Com. v. Shiffer, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALEXANDER CHRISTIAN SHIFFER :
:
Appellant : No. 1549 MDA 2021
Appeal from the Judgment of Sentence Entered August 3, 2021
In the Court of Common Pleas of Juniata County Criminal Division at
No(s): CP-34-CR-0000169-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 7, 2023
Alexander Christian Shiffer appeals the judgment of sentence entered
following his jury convictions for indecent assault (without consent) and
indecent assault (complainant under 16).1 Shiffer challenges the weight of the
evidence and the denial of his motion for a mistrial. We affirm.
Shiffer’s convictions stem from his inappropriate contact with his
stepdaughter, K.C., who was 14 years old at the time. K.C. testified that on
the night in question she was home with her sister, mother, and Shiffer. She
said she was lying on her bed reading and Shiffer entered her room to tuck
her in and say good night. K.C. testified that Shiffer was “crawling under the
covers” and “kept pulling [her] in for hugs[.]” N.T., Trial, 5/25/21, at 22. She
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3126(a)(1) and 3126(a)(8), respectively.
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stated that as Shiffer was pulling her in, his hand “slipped a little” down the
front of K.C.’s shirt. Id. at 23. K.C. testified that she repositioned herself and
“kind of” pulled out his hand and that she thought “he pulled it out a little bit
himself, too.” Id. at 25. The two continued to talk, and when Schiffer pulled
K.C. in for another hug, “his hand slipped down" her pants to her buttocks,
inside her underwear. Id. at 25-26. While his hand was in her underwear,
Shiffer grabbed K.C.’s buttocks. Id. at 26. K.C. testified that his hand
remained inside her underwear for “a few minutes” while she “kept trying to
pull it out[.]” Id. at 27. She kept asking him to stop and was finally able to
pull his hand out of her pants. Id.
The Commonwealth asked K.C. if there were other instances when
Shiffer touched her. K.C. replied that there were times Shiffer would get on
top of her when they would tickle each other and she “could feel him through
his pants.” Id. at 29. When the Commonwealth asked K.C. to explain what
she meant, defense counsel objected and asked for a sidebar. Id. at 29-30.
At sidebar, counsel moved for a mistrial pursuant to Rule 404 of the
Pennsylvania Rules of Evidence. She stated that the tickling incident was not
mentioned in any discovery materials, and it was her first time hearing about
it. Id. at 30. The Commonwealth responded that it learned of the information
“at least as of [the] day of jury selection” and that it was part of the story of
what led to the incident at issue. Id. The court denied the motion for a mistrial
and told the Commonwealth to move on, concluding that the jury had not
been prejudiced. Id. at 31. The sidebar discussion then concluded.
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K.C.’s mother, Jamie Shiffer, took the stand next. She testified that at
the time in question, she was downstairs at home while K.C. and her sister
were upstairs getting ready for bed. Id. at 52. She explained that K.C. came
downstairs crying and told her that Shiffer “had put his hand down her pants
and squeezed her bottom and that he had put his hand down her shirt.” Id.
at 53. Jamie went upstairs to confront Shiffer who at this time was sleeping
in their bedroom. When Jamie confronted Shiffer with what K.C. had told her,
Shiffer asked her what she was talking about. Jamie then went back
downstairs with K.C. Shiffer also followed Jamie downstairs and said that “he
didn’t know what happened but he was sorry he did something.” Id. at 54.
The Commonwealth also introduced Shiffer’s videotaped police
interview. During the interview, Shiffer stated “he wasn’t going to sit there
and call his daughter a liar. If she says that he did it, then he did.” Id. at 82.
Shiffer testified in defense that he only put K.C. to bed on the night in
question and did not intentionally touch her buttocks. He testified that in the
process of trying to get off K.C.’s bed he could have accidentally touched her.
The jury found Shiffer guilty of the above-referenced charges. The court
sentenced Shiffer in total to 4 to 23 months’ incarceration. Shiffer filed a post-
sentence motion, which the trial court denied. This timely appeal followed.
Shiffer raises the following issues:
1. Did the trial court err in denying [Shiffer’s] motion for
mistral where the Commonwealth intentionally solicited the
testimony of the complainant to an alleged prior bad act of
[Shiffer] and failed to provide notice?
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2. Did the trial court err in denying [Shiffer’s] post sentence
motion requesting a new trial where the verdict for the
charges of indecent assault without consent and indecent
assault person less than sixteen years of age, was so
contrary to the weight of the evidence that it shocks one’s
sense of justice, where the uncontradicted testimony of the
Commonwealth’s witnesses did not outweigh the testimony
of [Shiffer] and other evidence that supported [Shiffer’s]
version of events?
Shiffer’s Br. at 5 (suggested answers omitted).
Shiffer’s first issue addresses the court’s denial of his motion for a
mistrial. He maintains that the Commonwealth elicited prior bad act evidence
without providing him notice pursuant to Pa.R.E. 404(b)(3). He alleges that
the Commonwealth did not show a sufficient nexus between the prior bad act
testimony and the acts charged, such as would render the bad act testimony
relevant. Shiffer’s Br. at 14. He also argues that the trial court’s telling the
prosecutor to move on, without giving the jury “clarification,” led the jury to
believe that Shiffer had placed himself on top of K.C. many times. Id.
We review the court’s grant or denial of a motion for a mistrial for an
abuse of discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa.
2011). An abuse of discretion exists where the court misapplies or overrides
the law, exercises its judgment in a manifestly unreasonably way, or if its
decision is “the result of partiality, prejudice, bias or ill-will[].”
Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008) (citation omitted).
A mistrial is appropriate only “when an incident is of such a nature that its
unavoidable effect is to deprive the [defendant] of a fair and impartial trial.”
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Commonwealth v. Bennett, 225 A.3d 883, 890 (Pa.Super. 2019) (citation
omitted).
Rule 404(b)(1) of the Pennsylvania Rules of Evidence bars the admission
of evidence of prior bad acts to prove a person’s character in order to show
“that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). Such evidence may nonetheless be admissible
for another proper purpose, such as “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident,” if its probative value outweighs its potential for unfair prejudice.
See id. at 404(b)(2). If in a criminal case the prosecution wishes to admit
such evidence, it must provide “written notice in advance of trial so that the
defendant has a fair opportunity to meet it[.]” Id. at 404(b)(3).
Here, Shiffer’s stated objection at trial was a request for a mistrial based
on the Commonwealth’s failure to give Rule 404(b)(3) notice. The trial court
refused the motion because it found the testimony about the tickling incident
had not prejudiced the jury sufficiently to warrant a mistrial. We perceive no
abuse of discretion in this regard. To the extent Shiffer now objects that there
was an insufficient “nexus” to render the testimony relevant, that objection is
waived for failure to make it at trial. Finally, Shiffer’s argument that the trial
court should have given the jury “clarification” is similarly waived for failure
to ask for a curative instruction at trial. See Pa.R.A.P. 302(a);
Commonwealth v. Johnson, 42 A.3d 1017, 1026 n. 5 (Pa. 2012).
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Shiffer’s remaining issue challenges the weight of the evidence. Shiffer
states that the uncontradicted portion of the Commonwealth’s evidence only
showed that K.C., her mother, her sister, and Shiffer were all at home on the
night in question, and that Shiffer went into K.C.’s room, tucked her into bed,
and then went to sleep. He contends that the remainder of K.C.’s testimony
regarding the events at issue were directly contradicted by her own testimony,
Shiffer’s testimony, and the Commonwealth’s other witnesses. Shiffer also
states that the victim’s testimony contradicted her statements to the police.
He argues that in determining that the verdict was not contrary to the weight
of evidence, the court “ignored the contradictions and inconsistencies to
[K.C.’s] testimony.” Shiffer’s Br. at 23.
When reviewing a challenge to the weight of the evidence, we determine
whether the court abused its discretion in denying the defendant’s weight
claim. See Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). We
“give the gravest consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination” of whether the verdict
is against the weight of the evidence. Commonwealth v. Talbert, 129 A.3d
536, 546 (Pa.Super. 2015) (citation omitted). Additionally, “[t]he weight of
the evidence is exclusively for the finder of fact [,] who is free to believe all,
none or some of the evidence and to determine the credibility of the
witnesses.” Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995).
“Resolving contradictory testimony” is also a matter for the factfinder.
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Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa.Super. 2021), appeal
denied, 265 A.3d 1278 (Pa. 2021).
Here, Shiffer’s argument centers on the victim’s credibility and her
contradictory statements. After reviewing the record, we cannot say that any
contradictions or inconsistencies in the evidence were of such a nature that
trial court abused its discretion in rejecting Shiffer’s weight challenge. We
therefore affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/07/2023
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