibit prosecutors from referencing a
      defendant’s silence as substantive evidence of guilt, this Court has
      also concluded that the right against self-incrimination is not
      burdened when the reference to silence is ‘circumspect’ and does
      not ‘create an inference of an admission of guilt.’” Id. [at 517
      (citation omitted)].

Commonwealth v. McGriff, 160 A.3d 863, 868–69 (Pa. Super. 2017) (some

citations omitted).

      In Adams, a detective investigating the murder at issue in that case

testified that when he located Adams to speak with him about the murder,

Adams “didn’t want to speak to [him] at the time.” 104 A.3d at 513. Adams

objected and requested a sidebar, and the trial court overruled the objection.

Adams did not testify at trial and was convicted of the murder. On appeal,

this Court affirmed Adams’s judgment of sentence and the Supreme Court




2 We note with displeasure that Appellant, the Commonwealth, and the trial
court failed to cite to any case law regarding pre-arrest silence.
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granted allocatur to review this issue. In considering these facts, our Supreme

Court held that

      the trial court acted within its discretion in concluding that the
      detective’s testimony was not intended to imply a tacit admission
      of guilt by [Adams]…. We caution prosecutors to tread carefully
      when referencing a defendant’s refusal to speak to officers,
      limiting such reference to the description of the investigation or
      other relevant purpose. Nonetheless, we affirm the trial court and
      Superior Court’s conclusions that the testimony in this case did
      not unconstitutionally burden [Adams’s] right against self-
      incrimination, because the reference was contextual and brief and
      did not highlight [Adams’s] silence as evidence of guilt. As noted,
      it was simply utilized to recount the sequence of the
      investigation[.]

Id. at 517-18.

      We conclude that the instant case is analogous to Adams.         Trooper

Scoble simply told the jury why the interview concluded at that juncture. We

cannot read this testimony as “referencing [Appellant’s] silence as substantive

evidence of guilt.” McGriff, 160 A.3d at 869. Appellant has not brought to

our attention any other place during the seven-day trial that this was

mentioned again. Moreover, we disagree with the characterization that the

Commonwealth violated an order of the trial court to not reference Appellant’s

silence. Accordingly, we hold that the trial court did not abuse its discretion

by overruling Appellant’s objection and denying Appellant’s request for a

mistrial on this basis.

      Appellant’s next claim of prosecutorial misconduct is regarding a bar of

soap, and he argues the following in its entirety:



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             After one of the victims in this case had testified that [she]
      associated [Appellant] with the smell of Irish Spring soap, the
      district attorney improperly pulled out a bar of Irish Spring soap
      in front of the jury and attempted to have the bar of soap marked
      as an exhibit. The trial court did ultimately exclude the [soap] as
      evidence, but not before the district attorney had shown the bar
      of soap to the jury and attempted to have it marked as an exhibit.

Appellant’s Brief at 22.

      Appellant does not explain how the use of the Irish Spring soap was

prejudicial. In addition, Appellant has violated Pa.R.A.P. 2119 by failing to

cite to relevant case law or the trial transcript in his argument. See

Commonwealth v. Simmons, 56 A.3d 1280, 1286 (Pa. Super. 2012)

(holding Simmons waived issue because “he cites no pertinent authority”);

see also Pa.R.A.P. 2119(c) (“If reference is made to … any … matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears.”). Moreover, “we have previously recognized

that not every unwise remark made by an attorney amounts to misconduct or

warrants the grant of a new trial.” Commonwealth v. Carson, 913 A.2d 220,

242 (Pa. 2006). Based on the foregoing, Appellant has not convinced us he

is entitled to relief.

      Finally, with respect to the cumulative nature of the prosecutorial

misconduct, we point out that “it is well-settled that no number of failed claims

may collectively attain merit if they could not do so individually.”

Commonwealth v. Culver, 51 A.3d 866, 882 (Pa. Super. 2012) (internal


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quotation marks omitted).       Thus, because the aforementioned individual

instances did not constitute prosecutorial misconduct, they cannot collectively

attain that status. Accordingly, Appellant is not entitled to relief on this basis.

      We turn to Appellant’s contention that he is entitled to a new trial based

upon after-discovered evidence.3 Appellant’s Brief at 26.        We provide the

following background. Holly Banta was a juror in Appellant’s case. Kimberly

Gallela was a character witness who testified on Appellant’s behalf.         Their

daughters “have been friends for about three years.” N.T., 12/27/2016, at 11.

      At the hearing on post-sentence motions, Gallela testified that several

weeks after trial, Banta told Gallela that when S.L. was called to testify, Banta

realized that she recognized S.L. “from cheerleading.” Id. at 9.           Gallela

testified that “[Banta] told [her] that she told the tip staff that she knew [S.L.]

from cheerleading.” Id. Gallela testified that she told Appellant’s attorney

about the situation. Gallela further testified that Banta told Gallela that “the

tip staff asked her if she felt she could be fair and objective, and she said

yes.”4 Id. at 11.    Gallela testified that she called Appellant’s attorney to




3 Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a] post-
sentence motion for a new trial on the ground of after-discovered evidence
must be filed in writing promptly after such discovery.” This issue was
included in Appellant’s post-sentence motion.

4This conversation was consistent with a Facebook conversation from January
11, 2016 between Banta and Gallela. See Post-Sentence Motion for Relief,
10/7/2016, at Exhibit 1.
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explain what she found out from Banta because she felt the tip staff did not

act appropriately.

      Banta also testified regarding this matter. Banta testified that she did

not realize that she knew S.L. from cheerleading until she saw her during trial.

She testified that when she realized this, she told the tip staff.       She also

testified that knowing S.L. “did not sway [her] decision either way.” Id. at 29.

      The trial court’s tip staff, Judy Christ, also testified. She testified that

Banta never approached her and indicated that she recognized a witness

during the trial. Id. at 24. In addition, Sheriff Sherman, the sheriff assigned

to the trial, testified that he did not recall Banta speaking with Christ. Id. at

40.

      Based on the foregoing testimony, the trial court concluded that both

“Ms. Christ and Sheriff Sherman have no recollection of Ms. Banta informing

Ms. Christ that she knew the victim. Even if Ms. Banta did inform Ms. Christ,

her testimony was consistent that her recognition of the victim did not in any

way affect her decision as a juror.” Trial Court Opinion, 4/27/2017, at 3.

      On appeal, Appellant argues that the tip staff’s ignoring of Banta’s report

resulted in an unfair trial. Appellant’s Brief at 26. In his reply brief, Appellant

goes on to argue that “there was a fundamental breakdown in the jury

process, which prevented [Appellant] from seeking to exclude the juror from

sitting on the jury panel any longer and/or moving for a mistrial based upon

a potentially prejudiced juror having participated in the trial.” Appellant’s


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Reply Brief at 5.    Appellant further argues that it is unfair for it to be

Appellant’s burden to show prejudice. Id. at 4.

      Our courts have considered previously issues surrounding improper

contact between court staff and jurors.

      An extraneous influence may compromise the impartiality and
      integrity of the jury, raising the specter of prejudice. The relevant
      inquiry is whether the extraneous influence caused a reasonable
      likelihood of prejudice. [See] Commonwealth v. Bradley, [] 459
      A.2d 733, 739 ([Pa.] 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. The burden is
      on the party claiming prejudice.

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (some internal

citations and quotation marks omitted).

      Based on the foregoing, it was proper for the trial court to place the

burden of demonstrating prejudice on Appellant.       Here, even if everything

Banta and Gallela testified to was true, Appellant has not shown “a reasonable

likelihood of prejudice.” Id. Banta testified that her decision in this case was

not affected by her knowing S.L. Accordingly, we hold that the trial court did

not err in concluding Appellant was not entitled to a new trial on this basis.




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      Finally, we consider Appellant’s claim that his sentence is illegal

pursuant to Alleyne v. United States, 570 U.S. 99 (2013).5 Appellant’s Brief

at 23-26.     Appellant was sentenced to mandatory-minimum sentences

pursuant to 42 Pa.C.S. 9718. In Commonwealth v. Wolfe, 140 A.3d 651,

663 (Pa. 2016), our Supreme Court held that “[s]ection 9718 is irremediably

unconstitutional on its face, non-severable, and void.” Thus, any sentence

utilizing these provisions is illegal, and we vacate Appellant’s sentence and

remand for re-sentencing without consideration of section 9718. We affirm

Appellant’s convictions in all other respects.

      Convictions affirmed.     Sentence vacated.   Case remanded for re-

sentencing consistent with this memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2018




5 The Commonwealth agrees that Appellant’s sentence is illegal under
Alleyne. Commonwealth’s Brief at 12.
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