Com. v. Wakefield, M.

J-S27016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE DEWAYNE WAKEFIELD, II :
:
Appellant : No. 1306 WDA 2018

Appeal from the Judgment of Sentence Entered July 12, 2018
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001313-2017

BEFORE: OLSON, J., OTT, J., and COLINS, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 8, 2019

Maurice Dewayne Wakefield, II, appeals from the judgment of sentence

imposed July 12, 2018, in the Blair County Court of Common Pleas, made final

by the denial of post-sentence motions on August 7, 2018. On April 5, 2018,

a jury convicted Wakefield of involuntary deviate sexual intercourse (by

forcible compulsion) (“IDSI”), criminal conspiracy to commit IDSI, aggravated

assault, assault by a prisoner, terroristic threats, unlawful restraint, false

imprisonment, simple assault (causing bodily injury), simple assault (by

physical menace), and reckless endangering another person (“REAP”).1 The

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 Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3123(a)(1), 903, 2702(a)(1), 2703(a), 2706(a)(1),
2902(a)(1), 2903(a), 2701(a)(3), 2701(a)(1), and 2705, respectively.
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trial court sentenced Wakefield to an aggregate term of nine to 18 years’

incarceration. On appeal, Wakefield alleges the trial court erred in failing to

grant a mistrial and raises an admissibility of evidence claim. For the reasons

below, we affirm the judgment of sentence.

The facts and procedural history are as follows. On March 16, 2017, the

victim, C.S., was an inmate at Blair County Prison, when he was transferred

from F Block to E Block due to an internal infraction. At the time of entering

E Block, C.S. had hidden amounts of loose tobacco and cigarettes in his shoes

and rectum. He shared the cigarettes, from his socks, with fellow inmates

throughout the day in exchange for contraband and commissary items. He

also told others he had more but that he had to get it out of his rear.

At approximately 8:30 p.m. that evening, C.S.’s cellmate, F.D.F., had

taken a shower and was returning to his cell when he was approached by

fellow inmates, Allen Grager, Curtis Ramsey, and Zachary Moore. They

grabbed him, threw him to the floor, and then held him down. See N.T.,

4/2/2018, at 104. Moore held a “shank” to F.D.F. and said “he was gonna cut

[F.D.F.]’s throat.” Id. at 105. They told F.D.F. to “give up the shit, give up

[C.S.’s] tobacco[.]” Id. at 104. They believed he was holding it for C.S.

F.D.F. said he did not have the contraband and managed to get away from

the men. Grager, Ramsey, and Moore then left the cell.

Later that night, between 9:00 p.m. and 10:00 p.m., C.S. was watching

television in the cellblock’s common area when another inmate, Dalaun

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Carroll, motioned for him to enter Cell #1. C.S. stood by the toilet in the

corner of the room, while Wakefield, Charles Frank, Grager, and Moore formed

a semi-circle around him. Ramsey, described as a big man, stood at the door.

The men started harassing C.S., demanding that he give up the tobacco, and

saying that removal of the tobacco could be done “the easy way” or “the hard

way.” Id. at 182. Frank even indicated that he preferred “to do it the hard

way.” Id. at 184. C.S. tried to extract the tobacco through peristaltic action

for approximately ten minutes. He noticed that Carroll was walking back and

forth between the cell and speaking with a guard,2 while Grager left to procure

rubber gloves. Grager arrived back with the gloves and handed them over to

Frank, who then put the gloves on. C.S. was removed from the toilet by

Grager and Moore, turned around, and then Frank attempted to find the bag

of tobacco in C.S.’s rectum by using his hand. When Frank was unable to

obtain the contraband, C.S. stated that he felt a hard object being used in his

rectal cavity for several more minutes.3 After the group was still not able to

pull the bag of tobacco from C.S.’s rectum, they punched and kicked him

multiple times, including his head and ribs. His one ear “was split, ripped

almost in half.” Id. at 195. The men also removed C.S.’s shoes and took

____________________________________________

2 Carroll told the guard what the men were up to and indicated the guard
asked for details but did not stop the assault. N.T., 4/3/2018, at 39.

3 It was later determined that two toothbrushes were used, but C.S. did not
identify which of the men violated him with those objects.

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them. Id. at 199. There was blood and feces all over the toilet, on the floor,

and in C.S.’s underwear. Id. at 202. Wakefield threw a towel at C.S. and

told him to clean himself up as well as keep his mouth shut. Id. at 203-204.4

After returning to his cell, C.S. pushed the bag of tobacco out of his rectum

and tossed it over to Cell #9 and Cell #10, where the other men were located.

The following day, one of C.S.’s cellmates helped him seek medical assistance,

and C.S. eventually told police about the assault.

Wakefield and his cohorts were subsequently charged with multiple

offenses related to the incident. The matter proceeded to a jury trial on April

2, 2018, where Wakefield and Frank were tried together. Video surveillance

from the jail was shown to the jury with regard to the two assaults of Schultz

and F.D.F. On April 5, 2018, the jury convicted Wakefield of IDSI, criminal

conspiracy to commit IDSI, aggravated assault, assault by a prisoner,

terroristic threats, unlawful restraint, false imprisonment, two counts of simple

assault, and REAP. On July 12, 2018, the court sentenced Wakefield to the

following: (1) a term of five to ten years’ confinement for the IDSI offense;

(2) a concurrent term of five to 10 years’ imprisonment for the conspiracy

conviction; (3) a consecutive term of three to six years’ incarceration for the

aggravated assault crime; (4) a consecutive term of one to two years’

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4 Another inmate, Kevin Claar, who witnessed part of the incident, described
Wakefield as “the muscle” and “if things got rough, … those were the guys
that took care of things.” N.T., 4/3/2018, at 167.

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confinement for the assault by a prisoner conviction; and (5) concurrent terms

of two years’ probation each for terroristic threats and unlawful restraint. 5

Wakefield filed a post-sentence motion, which was denied on August 7, 2018.

This appeal followed.6

In his first argument, Wakefield contends the trial court should have

granted his post-sentence motion for a new trial due to the fact that the jury

was not informed that they could use their notebooks during co-defendant

Frank’s direct testimony. See Wakefield’s Brief at 11. He points to Frank’s

direct examination testimony, which took place on the third day of trial,7 and

states these statements by Frank “may have caused jurors to reconsider

whether the victim was actually assaulted [by] him[:]”8

[Counsel for Frank]: And when you said [Shutlz] got it; what are
you talking about?

[Frank]: The tobacco in his rectum.
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5 No further penalty was imposed with respect to the remaining convictions.

6 On September 7, 2018, the trial court ordered Wakefield to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wakefield filed a concise statement on September 28, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 26, 2018.

7 Counsel for the co-defendants did not give their opening statements until
after the Commonwealth’s case had rested. Notes were not allowed during
the opening statements. Frank’s testimony took place immediately after
counsel for the co-defendants’ opening statements. The trial court
inadvertently neglected to remind the jury about the use of the notebooks on
Frank’s direct examination. As will be discussed below, no objection was
raised until after Frank’s cross-examination was completed.

8 Wakefield’s Brief at 11.

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[Counsel for Frank]: At any point did you see the tobacco in a
bag or plastic baggie or anything?

[Frank]: Yes at one point and time after he ---- he was pushing
and it was getting really close to --- it was about I want to say --
-- Dalaun Carroll came down I want to say he said it was about
five till [10 p.m.] we only had a couple minutes. [C.S.] stood up
from the toilet and he bent over by himself; nobody held him;
nobody touched him and he turned around; he was so scared this
man would have did anything --- like I’m not happy about what
I’m saying but I’m just telling you the truth the man was so scared
I had him so terrorized that he bent over the sink himself; he was
willing to bend over the sink himself and told me just don’t hurt
me; be gentle and when I looked at him this bag was coming out
of him and it was so big --- it was --- the only zip lock baggies in
the prison are not the little sandwich baggies; they have what they
call an indigent pack for shampoo and stuff; these were gallon zip
lock baggies and this was packed with two four ounce bags of
tobacco and it was coming out and when I seen it, I didn’t touch
it; I couldn’t; I didn’t touch it; I didn’t want to touch it; it was
disgusting; there was crap all over it and I started gagging and I
never touched it.

[Counsel for Frank]: What happened next?

[Frank]: Then we took --- it got close to time and I told him I said
you know what I said just go back to your cell; I said do I have to
walk up with you; you better not tell nothing; this, you know, it’s
all good if you just give me the stuff whenever you said it ---- you
know send it over to my cell and he said okay and he stood up
and you could see he was in pain; the reason he was in pain was
you could tell because the bag was half hanging out of the man
and I told him I said clean yourself up and walk up to your cell.

…

[Counsel for Frank]: Okay at any time did you put your fingers
into [C.S.]’s anus?

[Frank]: Never; when that bag was ---- I mean I bluffed him; I
did say it; I did honestly tell him I was going to but when that bag
was coming out and he turned around like it was just the most
disgusting sight I ever seen.

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[Counsel for Frank]: At any time did you use any instrument,
toothbrush, bottle, anything to insert into his anus?

[Frank]: Never; I never touched him whatsoever.

[Counsel for Frank]: Now you have a long history of criminal
behavior and being incarcerated so you know many people
wouldn’t believe what you say; you’re under oath today is there
anything you want to change about what you told these jurors this
afternoon?

[Frank]: No I’d just like to add one thing about my criminal
history, you know, like I said I’m not proud of what I’ve done, but
one thing about me is I’ve never told on nobody to get a deal; I’ve
never asked for mercy; I’ve always took what my punishment for
what I’ve done, and I have no problem sitting here today from the
day one that these charges were filed for taken my responsibility
for what I’ve done, but there’s charges in here that I did not do
that I do not feel I deserve[] to take time for.

N.T., 4/4/2018, at 145-149. After cross-examination was about to begin, the

tipstaff asked the court if the jurors were allowed to use their notebooks,

which the court answered in the affirmative. See id. at 152.

Wakefield states:

This is key testimony for a denial of the charge of ISDI by the
supposed main actor in the crimes against defendant Frank and
[Wakefield]. No notes by the jury to refer to during jury
deliberations. And no real method agreed to or ordered by the
[t]rial [c]ourt to correct the mistake.

Wakefield’s Brief at 12. He notes the jurors did receive their notebooks in

time for Frank’s cross-examination. Id. at 12-14, citing N.T., 4/4/2018, at

154-12. Wakefield asserts:

[The prosecutor] in his cross-examination injected his theory of
what he assumed transpired in Cell #1 with what he thought may
have happened. If the members of the jury deliberated with their

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notes at hand they only had one half of the testimony to refer
back to – the Commonwealth’s side. Much of [the prosecutor’s]
questions began with the phrase, “you expect this jury to believe,”
which takes Frank’s testimony and throws a negative light on it.
The positive testimony of Frank on direct examination is not there
for the jury to reference. There is no fair way for the jurors to
judge the truthfulness of Frank’s testimony other than their
memories. This puts [Wakefield] at a disadvantage in the jury
room.

Wakefield’s Brief at 14 (citation omitted). Lastly, Wakefield complains:

The other aspect of the notebook mistake is that the Court’s only
solution was to afford a remedy only if the jurors raised the issue
in their deliberations. [N.T., 4/5/2018, at 1-2]. The jurors never
did raise the issue and thus there was nothing that existed to
rectify. But the Court’s remedy is not fair to either [Wakefield] or
Mr. Frank. At a minimum, the Court should have directed that the
jury be given time after his testimony to write notes.
[Wakefield’s] counsel did ask the Court; in chambers, to allow the
jury to have a transcript of Mr. Frank’s testimony in the jury
deliberations. Id. The Court denied this request. However,
another solution should have been available such as reading back
his testimony for the jury before the trial had completed, with the
jurors allowed to take notes of the read-back.

…

In [Wakefield’s] case here, there was no attempt by the Court (or
motions by Defense) to obtain juror’s notebooks to determine
whether the lack of notes may have prejudiced [Wakefield].

Wakefield’s Brief at 14-15.

Pennsylvania Rule of Criminal Procedure 644 governs note taking by

jurors and provides:

(A) When a jury trial is expected to last for more than two days,
jurors shall be permitted to take notes during the trial for their
use during deliberations. When the trial is expected to last two
days or less, the judge may permit the jurors to take notes.

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(1) The jurors shall not take notes during the judge’s
charge at the conclusion of the trial.

(2) The court shall provide materials to the jurors that are
suitable for note taking. These are the only materials that
may be used by the jurors for note taking.

(3) The court, the attorney for the Commonwealth, and the
defendant’s attorney, or the defendant if unrepresented,
shall not request or suggest that jurors take notes,
comment on the jurors’ note taking, or attempt to read any
notes.

(4) The notes of the jurors shall remain in the custody of
the court at all times.

(5) The jurors may have access to their notes and use their
notes only during the trial and deliberations. The notes shall
be collected or maintained by the court at each break and
recess, and at the end of each day of the trial.

(6) The notes of the jurors shall be confidential and limited
to use for the jurors’ deliberations.

(7) Before announcing the verdict, the jury shall return
their notes to the court. The notes shall be destroyed by
court personnel without inspection upon the discharge of the
jury.

(8) The notes shall not be used as a basis for a request for
a new trial, and the judge shall deny any request that the
jurors’ notes be retained and sealed pending a request for a
new trial.

(B) The judge shall instruct the jurors about taking notes during
the trial. At a minimum, the judge shall instruct the jurors that:

(1) the jurors are not required to take notes, and those
jurors who take notes are not required to take extensive
notes;

(2) note taking should not divert jurors from paying full
attention to the evidence and evaluating witness credibility;

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(3) the notes merely are memory aids, not evidence or the
official record;

(4) the jurors who take few or no notes should not permit
their independent recollection of the evidence to be
influenced by the fact that other jurors have taken notes;

(5) the jurors may not show their notes or disclose the
contents of the notes to other jurors until deliberations
begin, but may show the notes or disclose the contents
during deliberations;

(6) the jurors may not take their notes out of the
courtroom except to use their notes during deliberations;
and

(7) the jurors’ notes are confidential, will not be reviewed
by the court or anyone else, will be collected before the
verdict is announced, and will be destroyed immediately
upon discharge of the jury.

Pa.R.Crim.P. 644.

Here, the trial court found the following:

While Rule of Criminal Procedure 644 does not specifically address
whether or not the jurors are permitted to take notes during
opening statements and closing arguments, this Court has always
taken the approach that the note taking would occur during the
taking of evidence only and not during counsels’ arguments. In
this particular case, both defense counsel decided to defer their
opening statements until after presentation of the
Commonwealth’s case in chief. Therefore, the opening
statements of defense counsel did not begin until day three of the
trial. The third day of the trial was April 4, 2018. Just prior to
counsel for co-defendant Charles Frank providing his opening
statement, this Court indicated the following to the jury:

“If [counsel for Frank] chooses [to make an opening
statement,] then you remember what I told you at the
beginning of the trial that the opening statements of the
Commonwealth and defense attorneys are not evidence so
therefore we will not want you to use - you should be putting
your notebooks back in your folder until after the opening

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statement is over with. We’ll only be taking - you will only
be taking notes during the actual testimony so I apologize
for not reminding you of that; I see some of you are doing
that now so anyone who has a notebook should put it in
their envelope until we begin testimony again.”

(Trial transcript, day 3, page 132)

Neither counsel presented an objection to the Court deciding
not to allow the jurors to take notes during the opening statement
of counsel for codefendant Charles Frank. After conclusion of
Charles’s [sic] Frank’s counsel’s opening statement, counsel
began his direct examination of Mr. Frank. At the conclusion of a
sidebar conference that occurred after the direct examination of
Mr. Frank by his counsel, a tipstaff asked the Court in the presence
of the jury whether or not the jurors were allowed to use their
notebooks. It appears to this Court that some of the jurors may
have forgotten that the Court informed them that they could begin
to use their notebooks again once testimony resumed. In
response to the tipstaff’s question, the Court informed the jurors
in open court as follows:

“Yes ladies and gentlemen, you are allowed to use your
tablets now since testimony has resumed for whoever asked
that question okay so during any and all testimony you are
permitted to use the notebooks.”

(Trial transcript day 3, page 152)

At the completion of day three of the trial, the Court excused
the jurors and addressed various matters with counsel outside the
presence of the jury. During this time, counsel for the
Commonwealth and counsel for both Defendants interacted with
the Court concerning the possibility that some of the jurors were
not taking notes during Mr. Frank’s direct testimony (Pages 172-
178). During this interaction, counsel for Mr. Wakefield
specifically requested that the Court have the direct examination
of Mr. Wakefield transcribed and that that transcription be
provided to the jury during their deliberations. Upon that request
from Mr. Wakefield’s counsel, the Court indicated that we would
take the matter under advisement and make a decision prior to
closing arguments. On the morning of day four of the trial, the
Court indicated to counsel that the request for the jury to be
provided a copy of Mr. Frank’s direct testimony during their

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deliberations would be denied. We indicated that we would
reconsider this ruling if the jury asked for any portion of that
testimony. No attorney indicated an objection to the Court’s
decision.

This Court believes that our handling of the “notebook” issue
was appropriate. At the outset, we point out that we had informed
the jurors prior to Charles Frank’s counsel’s opening statement
that they would be able to resume taking notes after the opening
statement was completed. Therefore, this Court does not believe
that we erred simply because some of the jurors may have
misunderstood our instruction. We believe that it was not
appropriate to provide the transcript of the direct examination of
one of the defendants to the jury during their deliberations. We
believe that this would unnecessarily have highlighted this
testimony with the jury as opposed to other testimony. As
indicated, we informed counsel that we would reconsider if the
jury raised any issue during their deliberations on this issue which
did not occur.

Trial Court Opinion, 10/26/2018, at 6-8 (italics removed).

We agree with the trial court’s conclusion. First, counsel for Wakefield

never objected when the tipstaff asked the court if the jury could use their

notebooks during Frank’s testimony. See N.T., 4/4/2018, at 152.9 The issue

was not brought to the court’s attention until after cross-examination was

completed. See id. at 173. Furthermore, counsel for Wakefield did not object

when the court stated it would reconsider its decision if the jury asked for any

portion of the testimony at issue. N.T., 4/5/2018, at 2. We note the following:

“The absence of a contemporaneous objection below constitutes a
waiver of the claim on appeal.” Commonwealth v. Rodriguez,
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9 Counsel for Wakefield also did not request the jury be polled to see if they
needed a recitation regarding Frank’s testimony or an instruction with respect
to the matter. In a related matter, counsel for Frank did not object or make
any requests with regard to the issue. See N.T., 4/4/2018, at 175-176.

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2017 PA Super 364, 174 A.3d 1130, 1145 (Pa. Super. 2017)
(citing Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406,
423 (Pa. 2008)). Our Supreme Court has stated:

[I]t is axiomatic that issues are preserved when objections
are made timely to the error or offense. See
Commonwealth v. May, [] 584 Pa. 640, 887 A.2d 750,
761 ([Pa.] 2005) (holding that an “absence of
contemporaneous objections renders” an appellant’s claim
waived); and Commonwealth v. Bruce, [] 2007 PA Super
4, 916 A.2d 657, 671 ([Pa. Super.] 2007), appeal denied,
[]593 Pa. 754, 932 A.2d 74 ([Pa.] 2007) (holding that a
“failure to offer a timely and specific objection results in
waiver of” the claim). Therefore, we shall consider any issue
waived where Appellant failed to assert a timely objection.

Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 73
(Pa. 2008).

Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019).

Accordingly, Wakefield’s argument is waived for failure to raise a

contemporaneous objection at the time when the note-taking issue was

brought to the court’s and the parties’ attention.

Second, pursuant to Rule 644, neither the court nor the parties can

“request or suggest that jurors take notes, comment on the jurors’ note

taking, or attempt to read any notes.” Pa.R.Crim.P. 644(A)(3).10 Moreover,

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10 We note that Wakefield relies on Commonwealth v. Neff, 860 A.2d 1063,
(Pa. Super. 2004), appeal denied, 878 A.2d 863 (Pa. 2005), for the argument
that “there was no attempt by the Court (or motions by Defense) to obtain
juror’s [sic] notebooks to determine whether the lack of notes may have
prejudiced” him. Wakefield’s Brief at 15. However, Wakefield’s reliance on
that case is misplaced because Rule 644 was amended in 2005, after the Neff
decision. Prior to that time, the then-existing Rule 644 prohibited jurors from
taking notes. The Rule now provides, in pertinent part, that the court “shall

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“the jurors are not required to take notes.” Pa.R.Crim.P. 644(B)(1). As the

court noted, this specific jury was “not a note taking group by majority” and

there were “only a few that … appeared to be even taking any notes[.]” N.T.,

4/4/2018, at 177.

Additionally, Wakefield’s request for relief was that Frank’s direct

examination testimony be provided to the jury during deliberations. See N.T.,

4/4/2018, at 176; N.T., 4/5/2018, at 1. However, pursuant to Pennsylvania

Rule of Criminal Procedure 646(C)(1), a jury is not permitted to have a

transcript of any trial testimony during deliberations. Therefore, the trial court

could not send the transcript of Frank’s direct examination testimony out with

the jury during deliberations.

Lastly, we agree with the court’s rationale that “it was not appropriate

to provide the transcript of the direct examination of one of the defendants to

the jury during their deliberations” and “this would unnecessarily have

highlighted this testimony with the jury as opposed to other testimony.” Trial

Court Opinion, 10/26/2018, at 8. Accordingly, Wakefield’s first argument is

waived and even if it were not, we find it to be meritless.

Next, Wakefield argues the court “abused its discretion by denying his

post-sentence motion for a new trial due to extraneous video evidence of other

____________________________________________

not … attempt to read any notes.” Accordingly, the court in the present matter
would not be permitted to read the jury’s notebooks to determine whether a
lack of notetaking caused prejudice to Wakefield.

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non-participating defendants[’] alleged activities surrounding the alleged

assault of F.D.F. who was in his cell, Cell #7.” Wakefield’s Brief at 15. “We

recognize that ‘[q]uestions concerning the admissibility of evidence lie within

the sound discretion of the trial court, and a reviewing court will not reverse

the trial court’s decision absent a clear abuse of discretion.’” Smith, 213 A.3d

at 309, quoting Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super.

2010) (citations omitted).

However, our review of the record reveals that Wakefield failed to object

to the introduction of the video surveillance evidence concerning the actions

that took place in Cell #7 concerning F.D.F. or the testimony regarding such

evidence. See N.T., 4/2/18, at 2-250; see also Wakefield’s Brief at 15

(Wakefield “did not object to the video evidence of the activities surrounding

Cell #7 during the trial”). Accordingly, Wakefield again failed to properly

preserve this argument for appellate review, and we are constrained to

conclude his second issue is waived. See Smith, 213 A.3d at 309; see also

Pa.R.A.P. 302(a).

Furthermore, even if the issue were not waived, the video surveillance

evidence appears to be admissible under the res gestae exception to Pa.R.E.

404(b) (evidence concerning crimes, wrongs, or other acts) because it was

“relevant to furnish the complete story or context of events surrounding the

crime.” Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013). The video

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surveillance was part of the entire event, demonstrating to the jurors what

transpired in the attempts to obtain the victim’s tobacco.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/8/2019

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