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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DALE HODGES
Appellant No. 1746 WDA 2014
Appeal from the Judgments of Sentence entered September 29, 2014
In the Court of Common Pleas of Erie County
Criminal Division at Nos: CP-25-CR-0002482-2012
and CP-25-CR-0002490-2012
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2015
Appellant Dale Hodges appeals from the judgments of sentence1
entered in the Court of Common Pleas of Erie County (“trial court”),
following his jury conviction for multiple sex crimes against two minors.
Upon review, we vacate and remand for resentencing.
On June 12, 2012, Erie Bureau of Police (“Erie Police”) charged
Appellant with, inter alia, involuntary deviate sexual intercourse with a child
(“IDSI”), aggravated indecent assault, indecent assault, corruption of
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1
To the extent Appellant purports to appeal from the September 29, 2014
order denying his post-verdict motion, which we treat as a post-sentence
motion, we note that in a criminal context, an appeal properly lies from the
judgment of sentence, not an order denying post-sentence motions.
Accordingly, we have corrected the caption to reflect the September 29,
2014 judgments of sentence. See Commonwealth v. Dreves, 839 A.2d
1122, 1125 n.1 (Pa. Super. 2003) (en banc).
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minors, and endangering the welfare of a child (“EWOC”) at docket number
2482-2012 (“First Case”).2 The affidavit of probable cause accompanying
the complaint provided:
On 4-12-12 M.R., juvenile victim (11-19-96), was
interviewed at the Erie [County] [Children’s Advocacy Center
(CAC)] in regards to this incident. The victim disclosed that she
was sexually abused when she was 8 and 9 years of age by
[Appellant]. The victim disclosed that these incidents happened
while she would visit her grandma, [B.M.]. [Appellant] is
[B.M.’s] boyfriend . . . [and] the incidents took place [at their
residence.] The victim disclosed that [Appellant] would come
into her room at night and touch her vagina with his hand. The
victim disclosed that this happened more than one time during
several different incidents. The victim also disclosed that
[Appellant] also licked her vagina with his tongue during some of
these incidents.
Affidavit of Probable Cause, 6/12/12.
Thereafter, on July 2, 2012, Erie Police charged Appellant with the
same crimes as in the First Case at docket 2490-2012 (“Second Case”). The
affidavit of probable cause accompanying the Second Case provided:
On 4-3-12 J.M., juvenile victim (5-27-97), was interviewed at
the Erie Co. CAC in regards to this complaint. The victim
disclosed that she was sexually abused by [Appellant] when she
was between the ages of 7 and 9. The victim disclosed that
these incidents happened while she would visit her grandma,
[B.M.]. [Appellant] is [B.M.’s] boyfriend and they reside
[together] where these incidents took place. The victim
disclosed that [Appellant] would touch her vagina with his
fingers, lick her vagina with his tongue and made her touch his
penis with her hand. The victim disclosed that these types of
incidents happened more than one time when she was between
the age of 7 and 9.
Affidavit of Probable Cause, 7/2/12.
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2
18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), 6301(a)(1), and 4304(a).
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The cases were consolidated for trial. Appellant’s girlfriend, B.M.,
testified that she was accused of child abuse by the Office of Children and
Youth. N.T. Trial, 5/19/14, at 138. B.M. further testified that the accusation
against her was “unfounded” and, therefore, dismissed. Id. at 139. She
testified that six months after the dismissal of the accusations, Appellant
was accused with the instant crimes. Id. On cross-examination, B.M.
clarified that the allegations against her were based only on physical abuse
of children. Id. at 153.
Appellant testified that “there was a point in time when [B.M.] was
accused, and when—as soon as that was gone over, it was three months
later that I got accused.” N.T. Trial, 5/20/14, at 43. On cross-examination,
the Commonwealth asked Appellant whether B.M. was charged criminally for
simple assault as a result of the child abuse allegations against her. Id. at
55. Appellant answered in the affirmative. Id.
To underscore the seriousness of the abuse allegations against B.M.,
the Commonwealth called Ryan Kightlinger, intake investigator at the Office
of Children and Youth, to testify. Id. at 80-81. Kightlinger testified that
B.M. was accused of abusing a six-year-old child in July 2010 and that he
personally observed the injuries on the child. Id. at 81-82. Kightlinger also
testified that B.M. was criminally charged and that the charges were
eventually dismissed. Id. at 82.
Also, during the second day of trial, the court was informed that jurors
had difficulty hearing M.R.’s testimony presented during the first day of trial.
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Id. at 78. The jurors indicated to the trial court that, although they did not
hear all of the testimony, they heard enough to render an impartial verdict.
Id. at 78-79. The trial court resumed trial without objection by the parties.
Following trial, the jury found Appellant guilty of all charged offenses.
On September 25, 2014, more than four months after trial, Appellant
filed a “Post Verdict Motion: Motion for New Trial.”3 He argued that the trial
court abused its discretion in failing to declare a mistrial given the jurors’
inability to hear all of the evidence. Appellant also argued that he was
entitled to a new trial based on after-discovered evidence demonstrating
that B.M. was incapable of physically abusing children.
On September 29, 2014, the trial court conducted a hearing on the
motion at which Appellant failed to present any evidence in support of the
motion. Following the hearing, the trial court denied the motion. On the
same date, the trial court also imposed an aggregate of 5 to 10 years’
imprisonment in the First Case. Specifically, the trial court imposed a
mandatory minimum sentence under 42 Pa.C.S.A. § 9718(a)(1) for IDSI.
With respect to the Second Case, the trial court imposed an aggregate
sentence of 10 to 20 years’ imprisonment to run consecutively with the
sentence imposed in the First Case. Specifically, the trial court imposed a
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3
Although Appellant filed a post-verdict motion, we need not address
whether it implicates our jurisdiction because the instant appeal lies from
the judgment of sentence.
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mandatory minimum sentence of 10 to 20 years in the Second Case under
42 Pa.C.S.A. § 9718(a)(1) for IDSI. In total, Appellant was ordered to serve
15 to 30 years’ imprisonment.
Appellant timely appealed to this Court. Following Appellant’s filing of
a Pa.R.A.P. 1925(b) statement, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant raises two issues for our review. First, he argues
that the trial court erred in failing to declare a mistrial because some
members of the jury could not hear all of the trial testimony. Second,
Appellant argues that the trial court erred in denying his motion for a new
trial based on after-discovered evidence.
Appellant first argues that the trial court erred in failing to declare a
mistrial because some jurors did not hear all of the testimony presented at
trial. We explained in Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super.
2012):
[T]he decision to declare a 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 trial.
Id. at 218 (citation and quotation marks omitted). It is settled that a
defendant is entitled to a jury verdict arrived at by each jurors based upon
the evidence introduced at trial. See Commonwealth v. Greiner, 455
A.2d 164, 166 (Pa. Super. 1983); Commonwealth v. Brown, 332 A.2d
828, 831-32 (Pa. Super. 1974). If, however, one or more of the jurors is
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unable to hear and understand the evidence and testimony presented at
trial, then the verdict must be set aside. Brown, 332 A.2d at 831-32;
Greiner, 455 A.2d at 166-67.
We, however, need not address Appellant’s first argument, because he
has failed to preserve it for appeal. See Pa.R.A.P. 302(a). Under
Pennsylvania Rule of Criminal Procedure 605, relating 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.” Pa.R.Crim.P. 605(B) (emphasis added); see also Szakal, 50
A.3d at 219 (noting that the appellant’s claim was waived because the
appellant waited a substantial period before moving for mistrial); Brown,
332 A.2d at 830 (noting the appellant timely moved for a mistrial); Greiner,
455 A.2d at 166 (observing that the appellant filed a “timely motion for a
mistrial”).
Instantly, the trial transcript reveals that Appellant failed to object
timely to the trial court’s decision to resume trial. In fact, he waited a
substantial period before expressing an objection4 to the trial court’s
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4
We are reticent to characterize as an objection Appellant’s displeasure with
the trial court’s decision to resume the trial following the auditory concerns
raised by the jury, because Appellant at no point actually moved for a
mistrial. As the trial transcript reveals, Appellant indicated to the trial court
only that he was going to seek a mistrial at some point in the future. See
N.T. Trial, 5/20/14, at 96.
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decision to resume the trial after it was informed by its tipstaff that the
jurors were unable to hear the entire testimony presented on the first day of
trial. The transcript reveals:
(whereupon, discussion in chambers concluded at 10:28 a.m.
and the trial reconvened in the courtroom at 10:37 a.m.)
[The trial 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 trial court]: Okay. No, you haven’t?
[Unidentified Juror]: No, several of them.
[The trial court]: Okay. All right. What witnesses were those?
[Unidentified Jurors]: The first young girl that testified, it was
very difficult to hear her.
[The trial court]: Okay. That was yesterday?
[Unidentified Juror]: Yeah.
[The trial 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 trial court]: All right. Correct me if I’m wrong here, what I
hear you saying is is [sic] 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.)
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[The trial 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.
[The trial court]: That’s my next point is going to be from here
on out, we 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.)
[The trial court]: All right. The record should reflect that the
jury has affirmed that. Okay. Mr. Hackwelder [(Appellant’s
counsel)], is there any other defense evidence?
[Appellant’s Counsel]: No, no, Your Honor.
[The trial court]: Okay.
[The trial resumed and three additional witnesses
testified.]
....
(whereupon, the jury was recessed at 10:55 a.m. and the
following discussion occurred in chambers:)
[Appellant’s Counsel]: I thought after thinking about it I should
probably put something on the record about the jury not being
able to hear everything. And I’m a little concerned about the
one lady blurting out, “I have heard enough.” I don’t know what
that means. To be quite honest with you, judge, I don’t know
really what relief I’m requesting here. I’ve just got to note my
concerns on the record. You know, perhaps, you know, I’m
going to request a mistrial on it because they didn’t hear all the
testimony.
[The trial court]: Well, perhaps you’re going to or are you going
to?
[Appellant’s Counsel]: I am going to, I’m going to have to,
judge.
[The trial court]: I understand.
[Appellant’s Counsel]: I have never been encountered with this
situation before.
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N.T. Trial, 5/20/14, at 78-80, 96 (emphasis added).
As the trial transcript indicates, Appellant did not ask for a mistrial
when the trial court first addressed the auditory complaints raised by the
jurors. In fact, Appellant waited until after three additional witnesses—two
for the Commonwealth and one for Appellant—had testified. Thus, because
Appellant did not timely object to the trial court’s decision to resume trial,
we reject his first argument as waived.
Appellant next argues that the trial court erred in denying his motion
for a new trial based on after-discovered evidence. In support of his
argument, Appellant points out that, after trial, he received two letters
authored by B.M.’s physicians that rebut the Commonwealth’s suggestion
that B.M. physically abused children. Appellant argues that the “letters
indicate that [B.M.] would have been physical[ly] unable to commit the
alleged abuse and this evidence exonerated her.” Appellant Brief at 13. In
essence, Appellant seeks to introduce the letters to bolster B.M.’s credibility.
Rule 720, relating to post-sentence procedures and appeal, provides in
pertinent part:
(C) After-Discovered Evidence. A post-sentence motion for a
new trial on the ground of after-discovered evidence must be
filed in writing promptly after such discovery.[5]
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5
Based on our disposition of this issue, we need not express an opinion on
whether Appellant filed promptly a post-sentence motion based on after-
discovered evidence. We observe, however, that in his motion seeking a
new trial, Appellant alleged only that he “recently received two letters from
(Footnote Continued Next Page)
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Pa.R.Crim.P. 720(C) (emphasis added); Commonwealth v. Castro, 93
A.3d 818, 828 (Pa. 2014) (noting that Rule 720(c) requires a motion for
after-discovered evidence to be filed promptly upon the discovery of such
evidence). It is well-settled that to obtain relief, the after-discovered
evidence must meet a four-prong test:
(1) the evidence could not have been obtained before the
conclusion of the trial by reasonable diligence; (2) the evidence
is not merely corroborative or cumulative; (3) the evidence will
not be used solely for purposes of impeachment; and (4) the
evidence is of such a nature and character that a different
outcome is likely. At an evidentiary hearing, an appellant must
show by a preponderance of the evidence that each of these
factors has been met in order for a new trial to be warranted.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation
omitted), appeal denied, 958 A.2d 1047 (Pa. 2008).
Here, based upon our review of the record, we must agree with the
trial court’s conclusion on this issue. Specifically, the trial court correctly
noted that Appellant failed to meet the first prong, i.e., whether the
evidence could not have been obtained before the conclusion of the trial by
reasonable diligence. Indeed, Appellant presented no evidence, whether in
his motion or at the hearing on his motion for new trial, to establish whether
he met the first prong. As the trial court found:
[T]he letters in question were written on November 16, 2010
and November 19, 2010 and therefore existed long before [the
May 19, 2012] trial commenced. Appellant was aware of the
_______________________
(Footnote Continued)
doctors indicating that [B.M.] had significant physical limitations that would
have prohibited her from causing any injury to a child or person.” Post-
Verdict Motion, 9/25/14, at ¶ 25 (emphasis added).
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charges against [B.M.] and brought up the accusation as part of
defense contention that M.R. and J.M. had a motive to lie.
Importantly, these letters were easily accessible to Appellant
prior to trial and therefore do not constitute after-discovered
evidence.
Trial Court Opinion, 12/19/14, at 8. Accordingly, the trial court did not err in
denying Appellant’s motion for a new trial based on after-discovered
evidence.
Finally, our review of the sentencing order reveals that the trial court
imposed upon Appellant mandatory minimum sentences under 42 Pa.C.S.A.
§ 9718(a)(1), relating to sentences for offenses against infant persons.6 In
light of our recent decision in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014), appeal granted, __ A.3d __, 2015 WL 4755651 (Pa. 2015),
however, we must vacate the judgment of sentence and remand this case
for resentencing. See Commonwealth v. Mosley, 114 A.3d 1072, 1087
(Pa. Super. 2015) (noting that where application of a mandatory minimum
sentence gives rise to illegal sentence concerns, even where the sentence is
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6
Section 9718 provides:
(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.
42 Pa.C.S.A. § 9718(a)(1).
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within the statutory limits, legality of sentence questions are not waivable
and may be raised sua sponte by this Court).
In Wolfe, the defendant appealed from an aggregate sentence of 10
to 20 years in prison, imposed after he was found guilty of multiple counts of
IDSI, unlawful contact with a minor, statutory sexual assault, and corruption
of minors. We specifically addressed the constitutionality of 42 Pa.C.S.A.
§ 9718, the same mandatory minimum statute that the trial court applied
instantly. We held that the mandatory minimum sentencing provision of 42
Pa.C.S.A. § 9718(a)(1) was facially unconstitutional even though the
triggering fact was also an element of the offense for which the appellant
was convicted. Wolfe, 106 A.3d at 805-06. Our decision in Wolfe was
anchored in Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013)
(holding that any fact other than a prior conviction that triggers a mandatory
minimum sentence must be found by a jury beyond a reasonable doubt),
and this Court’s decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc) (concluding that the appellant’s sentence was illegal
and striking down 42 Pa.C.S.A. § 9712.1 as unconstitutional) and
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014) (vacating
the judgment of sentence and remanding for resentencing without the
applicable mandatory minimum sentences). Accordingly, we must conclude
that the trial court imposed an illegal sentence in the case sub judice when it
sentenced Appellant under 42 Pa.C.S.A. § 9718(a)(1).
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Judgments of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judge Jenkins joins the memorandum.
Judge Lazarus files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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