Com. v. Vann, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
MICHAEL N N. VANN, :
:
Appellant : No. 1119 EDA 2013
Appeal from the Judgment of Sentence March 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0013904-2011
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2014
Appellant, Michael N N. Vann, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his jury
conviction of one count of indecent assault by forcible compulsion.1
Appellant asserts he is entitled to a new trial because the verdict was
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(2). We note that the trial court states that Appellant
See Trial Ct. Op., 11/12/13, at 1 n.1. The notes of testimony
indicate that the jury found Appellant guilty of indecent assault with force or
threat of force and indecent assault without consent. N.T., 12/12/12, at 6.
However, the sentencing order indicates that Appellant was convicted of and
sentenced for indecent assault forcible compulsion. See Order, 3/22/13.
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against the weight of the evidence and based upon juror contamination. We
affirm.
The trial court summarized the facts of this case as follows:
On August 6, 2011, the Complainant and a female
friend intended to visit some night clubs in Philadelphia.
Their plans changed, however, when they encountered two
television and socialized.
After a few hours, Appellant
leg; although she objected, he
did so again, and then put his hand on her vagina.
Complainant moved away from [Appellant], told
the living room. [Appellant] followed Complainant upstairs
and told her that her friend had begun to get intimate with
the other male. [Appellant] told Complainant that he
would take her home when her friend and the other male
were finished. [Appellant] then led the Complainant
upstairs to a bedroom.
head. [Appellant] then inserted his penis in her mouth and
vagina numerous times, as the Complainant objected and
struggled against him. [Appellant] wore a latex condom.
Complainant attempted to leave and [Appellant] grabbed
her and threw her underneath himself. Complainant felt
pain in her mouth and vagina. She then fled the house,
barefoot, and disclosed the incident to her mother the next
day.
her daughter to the Special Victims Unit of the Philadelphia
Police Department. Complainant gave a statement to the
police and underwent a medical examination. Complainant
was allergic to latex, and her skin broke out in rashes
when she had contact with latex. Because [Appellant]
wore a latex condom during the attack, Complainant
suffered from a rash over a large portion of her face and
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surrounding her vaginal area. A warrant was issued for
police on September 9, 2011.
Trial Ct. Op., 11/12/13, at 2-3 (citations to record omitted).
Appellant was charged with sexual assault,2 unlawful restraint/serious
bodily injury,3 indecent assault forcible compulsion, indecent exposure,4
simple assault,5 recklessly endangering another person,6 and false
imprisonment.7 At trial, he made a motion for mistrial due to juror
contamination; the court denied it. Appellant was convicted of indecent
assault by forcible compulsion. On March 22, 2013, he was sentenced to
was not found to be a sexually violent predator, but he was subject to
twenty-
This appeal followed. Appellant filed a timely court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal. The trial court filed a
responsive opinion. Appellant raises the following issues for our review:
2
18 Pa.C.S. § 3124.1.
3
18 Pa.C.S. § 2902.
4
18 Pa.C.S. § 3127.
5
18 Pa.C.S. § 2701.
6
18 Pa.C.S. § 2705.
7
18 Pa.C.S. § 2903.
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I. Did not the trial court unfairly prejudice Appellant and
mistrial based on juror contamination?
II. Was Appellant not deprived of due process and of a fair
trial in violation of the Sixth and Fourteenth Amendments
of the United States Constitution as well as Article One,
Section Nine of the Pennsylvania Constitution, because
. was against
the weight of the evidence?
First, Appellant contends the trial court erred when it denied his
motion for a mistrial based on the fact that a juror, who is an attorney,
overheard a conversation between a defense witness and another person
about this case.8 Id. any inappropriate
contact with the jury about the matter before them automatically creates
Id. at 10 (emphasis added).
Appellant avers that the juror did not adequately assure the court that she
could remain impartial, and therefore, the court erred in denying his motion
for a mistrial. Id. We find no relief is due.
Our standard of review of the denial of a motion for a mistrial is well
established:
It is well-
have his case heard by a fair, impartial, and unbiased jury
and contact among jurors, parties, and witnesses is viewed
8
At trial, defense counsel made a motion for a mistrial, thus preserving the
issue for review on appeal. See N.T., 12/10/12, at 120. See Pa.R.A.P.
302(a); Pa.R.Crim.P. 605(B) (motion for mistrial shall be made at time event
prejudicial to defendant occurs).
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mistrial is within the sound discretion of the [trial] court
and will not be reversed absent a flagrant abuse of
discretion. A mistrial is an extreme remedy . . . [that] . . .
must be granted only when an incident is of such a nature
that its unavoidable effect is to deprive defendant of a fair
Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012) (citations
omitted).
In Szakal,
[o]n the third day of trial, during the lunch recess, court
staff informed the trial court that Commonwealth witness
Dennis Hawkins (Hawkins) had made statements to the
jury on the steps of the courthouse. Hawkins, who had
taken the stand that morning, testified that he was housed
in the Special Housing Unit (SHU) of the Washington
County jail with [the defendant], and while incarcerated
[the defendant] confessed to Hawkins that he had killed
the victims. During the court lunch break, Hawkins
told me everything he did in the SHU. He told me it all.
He had [the victim] dow
* * *
[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
Each juror, including No.
715, indicated that his or her impartiality was not
affected by the outburst. The trial court found the
Moreover, as the trial court
comments of [Hawkins], while improper, did
not constitute non-testimonial information. Rather his
comments about the [SHU] and [the victim] being kicked
only referred to testimonial information that the jury had
, [the
defendant] has failed to prove that he was prejudiced and
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we cannot conclude that the trial court abused its
discretion in denying [his] motion for a mistrial.
Id. at 219-20 (citations omitted and emphasis added). The Szakal Court
found that the defendant was not entitled to relief. Id. at 220.
In the instant case, the juror in question,9 testified regarding her
contact with the defense witness as follows:
I saw one [of] the witnesses at church on Sunday, which
was yesterday. As soon as I saw the witness, I
immediately recognized him. So I sort of covered myself
me.
Unfortunately that morning I had a flat tire. So I was in
the parking lot and one of the ministers was helping me
wi
bench and the gallery in the courtroom. He was speaking
to another member of the congregation. I was focused on
getting my car tire fixed by the helpful minister.
It occurred to me that the witness was speaking about
the case. And it occurred to me because I heard the word
rape. The witness himself was not the one speaking, it
was another gentleman that was speaking, but he was
speaking very loud. And what I have been thinking about
was whether or not a) the witness recognized me as being
[sic] member of the jury; and b) whether or not this
conversation was initiated for my benefit.
So not being able to discern whether or not it was for
my benefit, I thought it was remiss of me as an officer of
.
* * *
9
The juror was identified as Juror #7. N.T., 12/10/12, at 111, 114.
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The Court: Can you tell us what you heard?
word rape. And the next statement was it should be easy
like that.
And then sort of blocked that out, talking to the
minister about my car. We figured out we need to do
something else with the tire and that was the end of it.
The two gentlemen left, the witness got in his car and
left. . . .
The Court: But you did not hear the witness say anything?
The Juror: The witness was not speaking. . . .
The Court: Do you think this incident would effect [sic]
your ability to be a fair and impartial juror?
N.T., 12/10/12, at 110-11, 112-13. Defense counsel moved for a mistrial.
Id. at 120. The court denied the motion. Id.
In the case sub judice, as in Szakal, the court conducted a colloquy to
determine what the juror heard and whether the incident affected her ability
to be fair and impartial. See Szakal, 50 A.3d at 220. Analogous to
Szakal, the comment did not constitute nontestimonial information. See id.
impartial to be credible and denied the motion for a mistrial. See id. We
discern no abuse of discretion. Id. at 218.
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Lastly, Appellant contends the conviction of indecent assault was
against the weight of the evidence. As a prefatory matter, we consider
whether Appellant has preserved this issue for review on appeal.
Pennsylvania Rule of Criminal Procedure 607 provides:
(A) A claim that the verdict was against the weight of
the evidence shall be raised with the trial judge in a
motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3).
Moreover, the comment to the rule clearly establishes that
a
challenge to the weight of the evidence must be
raised with the trial judge or it will be waived.
Failure to challenge the weight of the evidence presented
at trial in an oral or written motion prior to sentencing or
in a post-sentence motion will result in waiver of the claim.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa. Super. 2012) (citations
omitted and emphasis added).
Instantly, Appellant did not challenge the weight of the evidence
before the trial court. Therefore, this issue is waived. See id.Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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