J-S44017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DALE HODGES

                            Appellant               No. 1746 WDA 2014


    Appeal from the Judgments of Sentence entered September 29, 2014
                In the Court of Common Pleas of Erie County
             Criminal Division at Nos: CP-25-CR-0002482-2012
                        and CP-25-CR-0002490-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 24, 2015

       Appellant Dale Hodges appeals from the judgments of sentence1

entered in the Court of Common Pleas of Erie County (“trial court”),

following his jury conviction for multiple sex crimes against two minors.

Upon review, we vacate and remand for resentencing.

       On June 12, 2012, Erie Bureau of Police (“Erie Police”) charged

Appellant with, inter alia, involuntary deviate sexual intercourse with a child

(“IDSI”), aggravated indecent assault, indecent assault, corruption of
____________________________________________


1
  To the extent Appellant purports to appeal from the September 29, 2014
order denying his post-verdict motion, which we treat as a post-sentence
motion, we note that in a criminal context, an appeal properly lies from the
judgment of sentence, not an order denying post-sentence motions.
Accordingly, we have corrected the caption to reflect the September 29,
2014 judgments of sentence. See Commonwealth v. Dreves, 839 A.2d
1122, 1125 n.1 (Pa. Super. 2003) (en banc).
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minors, and endangering the welfare of a child (“EWOC”) at docket number

2482-2012 (“First Case”).2         The affidavit of probable cause accompanying

the complaint provided:

              On 4-12-12 M.R., juvenile victim (11-19-96), was
        interviewed at the Erie [County] [Children’s Advocacy Center
        (CAC)] in regards to this incident. The victim disclosed that she
        was sexually abused when she was 8 and 9 years of age by
        [Appellant]. The victim disclosed that these incidents happened
        while she would visit her grandma, [B.M.].          [Appellant] is
        [B.M.’s] boyfriend . . . [and] the incidents took place [at their
        residence.] The victim disclosed that [Appellant] would come
        into her room at night and touch her vagina with his hand. The
        victim disclosed that this happened more than one time during
        several different incidents.     The victim also disclosed that
        [Appellant] also licked her vagina with his tongue during some of
        these incidents.


Affidavit of Probable Cause, 6/12/12.

        Thereafter, on July 2, 2012, Erie Police charged Appellant with the

same crimes as in the First Case at docket 2490-2012 (“Second Case”). The

affidavit of probable cause accompanying the Second Case provided:

        On 4-3-12 J.M., juvenile victim (5-27-97), was interviewed at
        the Erie Co. CAC in regards to this complaint. The victim
        disclosed that she was sexually abused by [Appellant] when she
        was between the ages of 7 and 9. The victim disclosed that
        these incidents happened while she would visit her grandma,
        [B.M.].     [Appellant] is [B.M.’s] boyfriend and they reside
        [together] where these incidents took place.        The victim
        disclosed that [Appellant] would touch her vagina with his
        fingers, lick her vagina with his tongue and made her touch his
        penis with her hand. The victim disclosed that these types of
        incidents happened more than one time when she was between
        the age of 7 and 9.


Affidavit of Probable Cause, 7/2/12.

____________________________________________


2
    18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), 6301(a)(1), and 4304(a).



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      The cases were consolidated for trial.      Appellant’s girlfriend, B.M.,

testified that she was accused of child abuse by the Office of Children and

Youth. N.T. Trial, 5/19/14, at 138. B.M. further testified that the accusation

against her was “unfounded” and, therefore, dismissed.       Id. at 139.    She

testified that six months after the dismissal of the accusations, Appellant

was accused with the instant crimes.        Id.   On cross-examination, B.M.

clarified that the allegations against her were based only on physical abuse

of children. Id. at 153.

      Appellant testified that “there was a point in time when [B.M.] was

accused, and when—as soon as that was gone over, it was three months

later that I got accused.” N.T. Trial, 5/20/14, at 43. On cross-examination,

the Commonwealth asked Appellant whether B.M. was charged criminally for

simple assault as a result of the child abuse allegations against her. Id. at

55. Appellant answered in the affirmative. Id.

      To underscore the seriousness of the abuse allegations against B.M.,

the Commonwealth called Ryan Kightlinger, intake investigator at the Office

of Children and Youth, to testify.   Id. at 80-81.    Kightlinger testified that

B.M. was accused of abusing a six-year-old child in July 2010 and that he

personally observed the injuries on the child. Id. at 81-82. Kightlinger also

testified that B.M. was criminally charged and that the charges were

eventually dismissed. Id. at 82.

      Also, during the second day of trial, the court was informed that jurors

had difficulty hearing M.R.’s testimony presented during the first day of trial.

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Id. at 78. The jurors indicated to the trial court that, although they did not

hear all of the testimony, they heard enough to render an impartial verdict.

Id. at 78-79. The trial court resumed trial without objection by the parties.

Following trial, the jury found Appellant guilty of all charged offenses.

       On September 25, 2014, more than four months after trial, Appellant

filed a “Post Verdict Motion: Motion for New Trial.”3 He argued that the trial

court abused its discretion in failing to declare a mistrial given the jurors’

inability to hear all of the evidence.         Appellant also argued that he was

entitled to a new trial based on after-discovered evidence demonstrating

that B.M. was incapable of physically abusing children.

       On September 29, 2014, the trial court conducted a hearing on the

motion at which Appellant failed to present any evidence in support of the

motion.    Following the hearing, the trial court denied the motion.        On the

same date, the trial court also imposed an aggregate of 5 to 10 years’

imprisonment in the First Case.            Specifically, the trial court imposed a

mandatory minimum sentence under 42 Pa.C.S.A. § 9718(a)(1) for IDSI.

With respect to the Second Case, the trial court imposed an aggregate

sentence of 10 to 20 years’ imprisonment to run consecutively with the

sentence imposed in the First Case. Specifically, the trial court imposed a


____________________________________________


3
  Although Appellant filed a post-verdict motion, we need not address
whether it implicates our jurisdiction because the instant appeal lies from
the judgment of sentence.



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mandatory minimum sentence of 10 to 20 years in the Second Case under

42 Pa.C.S.A. § 9718(a)(1) for IDSI. In total, Appellant was ordered to serve

15 to 30 years’ imprisonment.

     Appellant timely appealed to this Court. Following Appellant’s filing of

a Pa.R.A.P. 1925(b) statement, the trial court issued a Pa.R.A.P. 1925(a)

opinion.

     On appeal, Appellant raises two issues for our review. First, he argues

that the trial court erred in failing to declare a mistrial because some

members of the jury could not hear all of the trial testimony.       Second,

Appellant argues that the trial court erred in denying his motion for a new

trial based on after-discovered evidence.

     Appellant first argues that the trial court erred in failing to declare a

mistrial because some jurors did not hear all of the testimony presented at

trial. We explained in Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super.

2012):

     [T]he decision to declare a mistrial is within the sound discretion
     of the trial court and will not be reversed absent a flagrant abuse
     of discretion. A mistrial is an extreme remedy that must be
     granted only when an incident is of such a nature that its
     unavoidable effect is to deprive defendant of a fair trial.


Id. at 218 (citation and quotation marks omitted).       It is settled that a

defendant is entitled to a jury verdict arrived at by each jurors based upon

the evidence introduced at trial.   See Commonwealth v. Greiner, 455

A.2d 164, 166 (Pa. Super. 1983); Commonwealth v. Brown, 332 A.2d

828, 831-32 (Pa. Super. 1974). If, however, one or more of the jurors is

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unable to hear and understand the evidence and testimony presented at

trial, then the verdict must be set aside.        Brown, 332 A.2d at 831-32;

Greiner, 455 A.2d at 166-67.

       We, however, need not address Appellant’s first argument, because he

has failed to preserve it for appeal.            See Pa.R.A.P. 302(a).    Under

Pennsylvania Rule of Criminal Procedure 605, relating to mistrial, “[w]hen an

event prejudicial to the defendant occurs during trial only the defendant may

move for a mistrial; the motion shall be made when the event is disclosed.

Otherwise, the trial judge may declare a mistrial only for reasons of manifest

necessity.”    Pa.R.Crim.P. 605(B) (emphasis added); see also Szakal, 50

A.3d at 219 (noting that the appellant’s claim was waived because the

appellant waited a substantial period before moving for mistrial); Brown,

332 A.2d at 830 (noting the appellant timely moved for a mistrial); Greiner,

455 A.2d at 166 (observing that the appellant filed a “timely motion for a

mistrial”).

       Instantly, the trial transcript reveals that Appellant failed to object

timely to the trial court’s decision to resume trial.      In fact, he waited a

substantial period before expressing an objection4 to the trial court’s
____________________________________________


4
  We are reticent to characterize as an objection Appellant’s displeasure with
the trial court’s decision to resume the trial following the auditory concerns
raised by the jury, because Appellant at no point actually moved for a
mistrial. As the trial transcript reveals, Appellant indicated to the trial court
only that he was going to seek a mistrial at some point in the future. See
N.T. Trial, 5/20/14, at 96.



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decision to resume the trial after it was informed by its tipstaff that the

jurors were unable to hear the entire testimony presented on the first day of

trial. The transcript reveals:

      (whereupon, discussion in chambers concluded at 10:28 a.m.
      and the trial reconvened in the courtroom at 10:37 a.m.)
      [The trial court]: Ladies and gentlemen of the jury, it’s been
      brought to my attention that there was concern by some
      members of the jury as the ability to hear some of the
      witnesses. And I know we have had some soft voices so far, but
      my question to you is have you been able to hear everything
      that has been testified to so far?
      (Whereupon, jurors respond negatively.)
      [The trial court]: Okay. No, you haven’t?
      [Unidentified Juror]: No, several of them.
      [The trial court]: Okay. All right. What witnesses were those?
      [Unidentified Jurors]: The first young girl that testified, it was
      very difficult to hear her.
      [The trial court]: Okay. That was yesterday?
      [Unidentified Juror]: Yeah.
      [The trial court]: Okay, Well, it was difficult to hear, but could
      you hear?
      [Unidentified Juror]: I heard enough, but I don’t know if
      everyone else did.
      [Unidentified Juror]: Not every word, but enough.
      [Unidentified Juror]: Difficult.
      [The trial court]: All right. Correct me if I’m wrong here, what I
      hear you saying is is [sic] that you’ve heard -- ideally, you would
      have been able to hear easier than what you did, it was difficult
      to hear, but you feel like you have heard enough that you feel
      that you can fairly and impartially render a credibility
      determination, am I correct in that?
      (Jurors respond affirmatively.)




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     [The trial court]: Is there any juror who disagrees with that, who
     feels that they haven’t heard enough that they wouldn’t be able
     to make a credibility determination?
     (No response.)
     [Unidentified Juror]: Get more through.
     [The trial court]: That’s my next point is going to be from here
     on out, we want to make sure that at this point in time
     everybody has heard -- sufficiently heard, so that you can render
     a verdict in this case.
     (Whereupon, the jurors respond affirmatively.)
     [The trial court]: All right. The record should reflect that the
     jury has affirmed that. Okay. Mr. Hackwelder [(Appellant’s
     counsel)], is there any other defense evidence?

     [Appellant’s Counsel]: No, no, Your Honor.
     [The trial court]: Okay.
     [The trial    resumed      and     three   additional   witnesses
     testified.]
      ....
     (whereupon, the jury was recessed at 10:55 a.m. and the
     following discussion occurred in chambers:)
     [Appellant’s Counsel]: I thought after thinking about it I should
     probably put something on the record about the jury not being
     able to hear everything. And I’m a little concerned about the
     one lady blurting out, “I have heard enough.” I don’t know what
     that means. To be quite honest with you, judge, I don’t know
     really what relief I’m requesting here. I’ve just got to note my
     concerns on the record. You know, perhaps, you know, I’m
     going to request a mistrial on it because they didn’t hear all the
     testimony.
     [The trial court]: Well, perhaps you’re going to or are you going
     to?
     [Appellant’s Counsel]: I am going to, I’m going to have to,
     judge.
     [The trial court]: I understand.
     [Appellant’s Counsel]: I have never been encountered with this
     situation before.




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N.T. Trial, 5/20/14, at 78-80, 96 (emphasis added).

       As the trial transcript indicates, Appellant did not ask for a mistrial

when the trial court first addressed the auditory complaints raised by the

jurors. In fact, Appellant waited until after three additional witnesses—two

for the Commonwealth and one for Appellant—had testified. Thus, because

Appellant did not timely object to the trial court’s decision to resume trial,

we reject his first argument as waived.

       Appellant next argues that the trial court erred in denying his motion

for a new trial based on after-discovered evidence.              In support of his

argument, Appellant points out that, after trial, he received two letters

authored by B.M.’s physicians that rebut the Commonwealth’s suggestion

that B.M. physically abused children.            Appellant argues that the “letters

indicate that [B.M.] would have been physical[ly] unable to commit the

alleged abuse and this evidence exonerated her.” Appellant Brief at 13. In

essence, Appellant seeks to introduce the letters to bolster B.M.’s credibility.

       Rule 720, relating to post-sentence procedures and appeal, provides in

pertinent part:

       (C) After-Discovered Evidence. A post-sentence motion for a
       new trial on the ground of after-discovered evidence must be
       filed in writing promptly after such discovery.[5]

____________________________________________


5
  Based on our disposition of this issue, we need not express an opinion on
whether Appellant filed promptly a post-sentence motion based on after-
discovered evidence. We observe, however, that in his motion seeking a
new trial, Appellant alleged only that he “recently received two letters from
(Footnote Continued Next Page)


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Pa.R.Crim.P. 720(C) (emphasis added); Commonwealth v. Castro, 93

A.3d 818, 828 (Pa. 2014) (noting that Rule 720(c) requires a motion for

after-discovered evidence to be filed promptly upon the discovery of such

evidence).     It is well-settled that to obtain relief, the after-discovered

evidence must meet a four-prong test:

      (1) the evidence could not have been obtained before the
      conclusion of the trial by reasonable diligence; (2) the evidence
      is not merely corroborative or cumulative; (3) the evidence will
      not be used solely for purposes of impeachment; and (4) the
      evidence is of such a nature and character that a different
      outcome is likely. At an evidentiary hearing, an appellant must
      show by a preponderance of the evidence that each of these
      factors has been met in order for a new trial to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted), appeal denied, 958 A.2d 1047 (Pa. 2008).

      Here, based upon our review of the record, we must agree with the

trial court’s conclusion on this issue.          Specifically, the trial court correctly

noted that Appellant failed to meet the first prong, i.e., whether the

evidence could not have been obtained before the conclusion of the trial by

reasonable diligence. Indeed, Appellant presented no evidence, whether in

his motion or at the hearing on his motion for new trial, to establish whether

he met the first prong. As the trial court found:

      [T]he letters in question were written on November 16, 2010
      and November 19, 2010 and therefore existed long before [the
      May 19, 2012] trial commenced. Appellant was aware of the
                       _______________________
(Footnote Continued)

doctors indicating that [B.M.] had significant physical limitations that would
have prohibited her from causing any injury to a child or person.” Post-
Verdict Motion, 9/25/14, at ¶ 25 (emphasis added).



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        charges against [B.M.] and brought up the accusation as part of
        defense contention that M.R. and J.M. had a motive to lie.
        Importantly, these letters were easily accessible to Appellant
        prior to trial and therefore do not constitute after-discovered
        evidence.


Trial Court Opinion, 12/19/14, at 8. Accordingly, the trial court did not err in

denying Appellant’s motion for a new trial based on after-discovered

evidence.

        Finally, our review of the sentencing order reveals that the trial court

imposed upon Appellant mandatory minimum sentences under 42 Pa.C.S.A.

§ 9718(a)(1), relating to sentences for offenses against infant persons.6 In

light of our recent decision in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.

Super. 2014), appeal granted, __ A.3d __, 2015 WL 4755651 (Pa. 2015),

however, we must vacate the judgment of sentence and remand this case

for resentencing.     See Commonwealth v. Mosley, 114 A.3d 1072, 1087

(Pa. Super. 2015) (noting that where application of a mandatory minimum

sentence gives rise to illegal sentence concerns, even where the sentence is

____________________________________________


6
    Section 9718 provides:

        (a) Mandatory sentence.--
        (1) A person convicted of the following offenses when the victim
        is less than 16 years of age shall be sentenced to a mandatory
        term of imprisonment as follows:
        ....

        18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
        intercourse)--not less than ten years.

42 Pa.C.S.A. § 9718(a)(1).



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within the statutory limits, legality of sentence questions are not waivable

and may be raised sua sponte by this Court).

      In Wolfe, the defendant appealed from an aggregate sentence of 10

to 20 years in prison, imposed after he was found guilty of multiple counts of

IDSI, unlawful contact with a minor, statutory sexual assault, and corruption

of minors.   We specifically addressed the constitutionality of 42 Pa.C.S.A.

§ 9718, the same mandatory minimum statute that the trial court applied

instantly. We held that the mandatory minimum sentencing provision of 42

Pa.C.S.A. § 9718(a)(1) was facially unconstitutional even though the

triggering fact was also an element of the offense for which the appellant

was convicted.    Wolfe, 106 A.3d at 805-06.           Our decision in Wolfe was

anchored in Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013)

(holding that any fact other than a prior conviction that triggers a mandatory

minimum sentence must be found by a jury beyond a reasonable doubt),

and this Court’s decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc) (concluding that the appellant’s sentence was illegal

and   striking   down   42   Pa.C.S.A.   §    9712.1    as   unconstitutional)   and

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (vacating

the judgment of sentence and remanding for resentencing without the

applicable mandatory minimum sentences). Accordingly, we must conclude

that the trial court imposed an illegal sentence in the case sub judice when it

sentenced Appellant under 42 Pa.C.S.A. § 9718(a)(1).




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     Judgments of sentence vacated.        Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

     Judge Jenkins joins the memorandum.

     Judge Lazarus files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2015




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