Com. v. Taylor, C.

J-S42008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

COREY TAYLOR :

:

Appellant : No. 2177 EDA 2017

Appeal from the Judgment of Sentence June 23, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008064-2014

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.: FILED DECEMBER 09, 2019

Corey Taylor appeals from the judgment of sentence imposed June 23,

2017, in the Philadelphia County Court of Common Pleas. Taylor was

sentenced to an aggregate term of 16 to 32 years’ imprisonment following his

jury conviction of one count each of rape of a child, unlawful conduct with a

minor, and corruption of minors,1 for the sexual assault of his ex-girlfriend’s

then 11-year-old daughter, B.A., in the summer of 2012. On appeal, Taylor

argues the trial court erred by: (1) denying a motion for a mistrial after

improper testimony by two witnesses; (2) denying a motion for judgment of

acquittal when the Commonwealth failed to prove the date of the incident with

sufficient particularity; (2) denying a motion for a new trial after the

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3121(c), 6318(a)(1), and 6301(a)(1)(i), respectively.

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Commonwealth committed prosecutorial misconduct during closing

arguments; (4) denying a motion for the release of juror information; (5)

providing the jury with a misleading supplemental charge; and (6) denying a

motion for a new trial based upon an allegation that a juror conducted

independent, extra-judicial research. For the reasons below, we affirm.

The facts underlying Taylor’s conviction are aptly summarized by the

trial court as follows:

During the summer of 2012, the eleven-year-old victim,

B.A., attended a cookout at [Taylor’s] father’s home. At the time,

[Taylor] was in a relationship with B.A.’s mother. After spending

about an hour at the cookout, [Taylor] drove B.A., her brother and

sister, and his three children to his home located in the city and

county of Philadelphia. The children eventually fell asleep in the

front bedroom.

At some point, [Taylor] awakened B.A. and grabbed her by

the wrist. He walked with her to the middle bedroom and laid her

down on the floor. [Taylor] removed B.A.’s pants and underwear.

While on his stomach, he licked B.A.’s vagina. [Taylor] then

placed his penis inside of her vagina. When B.A. asked [Taylor]

to stop, he replied, “Not yet.” A couple of minutes later, when

B.A. asked again, [Taylor] complied. [Taylor] then went to the

bathroom and returned with a washcloth, which he used to wipe

up B.A.’s vagina. He then gave money to B.A. and threatened to

kill her if she told anyone. B.A. went back to the front bedroom

and fell asleep.

On March 26, 2014, when B.A. was fourteen years old, she

disclosed the abuse to Tiffanie Brown, the assistant preschool

teacher at the Younger Days Daycare Center (“Younger Days”) in

Philadelphia, where B.A. attended an afterschool program. On

March 31, 201[4], Ms. Brown and the director of Younger Days

met with B.A.’s mother to inform her of the allegations. The police

were also notified at this time.

Trial Court Supplemental Opinion, 10/16/2019, at 1-2.

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Taylor was charged with numerous offenses including rape of a child.2

His first jury trial, conducted in August of 2016, ended in a mistrial when the

jury was unable to reach a verdict. His second jury trial commenced on

December 6, 2016. On December 13, 2016, the jury returned a verdict of

guilty on charges of rape of a child, unlawful conduct with a minor, and

corruption of minors. On March 22, 2017, Taylor filed a post-verdict motion

seeking a judgment of acquittal or new trial, which the trial court denied at

the sentencing hearing. He also filed a motion for release of juror information,

based upon an allegation that one of the jurors had conducted independent

research. The court conducted argument on May 15, 2017, and denied the

motion.

On June 23, 2017, the trial court sentenced Taylor to two concurrent

terms of 16 to 32 years’ imprisonment for unlawful contact with a minor and

rape of a child, as well as a concurrent term of two to four years’ imprisonment

for corruption of minors. Taylor was determined not to be a sexually violent

predator under the Sexual Offender Registration and Notification Act (“SORNA

I”),3 but is subject to a lifetime registration requirement as a result of his

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2The majority of the charges were nolle prossed by the Commonwealth before

Taylor’s first trial.

3 See 42 Pa.C.S. §§ 9799.10-9799.42. SORNA I was enacted on December

20, 2011, with an effective date of December 20, 2012. In February of 2018,

it was replaced by SORNA II. See 2018 , Feb. 21, P.L. 27, No. 10, § 5.2, imd.

effective (“Act 10”). On June 12, 2019, Subchapter I, 42 Pa.C.S. §§ 9799.51-

9799.75, was enacted to apply to offenders who, like Taylor, committed a

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conviction of rape of a child. See 42 Pa.C.S. § 9799.55(b)(2)(i)(A).4 Taylor

filed a timely notice of appeal on July 6, 2017.

On July 12, 2017, the trial court ordered Taylor to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

When no concise statement was filed, the court filed an opinion on August 9,

2017, finding all appellate issues waived. See Trial Court Opinion, 8/9/2017,

at 1-2. Thereafter, on October 10, 2017, Taylor’s counsel filed in this Court

an application for remand requesting permission to file a concise statement

nunc pro tunc in the trial court. This Court granted the application on

November 20, 2017, and directed counsel to file a concise statement within

21 days and the trial court to file a supplemental opinion 30 days thereafter.

Counsel complied with our directive and filed a concise statement on

December 11, 2017. The trial court did not file a supplemental opinion.

On June 7, 2018, Taylor filed a pro se motion for substitute counsel.

This Court forwarded the motion to appellate counsel, who filed an application

for remand so that the trial court could conduct a Grazier5 hearing. By order

entered August 20, 2018, we granted counsel’s motion, and remanded the

case to the trial court. Following a November 21, 2018, Grazier hearing, the

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sexual offense on or after April 22, 1996, but before December 20, 2012. See

2018, June 12, P.L. 140, No. 29, § 4, imd. effective (“Act 29”).

4 Because Taylor committed the rape during the summer of 2012 – before the

initial enactment of SORNA I - his registration requirements are set forth in

Subchapter I of SORNA II.

5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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court appointed new appellate counsel. The record was returned to this Court,

and the parties submitted their appellate briefs. However, because the trial

court still had not filed a supplemental opinion, this Court entered an order

sua sponte on August 28, 2019, remanding the record to the trial court, and

directing the trial court to comply with our November 20, 2017, order within

21 days. Upon remand, Taylor’s new counsel filed a nunc pro tunc statement

of matters complained of on appeal. See Nunc Pro Tunc Statement of Matters

Complained of on Appeal, 8/29/2019. The trial court subsequently filed a

supplemental opinion on October 16, 2019.

In his first issue, Taylor argues the trial court erred when it denied his

motion for a mistrial based upon improper testimony by two Commonwealth

witnesses: (1) Dr. Philip Scribano, the Commonwealth’s expert in child abuse

pediatrics, and (2) S.A., the victim’s mother. See Taylor’s Brief at 25-36.

With regard to Dr. Scribano, Taylor contends the witness “impermissibly

invaded upon the domain of the jury” when the doctor opined as to the

credibility of the victim. Id. at 26. During the Commonwealth’s redirect

examination, the following exchange took place:

[Prosecutor:] … Counsel was asking you questions about

behavioral health and the answers that [B.A.] gave to you and she

drew your attention to the fact that she answered no for each one

of those questions. Does that surprise you?

[Dr. Scribano:] No.

[Prosecutor:] Why?

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[Dr. Scribano:] When children – number one, everybody has good

days and bad days and anyone with even trauma, as I believe

[B.A.] had, will have –

[Defense Counsel:] I’ll object and move to strike.

THE COURT: Sustained.

I’m going to direct you to disregard that statement by the doctor.

N.T., 12/8/2016, at 72 (emphasis supplied). Counsel did not request a

mistrial at that time.

As for the victim’s mother, Taylor argues he was denied a fair trial “when

the prosecutor elicited inflammatory testimony,” which had not been disclosed

to the defense before trial. Taylor’s Brief at 36. During her direct

examination, the victim’s mother was asked whether, looking back, the sexual

abuse had an effect on the victim’s life. She responded:

She’s just really in a dark place. Like she walks around the house

with a hoodie on and all you can see is her eyes. She draws the

strings up where all you can see is her eyes. Not too long ago,

she tried to kill herself.

N.T. 12/8/2016, at 112 (emphasis supplied). Defense counsel immediately

objected, but before the court could respond, the victim’s mother continued,

“So my daughter is just in a bad place right now.” Id. The prosecutor then

asked, “Was she like that before when she was younger?” to which the witness

replied, “No.” Id. Defense counsel objected again, and the court sustained

the objection. See id.

When the Commonwealth completed its direct examination, defense

counsel asked for sidebar discussion, and requested a mistrial:

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Your Honor, given the testimony of [S.A.] that was apparently

provided to – the information of which was apparently provided to

the prosecution but was not provided to defense before [S.A.]

testified with regard to [B.A.’s] attempted suicide, at this point, I

would ask for a mistrial. And also given the testimony of the

doctor that he believed that [B.A.] has suffered trauma, those two

things in conjunction at this point, I feel compelled to make that

motion.

Id. at 115. The prosecutor explained to the court that a few days before trial,

S.A. came to her office for trial preparation and “mentioned in passing that

her daughter had tried to take her life in between the last trial and this trial.”

Id. at 116. The prosecutor stated that because she did not ask for details and

took no written notes, she was not “aware this was something [she] needed

to pass to defense.” Id. The trial court denied the motion for mistrial.

However, the court took a brief recess so that both attorneys could speak with

S.A. before determining how to proceed.

Defense counsel then relayed the following to the trial court:

So we just – counsel and I just spoke with [S.A.] in the anteroom

and she indicated that sometime before the last trial, [B.A.] had

an accident at school, which prompted – and she thought she

bumped her head or something, which prompted them to bring

her to the hospital, at which point they were answering or having

her ask -- answer behavioral health questions on a screen. She

indicated to the hospital that she had tried to take a bunch of pills.

Mom was not able to provide any specifics. She said [B.A.] said

she had taken her mom’s pills. [S.A.] said she has a lot of pills

for a lot of different things, didn’t count any, doesn’t know what

pills [B.A.] is supposed to have taken, and at no point did she ever

find [B.A.] under the influence of those pills. She specified that

this would have happened before the last trial because that was

in August, so she knows that it happened while she was in school

and she believes it was sometime in June prior to the last trial.

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Id. at 117-118. Counsel argued the prosecutor should have disclosed the

suicide attempt, and she was “blindsided” by S.A.’s testimony. Id. at 119.

Because the court denied her request for a mistrial, counsel asked the court

to instruct the jury that S.A. did not disclose B.A.’s purported suicide during

her prior testimony. After some further discussion, the court instructed the

jury as follows:

Ladies and gentlemen, there has been a stipulation between

counsel that [S.A.] testified at a previous hearing held in August

2016 and she did not mention any suicide attempt having

occurred with her daughter.

Id. at 122.

As noted above, Taylor asserts the trial court erred when it denied his

request for a mistrial. We review a trial court’s denial of a motion for mistrial

for an abuse of discretion. Commonwealth v. Bedford, 50 A.3d 707, 712

(Pa. Super. 2013) (en banc), appeal denied, 57 A.3d 65 (Pa. 2012). It is well-

settled:

A mistrial is necessary only when “the incident upon which the

motion is based is of such a nature that its unavoidable effect is

to deprive the defendant of a fair trial by preventing the jury from

weighing and rendering a true verdict.” A mistrial is inappropriate

where cautionary instructions are sufficient to overcome any

potential prejudice.

Id. at 712-713 (internal citations omitted). Furthermore, Pennsylvania Rule

of Criminal Procedure 605(B), mandates that a motion for mistrial “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).

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Here, Taylor failed to make a timely request for a mistrial following Dr.

Scribano’s alleged improper testimony. Indeed, defense counsel promptly

objected and moved to strike the doctor’s unsolicited comment that he

believed B.A. suffered “trauma.” N.T., 12/8/2016, at 72. The court sustained

the objection, and directed the jury to disregard the doctor’s statement. See

id. Taylor did not move for a mistrial at that time, but rather waited until

after another witness completed her testimony, and S.A. commented about

the victim’s purported suicide attempt. Accordingly, Taylor’s request for a

mistrial based upon Dr. Scribano’s testimony is waived. See Pa.R.Crim.P.

605(B).6 See also Commonwealth v. Boring, 684 A.2d 561, 568 (Pa.

Super. 1996) (“When an event prejudicial to a defendant occurs at trial, he

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6 We note Taylor does not assert the court should have granted his request

based upon “manifest necessity,” nor do we find such an argument would

prevail. Pa.R.Crim.P. 605(B).

Furthermore, to the extent Taylor relies upon Commonwealth v.

Maconeghy, 171 A.3d 707 (Pa. 2017), we find the facts in that case

distinguishable. First, defense counsel in Maconeghy did not immediately

object to the improper testimony, and when he did the following day, the court

overruled the objection. See id. at 708-709. Here, counsel timely objected,

the court sustained the objection, and the court instructed the jury to

disregard the doctor’s statement. Second, the doctor’s comment in

Maconeghy was clearly improper, as he testified it was his “medical

conclusion that [the] child was victimized” despite the fact there was no

physical evidence of abuse. Id. at 708. Indeed, the doctor’s medical opinion

was based solely on his assessment of the victim’s credibility. Here, however,

Dr. Scribano’s comment that he believed the victim had suffered “trauma” is

not as blatantly prejudicial.

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may either object, requesting curative instructions, or move for a mistrial.”)

(quotation omitted), appeal denied, 689 A.2d 230 (Pa. 1997).

However, Taylor did promptly move for a mistrial after S.A. testified that

B.A. attempted to commit suicide. With regard to S.A.’s testimony, Taylor

argues the Commonwealth violated Pennsylvania Rule of Criminal Procedure

573 because it failed to alert the defense of the victim’s suicide attempt. See

Taylor’s Brief at 32. He insists S.A.’s revelation that B.A. attempted to kill

herself should have been disclosed to the defense as soon as the prosecutor

learned of the information to prevent “trial by ambush.” Id. at 33. Moreover,

Taylor contends the information was “of paramount importance” in adjudging

the victim’s credibility. Id. at 35. He maintains the court’s jury instruction

was insufficient to cure the unfair prejudice he suffered by the

Commonwealth’s failure to disclose the information, which “handicapped” his

ability to prepare an adequate defense. Id. at 36.

In asserting the Commonwealth violated its discovery obligations, Taylor

cites to both Subsections (B)(1)(a) and (B)(1)(f) of Rule 573. See id. at 32-

33. The Rule provides, in pertinent part:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,

and subject to any protective order which the Commonwealth

might obtain under this rule, the Commonwealth shall disclose to

the defendant’s attorney all of the following requested items or

information, provided they are material to the instant case. The

Commonwealth shall, when applicable, permit the defendant’s

attorney to inspect and copy or photograph such items.

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(a) Any evidence favorable to the accused that is material

either to guilt or to punishment, and is within the possession

or control of the attorney for the Commonwealth; [and]

***

(f) any tangible objects, including documents, photographs,

fingerprints, or other tangible evidence[.]

Pa.R.Crim.P. 573(B)(1)(a), (f). Here, the evidence at issue is a statement by

S.A. that the victim attempted suicide sometime after the sexual assault.

Clearly, this statement, which was not written or recorded by the

Commonwealth, does not constitute “evidence favorable to the accused,”

pursuant to Subsection (B)(1)(a), nor is it “tangible” evidence as

contemplated in Subsection (B)(1)(f). Pa.R.Crim.P. 573(B)(1)(a), (f).

Therefore, the trial court properly determined the Commonwealth did not

commit a Rule 573 discovery violation warranting a mistrial.

To the extent Taylor relies upon this Court’s decision in

Commonwealth v. Hanford, 937 A.2d 1094 (Pa. Super. 2007), appeal

denied, 956 A.2d 432 (Pa. 2008), we find the facts of this case distinguishable.

In Hanford, the defendant was convicted of raping his co-worker. Prior to

trial, the Commonwealth obtained, by sealed order, a recording of a jailhouse

phone call between the defendant and a woman who was later called as a

defense witness. Although the defendant requested any transcripts or

surveillance recordings in his discovery request, the Commonwealth did not

provide a copy of the recording before trial. See id. at 1096. During the call,

the witness told the defendant “that she believed he had beaten the

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complainant, but was not sure that he had raped her.” Id. at 1100. When

the witness denied making that statement under cross-examination, the

Commonwealth revealed, for the first time, its possession of the recording, as

well as its intent to introduce the recording as impeachment evidence. The

defendant “had no access to the tape until later that day[.]” Id. On appeal,

the defendant challenged, inter alia, the trial court’s ruling allowing the

Commonwealth to introduce the previously, undisclosed recording into

evidence. Because a panel of this Court concluded the lack of notice

constituted reversible error, the panel vacated the judgment of sentence and

remanded for a new trial. See id. at 1103.

First, we note the discovery at issue in Hanford – a jailhouse recording –

constituted both tangible evidence and the recording of electronic surveillance

as specifically described in Rule 573(B)(1)(f) and (g). See Pa.R.Crim.P.

573(B)(1)(f) (mandating the Commonwealth disclose “any … tangible

evidence), and (g) (mandating the Commonwealth disclose “the transcripts

and recording of any electronic surveillance”). While the panel went on to

discuss the importance of witness credibility in rape cases, the evidence

withheld by the Commonwealth in that case fit squarely within the confines of

evidence that must be disclosed under Rule 573. Moreover, with regard to

the materiality of the recording, the panel noted that if the defendant knew

the Commonwealth possessed the recording, “he might not have called the

witness to testify, or might have changed his line of questioning.” Hanford,

supra, 937 A.2d at 1102.

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Here, the evidence not disclosed by the Commonwealth consisted of the

victim’s mother’s uncorroborated statement that “[n]ot too long ago, [the

victim] tried to kill herself.” N.T., 12/8/2016, at 112. Although the prosecutor

acknowledged the victim’s mother mentioned the incident “in passing” a few

days before trial, the prosecutor did not ask for details and there was no

written statement, notes, or recording to turn over to Taylor. Id. at 116.

Furthermore, after a discussion with the victim’s mother during a court recess,

defense counsel learned the incident purportedly occurred before Taylor’s

first trial, although it was never mentioned during that trial. See id. at 118-

119. Therefore, the court instructed the jury that the victim’s mother

“testified at a previous hearing held in August 2016 and she did not mention

any suicide attempt having occurred with her daughter.” Id. at 122.

We find no error or abuse of discretion in the trial court’s decision to

deny Taylor’s motion for a mistrial. Absent any written statement or

corroborating medical evidence, the Commonwealth had no obligation to

report to the defense the witness’s passing reference to the incident just a few

days before trial. See Pa.R.Crim.P. 573(B). Moreover, Taylor has failed to

demonstrate the court’s cautionary instruction was inadequate to cure any

resulting prejudice. See Bedford, supra, 50 A.3d at 713 (appellate court

may presume the jury followed the court’s cautionary instruction). Therefore,

no relief is warranted.

Next, Taylor argues the trial court erred when it denied his post-trial

motion for extraordinary relief based upon the Commonwealth’s failure to

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“present credible evidence to specify the date on which the alleged offense

occurred.”7 Taylor’s Brief at 37. Relying on Commonwealth v. Devlin, 333

A.2d 888 (Pa. 1975), Taylor contends his constitutional rights were violated

when the Commonwealth was unable to establish “the date of the alleged

offense with sufficient particularity.” Taylor’s Brief at 39. Without a specific

time period to defend, Taylor maintains he could not challenge the victim’s

credibility by showing her behavior after the alleged attack was inconsistent

with having been assaulted, nor could he establish the victim was not at his

home on the date in question. See id. at 40.

It is well-settled that the Commonwealth has a duty to “fix the date

when an alleged offense occurred with reasonable certainty[.]”

Commonwealth v. Einhorn, 911 A.2d 960, 977-978 (Pa. Super. 2006)

(quotation omitted), appeal denied, 920 A.2d 831 (Pa. 2007).

However, “[d]u[e] process is not reducible to a mathematical

formula,” and the Commonwealth does not always need to prove

a single specific date of an alleged crime. Permissible leeway

varies with the nature of the crime and the age and condition of

the victim balanced against the rights of the accused.

Id. at 978 (citations omitted).

In Devlin, the defendant was convicted of sodomizing a 22-year-old

man, who had the mental capability of a six or seven-year-old child. See

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7 This issue was raised in Taylor’s nunc pro tunc concise statement filed on

August 29, 2019. Although the record does not indicate Taylor requested

permission to file a supplemental statement, we note the trial court did cite to

this concise statement when it outlined the issues for appeal. See Trial Court

Opinion, 10/16/2019, at 3-5. Moreover, the court addressed this issue in its

opinion. See id. at 9-11. Accordingly, we find it preserved for our review.

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Devlin, supra, 333 A.2d at 889. The Commonwealth’s evidence established

the incident occurred sometime during a 14-month period while the defendant

was managing the victim’s finances. Furthermore, the defendant presented

evidence that the victim’s friends encouraged him to falsely accuse the

defendant so that he could receive more of his own money. See id. at 889-

890. On appeal, the Supreme Court reversed the defendant’s conviction,

holding: “To defend a charge of conduct occurring anywhere within a

fourteen-month period was, for this [defendant], a fundamentally unfair

burden.” Id. at 891. Conversely, in Commonwealth v. Groff, 548 A.2d

1237, 1242 (Pa. Super. 1988), a panel of this Court found the Commonwealth

provided “constitutionally adequate” proof as to the date of a sexual assault

when the testimony established the defendant molested the six-year-old

victim sometime during the summer of 1985, although no exact date was

established.

In the present case, the trial court found the evidence presented by the

Commonwealth established the date of the offense with sufficient specificity

to allow Taylor to mount a defense. The court opined:

In the present case, B.A. testified that she was eleven years

old when she was sexually abused by [Taylor]. Though she was

unable to identify the time of year or the season, B.A. recalled

that her mother was pregnant at the time. She also agreed that

her mother gave birth to twins on July 19, 2012. However, B.A.

testified that the incident must have occurred closer to September

because [Taylor] claimed the money he gave to B.A. was for

school supplies. Conversely, [the victim’s mother] testified that

the incident took place in late June or early July, at which time

she was eight or nine months pregnant. In light of B.A.’s age at

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the time of the abuse, this time period is not unreasonably

indefinite.

Trial Court Opinion, 10/16/2019, at 11 (record citations omitted).

Upon our review of the record, we agree with the decision of the trial

court. Although B.A. was unable to remember the exact date of the assault,

she did recall she was eleven years old at the time of the incident, and that it

occurred after she attended a cookout with Taylor at Taylor’s father’s home.

See N.T., 12/7/2016, at 62-63, 66. B.A. testified Taylor picked up her and

her siblings at her mother’s house, and drove them all to his father’s home for

the cookout; her mother, who was pregnant at the time with twins, stayed

home. See id. at 66-67. B.A. acknowledged her mother gave birth to twins

on July 19, 2012. See id. at 105. She stated that she thought he was going

to take her back to her mother’s house after the cookout, but Taylor drove all

the children to his house, where the assault later occurred. See id. at 69-70.

Under cross-examination, B.A. stated she thought the incident occurred closer

to the start of school in September, because Taylor told her mother the money

was for school supplies. See id. at 106.

Although she was not an eyewitness to the assault, B.A.’s mother

provided corroborating testimony that the incident occurred during the

summer of 2012. She recalled that Taylor took B.A. and two of her siblings

to a cookout at his father’s home in July of 2012. See N.T., 12/8/2016, at

102-103. She stated she believed he was going to bring the children home

after the cookout, but instead, he took them to his house. See id. at 104.

B.A.’s mother further testified that a few days after the cookout, she noticed

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B.A. had a large sum of money. When she asked B.A. where she got the

money, B.A. told her Taylor gave it to her. See id. at 104, 133-135. B.A.’s

mother then called Taylor, who confirmed he gave B.A. the money “just for

her to have.” Id. at 105. We agree with the trial court that the

Commonwealth established the date of the offense with sufficient particularity

for Taylor to mount a defense. Accordingly no relief is warranted on this claim.

In his third issue, Taylor insists the Commonwealth’s attorney

committed prosecutorial misconduct during closing arguments. See Taylor’s

Brief at 40. Specifically, Taylor contends the prosecutor “repeatedly argued

that the complaining witness’s actions conformed to the actions of all

children.” Id. at 41. He asserts these comments were in violation of a pretrial

order and impeded the jury’s ability to weigh the evidence objectively. See

id. at 43.

When reviewing a claim of prosecutorial misconduct, we must bear in

mind the following:

“A prosecutor has great discretion during closing argument;

indeed, closing ‘argument’ is just that: argument.”

Commonwealth v. Brown, 911 A.2d 576, 580 (Pa.Super.2006).

“[T]he prosecutor must limit his argument to the facts in evidence

and legitimate inferences therefrom.” Commonwealth v.

Gilman, 470 Pa. 179, 368 A.2d 253, 257 (1977) (citation

omitted). However, the prosecutor “must have reasonable

latitude in [fairly] presenting [a] case [to the jury,] and must be

free [to present] his [or her closing] arguments with logical force

and vigor.” Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d

994, 996 (1987) (citation omitted) (internal quotations omitted).

Therefore, “[c]omments by a prosecutor constitute reversible

error only where their unavoidable effect is to prejudice the jury,

forming in the jurors’ minds a fixed bias and hostility toward the

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defendant such that they could not weigh the evidence objectively

and render a fair verdict.” Commonwealth v. Bryant, 620 Pa.

218, 67 A.3d 716, 727 (2013) (internal markings and citations

omitted).

Commonwealth v. Eichinger, 108 A.3d 821, 836 (Pa. 2014). Furthermore,

“[a] prosecutor may make fair comment on the admitted evidence and may

provide fair rebuttal to defense arguments[; e]ven an otherwise improper

comment may be appropriate if it is in fair response to defense counsel’s

remarks.” Commonwealth v. Wholaver, 177 A.3d 136, 175 (Pa. 2018)

(quotation omitted).

In the present case, defense counsel argued several motions in limine

based on events that occurred during Taylor’s first trial in August of 2016.

Relevant herein, counsel alerted the trial court to parts of the

Commonwealth’s opening and closing statements from the first trial that

counsel found to be improper. The following exchange took place:

[Defense Counsel]: Next would be counsel’s line of argument.

This is number six. And, Your Honor, I attached the notes of

testimony from opening and closing as an exhibit.

The first is referring to the defense theory as preposterous

and arguing that counsel – that the defense theory was “Any child

who is in trouble is going to all of a sudden out of nowhere start

writing these disgusting details that they were raped. No child

does that.” I’m just asking that counsel limit their argument to

the case.

THE COURT: Right. You can’t speculate what all children would

do.

N.T., 12/7/2016, at 19-20.

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Taylor contends the following comments during the Commonwealth’s

closing argument violated the court’s pretrial ruling. First, in refuting Taylor’s

assertion that the victim lied about the assault, the prosecutor stated:

[The victim] gets to talk about having his penis inside of her. She

gets to talk about how scared she was. Do you think she gains

any benefit from sitting up there and doing that? What child gets

a benefit out of that?

N.T., 12/8/2016, at 204. Defense counsel objected, but the court did not

enter a ruling. Later in the closing, the following exchange took place:

[Prosecutor]: … What, so now we need proof that this barbecue

even happened? Think about how ridiculous that argument is.

Like, what kid is going to get up here and –

[Defense Counsel]: Objection.

[Prosecutor]: -- make up that she was in an argument – I’m

sorry, at the barbecue? That makes absolutely no sense.

THE COURT: Okay, I’m going to have you stop, [Prosecutor], here

and just – I just want to emphasize that what another child would

do, what another kid would do in this particular incident is not

relevant to this case. It’s what [B.A.] would – what [B.A.] did.

All right, [Prosecutor]. Thank you.

Id. at 214-215. Taylor contends the prosecutor did not heed the court’s ruling

based on the following exchange near the end of her argument:

[Prosecutor]: And, you know, when you look at this case basically

and what the defense has been trying to show you, they’re trying

to grasp at straws because when you’re faced with things like a

child whose life has been forever changed --

[Defense Counsel]: Objection.

THE COURT: Again, it’s only with respect to [B.A.].

[Prosecutor]: Right. And when I say child, I mean [B.A.] because

that’s what what (sic) we heard. …

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Id. at 221-222.

In its opinion, the trial court concluded these comments “did not rise to

the level of prosecutorial misconduct such that the jury was unable to ‘weigh

the evidence objectively and render a fair verdict.’” Trial Court Opinion,

10/16/2019, at 13 (internal punctuation omitted). Furthermore, the court

explained that it “interrupted the assistant district attorney and instructed the

jury that the behavior of other children is not relevant[,]” and “[t]he jury is

presumed to follow the trial court’s instructions.” Id. (citation omitted).

We find no basis to disagree. While the prosecutor’s first two comments

did imply that no child would fabricate an allegation of sexual assault, the

court interrupted the prosecutor’s closing and specifically instructed the jury

that “what another kid would do in this particular incident is not relevant to

this case.” N.T., 12/8/2016, at 214. Moreover, as to the third comment, we

find the prosecutor clarified that she was specifically referring to B.A. when

she talked about “a child whose life has been forever changed.” Id. at 221-

222. Indeed, our review reveals no basis to conclude the “unavoidable effect”

of these brief, isolated comments was to form “in the jurors’ minds a fixed

bias and hostility toward the defendant such that they could not weigh the

evidence objectively and render a fair verdict.” Eichinger, supra, 108 A.3d

at 836 (quotation omitted). Accordingly, Taylor’s third issue fails.

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Next, Taylor contends the trial court issued a misleading supplemental

charge to the jury.8 See Taylor’s Brief at 44. By way of background, on the

third day of deliberations, the jury sent the following question to the court:

“How long are we continuing to deliberate when it’s been consistently stated

that there will not be a group consensus regardless of time?” N.T.,

12/13/2016, at 3. In response, the court provided a Spencer9 charge,

stating, in relevant part:

Ladies and gentlemen, getting a verdict in this case is a matter of

extreme importance to the Court, the Commonwealth, and the

defendant. And, of course, there will be very considerable time,

expense, and anxiety for everyone concerned should I need to

declare a mistrial and start this trial all over again from day one,

which is what will happen if you do not return a verdict.

Id. at 4.

Taylor now claims the supplemental charge misled the jury by not

informing them that “should they remain deadlocked, a new jury would be

selected for the retrial.” Taylor’s Brief at 46. Rather, he insists the court’s

charge implied the same jury would sit for a retrial if a mistrial were granted.

See id. at 46-47. Moreover, Taylor complains the court’s reference to “time,

expense, and anxiety” was not “germane to the jurors’ deliberations.” Id. at

47. Accordingly, he maintains a new trial is warranted.

____________________________________________

8 We will address Taylor’s fourth issue, which challenges the court’s denial of

his request for juror information, with his sixth issue, which concerns the

underlying basis for the request for that information.

9 Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971)

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The trial court found this issue waived because Taylor did not object to

the supplemental charge at the time it was given. We agree. Pennsylvania

Rule of Appellate Procedure 302 expressly requires a defendant to take

“[s]pecific exception” to improper language in a jury charge in order to

preserve the claim for appellate review. Pa.R.A.P. 302(b). The failure to

object to a charge when it is given waives any challenge to that instruction on

appeal. See Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015). See

also Commonwealth v. Garang, 9 A.3d 237, 245 (Pa. Super. 2010) (“Trial

counsel’s failure to object to the jury instruction is fatal to Appellant's claim

that the trial court erred in its charge to the jury.”). Therefore, Taylor’s

challenge to the supplemental charge is waived.

Taylor’s final two claims concern an alleged extraneous influence in the

jury’s deliberations. See Taylor’s Brief at 43-44, 47-49. By way of

background, on December 12, 2016, during the first full day of jury

deliberations, the jurors sent the following question to the court:

Number 2, [Taylor’s] previous convictions were mentioned. Does

he have prior arrest for sex crimes? Is he registered sex offender?

N.T., 12/12/2016, at 3. All parties agreed there was no mention of Taylor’s

prior convictions at trial, although the trial court recalled a witness mentioned

Taylor “went away.” See id. at 3-4. The court instructed the jury, “There

was no mention of previous convictions.” Id. at 5.

On March 22, 2017, Taylor filed a post-verdict motion requesting, inter

alia, a new trial based upon the “likelihood that one or more of the jurors had

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conducted independent research into [Taylor’s] prior convictions (specifically,

his prior conviction for indecent assault)[,]” based upon the jury’s December

12th question. Motion for Judgment of Acquittal and a New Trial, 3/22/2017,

at 9. A month later, Taylor filed a Motion for Release of Juror Information,

seeking permission to “contact the jurors individually” to inquire about the

origin of the question regarding Taylor’s prior convictions, and determine

“whether an evidentiary hearing on the matter is warranted.” Motion for

Release of Juror Information, 4/27/2017, at unnumbered 6. The trial court

denied both motions.

On appeal, Taylor argues the trial court erred when it denied his motion

for release of juror information. See Taylor’s Brief at 43. He insists he has a

“qualified right of access to jurors’ names, but not their addresses” under the

First Amendment of the Constitution. Id. Relying on Commonwealth v.

Long, 922 A.2d 892 (Pa. 2007), Taylor maintains that a trial court may deny

access to juror information only if it makes specific findings on the record

“which demonstrate that confidentiality of the names and address of the jurors

is essential to preserve higher values and is narrowly tailored to serve that

interest.” Id. at 44 (internal punctuation and citation omitted). Moreover,

Taylor contends the jury’s question regarding his prior convictions established

one or more jurors had conducted independent research, which compromised

the jury deliberations and resulted in prejudice. See id. at 47-48. He points

out there was no testimony regarding his prior convictions presented at trial.

See id. at 48. Furthermore, Taylor claims that although S.A. mentioned he

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“went away in November,” that reference was “vague,” and the question

posed by the jury, which specifically mentioned sex offenses, was specific,

evidencing that a jury “conducted independent online research into [] Taylor’s

background.” Id. Because the “content of the extraneous influence was

inflammatory,” Taylor insists the trial court erred when it denied his motion

for a new trial. Id. at 49.

The trial court found these related claims waived. See Trial Court

Opinion, 10/16/2019, at 14. The court explained:

The Pennsylvania Rules of Appellate Procedure state that issues

that are not first raised in the trial court are waived on appeal.

See Pa.R.A.P. 302(a). “Even where a defendant objects to

specific conduct, the failure to request a remedy such as a mistrial

or curative instruction is sufficient to constitute waiver.”

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.

2008). After this Court gave defense counsel’s requested

response to the jury, [i.e., that there was no mention of Taylor’s

prior convictions,] defense counsel did not pursue the matter

further. It was not until [Taylor] filed his motion for a judgment

of acquittal and a new trial on March 22, 2017 that he raised the

alleged juror misconduct, and not until April 27, 2017 that he filed

a motion requesting the jurors’ contact information. Accordingly,

[Taylor’s] claims are waived.

Id.

We agree, and find this Court’s decision in Strunk, supra, instructive.

In that case, after the jury retired to deliberate, the trial court asked if either

counsel wanted anything reflected on the record. See Strunk, supra, 953

A.2d at 580. Defense counsel responded that he wanted “the record to

indicate that tipstaff had to wake Juror Number 10 during the judge’s final

instructions.” Id. The court acknowledged that the juror had closed his eyes,

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but counsel did not request the court replace the juror with an alternate, or

take any further action. See id. at 580-581. When the defendant raised a

claim on appeal that he was denied his Sixth Amendment right to an impartial

jury as a result of the juror’s inattention, a panel of this Court found the claim

waived. The panel opined:

This Court has explained that claims involving alleged juror

misconduct are waived where a defendant merely notes the

alleged misconduct for the record but chooses to forgo further

inquiry in favor of proceeding to verdict. We will not abandon this

standard where the issue involves a sleeping juror. We now hold

that where a juror is allegedly sleeping or otherwise engaging in

conduct that a party finds inappropriate, counsel must do more

than simply ask that the record reflect as much in order to

preserve a claim for appellate review. In order to preserve the

issue for appeal, counsel must take the additional step of

specifically requesting the trial judge to take action to remedy the

situation.

Id. at 581 (internal citation omitted).

Similarly, in Commonwealth v. Milliner, 276 A.2d 520 (Pa. 1971), the

Pennsylvania Supreme Court held the trial court’s denial of the defendant’s

post-trial request for a hearing to determine whether the “jury considered

matters not in evidence in reaching its verdict” was waived. Id. at 522. The

Milliner Court stated:

[Defense] counsel was fully informed about the conversation

between the jury foreman and the court crier before the verdict

was recorded. He made no objection nor did he request that the

jurors be questioned at that time. We have frequently stated that

in the absence of fundamental error, a party may not sit idly by

taking his chances on a verdict, only to appeal if the verdict is

adverse.

Id.

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In the present case, after the jury inquired about Taylor’s prior

convictions, both parties agreed no information regarding his prior convictions

was presented at trial. See N.T., 12/12/2016, at 3. The trial court, however,

noted there was testimony that Taylor “went away.” Id. at 4. The court then

asked Taylor’s counsel how she would like to respond to the jury’s question.

See id. Counsel replied: “There was no mention of previous convictions at

trial.” Id. The court answered the jury’s question as counsel suggested. See

id. at 5. At no time before the jury reached its verdict did Taylor request

further inquiry concerning the underlying basis for the jury’s question. Rather,

Taylor raised the issue for the first time in a post-verdict motion filed three

months after the verdict, and petitioned to question the jurors a month later.

Taylor had no more information concerning the purported extraneous

influence at that time than he did when the question was first asked.

Accordingly, we conclude Taylor’s final two claims are waived.10 See Milliner,

supra; Strunk, supra.

____________________________________________

10 We find Taylor’s reliance on Long is misplaced. Indeed, the appellant in

that case was a newspaper whose reporters requested the names and

addresses of jurors in a criminal trial during jury deliberations. See Long,

supra, 922 A.2d at 895. After several hearings, the court denied their

request. See id. On appeal, the Supreme Court concluded: (1) there is a

“constitutional right of access” jurors’ names, but not their addresses, and (2)

the trial court erred in summarily denying the newspaper’s request without

“specific findings demonstrating that there is a substantial probability that an

important right will be prejudiced by publicity and that reasonable alternatives

to closure cannot adequately protect the right.” Id. at 901, 906. Clearly, the

request for juror information was made in a timely manner and not waived as

in the case before us.

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Because we have found all of the issues raised by Taylor on appeal are

either meritless or waived, we affirm the judgment of sentence.11

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/19

____________________________________________

11 As noted supra, Taylor is subject to lifetime registration as a sex offender

as a result of his conviction of rape of a child. Because he committed this

offense after April 22, 1996, but before December 20, 2012, his registration

requirements are set forth in Subchapter I of SORNA II, enacted on June 12,

2018. Recently, in Commonwealth v. Moore, ___ A.3d ___, ___, 2019 PA

Super 320, *9 (Pa. Super. 2019), a panel of this Court held that the internet

dissemination provision set forth in Section 9799.63 of SORNA II violates the

federal ex post facto clause and is, therefore, unconstitutional. Nevertheless,

the panel also found that the “Internet provisions of SORNA II are severable

from the rest of the statutory scheme.” Id. Taylor should receive the benefit

of the Moore decision upon his registration as a sex offender. Furthermore,

we note that the constitutionality of Subchapter I is currently on appeal before

the Pennsylvania Supreme Court. See Commonwealth v Lacombe, 35 MAP

2018 (argued Nov. 20, 2019).

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