Com. v. Hodges, D. ( 2017 )

J-S35020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DALE HODGES
Appellant No. 1588 WDA 2016
Appeal from the PCRA Order September 21, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002490-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DALE HODGES
Appellant No. 1589 WDA 2016
Appeal from the PCRA Order September 21, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002482-2012
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED JULY 27, 2017
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S35020-17
Appellant, Dale Hodges, appeals from the order entered September
21, 2016, denying his petition for collateral relief filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §9541-9546. We affirm.
In 2012, Appellant was arrested and charged with multiple sex crimes
perpetrated against two minor victims. At both dockets, Appellant was
charged with involuntary deviate sexual intercourse with a child (“IDSI”),
aggravated indecent assault, indecent assault, corruption of minors, and
endangering the welfare of a child (“EWOC”).1 The cases were consolidated
for trial. During the second day of trial, jurors informed the court that they
had had some difficulty hearing victim M.R.’s testimony presented during the
first day of trial. See Notes of Testimony (N.T.), Trial, 5/19/14, at 78-79.
The jurors indicated that although they had not heard all of the testimony,
they heard enough to render an impartial verdict. Id. The trial court
resumed trial without objection by the parties. Id. Following trial, the jury
found Appellant guilty of all charged offenses. Id.
Appellant filed an untimely post trial motion seeking a new trial on the
basis that the jurors were not able to hear all of the evidence and that he
had newly discovered evidence that another individual the victims had
claimed abused them was physically incapable of causing the abuse. See
N.T., 9/29/14. Appellant presented no evidence in support of this
____________________________________________
1
18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), 6301(a)(1), and 4304(a).
-2-
J-S35020-17
contention, and the court denied the motion. On September 29, 2014,
Appellant was sentenced to an aggregate term of fifteen to thirty years of
incarceration on both dockets, each sentence included mandatory minimum
sentences.
Appellant appealed his judgment of sentence, arguing that the court
had erred in denying his motion for a mistrial with regard to jurors’ difficulty
hearing M.R. See Commonwealth v. Hodges, 133 A.3d 78 (Pa. Super.
2015). This Court found that he had not preserved that issue, but sua
sponte vacated his judgment of sentence due to the imposition of mandatory
minimums. Id. On March 8, 2016, the court resentenced Appellant on both
dockets to an aggregate of one hundred forty-seven months to three
hundred eleven months.
On March 31, 2016, Appellant timely and pro se filed a petition seeking
PCRA relief. Counsel was appointed and filed an amended petition on
Appellant’s behalf, claiming that trial counsel was ineffective for failure to
make a timely motion for mistrial when jurors had difficulty hearing the
victims’ testimony. The trial court sent Appellant notice pursuant to
Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.
The trial court then dismissed Appellant’s petition.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court issued a
responsive opinion. In November 2016, this Court consolidated Appellant’s
appeals.
-3-
J-S35020-17
On appeal, Appellant raises the following question for our review:
Whether the lower court abused its discretion and committed
legal error in denying [Appellant’s] PCRA petition in that
[Appellant] was afforded ineffective assistance of counsel for
failing to assert a timely objection to the decision of the court to
resume the trial after the jury disclosed that some members of
the jury had difficulty hearing the testimony and had not in fact
heard the record in its entirety?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
Appellant contends that counsel provided ineffective assistance for his
failure to timely object and make a motion for mistrial where jurors informed
the court they had difficulty hearing testimony. See Appellant’s Brief at 4.
Appellant claims that no plausible rationale existed for trial counsel not to
have moved for a mistrial, as the jury’s failure to hear all of the testimony
served as an impediment to a fair trial and undermined confidence in the
jury’s determination to make a meaningful credibility determination. Id. at
6-7. Accordingly, Appellant contends he suffered prejudice as a result. Id.
at 7.
-4-
J-S35020-17
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
With regard 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.” See Pa.R.Crim.P.
605(B). The remedy of a mistrial “is an extreme one, and is required only
when an incident is of such a nature that its unavoidable effect is to deprive
the appellant of a fair and impartial trial.” Commonwealth v. Johnson,
719 A.2d 778, 787 (Pa. Super. 1998) (en banc) (citation omitted).
-5-
J-S35020-17
In situations where the record makes it clear that a juror’s hearing
impairment was significant enough to prevent a fair and impartial trial, a
mistrial is required. See Commonwealth v. Brown, 332 A.2d 828, 831-32
(Pa. Super. 1974) (noting that where a juror’s deafness is of such a degree
as to indicate that the juror may not have heard material testimony the juror
must be disqualified). However, where an isolated piece of testimony is not
heard by a juror, a new trial is not necessarily mandated as responses may
be repeated by witnesses or the court reporter. See, e.g., Commonwealth
v. Greiner, 455 A.2d 164, 166-67 (Pa. Super. 1983) (noting that defendant
was prejudiced where juror was unequivocal about his inability to hear some
testimony, and where the discovery was made during jury polling).
Here, Appellant’s claim has no arguable merit. Appellant cites to no
specific law to support his contention that because the jury indicated it had
problems hearing some of the testimony, he suffered prejudice per se.
Unlike in Greiner, the hearing issues were discovered on the second day of
Appellant’s trial and brought to the court’s attention. The transcript of the
testimony in question reads as follows:
THE 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 COURT: Okay. No, you haven’t?
-6-
J-S35020-17
UNIDENTIFIED JUROR: No, several of them.
THE COURT: All right. What witnesses were those?
UNIDENTIFIED JUROR: The first young girl that testified, it
was very difficult to hear her.
THE 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 COURT: All right. Correct me if I’m wrong here, what I
hear you saying is 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.)
THE 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 [sic].
THE COURT: That’s my next point is going to be from here on
out, we want to make sure that everyone speaks loud enough,
but I just 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.)
-7-
J-S35020-17
THE COURT: All right. The record should reflect that the jury
has affirmed that.
See Notes of Testimony (N.T.), 5/20/14, at 78-79.
Here, the court noted that each juror had represented that they could
sufficiently determine they heard enough of the testimony to make a
credibility determination. The inability to hear the testimony was based
upon the soft voice of the witness, not upon the jurors’ being hard of
hearing. See, e.g., Brown, 332 A.2d at 831-32. No juror requested that
the testimony be read back by the court reporter; each juror affirmatively
responded that they could hear enough of the testimony to make a fair and
impartial verdict.2 See, e.g., Greiner, 455 A.2d at 166-67; Brown, 332
A.2d at 831-32. Accordingly, no objection was warranted.
Based on the above, Appellant’s claim had no arguable merit, as the
trial court had concluded, based on the above colloquy, that the jurors were
able to sufficiently hear the testimony. See Greiner, 455 A.2d at 166-67;
____________________________________________
2
The first complainant testified on May 19, 2014. See N.T., 5/19/14, at 27-
73. It was this complainant jurors had difficulty hearing. See N.T.,
5/20/14, at 78. The second complainant testified that same day at length
regarding Appellant’s abuse, and no juror expressed concerns about hearing
her testimony. See N.T., 5/19/14, at 73-112.
As noted above, the jurors indicated they had heard enough to make a fair
and impartial verdict, and based upon the evidence introduced, Appellant’s
claim has no arguable merit. Further, even in the event that jurors had not
heard enough, the transcription of the testimony by the court reporter
indicates that this testimony would have been available to jurors if
necessary.
-8-
J-S35020-17
Brown, 332 A.2d at 831-32; Springer, 961 A.2d at 1267. Accordingly,
Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
-9-