J-S43039-19
2019 PA Super 308
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY LEE MEREDITH :
:
Appellant : No. 1937 MDA 2018
Appeal from the Judgment of Sentence Entered September 21, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004246-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED: OCTOBER 15, 2019
Appellant Terry Lee Meredith appeals the judgment of sentence entered
by the Court of Common Pleas of Dauphin County after he was convicted of
Involuntary Deviate Sexual Intercourse (IDSI) and Strangulation. Appellant
argues that the trial court erred in (1) finding a child witness competent to
testify and (2) refusing to grant a mistrial based on his father’s contact with
one of the jurors. After careful review, we affirm.
Appellant was charged with IDSI, Strangulation, and False
Imprisonment in connection with the July 20, 2017 assault of Alicia Suarez
(“the victim”). Before trial commenced, Appellant indicated that he wished to
proceed pro se. After conducting a colloquy to assess Appellant’s waiver of
his right to counsel, the trial court permitted Appellant to represent himself
and appointed standby counsel.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43039-19
The following factual background was developed at trial: At the time of
the instant offenses, the victim and Appellant were romantically involved and
lived together with the victim’s two children, twelve-year old C.W. and six-
year old M.S. The couple had dated in high school and had recently
reconnected through social media.
The victim recalled that, in July 2017, Appellant had become controlling
and abusive. On July 20, 2017, Appellant confronted the victim with
allegations that she had appeared in a pornography video. The victim claimed
that Appellant repeatedly slapped her with an open palm, choked her, kicked
her, verbally assaulted her, and threw her into the bedroom. The victim feared
Appellant had taken her firearm as he kept reaching for his pocket.
Thereafter, Appellant entered the bedroom and found the victim lying
on her stomach. Appellant straddled the victim, pulled her pants down, spit
on his penis, forced his penis into her anus, and ejaculated inside of her.
Appellant continued to beat her up and then told her to take a shower. The
victim saw her twelve-year-old son, C.W., watching as Appellant choked her.
The next day, the victim told Appellant that she needed to go to the
hospital as she was spitting blood. Appellant agreed, demanded that she tell
hospital personnel that she fell down the stairs, and called 9-1-1 to report that
the victim fell down the stairs. C.W. also told the police that the victim fell
down the stairs. When the victim was out of the home and safely away from
Appellant, she revealed to a female paramedic that she had been beaten,
strangled, and raped.
-2-
J-S43039-19
Responding officers and attending medical personnel testified to various
physical signs that corroborated the victim’s account that she had been
attacked and raped. Detective Ashley Baluh noticed the victim was visibly
upset and had abrasions on her face, eye, lips, and thigh. In addition,
Detective Baluh noted a handprint-shaped bruise on the victim’s leg that
looked like a “palm and fingertips.” Notes of Testimony (N.T.), 6/25/18 -
6/28/18, at 145. Jodi Yocum, a registered nurse, performed a sexual assault
examination and also discovered injuries to both of the victim’s thighs and two
small tears in the victim’s rectum. N.T. at 180-83.
C.W. was found to be a competent witness and permitted to testify at
trial. C.W. indicated that at the time of the incident, he lived with his mother,
younger brother, and Appellant. C.W. recalled that on that day, the victim
and Appellant had a big argument about a “porn video.” N.T. at 293. C.W.
indicated that he saw Appellant choke the victim and put his arms around the
victim’s neck. On cross-examination, the defense presented the jury with a
portion of the C.W.’s videotaped interview at the Children’s Resource Center.1
The prosecution also presented two recorded phone calls that Appellant
made from prison, in one of which Appellant admitted to choking the victim.
At the conclusion of trial, the jury convicted Appellant of IDSI and
Strangulation, but acquitted him of False Imprisonment. On September 21,
____________________________________________
1 Neither Appellant nor the trial court provided this Court with any detail in
regard to C.W.’s testimony in the CRC interview. While the video recording
was played for the jury, the exhibit was not placed in the certified record
before this Court.
-3-
J-S43039-19
2018, the trial court sentenced Appellant to an aggregate term of 13 to 26
years’ imprisonment followed by three years of state supervised probation.
Appellant was read his post-sentence rights and again indicated his desire to
represent himself.
On October 1, 2018, Appellant filed a pro se post-sentence motion. On
October 29, 2018, the Commonwealth filed a response. On November 7,
2018, the trial court denied Appellant’s post-sentence motion. On November
19, 2018, Appellant filed a pro se notice of appeal.
On November 23, 2018, Appellant filed a pro se “Application Form for
the Assignment of Counsel.” The trial court appointed the Dauphin County
Public Defender’s Office to represent Appellant. Thereafter, Appellant filed a
counseled Concise Statement of Errors Complained of on Appeal pursuant to
the trial court’s direction for Appellant to comply with Pa.R.A.P. 1925(b).
Appellant raises two issues for our review on appeal:
I. Did not the [trial] court err in denying [Appellant’s] request
for a hearing to prove that a Commonwealth witness, a
minor, was incompetent to testify because he had a
“tainted” recollection under the standards adopted by the
Pennsylvania Supreme Court in Delbridge I and Delbridge
II?
II. Did not the trial court err in denying [Appellant’s] motion for
mistrial when there was a reasonable likelihood of prejudice
stemming from a third party’s contact with some of the
jurors and the entire jury panel’s ensuing discussion of
safety concerns?
Appellant’s Brief, at 6.
-4-
J-S43039-19
We first review Appellant’s claim that the trial court erred in finding C.W
to be competent to testify at trial. Specifically, Appellant asserted that C.W.’s
recollection was tainted, as he allegedly changed his testimony after hearing
a conversation between his mother and his grandmother. We are guided by
the following principles:
Our standard of review recognizes that “[a] child's competency to
testify is a threshold legal issue that a trial court must decide, and
an appellate court will not disturb its determination absent an
abuse of discretion.” Commonwealth v. Washington, 554 Pa.
559,
722 A.2d 643, 646 (1998) (citation omitted) (emphasis
added). Our scope of review is plenary. Commonwealth v.
Delbridge (“Delbridge II”), 580 Pa. 68,
859 A.2d 1254, 1257
(2004).
Every witness is presumed competent. Pa.R.E. 601(a). A party
who challenges the competency of a minor witness must prove by
clear and convincing evidence that the witness lacks “the minimal
capacity ... (1) to communicate, (2) to observe an event and
accurately recall that observation, and (3) to understand the
necessity to speak the truth.” Commonwealth v. Delbridge
(“Delbridge I”), 578 Pa. 641,
855 A.2d 27, 40 (2003).
The Pennsylvania Supreme Court has defined “taint” as “... the
implantation of false memories or distortion of actual memories
through improper and suggestive interview techniques[.]” Id. at
30, 35. Within the three-part test described above, “[t]aint speaks
to the second prong ..., the mental capacity to observe the
occurrence itself and the capacity of remembering what it is that
the witness is called upon to testify about.” Id. at 40 (citation
omitted, emphasis in original, brackets omitted).
In discussing testimonial competency, Pennsylvania courts have
clearly and unequivocally stated that taint is only “a legitimate
question for examination in cases involving complaints of sexual
abuse made by young children.” Delbridge I, 855 A.2d at 39
(emphasis added). When a witness is at least fourteen years old,
he or she is entitled to the same presumption of competence as
an adult witness. Rosche v. McCoy, 397 Pa. 615,
156 A.2d 307,
310 (1959). In Commonwealth v. Judd,
897 A.2d 1224
-5-
J-S43039-19
(Pa.Super. 2006), appeal denied, 590 Pa. 675,
912 A.2d 1291
(2006), this Court held that because the juvenile sexual assault
victim “was fifteen years old when she testified at trial ..., any
issue with her ability to correctly remember the events in question
is properly a question of credibility not of taint.” Judd, 897 A.2d
at 1229 (emphasis added). Further, the concerns underlying the
three-part test for evaluating the testimonial competency of
minors “become less relevant as the witness's age increases,
ultimately being rendered totally irrelevant as a matter of law by
age fourteen.” Id. (emphasis added). In Commonwealth v.
Moore, 980 A.2d 647 (Pa.Super.2009), this Court reiterated that
the critical age for purposes of conducting a taint hearing is not
the age at the time of the crime but the age at the time of trial.
Moore, 980 A.2d at 648, 652 (where the minor witness was
thirteen at the time of the crime but fourteen at the time of trial,
the witness “did not require a competency hearing. Any issues
regarding [the witness]'s observation of the incident in question
is a question of credibility and does not implicate taint.... [prior
decisions of the Pennsylvania courts] preclude a competency
hearing for [a] fourteen-year-old....”).
Commonwealth v. Pena, 31 A.3d 704, 706–707 (Pa.Super. 2011).
In this case, the trial court conducted a competency evaluation of C.W.,
who was twelve at the time of the crime, but thirteen years old at the time of
Appellant’s trial. In response to the trial court’s questioning, C.W.
demonstrated to his ability to communicate with the judge, his capacity to
recall previous events such as his previous birthday and Christmas holiday,
his understanding of the difference between the truth and a lie, and his respect
for the value of the truth. Based on this colloquy, the trial court concluded
that C.W. was competent to testify.
Further, Appellant was given ample latitude to cross-examine C.W. with
respect to his ability to correctly remember the events in question. When
Appellant asked C.W. if his mother told him what to say during his testimony,
-6-
J-S43039-19
C.W. responded that she told him “just to tell the truth and what happened.”
N.T. at 277. C.W. denied that his mother told him the types of questions that
he would be asked at trial. Appellant also questioned C.W. as to whether he
overheard any conversation between his mother and grandmother about
Appellant. The defense was also permitted to show the jury C.W.’s video
recorded testimony that he gave at the Children’s Resource Center.
The issue of whether C.W. had the ability to correctly recall the events
at issue was a question of credibility to be resolved by the jury, not a question
of whether C.W. was competent to testify. See Pena, supra. As such, we
conclude that the trial court did not abuse its discretion in finding that C.W.
was competent to testify as a witness in this case.
Appellant also claims the trial court should have granted a mistrial after
learning that Appellant’s father had contact with one of the jurors. We are
mindful of the following principles:
A defendant has the right to have his or her case heard by
a fair, impartial, and unbiased jury and ex parte contact
between jurors and witnesses is viewed with disfavor.
Commonwealth v. Brown, 567 Pa. 272,
786 A.2d 961,
972 (2001).
There is, however, no per se rule in this Commonwealth
requiring a mistrial anytime there is improper or inadvertent
contact between a juror and a witness. See
Commonwealth v. Mosley, 535 Pa. 549,
637 A.2d 246,
249 (1993) (declining to adopt per se rule which would
require disqualification of juror anytime there is ex parte
contact between that juror and witness). Whether such
contact warrants a mistrial is a matter addressed primarily
to the discretion of the trial court. Brown, 786 A.2d at 972
(citation omitted). A trial court need only grant a mistrial
where the alleged prejudicial event may reasonably be said
-7-
J-S43039-19
to have deprived the moving party of a fair and impartial
trial. Commonwealth v. Fletcher, 561 Pa. 266,
750 A.2d
261, 282 (2000) (citation omitted).
Commonwealth v. Tharp, 574 Pa. 202,
830 A.2d 519, 532–533
(2003). Additionally, the burden is on the party claiming
prejudice. Commonwealth v. Sneed, 616 Pa. 1,
45 A.3d 1096,
1115 (2012).
Commonwealth v. McCamey,
154 A.3d 352, 355 (Pa.Super. 2017).
In McCamey, this Court recognized that such considerations are also
applicable when “the potentially prejudicial contact is between a juror and a
person other than a witness.” Id. at 355 n.2 (citation omitted). In that case,
this Court affirmed the trial court’s decision that there was no basis for a
mistrial after Juror #3 reported that three unknown men outside the district
attorney’s office indicated that she should remember “guilty, guilty, guilty.”
Id. at 355-56. The trial court found this communication did not compromise
the jury as Juror #3 claimed she could keep an open mind and decide the case
based on the evidence and the other jurors confirmed on the record that they
could remain impartial.
In the instant case, Appellant’s father approached one of the jurors at
the end of the first day of trial. The interaction occurred when the jurors were
walking from the courthouse to the parking garage at the end of the first day
of trial. Juror #10 indicated that she saw a man approach Juror #9 and
identify himself as Appellant’s father; she did not hear any more of the
substance of the conversation. Juror #9 had actually been dismissed from
the jury panel that day for an unrelated reason, as he had revealed that he
knew one of the witnesses in the trial.
-8-
J-S43039-19
Alternate Juror #1, who had replaced Juror #9, also witnessed the
interaction and overheard Appellant’s father state that he was a minister and
that he was glad Juror #9 was “a friend of my son.” N.T. at 215. While this
interaction caused the jurors to have a general discussion amongst
themselves about their safety, none of the jurors claimed that the interaction
in question caused them to fear for their own safety. Thereafter, each juror
was questioned individually by the trial court, and all jurors indicated that they
could be fair and impartial.
Based on the relevant facts, we find that Appellant did not show that
the innocuous interaction of Appellant’s father with a juror deprived him of a
fair and impartial trial. As a result, we conclude that the trial court did not
abuse its discretion in refusing to grant a mistrial on this basis.
For the foregoing reasons, we affirm.
Judgment of sentence affirmed.
Judge Dubow joins the opinion.
P.J.E. Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2019
-9-
