Com. v. Haynes, D. ( 2021 )


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  • J-S07010-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
    :                  PENNSYLVANIA
    :
    v.                  :
    :
    :
    DELONTE HAYNES               :
    :
    Appellant      :             No. 979 WDA 2020
    Appeal from the Judgment of Sentence Entered November 15, 2019
    In the Court of Common Pleas of Westmoreland County Criminal
    Division at No(s): CP-65-CR-0000534-2018
    BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
    MEMORANDUM BY SHOGAN, J.:                          FILED: MAY 26, 2021
    Appellant, Delonte Haynes, appeals from the judgment of sentence
    entered on November 15, 2019, after he was convicted by a jury of rape of a
    child, involuntary deviate sexual intercourse, indecent assault, and corruption
    of minors.1 After review, we affirm.
    The trial court set forth the factual and procedural history underlying
    Appellant’s convictions as follows:
    [Appellant, a twenty-two-year-old man,] was charged
    with rape of a child, involuntary deviate sexual intercourse,
    indecent assault, and corruption of minors, alleged to have
    been committed against his young cousin, I.H. I.H. testified
    that he used to live in Pennsylvania with his mother, N.H.,
    his mother’s boyfriend, and [Appellant] at a residence in the
    Arnold/New Kensington area.         During that time, I.H.
    attended school at Mary Queen of Apostles school.
    ____________________________________________
    1 18 Pa.C.S. §§ 3121(c), 3123(b), 3126(a)(7), and 6301(a)(1)(ii),
    respectively.
    J-S07010-21
    [Appellant] is I.H.’s cousin, as he is the son of N.H.’s sister.
    . . . [Appellant] slept on the third floor of the residence in
    an attic bedroom and I.H. had a second floor bedroom. I.H.
    and [Appellant] were sometimes alone in the house, when
    I.H.’s mother and her boyfriend were at work. They would
    play games on I.H.’s Playstation or [Appellant] would help
    with I.H.’s homework.
    When I.H. was eight or nine years old, [Appellant]
    began showing him heterosexual and homosexual
    pornography on [Appellant’s] phone. [Appellant] began to
    touch I.H. as they were watching the pornography. He
    started by touching I.H.’s leg, but the touching escalated.
    [Appellant] “put his penis inside of me sometimes.” I.H.
    testified that “it would hurt” and he would try to push him
    off.    I.H. would put his mouth on [Appellant’s] penis.
    [Appellant] would touch I.H.’s penis with his hands.
    [Appellant] kissed I.H. with his tongue. The sexual contact
    occurred in I.H’s bedroom, the living room or in the attic.
    I.H. testified that “it happened every day.” Sometimes
    I.H. would tell him to stop, but [Appellant] would call him
    names, calling I.H. a “bitch” and a “faggot.” The last time
    the abuse occurred was when I.H. was ten years old.
    He eventually told his mother that [Appellant] had
    showed him pornography, after she found I.H. watching
    pornography in his bedroom. He did not tell her, at first, that
    anything else happened, because he was scared. He would
    not have told anyone if his mother had not found him
    “watching the movie,” because he didn’t want anyone to
    know and “didn’t want anyone making fun of me.”
    Eventually, however, he told his mother what happened
    between him and [Appellant], and his mother called the
    police.
    I.H. testified that [Appellant] left the residence and
    went somewhere else to live. He wanted [Appellant] to leave
    because “I wanted him to stop.” The abuse did not continue
    after [Appellant] left the house, although I.H. saw him
    occasionally after he left.
    I.H. “did not want to do these things with [Appellant],”
    “did not agree to do these things with [Appellant],” that “he
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    told him to stop” and he was “embarrassed about these
    things.”
    N.H., the mother of I.H., testified that she previously
    lived on Sixth Avenue in Arnold, Pennsylvania. [Appellant]
    had lived with N.H. on one previous occasion when he was
    approximately 16 years old. He returned to live with her and
    I.H. in the Fall of 2014, when [Appellant] was in his 20s.
    [Appellant] lived with N.H., I.H. and N.H.’s boyfriend “until
    N.H. kicked the boyfriend out and then it was just [N.H.,
    Appellant,] and I.H.” [Appellant] stayed in the finished attic,
    while I.H. had a bedroom on the second floor. There were
    times when [Appellant] was alone with I.H. [Appellant] lived
    with N.H. for “maybe four months.” N.H. “kicked him out”
    because “he was showing behaviors that I didn’t allow in my
    house and he was acting weird with I.H.” He stayed until
    “late January, maybe February” of 2015.
    After [Appellant] left her residence, [N.H.] saw him
    occasionally. She and I.H. moved to Dorseyville and I.H. was
    attending Fox Chapel schools. During that time, she “caught
    I.H. looking at porn” and asked I.H., “How do you even know
    about porn?” She was expecting to hear from his friends and
    “he told me his cousin” and “I asked what cousin?” “He said
    L.A., which is [Appellant].” She asked I.H. if “anything else
    happened when you were looking at porn” and he said, “No,
    Mom, no, mom.” She did not believe I.H. and asked “did he
    touch you?” I.H. told her [Appellant] “touched him on his
    penis.” I.H. did not reveal any further sexual contact with
    [Appellant] until N.H. “lied to I.H. I told him that I’m going
    to have the police set him up on a lie detector test and
    they’re going to be able to tell me whether he is lying if
    anything else happened with [Appellant], and if they tell me
    anything then you are going to be in trouble if you don’t tell
    me what else happened.” I.H. then revealed to his mother
    that [Appellant] had “tried to penetrate him” and “that
    [Appellant] put his mouth on him and that he put his mouth
    on [Appellant] and that this happened quite often.”
    After I.H. revealed the sexual contact with [Appellant]
    to her, she “absolutely” asked her son about “everybody,”
    “including uncles, cousins, friends of the family. . . I asked
    him about anybody he came into contact with.” I.H. “said no
    one else” had touched him.
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    * * *
    Chief Eric Doutt, currently the Chief of Police for the
    city of Arnold, testified that he has been a police officer for
    over 29 years. He received the initial report regarding
    [Appellant] on October 12, 2017, when N.H. came to the
    Arnold Police Station. Initially, N.H. reported the incident
    “that occurred with [Appellant] and her son in 2009-2010.”
    After interviewing N.H., however, “it was determined it
    occurred a few years later.”
    The Commonwealth entered Exhibit 2, a certified
    record from the Superior Court of the District of Columbia,
    showing a conviction of [Appellant] for Attempted First
    Degree Child Sex Abuse.          The Commonwealth entered
    Exhibit 3, a factual proffer in support of the guilty plea from
    the District of Columbia, which was signed by [Appellant] and
    defense counsel, David Maxted, Esq., on 6/23/16.
    * * *
    [Appellant] testified that N.H. is his aunt and I.H. is his
    cousin. He lived with N.H. the first time in 2006-2007 when
    he was 14 years old and the second time when he was 21.
    The second time he lived with her was for a couple of months.
    He testified that the first time he lived with his aunt,
    N.H., she would “beat me. Like, strip me naked every time.
    And she would beat me with a belt” if he did not complete
    his chores. He lived there for approximately a year and a
    half. His mother came to get him and he moved back to
    Washington D.C. “when he was 15 and he came back to New
    Ken when he was 20, 21.” He lived with N.H., I.H. and N.H.’s
    boyfriend. He was “pretty sure” it was 2014 when he moved
    back to New Kensington. He worked two jobs and was left
    alone with I.H. “not that often.” He testified that he did not
    show I.H. pornographic videos, did not touch him
    inappropriately, did not kiss him on the mouth, did not ask
    him to touch his penis or perform oral sex and never tried to
    place his penis in his buttocks. He testified that he entered
    the plea in Washington, D.C. because “something did happen
    with that person.” However, with I.H. “nothing didn’t (sic)
    happen. I didn’t do anything. I’m not guilty. This is made
    up.” He denied ever inappropriately touching his cousin, I.H.
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    He testified that he was not left at home with I.H. and
    N.H. did not work at that time. She was “always home.”
    N.H. asked him to move out, not because they had a
    disagreement, but because she didn’t like who he was
    hanging out with.
    * * *
    Appellant was charged by criminal complaint on
    January 8, 2018 with rape of a child, involuntary deviate
    sexual intercourse, indecent assault[,] and corruption of
    minors . . . The Commonwealth filed a notice of intent to
    present evidence pursuant to [Pa.R.E.] 404(b) on or about
    June 28, 2019. [Appellant] filed a Motion in Limine on
    August 7, 2019, which included a motion to bar evidence.
    The motions were heard by this court on August 8, 2019,
    wherein the court denied [Appellant’s] motion in limine and
    granted the Commonwealth’s motion.
    Jury selection commenced August 5, 2019 before the
    Honorable Rita D. Hathaway. Trial commenced on August 8,
    2019, and the jury returned a verdict of guilty on all counts
    on August 9, 2019. [Appellant] was sentenced on November
    15, 2019 to an aggregate sentence of 12 to 34 years’
    incarceration. On December 2, 2019, [Appellant] timely filed
    a notice of appeal to the Pennsylvania Superior Court.
    Trial Court Opinion, 2/3/20, at 1–12 (record references and footnotes
    omitted).
    Appellant raises the following issues for this Court’s consideration:
    1. Did the Trial Court err in permitting the Commonwealth
    to introduce evidence of a conviction which occurred in time
    after the events of the instant case making it impossible for
    the conviction to be considered a prior bad act under Rule
    404(b) of the Pennsylvania Rules of Evidence?
    2. Did the Trial Court err in permitting the Commonwealth
    to read into the record the facts included in the Appellant’s
    guilty plea in the Superior Court of Washington D.C. over
    the objections of defense counsel that the prejudicial nature
    of the information outweighed the probative value to the
    Jury?
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    3. Did the Trial Court err in denying Appellant’s motion for
    a mistrial after 8 of 14 jurors had observed a
    Commonwealth witness engage in a verbal altercation with
    the mother of [Appellant] over the lunch recess on the first
    day of trial?
    4. Did the Trial Court err in replacing juror number 2, over
    defense counsel’s objection, prior to deliberations after juror
    number 2 related to the Court that he believed that a
    witness had lied during their testimony on the
    Commonwealth’s case in chief?
    Appellant’s Brief at unnumbered 8.
    Appellant’s first two allegations of error involve the admissibility
    and specifics of Appellant’s District of Columbia conviction.      At trial,
    through the testimony of Chief Eric Doutt, the Commonwealth entered
    Exhibit 2, a certified record from the Superior Court of the District of
    Columbia, showing a conviction of Appellant for attempted first degree
    child sex abuse, see N.T., 8/8/19, at 184, and Exhibit 3, a factual proffer
    in support of Appellant’s guilty plea to that offense signed by Appellant
    and his defense counsel. Id. at 185.
    The factual proffer read:
    [H]ad case 2016 CFI 1690 proceeded to trial, the
    Government’s evidence would have proven beyond a
    reasonable doubt that on or about October 8, 2015, within
    the District of Columbia, [Appellant] engaged in a sexual act
    with I.S., a 13 year-old, that is penetration of I.S.’s anus by
    [Appellant’s] finger. The 23-year-old [Appellant] was a
    friend of I.S.’s family and was living with them in October of
    2015 in Southeast, Washington D.C. [Appellant] and I.S.
    were sleeping in the same bedroom. On October 8, 2015,
    I.S. woke up late for school. When his mother asked him
    about it, I.S. told her that he missed his alarm clock. Later
    that morning, I.S. wrote his mother a letter explaining that
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    the reason he got up late was because [Appellant] had woken
    him up the night before by licking I.S.’s anus and scrotum.
    During a subsequent forensic interview, I.S. disclosed that
    he woke up to [Appellant] moving his . . . front part back and
    forth with [Appellant’s] fingers in his anus. I.S. disclosed
    that he wrote a letter about what happened to his mother
    because he was tired of [Appellant] touching him.
    [Appellant] was arrested and provided a statement to law
    enforcement.     During     his    statement,      [Appellant]
    acknowledged that he had been sexually abusing I.S. for an
    extended period of time. [Appellant] expressed remorse and
    was cooperative with law enforcement.
    N.T., 8/8/19, at 185–186.
    While Appellant initially contended that the evidence of District of
    Columbia conviction should not be heard by the jury because it occurred
    subsequent to the crimes at issue, see N.T., 8/8/19, at 24, Appellant now
    concedes that “‘crimes, wrongs, or acts that occur after the offense may be
    admitted.’” Appellant’s Brief at unnumbered 12 (quoting Commonwealth v.
    Wattley, 
    880 A.2d 682
    , 687 (Pa. Super. 2005) (Appellant’s emphasis
    added)). Appellant now urges that because the only similarities in the two
    cases were the “ages of the alleged victims and that they may have been
    sexually assaulted in different manners,” the trial court “relaxed the standard
    to admit evidence of other bad acts and therefore abused its discretion.”
    Appellant’s Brief at unnumbered 13. Since analysis of this claim is interwoven
    with Appellant’s second argument that the factual proffer in support of
    Appellant’s guilty plea was inadmissible because the prejudicial nature of the
    information outweighed the probative value to the jury, we address the issues
    together.
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    It is well settled that the admissibility of evidence is left to the sound
    discretion of the trial court, and a reviewing court will not disturb an
    evidentiary ruling absent an abuse of that discretion.     Commonwealth v.
    Arrington, 
    86 A.3d 831
    , 842 (Pa. 2014).            Furthermore, under Pa.R.E.
    404(b),2 evidence of “other crimes, wrongs, or other acts” is inadmissible
    solely to show a defendant’s bad character or his propensity for committing
    criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Kinard, 
    95 A.3d 279
    ,
    284 (Pa. Super. 2014) (en banc) (citing Commonwealth v. Brookins, 
    10 A.3d 1251
    , 1256 (Pa. Super. 2010)). Other crimes evidence is admissible,
    however, when relevant for another purpose, including motive, opportunity,
    intent, preparation, plan, knowledge, identity, or absence of mistake. Kinard,
    ____________________________________________
    2   Pa.R.E. 404(b) provides:
    (b) Crimes, Wrongs or Other Acts.
    (1) Prohibited Uses. Evidence of a crime, wrong, or
    other act is not admissible to prove a person’s
    character in order to show that on a particular
    occasion the person acted in accordance with the
    character.
    (2) Permitted Uses. This evidence may be admissible
    for another purpose, such as proving motive,
    opportunity, intent, preparation, plan, knowledge,
    identity, absence of mistake, or lack of accident.
    In a criminal case this evidence is admissible only
    if the probative value of the evidence outweighs
    its potential for unfair prejudice.
    Pa.R.E. 404(b)(1)-(2).
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    95 A.3d at 284
    ; Pa.R.E. 404(b)(2). Such evidence may be admitted, however,
    “only if the probative value of the evidence outweighs its potential for unfair
    prejudice.” Kinard, 
    95 A.3d at 284
    ; Pa.R.E. 404(b)(2).
    Regarding common plans and schemes under Rule 404(b), this Court
    has instructed:
    When ruling upon the admissibility of evidence under
    the common plan exception, the trial court must first
    examine the details and surrounding circumstances of each
    criminal incident to assure that the evidence reveals criminal
    conduct which is distinctive and so nearly identical as to
    become the signature of the same perpetrator. Relevant to
    such a finding will be the habits or patterns of action or
    conduct undertaken by the perpetrator to commit crime, as
    well as the time, place, and types of victims typically chosen
    by the perpetrator. Given this initial determination, the court
    is bound to engage in a careful balancing test to assure that
    the common plan evidence is not too remote in time to be
    probative. If the evidence reveals that the details of each
    criminal incident are nearly identical, the fact that the
    incidents are separated by a lapse of time will not likely
    prevent the offer of the evidence unless the time lapse is
    excessive. Finally, the trial court must assure that the
    probative value of the evidence is not outweighed by its
    potential prejudicial impact upon the trier of fact. To do so,
    the court must balance the potential prejudicial impact of the
    evidence with such factors as the degree of similarity
    established between the incidents of criminal conduct, the
    Commonwealth’s need to present evidence under the
    common plan exception, and the ability of the trial court to
    caution the jury concerning the proper use of such evidence
    by them in their deliberations.
    Commonwealth v. Tyson, 
    119 A.3d 353
    , 358-359 (Pa. Super. 2015)
    (quoting Commonwealth v. G.D.M., Sr., 
    926 A.2d 984
    , 981 (Pa. Super.
    2007)).
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    The trial court provided the following reasoning for admission of
    Appellant’s District of Columbia conviction:
    The facts in the case in Washington D.C. are “markedly
    similar” to the present case. In both cases, [Appellant]
    resided with the victim as a guest of the household. The
    abuse was alleged to have occurred between the months of
    October, 2014 and January, 2015 in the instant case and in
    October of 2015 in the Washington, D.C. case, approximately
    ten months after he left his aunt’s residence, thus occurring
    less than a year after the abuse alleged in the instant matter.
    In the instant case, the victim was male, less than 13 years
    of age and the abuse included inappropriate touching of the
    victim’s penis and oral and anal intercourse. Likewise, in the
    Washington, D.C. matter, the victim, was male, 13 years of
    age and the alleged abuse included [Appellant] “licking I.S.’s
    anus and scrotum” and the victim being woken up “to
    [Appellant] moving his ‘front part’ back and forth with
    [Appellant’s] fingers in his anus.” In the instant matter, the
    abuse often occurred in the victim’s bedroom, as it did in the
    Washington, D.C. case. The [c]ourt, in deciding to admit the
    evidence, noted the similarities between the two cases. The
    [c]ourt stated, “The fact that you had one child 13, that the
    actor was either a relative or befriended the family, so that
    the family trusted him enough to allow him to live with the
    family and allowed him access to the child unsupervised and
    that he performed these sex acts on the child.” The [c]ourt
    also noted that it was a “certified copy of the factual proffer.
    [Appellant] signed that, his attorney signed it and we have
    the sentence of the court.” The court indicated that [it]
    would give a limiting instruction to reduce the risk of
    prejudicing the jury and did give such instruction. The
    [c]ourt also did not permit the exhibits to go out with the
    jury. Finally, while Rule 404(b) evidence typically involves
    what is commonly known as “prior bad acts,” the rule is clear
    that “evidence of a crime, wrong or other act is not
    admissible to prove a person’s character in order to show
    that on a particular occasion the person acted in accordance
    with the character,” but such evidence “may be admissible
    for another purpose, such a proving motive, opportunity,
    intent, preparation, plan, knowledge, identity, absence of
    mistake or lack of accident.”
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    * * *
    Finally, this [c]ourt balanced the probative value of the
    evidence and found it outweighed its potential for unfair
    prejudice.
    As the evidence was probative of a common scheme or
    plan, this court did not err and the admission of [Appellant’s]
    conviction and factual proffer in support of the guilty plea
    was proper.
    Trial Court Opinion, 2/3/20, at 17–19 (record references, footnotes, and
    internal citations omitted).
    We agree with the trial court that the District of Columbia conviction and
    the related proffer were not offered solely to prove Appellant’s character “in
    order to show that on a particular occasion [Appellant] acted in accordance
    with the character.” Pa.R.E. 404(b)(1). Instead, as the trial court properly
    held, the conviction and proffer were highly relevant to show Appellant’s
    common scheme, plan, or design under Pa.R.E. 404(b)(2).           First, the two
    incidences occurred within ten months of one another. Additionally, in both
    instances, Appellant was a guest in a home where the victims resided and the
    sexual abuse took place therein. The victims were young males and the abuse
    took the form of anal penetration by Appellant’s finger or penis. Given the
    shared characteristics of each occurrence, the evidence fell within the purview
    of Pa.R.E. 404(b)(2). See, e.g., Commonwealth v. Aikens, 
    990 A.2d 1181
    ,
    1185-1186 (Pa. Super. 2010) (allowing evidence of earlier rape of older
    daughter in trial for rape of younger daughter where victims were of like ages
    at time of assault, both were the defendant’s daughters, the assaults occurred
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    during overnight visits in his apartment, and the defendant began by showing
    the victims pornographic movies); Commonwealth v. O’Brien, 
    836 A.2d 966
    , 970 (Pa. Super. 2003) (finding a common scheme and allowing evidence
    of prior assaults where each assault was on a white boy between the ages of
    eight and eleven; the boys met the defendant because he was friends with
    their parents; each crime was committed in the defendant’s home, and
    defendant showed pornography to his victims.). Accordingly, the trial court
    did not abuse its discretion in admitting the evidence from the District of
    Columbia conviction under Pa.R.E. 404(b)(2).
    We also agree with the trial court’s finding that the probative value of
    the District of Columbia conviction outweighed its potential for prejudice. In
    every case under Rule 404(b), a court must balance the potential prejudicial
    impact of the evidence with such factors as “the degree of similarity
    established between the incidents of criminal conduct, the Commonwealth’s
    need to present evidence under the common plan exception, and the ability
    of the trial court to caution the jury concerning the proper use of such evidence
    by them in their deliberations.” Tyson, 119 A.3d at 359 (quoting G.D.M., Sr.,
    
    926 A.2d at 987
    ). Here, the District of Columbia conviction was, as explained
    above, extremely relevant to show Appellant’s common scheme, plan, or
    design in befriending, and then assaulting, I.H. Further, the Commonwealth
    had a need for this evidence because Appellant denied I.H.’s allegations.
    Therefore, the Commonwealth’s case against Appellant depended, in large
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    measure, upon I.H.’s credibility and evidence that Appellant engaged in a
    common scheme, plan, or design with the District of Columbia victim tended
    to corroborate I.H.’s version of the events.   Thus, although detrimental to
    Appellant, the District of Columbia conviction did not pose the risk of
    duplicative evidence which could muddle the issues or mislead the jury. On
    this point, the potential prejudice from the admission of the challenged
    evidence was lessened by the trial court’s pointed jury instruction on the
    matter: this is because “when examining the potential for undue prejudice, a
    cautionary jury instruction may ameliorate the prejudicial effect of the
    proffered evidence.” Commonwealth v. Hairston, 
    84 A.3d 657
    , 666 (Pa.
    2014) (quoting Pa.R.E. 403 cmt) (noting that jurors are presumed to follow
    the court's instructions). Herein, the court emphasized that the evidence of
    the conviction and proffer was before the jury for the limited purpose:
    of tending to show a common scheme or plan by [Appellant].
    This evidence must not be considered by you in any way
    other than for that purpose that I just stated. You must not
    regard this evidence as showing that [Appellant] is a person
    of bad character or criminal tendencies from which you might
    be inclined to infer guilt in this case.
    N.T., 8/9/19, at 286–287. As a jury is presumed to follow jury instructions,
    this lessened the prejudicial effect of the statements.       Accordingly, we
    conclude that Rule 404(b) militates in favor of admission of Appellant’s
    subsequent child sexual abuse conviction.
    Appellant’s third and fourth issues are also connected. Appellant asserts
    that the trial court erred in denying his motion for a mistrial based on an
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    altercation outside the courtroom observed by some of the jurors. Appellant’s
    Brief at unnumbered 15.         He further avers that the trial court abused its
    discretion when it discharged Juror Number Two who witnessed the incident.
    Id. at 17.
    As described by the trial court, the following occurred on the first day of
    trial:
    On August 8, 2019, the first day of the trial testimony, during
    the lunch hour, an altercation involving members of [Appellant’s]
    family and the victim’s family occurred. An in camera hearing was
    held for the jurors who indicated that they saw or heard something
    unusual. Juror number 2 testified that he observed “an altercation
    between [the victim’s mother],” and “what appeared to be
    relatives of hers on the sidewalk.” “I heard N.H. walk up to one
    of those people and say ‘your son is a rapist.’ They had words
    with each other. There was some pushing and shoving.” He
    testified the police arrived and separated the parties. He did not
    hear what the woman said in reply. He did not discuss it with any
    of the other jurors and believed he could still be fair and impartial
    after witnessing the incident. Juror number 3 testified that she
    was walking down the street from lunch back to the courthouse
    and she “actually heard more than saw the confusion that was
    across the street.” She saw the “mom,” who “seemed to be yelling
    with siblings.” She “was yelling her son is a rapist.” When asked
    whether she understood whatever N.H. yelled or did not yell would
    be her own personal thoughts, having nothing to do with the
    evidence in this trial, [J]uror number 3 responded, “I have
    siblings. I understand.” She testified that, given what she saw
    and heard, she believed that she could still be fair and impartial
    as a juror. Juror number 5 testified that she was “just sitting
    outside in the front” and heard and saw arguments between the
    I.H.’s mother and I.H. was “just trying to stop her from shouting.”
    She did not hear what she was shouting. She observed [N.H.] run
    across the street and verbally fight with other people who were
    sitting outside. [Juror number 5] was sitting with other jurors
    when this occurred, but did not discuss it with them. She testified
    that she could be a fair and impartial juror after what she observed
    and that she could disregard it, knowing that it was the emotion
    of one witness. Juror number 7 testified that she was sitting with
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    other jurors out front of the courthouse when she saw I.H. and his
    mother, sifting on the bench. She observed the mother saying
    something and I.H., covering her mouth, “trying to quiet her,” and
    “there was a little bit of commotion directly across the street.”
    She did not hear “any specific words.” She believed that she could
    be a fair and impartial juror and disregard what she saw. Juror
    number 9 testified that she was sitting at a table with some of the
    other jurors when she saw “N.H. on the corner, screaming at some
    people in front of the restaurant we just came out. You couldn’t
    understand anything. . . . [S]he went across and there was a
    scuffle.” The jurors she was with “just got up, came in. . . [.]”
    She testified that she could still be a fair and impartial juror. Juror
    number 11 testified that she was sitting on a bench outside and
    the woman who had just testified “started to scream across the
    road to four other people eating lunch that they support a
    pedophile and a rapist.” She “eventually stood up and walked
    across the street.” “They were yelling and screaming at each
    other.” Juror number 11 testified that she could still be a fair and
    impartial juror. Juror number 12 testified that he was walking
    back to the courthouse and “didn’t really see much of anything.”
    He “just heard some really loud noises, some commotion coming
    to my right.”      Shortly thereafter, he was walking into the
    courthouse and heard sirens and saw a police car pull up. He
    didn’t see or hear who was involved or what they were saying. He
    testified that he could still be a fair and impartial juror. Juror
    number 14 testified that she was sitting at a table outside of the
    courthouse with another juror. She heard yelling and saw N.H.
    walking across the street. “There was more yelling and they
    started fighting so we came inside.” The only thing she was able
    to make out was “I believe you should be ashamed of yourself.
    That’s the only thing I heard.” She testified that she could
    continue to be a fair and impartial juror. Counsel for [Appellant]
    moved for a mistrial at the conclusion of the in camera hearing,
    which was denied.
    Trial Court Opinion, 2/3/20, at 8–11 (record references omitted).
    “The decision to declare a mistrial is within the sound discretion of the
    court and will not be reversed absent a flagrant abuse of discretion.”
    Commonwealth v. Manley, 
    985 A.2d 256
    , 266 (Pa. Super. 2009) (quotation
    omitted).   A trial court will grant a mistrial only “where the incident upon
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    which the motion is based is of such a nature that its unavoidable effect is to
    deprive the defendant of a fair trial by preventing the jury from weighing and
    rendering a true verdict.”   Commonwealth v. Chamberlain, 176, 
    30 A.3d 381
    , 422 (Pa. 2011).
    When a trial court becomes aware that a juror has been exposed to
    extraneous information which may affect a juror’s deliberation, the trial court
    must assess the prejudicial effect of the outside influence. Commonwealth
    v. Pope, 
    14 A.3d 139
    , 145 (Pa. Super. 2011) (citing Commonwealth v.
    Messersmith, 
    860 A.2d 1078
    , 1085 (Pa. Super 2004)). We recognize that
    “[a]n extraneous influence may compromise the impartiality and integrity of
    the jury, raising the specter of prejudice.” Commonwealth v. Sneed, 
    45 A.3d 1096
    , 1115 (Pa. 2012) (citation omitted).       It is axiomatic that “[a]
    defendant has the right to have his or her case heard by a fair, impartial, and
    unbiased jury and ex parte contact between jurors and witnesses is viewed
    with disfavor.” Commonwealth v. Tharp, 
    830 A.2d 519
    , 532 (Pa. 2003)
    (citation omitted).
    There is, however, no per se rule in this Commonwealth
    requiring a mistrial anytime there is improper or inadvertent
    contact between a juror and a witness. Whether such
    contact warrants a mistrial is a matter addressed primarily
    to the discretion of the trial court. A trial court need only
    grant a mistrial where the alleged prejudicial event may
    reasonably be said to have deprived the moving party of a
    fair and impartial trial.
    
    Id.
     at 532–533 (internal citations omitted).
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    J-S07010-21
    The relevant inquiry is whether the extraneous
    influence caused a reasonable likelihood of prejudice. 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.
    Sneed, 45 A.3d at 1115 (internal quotations and citations omitted).
    The trial court explained that the jurors’ observations of the altercation
    outside the courthouse did not mandate a mistrial:
    While the argument outside the courthouse was
    unfortunate, the court carefully, out of the presence of the
    remainder of the jury, individually, and, on the record,
    interrogated each and every one of the jurors who had any
    knowledge of the incident.         The [c]ourt, after such
    interrogation, was satisfied that each of the jurors had
    candidly and forthrightly disclosed what he or she had
    observed and, without reservation, affirmed his or her ability
    to set it aside and decide the case according to the facts and
    the law. Here the court properly exercised its discretion and
    determined that a mistrial was not warranted.
    Trial Court Opinion, 2/3/20, at 20.
    Although Appellant acknowledges that the empaneled jurors questioned
    about the incident represented that they could remain fair and impartial,
    Appellant “believes that this incident, wherein a Commonwealth witness, the
    mother of the alleged victim whom had just testified . . . attacked the mother
    of the Appellant verbally and possibly physically on the street referring to the
    Appellant as a rapist and pedophile, was an incident of such a severe nature”
    that Appellant could not receive a fair trial. Appellant’s Brief at 17.
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    J-S07010-21
    Our review of the record compels us to disagree. We must defer to the
    trial court’s credibility determinations. See Commonwealth v. Kennedy,
    
    218 A.3d 420
    , 424–425 (Pa. Super. 2019) (“The trial court is in the best
    position to gauge potential bias[,] and we defer to the trial court when the
    grounds for the mistrial relate to jury prejudice.”) (quotation omitted). While
    Appellant asks this Court to disturb the trial court’s credibility assessment of
    the jurors, we may not do so under this record. The trial court interviewed
    the jurors exposed to the extraneous influence individually and outside the
    presence of any other jurors and was satisfied that the jurors could remain
    impartial.     The transcript of the in camera juror interviews clearly
    demonstrates that Juror Numbers 3, 5, 7, 9, 11, 12, and 14 would be able to
    set aside what they had witnessed and render a verdict that was fair and
    impartial.3 See N.T., 8/8/19, at 137 (Juror Number 3 assuring the trial court
    that she could remain impartial); id. at 139 (Juror Number 5 affirming that
    she could be fair and impartial after what she observed); id. at 142 (Juror
    Number 7 responding in same manner as Juror Number 5); id. at 144–145,
    147–148 (Juror Numbers 9, 11, 12 and 14 representing that they could remain
    impartial).
    In Commonwealth v. Szakal, 
    50 A.3d 210
     (Pa. Super. 2012), this
    Court held that the trial court did not abuse its discretion in denying an
    ____________________________________________
    3   The trial court’s interviews with Juror Number 2 are discussed infra.
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    J-S07010-21
    appellant’s motion for mistrial as a result of improper contact between jurors
    and a Commonwealth witness. Id. at 220. Therein we reasoned as follows:
    [T]he trial court conducted a colloquy of the jury to determine
    what, if anything, each juror heard and whether the incident
    affected his or her ability to be fair and impartial. The colloquy
    revealed that only Juror No. 715 heard [the Commonwealth’s
    witness’s] comments. Each juror, including No. 715, indicated that
    his or her impartiality was not affected by the outburst. The trial
    court found the jury’s assurances credible.
    Id. We reach the same conclusion in the instant case.
    Further, in his attempt to establish prejudice, Appellant offers only his
    personal opinion that the jurors disingenuously represented to the trial court
    that they could remain impartial. However, the trial court, as the judge of
    their credibility, determined that the jurors were able to disregard anything
    that they observed of the altercation and render a fair and impartial decision.
    We will not disturb the trial court’s credibility determination that the jurors’
    deliberations would not be compromised by what they witnessed outside of
    the courthouse.   See Commonwealth v. Cosby, 
    224 A.3d 372
    , 426–427
    (Pa. Super. 2019), appeal granted in part, 
    236 A.3d 1045
     (Pa. 2020) (We are
    bound by the trial court’s credibility determination of juror’s testimony).
    Accordingly, for the reasons expressed above, we discern no abuse of
    discretion by the trial court in denying Appellant’s motion for a mistrial.
    Finally, Appellant argues that the trial court abused its discretion in
    discharging Juror Number 2. This juror also witnessed the altercation outside
    of the courthouse and indicated in his August 8, 2019 in camera interview that
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    J-S07010-21
    he could still be fair and impartial. N.T., 8/8/19, at 134. However, at the
    conclusion of the trial testimony on the following day, Juror Number 2 asked
    a member of the trial court’s staff if he could discuss what he observed the
    preceding day. N.T., 8/9/19, at 254. The trial court held another in camera
    hearing wherein Juror Number 2 testified that “based on what I saw yesterday,
    I have drawn a conclusion that the testimony I heard was false.” 
    Id.
     He did
    not identify whose testimony he believed was false. However, the juror
    confirmed to the trial court that he could “put it out of his mind.” Id. at 255.
    Over Appellant’s objection, the trial court dismissed Juror Number 2 and
    replaced him with Juror Number 13 because Juror Number 2 “made a
    conclusion that some testimony was false today based on what [he] saw
    yesterday.” Id. at 256. The trial court further explained:
    In contradistinction to the jurors previously mentioned . . .,
    Juror number 2 demonstrated that he could not set aside what
    happened outside the courtroom and that the scenario he had seen
    the day before was now driving his credibility determination in the
    courtroom. This was not, and could not, be countenanced and the
    juror was properly excused and an alternate inserted in his stead.
    This court’s disqualification of Juror Number 2 in no way deprived
    [Appellant] of a fair and impartial trial, and in fact was done so that
    both the Commonwealth and [Appellant] would be assured of
    fairness and impartiality.
    Trial Court Opinion, 2/3/20, at 21–22.
    Appellant maintains that the trial court abused its discretion in
    discharging Juror Number 2 because “there is nothing in the record to indicate
    that the juror’s ability to perform his duty was impaired.” Appellant’s Brief at
    unnumbered 18. Appellant further asserts that it “does not stand to reason
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    J-S07010-21
    that while Juror 2 had said regarding two separate incidents that he could put
    what he saw out of his mind and follow the [t]rial [c]ourt’s instructions and
    decide the case on the facts presented and the [t]rial [c]ourt reached two
    different conclusions.” Id. (record reference omitted).
    “The decision to discharge a juror is within the sound discretion of the
    trial court and will not be disturbed absent an abuse of that discretion.”
    Commonwealth v. Smith, 
    206 A.3d 551
    , 562–563 (Pa. Super. 2019)
    (quotation omitted). “A finding regarding a juror’s impartiality ‘is based upon
    determinations of demeanor and credibility that are peculiarly within a trial
    [court]’s province . . . [Its] predominant function in determining juror bias
    involves credibility findings whose basis cannot be easily discerned from an
    appellate record.’” Id. at 562 (quoting Commonwealth v. Smith, 
    540 A.2d 246
    , 256 (Pa. Super. 1988)).
    Contrary to Appellant’s position that there is no record evidence
    indicating that Juror Number 2’s ability to deliberate fairly was compromised,
    Juror Number 2’s own statement that he now believed the trial testimony was
    false based on what he observed outside of the courthouse provides ample
    support for the trial court’s decision to discharge him. Although Juror Number
    2 subsequently indicated he could put the incident out of his mind, the trial
    court, as the sole determiner of credibility, concluded that Juror 2 was unable
    to be fair and impartial. There is no basis to disturb the trial court’s credibility
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    J-S07010-21
    determination. See Cosby, 224 A.3d at 426–427 (appellate courts bound by
    the trial court’s credibility determination of juror’s testimony).
    Additionally, we reject Appellant’s claim that the trial court’s decision
    not to grant a mistrial was inconsistent with its decision to dismiss Juror
    Number 2. The two results are readily reconcilable. On the basis of the jurors’
    testimony during the first in camera interview, occurring immediately after
    the incident, the trial court determined that the jurors were able to continue
    serving as fair and impartial jurors.       None of the jurors, Juror Number 2
    included, indicated that his or her opinion of the case was influenced by the
    incident. However, the following day, Juror Number 2 revealed that he had
    made a conclusion as to the veracity of testimony given based on the incident
    he witnessed. The trial court was well within its discretion to discredit Juror
    Number 2’s representation that he could disregard the incident. Therefore,
    the trial court properly exercised its discretion in removing Juror Number 2
    and replacing him with an alternate; accordingly, this issue lacks merit.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/26/2021
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