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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD SPENCER                            :
                                               :
                       Appellant               :   No. 1238 MDA 2018

          Appeal from the Judgment of Sentence Entered June 28, 2018
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0000585-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 09, 2019

        Richard Spencer (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of indecent assault of a child (less than 13

years of age), and indecent assault of a child (less than 16 years of age and

the defendant is four or more years older).1 We affirm.

        The trial court sentenced Appellant to an aggregate 12 to 60 months of

incarceration on June 28, 2018. Appellant filed this timely appeal, in which

he presents the following four issues:

        1. Whether the trial court erred by referring to the
           Commonwealth’s principle witnesses as “victims” on two (2)
           separate occasions in its opening remarks to the jury?

        2. Whether the trial court erred by failing to intervene when the
           District Attorney asked a defense character witness, “And you

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1   18 Pa.C.S.A. § 3126(a)(7) and (8).
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          have heard from other people, you have hear [sic] that other
          people say that [Appellant] has groped young girls?”

      3. Whether the trial court erred when it discussed with counsel at
         sidebar, in the presence of the jury, the Commonwealth’s
         attempt to introduce [Appellant’s] written waiver of the
         preliminary hearing which suggested that it was his intention
         to plead guilty?

      4. Whether the trial court erred when it permitted Commonwealth
         witnesses, who were present in the courtroom for the entire
         trial, to testify in rebuttal after the parties had agreed to
         sequester the witnesses?

Appellant’s Brief at 6-7.

      Preliminarily,   we   recognize   the   Commonwealth’s    argument      that

Appellant has failed to preserve his appellate issues by “objection or motion

in the court below.”    Commonwealth Brief at 3.       Our Supreme Court has

stated:

      [I]t is axiomatic that issues are preserved when objections are
      made timely to the error or offense. See Commonwealth v.
      May, 584 Pa. 640, 887 A.2d 750, 761 (2005) (holding that an
      “absence of contemporaneous objections renders” an appellant’s
      claims waived); and Commonwealth v. Bruce, 207 Pa.Super. 4,
      916 A.2d 657, 671 (2007), appeal denied, 593 Pa. 754, 932 A.2d
      74 (2007) (holding that a “failure to offer a timely and specific
      objection results in waiver of” the claim). Therefore, we shall
      consider any issue waived where Appellant failed to assert a timely
      objection.

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008).

      Similarly, this Court has stated:

            Our Pennsylvania Rules of Appellate Procedure and our case
      law provide the well-established requirements for preserving a
      claim for appellate review. It is axiomatic that “[i]ssues not raised
      in the lower court are waived and cannot be raised for the first
      time on appeal.”        Pa.R.A.P. 302(a).      “The absence of a
      contemporaneous objection below constitutes a waiver” of the

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      claim on appeal. Commonwealth v. Powell, 598 Pa. 224, 956
      A.2d 406, 423 (2008); Tindall v. Friedman, 970 A.2d 1159,
      1174 (Pa. Super. 2009) (“On appeal, we will not consider
      assignments of error that were not brought to the tribunal’s
      attention at a time at which the error could have been corrected
      or the alleged prejudice could have been mitigated.”) (citation
      omitted)).

Commonwealth v. Rodriguez, 174 A.3d 1130, 1144–45 (Pa. Super. 2017).

We further note that where an appellant includes an issue in his

Pa.R.A.P.1925(b) statement, such inclusion does not “resurrect” a waived

claim. Id. at 1145, n.6, citing Steiner v. Markel, 968 A.2d 1253 (Pa. 2009).

      In his first issue, Appellant claims that the trial court erred when, during

opening remarks to the jury, the court twice referred to the alleged victims

simply as “victims.” Appellant’s Brief at 15-16. Appellant states that defense

counsel “immediately raised this issue with the trial court upon the conclusion

of its opening remarks,” and concedes that the trial court then “addressed the

jury accordingly.” Id. at 16. Appellant further acknowledges that the alleged

error “in and of itself is unlikely to render the entire trial process prejudicial

and unfair,” but “along with” his other issues, the cumulative result is that he

was “deprived of a fair and impartial trial.” Id. at 18.

      The Commonwealth specifically responds that “there is no ruling from

which Appellant can appeal,” because the court gave a “corrective instruction”

to the jury, “apparently to the satisfaction of [Appellant] and counsel,” and

without any “motion for a mistrial or other action by the court.”

Commonwealth Brief at 6.



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      The notes of testimony show that the trial court’s opening remarks

spanned nine pages. See N.T., 4/4/18, at 1-9. During the remarks, the trial

court stated to the jury: “But in general both [charges] will require for you to

determine whether it’s been indecent contact by the defendant with the

victims and you’ll have to determine whether the victims were of a certain

age.” Id. at 4. At the conclusion of the court’s opening remarks, defense

counsel asked to approach the bench, where counsel stated:

      Maybe the court went off script. I heard you refer to the witnesses
      twice as victims. I don’t know if that was in your written remarks
      or you just slipped? But I would ask the court to perhaps
      correct.

Id. at 9 (emphasis added).

      The trial court did not recall its reference to “victims,” but granted

defense counsel’s request, addressing the jury:

            Okay so it’s been pointed out to me that during the opening
      at some point I referred to, at least one of the attorneys believes
      I referred to witness[es] as victims, as I did that, that was a
      mistake. I don’t remember doing that, if I said that, you should
      disregard it. There are two alleged victims, there will be more
      witnesses than just the two, but any statement of that was a slip
      of mine if I said that.

Id. at 10.

      After this statement, defense counsel did not say anything, and the

Commonwealth proceeded with its opening statement. Thus, we agree with

the Commonwealth that the issue is waived.           See Commonwealth v.

Montalvo, 956 A.2d 926, 936 (Pa. 2008) (noting “the general rule that, in

order to preserve a claim on appeal, a party must lodge a timely objection at


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trial) (citing, inter alia, Commonwealth v. May, 887 A.2d 750, 758 (Pa.

2005) (“To the extent the claims would sound in trial court error, they are

waived due to the absence of contemporaneous objections.”); Pa.R.A.P. 302

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”)).

      Further, in the absence of waiver, the trial court’s corrective statement

to the jury cured any prejudice. The trial court opined “to the extent the use

of the term victim was unduly prejudicial in any way, such temporary harm

was cured by the clarifying instruction.” Trial Court Opinion, 12/21/18, at 3.

In a similar scenario, our Supreme Court stated:

      At the outset, we note that appellant did not request a mistrial
      when he objected. The failure to request a mistrial until after a
      negative verdict bears heavily on the weight of the claim.
      Commonwealth v. Williams, 541 Pa. 85, 660 A.2d 1316 (1995)
      (Court will not countenance trial counsel intentionally sitting
      silently at trial only later to complain of trial errors on appeal after
      negative verdict entered).

             We also note that . . . [a] prompt and adequate cautionary
      instruction to which appellant did not object, and for which he did
      not request further clarification, was also given . . . in order to
      cure any potential prejudice. This instruction, coupled with the
      trial court’s opening instruction convinces us that a new trial is not
      warranted since the jury is presumed to follow the court's
      instructions. See Commonwealth v. Baker, 531 Pa. 541, 559,
      614 A.2d 663, 672 (1992) (our law presumes that juries follow
      the court’s instructions as to the applicable law). Moreover, after
      considering the totality of the circumstances, we find that the trial
      court’s instructions cured any potential prejudice. See
      Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374 (1986)
      (prejudice from limited reference to alleged prior criminal activity
      cured by immediate cautionary instruction and admonition in jury
      charge).



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Commonwealth v. Jones, 668 A.2d 491, 503–04 (Pa. 1995) (footnote

omitted). Accordingly, Appellant’s first issue lacks merit.

        In his second issue, Appellant assails the trial court for “failing to

intervene when the [Commonwealth] asked a defense witness about whether

the witness had heard from others that Appellant “groped young girls.”

Appellant’s Brief at 18. Significantly, Appellant states, “It is unknown why this

did not draw an objection from defense counsel.”         Id. at 19.2   Again, the

Commonwealth responds that the issue is waived because Appellant did not

object at trial; again, we agree.3 See Pa.R.A.P. 302(a); Rodriguez, 174 A.3d

at 1145-46 (appellant waived appellate review of his claim that the trial court

erred in permitting detective to provide hearsay testimony where defendant

failed to object at trial). Our review confirms that defense counsel did not

object to the questioning. See N.T., 4/4/16, at 88 (defense witness denying

that she had heard that Appellant “groped young girls,” trial court then asking

defense counsel whether he had “Anything?” and counsel responding “No

nothing.”).

        Next, Appellant in his third issue argues that the trial court erred by

conducting a sidebar discussion about his waiver of his preliminary hearing “in



____________________________________________


2   Appellate counsel did not represent Appellant at trial.

3 The trial court also states that Appellant’s “failure to object precluded any
judicial clarification or instruction to disregard.”       Trial Court Opinion,
12/21/18, at 4.

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proximity to the jury” and “thereby prejudicing” Appellant. Appellant’s Brief

at 23. Appellant speculates that “the entire conversation . . . could have easily

been overheard by the jury.”           Id. at 22.    Nonetheless, Appellant, citing

Commonwealth v. Johnston, 392 A.2d 869, 873 (Pa. Super. 1978),

acknowledges that a trial judge is granted broad discretion in the conduct of

trial.4

          As noted by the Commonwealth, a sidebar, by definition, occurs in the

“presence of the jury.” Commonwealth Brief at 7. Moreover, Appellant never

presented a trial claim that the jury heard the sidebar. Id. Again, we agree

and find waiver. See Johnston, 392 A.2d at 873 (rejecting appellant’s claim

where appellant failed to adequately preserve the issue of alleged impropriety,

and this Court failed “to discern any prejudice to appellant in the trial judge’s

decision”).

          Finally, in his fourth issue, Appellant alleges that the trial court erred by

permitting the Commonwealth to present testimony from two rebuttal

witnesses who had not been sequestered with the other witnesses during trial.

Although Appellant claims that defense counsel “voiced his concern to the



____________________________________________


4 Appellant’s acknowledgment may be in response to the same assertion by
the trial court, noting that the administration of the trial was within the court’s
discretion and “there was no apparent reason why a routine objection . . .
required the court to clear the courtroom.” Trial Court Opinion, 12/21/18, at
4. The trial court further stated that the “matter was quickly resolved in
Appellant’s favor at sidebar, and, as a result, the objectionable line of
questioning did not occur. Appellant has nothing of which to complain.” Id.

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court,” Appellant does not specifically assert that defense counsel objected.

Appellant’s Brief at 25.   The Commonwealth clarifies that there “was no

objection or motion to bar the evidence,” and “no ruling to call error.”

Commonwealth Brief at 3, 9. The Commonwealth also counters that it could

not identify “witnesses to sequester when the defense has not given notice of

the evidence the Commonwealth might need to rebut.” Id. at 3.

      Our review indicates that defense counsel did express concern about the

rebuttal witnesses during a sidebar. Counsel stated:

            Maybe I should have done this before [the court] brought in
      the jury but, I guess I want it put on the record that these
      witnesses were in the courtroom when we had the evidence
      presented and direct by both [C]ommonwealth and defense, even
      though we agreed to sequester the witnesses.

N.T., 4/4/18, at 112.

      The trial court responded to counsel’s concern, inter alia, “that in order

to rebut . . . we’d have to at least tell them what the testimony was and so I

think it’s okay [that the two rebuttal witnesses were not sequestered].” Id.

at 113.

      On this record, to the extent that counsel made a de facto objection, it

appears that the trial court indicated that it was ruling or would overrule such

objection because “the very purpose of the rebuttal witnesses’ testimony was

to provide testimony that contradicted some of the testimony offered during

Appellant’s case in chief viz., testimony given by [Appellant], [such that]

allowing such witnesses to testify was not error.”        Trial Court Opinion,


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12/21/18, at 5 (italics in original). The trial court’s rationale is supported by

case law. In Commonwealth v. Martin, the Pennsylvania Supreme Court

determined:

      The record reflects the court considered the scope of its
      sequestration order as limited to witnesses testifying during the
      case-in-chief, because the court inquired of the Commonwealth at
      the time of objection whether the testimony would only be in
      rebuttal and received an affirmative response. Since the question
      of whether to sequester witnesses is initially one within the
      discretion of the trial court . . . the scope of any order granting
      sequestration is also within the court’s discretion and its decision
      to limit the order to testimony received in the cases-in-chief will
      not be held reversible error absent a clear abuse of discretion.

      We cannot say the court abused its discretion in allowing the
      witnesses to testify in rebuttal, particularly since the direct
      testimony received in rebuttal was merely a reiteration of that
      received in the Commonwealth’s case-in-chief.

Commonwealth v. Martin, 388 A.2d 1361, 1365 (Pa. 1978) (citation

omitted). Consistent with the above reasoning of both the trial court and our

Supreme Court, we find no merit to Appellant’s claim regarding sequestration

of the Commonwealth’s rebuttal witnesses.

      In sum, Appellant’s issues are waived or meritless. We therefore affirm

the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/09/2019


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