J-A12023-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
CLARENCE CRESPO,                          :
                                          :
                  Appellant               : No. 1140 MDA 2014

           Appeal from the Judgment of Sentence February 7, 2014,
                     Court of Common Pleas, York County,
              Criminal Division at No. CP-67-CR-0003790-2012

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 10, 2015

       Clarence Crespo (“Crespo”) appeals from the February 7, 2014

judgement of sentence entered by the York County Court of Common Pleas

following his convictions by a jury of rape of a child, involuntary deviate

sexual intercourse with a child, aggravated indecent assault of a child,

indecent assault of a child under thirteen, and corruption of minors.1     The

convictions stemmed from Crespo’s repeated sexual assaults of his

stepdaughter, S.G., from October 1, 2005 through November 30, 2009, from

the time S.G. was three years of age until she was seven.2 The trial court




1
    18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 6301(a)(1).
2
  The specific details of the crimes underlying this appeal are not relevant to
our disposition of the issues raised and are therefore omitted from this
Memorandum decision.
J-A12023-15


found that Crespo was a sexually violent predator3 and sentenced him to an

aggregate term of thirty-two years and six months to sixty-five years and

eight months of incarceration. On appeal, Crespo challenges the trial court’s

handling of an instance of potential juror misconduct; raises a violation of

his confrontation rights; and contends that the trial court abused its

discretion at sentencing. Upon review, we conclude that none of the issues

raised merit relief. Nonetheless, because Crespo’s sentence is illegal, we are

compelled to vacate his judgment of sentence and remand for resentencing.

       We begin with the first issue raised on appeal. The record reflects that

following the Commonwealth’s direct examination of S.G.’s mother, Jay

Whittle, Esquire (“Attorney Whittle”), counsel for Crespo, informed the trial

court that he observed a juror passing a note to another juror.            The

following exchange occurred at sidebar:

             ATTORNEY WHITTLE: I just wanted to bring this to
             your attention. I happened to glance over and notice
             that some of the members of the jury are passing
             notes to each other.

             THE COURT: Oh, I didn't notice that.

             ATTORNEY WHITTLE: The blond lady in the back
             row. I specifically caught her passing a note to the
             gentleman in front of her in the first row.

             THE COURT: Okay.

             ATTORNEY WHITTLE: Could be harmless, but it
             concerns me.


3
    42 Pa.C.S.A. § 9979.12.


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          THE COURT: Let me ask you a question. I mean I’m
          not sure there is anything wrong with that. That’s
          sort of like saying I saw the lady in red whisper
          something to the lady in white.

          ATTORNEY WHITTLE: I’m just saying they are not
          suppose[d] to be discussing the case, and I don't
          know if they are.

          THE COURT: I agree.

          ATTORNEY WHITTLE: But I think it needs to be
          addressed carefully. I don’t want to be a tattle tail
          [sic].

          THE COURT: What do you suggest? Do you want me
          to ask them about it? Do you want me to ask her
          about this?

          ATTORNEY WHITTLE: Would the [c]ourt do that in a
          non-discriminatory manner as to point me out as
          noticing that because I just --

          THE COURT: Well, the only thing I can tell you is I
          mean I have already instructed them not to discuss
          the case with other jurors. I certainly haven’t
          instructed them not to have any communication or
          contact with other jurors but just not to discuss the
          case. I don’t know why -- I just don't know what to
          tell you about this, Mr. Whittle. Again[,] my example
          is if I saw one juror whisper to another, what does
          that say to me? That doesn’t really say anything to
          me. We presume they followed the [c]ourt’s
          instructions.

          ATTORNEY WHITTLE: It was a handwritten note I
          assume.

          THE COURT: But what is the difference. That is just a
          different form of communication. I mean I am not
          trying to give you a hard time here, but I don’t know
          what you want me to do.



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J-A12023-15



          ATTORNEY WHITTLE: Again[,] that’s my obligation.

          THE COURT: Sure.

          ATTORNEY WHITTLE: To inform you.

          THE COURT: Tell me what you want me to do about
          it.

          ATTORNEY WHITTLE: I would I guess suggest before
          we break for lunch we go over that again, including
          sharing any written materials.

          THE COURT: Well, I don’t think there is any
          prohibition against jurors writing notes to each other
          as long as they don’t have anything to do with the
          case.

          ATTORNEY WHITTLE: We can leave it at that as long
          as they have nothing to do with the case.

          THE COURT: I will be glad to remind then again if
          you like me to. If there is anything else you want me
          to do about this, you let me know. I just don’t know
          what else to say to you. You know, if you want me
          to, I could ask the jurors involved what was going
          on. If you want me to do that, I will do that. You tell
          me.

          ATTORNEY WHITTLE: I’m curious about if --

          THE COURT: So am I, but it is sort of I am in the
          sense that if I see two of the jurors walking down to
          market to grab a bite to eat, they are communicating
          with each other, I would not jump to the conclusion
          that they are -- their communication is inappropriate
          because I have instructed them not to talk about the
          case, and I am presuming they are going to follow
          that instruction. Now, if one of them comes up to me
          and says, [“]hey, Juror 15 started to talk to me
          about this case and I asked them to stop and he sort
          of, you know, wouldn't stop so I had to walk



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J-A12023-15


           away,[”] there’s a different story. Okay. Now, I have
           somebody telling me they are trying to talk about
           the case but simply evidence or the observation that
           two jurors are communicating with each other I don’t
           think raises any red flag, but I'm willing to do what
           you want to do, and if you want me to query these
           two jurors about that, I will do that if you would like
           me to.

           ATTORNEY WHITTLE: I think what I would ask is
           prior to the next break to inform the jury that if any
           member of the jury has discussed this matter as it
           relates to the evidence that they are hearing today,
           that they can inform the tipstaff.

           THE COURT: Okay. I will do that.

           ATTORNEY WHITTLE: Then if one of those jurors
           says, [“]you know what, I did.[”]

           THE COURT: Okay. I will do that. I don’t have a
           problem doing that. Yeah, I don’t have a problem if
           you want me to do that. I will do that.

           ATTORNEY WHITTLE: I think that that’s appropriate.

           THE COURT: Okay. That’s what we will do. Anything
           else to say about this?

           [THE COMMONWEALTH]: No, Your Honor.

           THE COURT: If I would happen -- if you think I
           forgotten to do that, remind me, but I don’t think I
           will forget to do that. Okay.

           ATTORNEY WHITTLE: Okay.

N.T., 10/1/13, at 236-40.   At the next break at the conclusion of S.G.’s

mother’s testimony, the trial court again instructed the members of the jury

that they were not permitted to talk about the case prior to deliberations,




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J-A12023-15


and that if a juror believed that someone was trying to discuss the case, “or

pass[] information” about the case, to report that behavior to the tipstaff.

Id. at 280.

      On appeal, Crespo asserts that “it was prejudicial error” for the trial

court not to investigate the jurors involved in the alleged note passing.

Crespo’s Brief at 22. Crespo suggests that in the absence of a request by

any party to do so, the trial court had a duty, on its own initiative, to

question the jurors involved to determine whether the note passed contained

any information about the case. Id. at 18, 25, 26-27. Crespo states that

the trial court “bullie[d]” Attorney Whittle into telling the court what it should

do about the situation, which was error. Id. at 25. Crespo further states

that although he had no obligation to do so, Attorney Whittle did request

that the trial court investigate the matter, but that the trial court ignored

him, once again claiming that the trial court “bull[ied]” Attorney Whittle “to

avoid [conducting] an investigation.” Id. at 21-22; Crespo’s Reply Brief at

1-2, 4.

      At the outset, we disagree with Crespo that the trial court was

required to investigate this alleged misconduct sua sponte.        Our review of

the cases he cites reveals that prior to the trial court undertaking an

investigation of alleged juror misconduct, the defendants in those cases

made a request for the trial court to investigate the allegations. See, e.g.,

Commonwealth v. Messersmith, 860 A.2d 1078, 1085 (Pa. Super. 2004)



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J-A12023-15


(indicating that the trial court reviewed the notes the juror took into the

deliberation   room   based   upon   the   defendant   and   his   co-defendant

requesting, in a post-trial motion, an evidentiary hearing on the matter);

Commonwealth v. Posavek, 420 A.2d 532, 534 (Pa. Super. 1980) (stating

that the defendant filed a motion for a new trial based on after discovered

evidence, alleging that a juror violated the duty to refrain from discussing

the case with others).

      Nor do we find support in the record for Crespo’s contention that the

trial court ignored his request that the court investigate the matter further or

bullied him to avoid conducting an investigation. Rather, the record reflects

that upon observing a juror pass a note to another juror, Attorney Whittle

informed the trial court, following which a discussion ensued between the

trial court and Attorney Whittle regarding how to best address the situation.

Although both Attorney Whittle and the trial court were “curious” about what

was in the note, Attorney Whittle was concerned about being perceived by

the jurors as a “tattletale,” and presumably prejudicing his client in the eyes

of the jury.     The trial court offered several times throughout the

conversation to take whatever action Attorney Whittle deemed appropriate.

Although Attorney Whittle initially asked the trial court if it could question

the juror “in a non-discriminatory manner” so as not to identify Attorney

Whittle as the person who informed the court, he subsequently abandoned

that request, instead indicating that he thought the “appropriate” course of



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J-A12023-15


action was for the trial court to remind the jurors that they are not permitted

to discuss the case with each other, including a prohibition against sharing

written materials about the case.     The trial court instructed the jurors, as

requested by Attorney Whittle, at the next break.

       Our Supreme Court has held that agreement to an issue that the party

previously objected to is “in legal effect a deliberate withdrawal of his earlier

objection,” and cannot subsequently be argued on appeal before this Court.

Commonwealth v. LaCourt, 292 A.2d 377, 379 (Pa. 1972). Furthermore,

“[i]t is well established that trial judges must be given an opportunity to

correct errors at the time they are made. A party may not remain silent and

afterwards complain of matters which, if erroneous, the court would have

corrected.”   Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.

2008) (internal citations and quotation marks omitted).       In circumstances

where a defendant raised an objection before the trial court, but failed to

request a particular remedy (e.g., a mistrial), the remedy not requested is

waived on appeal. Id.

       The trial court provided Crespo the opportunity to request that it

further investigate the contents of the note passed between jurors. Crespo

failed to do so. He therefore cannot complain on appeal that the trial court

erred in this respect. See LaCourt, 292 A.2d at 379; Strunk, 953 A.2d at

579.




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J-A12023-15


     Crespo’s second issue on appeal is based upon S.G. allegedly shielding

her face during her testimony at trial. The record reflects that prior to her

testimony, the trial court and counsel examined S.G. to determine if she was

competent to testify. See N.T., 9/30/13, at 116-25. At the conclusion of

the competency examination, the trial court found her competent to testify.

Id. at 125.      Before calling the jury back in, Attorney Whittle asked to

approach, at which time he raised a concern about S.G.’s “body language.”

Id. The trial court stated, for the record, that S.G. was “holding her left

hand up to the side of her face clearly to block her vision of either her

looking at [Crespo] or, frankly, her seeing him look at her[.]” Id. at 126.

Attorney Whittle stated that it was an “obvious attempt” by S.G. not to look

at Crespo, “which could be prejudicial.” Id. at 127. Attorney Whittle further

stated that he was concerned he would have difficulty cross-examining S.G.,

but agreed with the trial court’s suggestion that he could stand “an

appropriate distance” from S.G. while questioning her, stating he would only

do so if he found it was “necessary.” Id. at 128. The trial court stated that

it did not believe there was anything it could do about it, and Attorney

Whittle made no further argument on this issue. Id. at 126.

     On appeal, Crespo asserts that the trial court erred by permitting S.G.

to testify with her hand shielding her face as it violated Crespo’s right to

confrontation.    Crespo’s Brief at 28.    Initially, we observe that there is

nothing in the record to indicate that S.G. continued to shield her face from



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J-A12023-15


Crespo during her testimony before the jury after the completion of the

competency examination.        Nonetheless, assuming for the sake of this

argument that S.G. continued to shield her face, Crespo is not entitled to

relief. As Crespo recognizes, he did not object to S.G.’s “body language” on

confrontation grounds. Id. at 29-30. The law is clear: “Issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.”   Pa.R.A.P. 302(a).   This applies with equal force to legal theories

not raised below in support of an objection.    Commonwealth v. Murray,

83 A.3d 137, 159 (Pa. 2013); Commonwealth v. Tejada, 107 A.3d 788,

797 (Pa. Super. 2015).4 This issue is also waived because Crespo failed to

raise it in his concise statement of errors complained of on appeal, referring,

as he did at trial, only to S.G.’s “prejudicial body language,” and not a

violation of his right to confrontation.       See Pa.R.A.P. 1925(b)(4)(vii)




4
   In an effort to avoid a finding of waiver, Crespo cites to Commonwealth
v. Widmer, 689 A.2d 211 (Pa. 1997). Crespo’s Brief at 29-30. In Widmer,
the Pennsylvania Supreme Court held that the defendant’s failure to file a
post-sentence motion challenging the weight of the evidence to support his
conviction did not result in waiver of his weight of the evidence claim on
appeal because the trial court addressed the issue in its 1925(a) opinion.
Widmer, 689 A.2d at 212. At the time Widmer was decided, all post-
sentence motions were optional, as the case predated Rule of Criminal
Procedure 607, requiring the preservation of a weight of the evidence claim
in a post-sentence motion. See id. Here, there is no ambiguity regarding
the requirement that the specific arguments made on appeal must have first
been raised before the trial court. As such, we find the reasoning of the
Widmer case inapplicable. Moreover, as stated above, the issue is also
waived based upon his failure to include it in his 1925(b) statement.


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J-A12023-15


(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived”).

      Crespo further suggests that “the trial court’s decision to permit

S[.]G[.] to testify with her hand as a barrier was an abuse of discretion …

because it did not allow Crespo to observe the demeanor and body language

of the victim, thus depriving him of the opportunity to aid counsel in

effectively cross-examining her.”   Crespo’s Brief at 35.    Once again, this

argument was not raised before the trial court or in his 1925(b) statement

and is therefore waived.    Pa.R.A.P. 302(a), 1925(b)(4)(vii); Murray, 83

A.3d at 159; Tejada, 107 A.3d at 797.

      As his final issue on appeal, Crespo he asserts that the trial court

abused its discretion at sentencing by failing to state on the record the

reasons for the imposition of the sentence in violation of the statutory

requirement that it do so. Crespo’s Brief at 37. This is a challenge to the

discretionary aspects of his sentence. Commonwealth v. Cappellini, 690

A.2d 1220, 1227-28 (Pa. Super. 1997).         Although not appealable as a

matter of right, we observe that Crespo has satisfied the four-part test,

permitting our review of the argument raised.       See Commonwealth v.

Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (stating that the four-part test

for review of a discretionary sentencing issue is (1) preservation of the issue

before the trial court; (2) timely notice of appeal; (3) compliance with

Pa.R.A.P. 2119(f); and (4) raising a substantial question for this Court’s



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J-A12023-15


review), appeal denied, 86 A.3d 231 (Pa. 2014); see also Cappellini, 690

A.2d at 1228 (stating that an allegation that the trial court failed to state

sufficient reasons on the record for the imposition of the sentence raises a

substantial question for our review).

      Crespo is correct that section 9721(b) of the Sentencing Act requires,

in relevant part: “In every case in which the court imposes a sentence for a

felony or misdemeanor … the court shall make as a part of the record, and

disclose in open court at the time of sentencing, a statement of the reason

or reasons for the sentence imposed.”          42 Pa.C.S.A. § 9721(b); Crespo’s

Brief at 37. “Failure to comply shall be grounds for vacating the sentence or

resentence and resentencing the defendant.”           42 Pa.C.S.A. § 9721(b).

However, “[t]he sentencing judge can satisfy the requirement that reasons

for imposing sentence be placed on the record by indicating that he or she

has been informed by the pre-sentencing report; thus properly considering

and weighing all relevant factors.”     Commonwealth v. Fowler, 893 A.2d

758, 767 (Pa. Super. 2006) (citation omitted).

      When imposing the sentence in the case at bar, the trial court stated,

inter alia, “[t]he [c]ourt has received and read and reviewed the presentence

investigation report prepared by York County Probation Department.” N.T.,

2/7/14, at 9. As the trial court fulfilled the relevant requirement of section

9721(b), no relief is due on this issue. See Fowler, 893 A.2d at 767.




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       Although none of the issues raised on appeal warrant the grant of

relief, because Crespo is serving an illegal sentence, we must vacate the

judgment of sentence and remand for resentencing. See Commonwealth

v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (“Legality of

sentence questions are not waivable and may be raised sua sponte by this

Court.”), appeal denied, 95 A.3d 277 (Pa. 2014); Commonwealth v.

Thompson, 106 A.3d 742, 759 (Pa. Super. 2014) (“An illegal sentence must

be vacated.”).    As stated above, the record reflects that the trial court

sentenced Crespo to a total term of thirty-two years and six months to sixty-

five years and eight months of incarceration. N.T., 2/7/14, at 11. Crespo’s

sentence included three mandatory minimum sentences of ten to twenty

years of imprisonment pursuant to section 9718 of the sentencing code for

his convictions of rape of a child, involuntary deviate sexual intercourse with

a child and aggravated indecent assault of a child.5 Id. at 10.




5
    Section 9718 states, in relevant part: 3121(c), 3123(b), 3125(b)

             (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.

                                     ***


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     On December 24, 2014, this Court in Commonwealth v. Wolf, 106

A.3d 800, 805 (Pa. Super. 2014), found section 9718 unconstitutional based

upon the United States Supreme Court’s decision in Alleyne v. U.S., __ U.S.

__, 133 S.Ct. 2151 (2013), which held: “[F]acts that increase mandatory

minimum sentences must be submitted to the jury.” Id. at 2163. Although

the only “fact” necessary for the application of the mandatory minimum

sentence in section 9718 was proof of the victim’s age, and, as in the case at

bar, the Commonwealth proved the victim’s age at trial as an element of the

offense, we nonetheless concluded in Wolfe that the mandatory sentences


           (3) A person convicted of the following offenses shall
           be sentenced to a mandatory term of imprisonment
           as follows:
           18 Pa.C.S. § 3121(c) and (d)--not less than ten
           years.
                                   ***
           18 Pa.C.S. § 3125(b)--not less than ten years.

                                     ***
           (c) Proof at sentencing.--The provisions of this
           section shall not be an element of the crime, and
           notice of the provisions of this section to the
           defendant shall not be required prior to conviction,
           but reasonable notice of the Commonwealth's
           intention to proceed under this section shall be
           provided after conviction and before sentencing. The
           applicability of this section shall be determined at
           sentencing. The court shall consider any evidence
           presented at trial and shall afford the Commonwealth
           and the defendant an opportunity to present any
           necessary additional evidence and shall determine,
           by a preponderance of the evidence, if this section is
           applicable.

42 Pa.C.S.A. § 9718(a)(1), (3), (c)


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contained in section 9718 were unconstitutional. We based this conclusion

upon the en banc panel’s holding in Commonwealth v. Newman, 99 A.3d

86 (Pa. Super. 2014) (en banc), stating that mandatory minimum

sentencing statutes in Pennsylvania containing the language appearing in

section 9718(c) “are void in their entirety.” Wolfe, 106 A.3d at 806; see

Newman, 99 A.3d at 102-03 (concluding that the offending language in the

mandatory minimum sentencing statute at issue was not severable from the

rest of the statute, as “it is manifestly the province of the General Assembly

to determine what new procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania following Alleyne”); see

supra, n.5.

      Crespo was sentenced, in part, to the mandatory minimum sentence

pursuant to section 9718. We are therefore compelled vacate the judgment

of sentence and remand for resentencing without consideration of the

mandatory minimum sentencing provisions of section 9718.

      Judgment of sentence vacated.      Case remanded for resentencing in

accordance with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015



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