J-S03010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WALTER JOHN SARVIS,

Appellant No. 2717 EDA 2016

Appeal from the Judgment of Sentence Entered July 7, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004990-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 04, 2018

Appellant, Walter John Sarvis, appeals from the judgment of sentence 

of an aggregate term of 171⁄2 to 35 years’ incarceration, imposed after he 

was convicted of aggravated indecent assault of a child and related offenses.

On appeal, Appellant alleges, inter alia, that the trial court erred by denying 

his motion to strike a prospective juror for cause, thus forcing him to use a 

preemptory challenge to remove that individual from the jury pool. After 

careful review, we vacate Appellant’s judgment of sentence and remand for 

a new trial.

The trial court summarized the facts and procedural history of this 

case, as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court.
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This case stems from [Appellant’s] sexual abuse of a 10-

year-old girl (“Victim”) that occurred on an ongoing basis for 

over a year. [Appellant] was previously in a relationship with 

[V]ictim’s mother. During this time, and beyond the termination 

of the relationship, [Appellant] resided in the house with mother, 

her two sons[,] and [Victim]. When ... [V]ictim was in fourth and 

fifth grade, her mother would leave for work very early in the 

morning before the children went to school. ... [V]ictim’s two 

brothers would then leave for school, as the middle school 

started earlier than ... [V]ictim’s elementary school. [Appellant]

would then be alone in the house with Victim and would require 

her to go down to his bedroom in the basement and undress. 

[Appellant] sexually abused ... [V]ictim, as he fondled ... 

[V]ictim’s chest and genitals, penetrated ... [V]ictim’s vagina with 

his fingers and made ... [V]ictim fondle his penis.

In May of 2015, when [V]ictim was in fifth grade, her class 

was shown a video on inappropriate touching and related 

matters. Victim became visibly upset during this video, at which 

point she left the room and her teacher saw her in the hall and 

took her to the counselor’s office. Victim explained what

[Appellant] had been doing to her, and the proper school 

reporting methods for suspected abuse were initiated. At that 

point, a criminal investigation began as well as investigations by 

Children and Youth Services (“CYS”) and the Child Advocacy 

Center. Victim made statements [that] consistently detailed the 

sexual abuse she endured at the hands of [Appellant].

On February 11, 2016, [Appellant] was found guilty by a 

jury of three counts of Aggravated Indecent Assault of a Child, 

three counts of Indecent Assault of a Person Less than 13 years 

of age, one count of Corruption of Minors, and one count of 

Endangering Welfare of Children. On July 7, 2016, following [a 

Sexually Violent Predator (SVP)] Hearing o[n] June 16, 2016, []

Appellant was sentenced to an aggregate term of confinement of 

17.5 to 35 years, Tier III Megan’s Law Registration and was 

deemed a[n] [SVP]. On July 14, 2016, [] Appellant filed a 

“Motion for Reconsideration of Sentence[.”] On July 27, 2016, 

the [c]ourt issued an [o]rder [d]enying [Appellant’s] Motion for 

Reconsideration of Sentence. On August 25, 2016, [] Appellant 

filed a timely Notice of Appeal. This [c]ourt directed [] Appellant 

to file a Concise Statement of [Errors] Complained of on Appeal 

pursuant to Pa.R.A.P. 1925(b). Following a request for [an] 

extension and the filing of a Statement of Matters Complained of 
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on Appeal, on December 14, 2016, Appellant filed an Amended 

Concise Statement of Matters Complained of on Appeal....

Trial Court Opinion (TCO), 7/19/17, at 1-2 (footnotes omitted).

Herein, Appellant presents two issues for our review:

[I.] Did the [t]rial court err in denying the motion of defense 

counsel to strike for cause Juror #17 at [j]ury selection who 

reported to the court that he was a coworker of two of the 

witnesses to be called to testify and that he would have a 

predisposition to believe them?

[II.] Did the [t]rial court err in finding [Appellant] to be a[n] 

[SVP] as defined at 42 Pa.C.S.[] § 9799.12 because the 

Commonwealth failed to establish by clear and convincing 

evidence that due to a mental abnormality or personality 

disorder he is likely to engage in predatory[,] sexually violent 

offense[s] pursuant to 42 Pa.C.S.[] § 9799.24?

Appellant’s Brief at 5.

Appellant first challenges the trial court’s denial of his motion to strike 

a prospective juror (hereinafter “Juror 17”) for cause, after that juror 

informed the court that he knew two witnesses who would be testifying for 

the Commonwealth. Juror 17 testified, upon further questioning, that he 

believed those two witnesses were ‘trustworthy,’ and he could not be certain 

that he would not give greater weight to their testimony, as compared to 

witnesses he did not know. After this testimony, Appellant moved to strike 

Juror 17, which the court denied, thus forcing Appellant to use a peremptory 

challenge to excuse Juror 17. Appellant then exhausted his remaining 

peremptory challenges. He now argues that he was wrongfully deprived of 

the peremptory challenge used to strike Juror 17 and, thus, he was denied 

his right to a fair and impartial jury.
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After careful consideration of Appellant’s arguments, the record before 

us, and the case law on which Appellant relies, we are constrained to agree 

that Appellant is entitled to a new trial. We begin by recognizing that

[a] criminal defendant’s right to an impartial jury is explicitly 

guaranteed by Article I, section 9 of the Pennsylvania 

Constitution, Pa. Const. Art. I, § 9. The jury selection process is 

crucial to the preservation of that right. The relevant principles 

governing the examination of veniremen to assess their 

impartiality are set forth in this Court’s decision in 

Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983):

It must be remembered the purpose of the voir dire

examination is to provide an opportunity to counsel to 

assess the qualifications of prospective jurors to serve. 

Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 

(1973); Commonwealth v. Lopinson, 427 Pa. 284, 234 

A.2d 552 (1967), vacated and remanded 392 U.S. 647, 88 

S.Ct. 2277, 20 L.Ed.2d 1344, appeal after remand, 449 Pa. 

3, 296 A.2d 524, cert. denied, 411 U.S. 986, 93 S.Ct. 

2269, 36 L.Ed.2d 963 (1973); Commonwealth v. 

McGrew, 375 Pa. 518, 100 A.2d 467 (1953). It is 

therefore appropriate to use such an examination to 

disclose fixed opinions or to expose other reasons for 

disqualification. [] Johnson, supra; Commonwealth v. 

Swanson, 432 Pa. 293, 248 A.2d 12 (1968), cert. denied

394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); [] 

Lopinson, supra; [] McGrew, supra. Thus the inquiry 

must be directed at ascertaining whether the venireperson 

is competent and capable of rendering a fair, impartial and 

unbiased verdict. [] Johnson, supra; [] Lopinson, 

supra; [] McGrew, supra. The law also recognizes that 

prospective jurors were not cultivated in hermetically 

sealed environments free of all beliefs, conceptions and 

views. The question relevant to a determination of 

qualification is whether any biases or prejudices can be put 

aside upon the proper instruction of the court. 

Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 

(1977); [] Johnson, supra.

Id. at 588, 459 A.2d at 320.
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A challenge for cause to service by a prospective juror 

should be sustained and that juror excused where that juror 

demonstrates through his conduct and answers a likelihood of 

prejudice. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 

811 (1985). The decision whether to disqualify a venireman is 

within the discretion of the trial court and will not be disturbed 

on appeal absent a palpable abuse of that discretion. [] Colson, 

supra; Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 

255 (1973); Commonwealth ex rel. Fletcher v. Cavell, 395 

Pa. 134, 149 A.2d 434 (1959); Commonwealth v. Pasco, 332 

Pa. 439, 2 A.2d 736 (1938); Commonwealth v. Gelfi, 282 Pa. 

434, 128 A. 77 (1925).

Commonwealth v. Ingber, 531 A.2d 1101, 1102–03 (Pa. 1987).

In this case, Juror 17 indicated that he knew two of the 

Commonwealth’s witnesses in this case, Tom Sherbinko, a teacher, and 

Catherine Mallam, a guidance counselor.1 N.T. Jury Voir Dire, 2/8/16, at 68. 

Juror 17 explained that he had worked with Mr. Sherbinko and Ms. Mallam at

the school where they taught. Id. Juror 17 was thereafter questioned, and 

answered, in pertinent part, as follows: 

THE COURT: Regarding the witnesses you knew, these teachers 

you just mentioned, do you have any social experience with 

____________________________________________

1 At trial, Tom Sherbinko testified that he is Victim’s teacher, and he 

observed her sobbing in the hallway after seeing a classroom video about

inappropriate touching. See N.T. Trial, 2/9/16, at 157. When Mr. Sherbinko 

asked Victim what was wrong, she said, “that’s what my stepdad does to 

me.” Id. at 158. Mr. Sherbinko then notified Catherine Mallam, the school 

guidance counselor, about Victim’s remark. Id. at 166. Ms. Mallam testified 

that she spoke with Victim privately and Victim told her that her ‘stepdad,’

whom she identified as Appellant, “touches her in a way that makes [her] 

feel uncomfortable.” Id. at 179. Victim elaborated that Appellant touches 

“her chest area and her crotch.” Id. Ms. Mallam then notified the school 

principal and the school social worker. Id.
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them in a positive or negative way that would affect your ability 

to be fair and impartial?

[Juror 17]: Not that I know of. I[] don’t believe so, no.

THE COURT: So you’d be able to evaluate their testimony if they 

testified either way fairly and if they didn’t prove their case you’d 

be able to return a verdict of not guilty, and if they did prove 

their case --

[Juror 17]: Yeah. I mean, I know them to be trustworthy 

individuals, and as I said, as long [as] I’ve known them so --

...

THE COURT: And you had answered that you knew them to be 

trustworthy. Would you be able to give that not any greater 

weight because you know them, that you would treat them as 

any other witness?

[Juror 17]: It’s hard to say. It’s hard to say, because, again, I 

do know them and other witnesses I would not know so I would 

hope that I could be impartial but I mean, it’s up to you guys to 

decide. I mean, I do know them, known them for many years.

THE COURT: Okay. So you’d give them the same test of 

credibility that you’d give any other witness on the stand?

[Juror 17]: I would like to think I would.

THE COURT: All right. Any other questions?

...

[Defense Counsel]: So how long have you known Tom 

[Sherbinko]?

[Juror 17]: I’ve known them both for I’d say maybe 15 to 20 

years.

...

[The Commonwealth]: You mentioned that you find the 

witnesses to be trustworthy and it’s hard to say whether you 

would give their testimony greater weight, right?

[Juror 17]: As a witness I would not know.

[The Commonwealth]: That’s your honest opinion?
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[Juror 17]: Yes.

...

THE COURT: Let me make sure I understand your final answer. 

You’re not going to give them any greater weight as a witness?

[Juror 17]: I would think I would not but again, because I know 

them and I believe them to be trustworthy --

[The Commonwealth]: But is it correct to say you don’t know 

whether you can or cant?

[Juror 17]: I would say – I can’t say I’m sure that I wouldn’t.

[The Commonwealth]: That’s your honest answer?

[Juror 17]: Yes.

THE COURT: Do me a favor. Just stand over there for a second. 

Juror 17: Sure.

[Sidebar discussion outside Juror 17’s presence.]

THE COURT: What’s your feeling on [Juror 17]?

...

[Defense Co-Counsel]: Judge, he said he doesn’t know if he can 

be fair and impartial. He said --

THE COURT: I heard him say that he would try and be fair and 

impartial.

[Defense Counsel]: Well, I’m sure he would try. Of course he 

would try.

[Defense Co-Counsel]: He said his final answer was, he wasn’t 

sure.

[Juror 17 recalled to the stand.]

THE COURT: ... We’re having [a] little [inaudible], because you 

know the witnesses --

[Juror 17]: I’m wavering in my answers.
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THE COURT: I asked you a number of questions, and I asked 

you do you socialize [with the witnesses], and you told me you 

don’t socialize with them?

[Juror 17]: Right. I have not socialized with them.

THE COURT: Now, the real question is, are you going to give 

them greater weight because you think they’re trustworthy 

because they’re teachers, because you know them. You don’t 

know them personally, you don’t socialize with them. You have 

to be able to, if somebody cross-examines them, you doubt their 

credibility, would you be able to say you know, I don’t quite 

believe you, and that’s really where we’re at, okay? Their 

testimony may be fine but it may be subject to crossexamination or [it] might not be. For the defense attorneys, 

they have to be able to be sure that if they have proven their 

testimony to be unworthy, not credible, that you’d be able to not 

believe their testimony. If that was the case, you wouldn’t 

believe them just because they were teachers --

[Juror 17]: Right. That’s correct. Yes, I would not believe them 

just because they’re teachers and I worked with them, but the 

question you asked me was, would I give them more weight 

than, you know, somebody that I know, that I believe them to 

be trustworthy from my experience with them. I think I would 

probably give them more weight than someone I didn’t know.

[Defense Counsel]: Sure. You have a predisposition to believe 

them.

[Juror 17]: Right. I would base my belief on the testimony.

[The Commonwealth]: Would you be able to put all of your prior 

experiences with them out of your mind and just think about 

how they testified, what they said, how they said it, were they 

believable on the stand in this trial?

[Juror 17]: Yes, I believe I would. 

THE COURT: You know, just similar to the police question I ask 

people, a lot of people like police, a lot of people don’t like 

police, but the people that like police, we always ask that 

[inaudible] the fact that someone is a police officer, we give 

them no greater weight nor less weight, and that’s really the 

question here. Do you think that again you would evaluate them 
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fairly and not give them more credibility just because they’re in 

the teaching profession and you think that [inaudible]?

[Juror 17]: I think I would evaluate them fairly. I think I could. 

I believe I would.

N.T. Trial at 69-76. 

At the conclusion of this questioning, defense counsel moved to strike 

Juror 17 for cause, stressing that “[t]he big issue is that [Juror 17] said that 

he would give [the two witnesses’] testimony more weight.” Id. at 78. The 

court replied, “No, he didn’t. No, he didn’t. We questioned that and went 

over that. You’re going to have to use a peremptory [strike]. I note your 

objection.” Id. Appellant ultimately used a peremptory strike to remove 

Juror 17 from the jury pool, and he also utilized all of his remaining 

peremptory strikes in formulating the final jury panel. 

Appellant now claims on appeal that the trial court abused its 

discretion by denying his motion to strike Juror 17. Appellant stresses that

the juror informed the court that he believed two of the Commonwealth 

witnesses were trustworthy, and indicated “that he would be likely to find 

them more credible than other witnesses.” Appellant’s Brief at 10. 

Appellant argues that this case is comparable to Commonwealth v. Penn,

132 A.3d 498 (Pa. Super. 2016), where this Court remanded for a new trial 

after the trial court refused to strike a juror who exhibited a predisposition to 

believe a police officer. After reviewing Penn, and the case on which Penn 

relies, Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982), we 

are compelled to agree with Appellant.
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We begin with Johnson, where during voir dire, a prospective juror 

exhibited emotional distress and wavered on whether he could be fair and 

impartial, because his daughter had been the victim of a rape and robbery 

that had similar facts as in Johnson’s case. When questioned about whether 

he could be fair, the juror made remarks like, “I think it would be difficult[,]” 

and “I’m wondering if I am able to do it.” Johnson, 445 A.2d at 512-13 

(citation to the record and emphasis omitted). The juror also repeatedly 

stated that he was surprised by his strong emotional reaction, and he

indicated that he might not have “full control” when following the court’s 

instructions in the case. Id. at 513. 

Based on this record, the Johnson panel concluded that the juror 

should have been excused for cause. We stressed that the juror 

vividly demonstrated during voir dire that he would ... likely not 

... be an impartial juror. He not only visibly manifested 

emotional distress but specifically expressed substantial doubts 

about his ability to be impartial at least five times. Although he 

acknowledged that “logically” he could separate the robbery and 

rape of his daughter from the robbery of [Johnson’s] victims, he 

added at once that “emotionally, I can see that I don’t have full 

control.” 

Id. at 514. We also concluded in Johnson that the juror’s “eventual 

assurance to the court that he would ‘[b]e fair’ did not dispel the force of 

these admissions.” Id. (citation omitted). We added: 

This is particularly so in view of the court’s questions, which [the 

juror] may well have understood as suggesting that his proper 

response, and the response desired by the court, was to say, 

despite his doubts, that he would be an impartial juror. It is not 

the court’s function to persuade a prospective juror to put aside 
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doubts expressed, and explained, as earnestly as [this juror’s] 

were.

Id. Thus, we held in Johnson that the trial court abused its discretion by 

not striking the juror, and that the error was not harmless, given that 

Johnson was “forced to use one of his peremptory challenges to excuse” the 

juror, and he “exhaust[ed] his peremptories before the jury was seated....” 

Id. Accordingly, we awarded Johnson a new trial. Id. 

Relying on Johnson, we reached the same outcome in Penn. There, 

a prospective juror, R.Z., conveyed to the court during voir dire that she had 

previously worked in law enforcement, and that her boyfriend was a police 

officer. Penn, 132 A.3d at 500. Accordingly, the following questioning of 

R.Z. took place:

[[Penn’s] Attorney]: So you’re pretty steeped in law 

enforcement?

A: Yes.

[[Penn’s] Attorney]: You would be more likely to believe the 

testimony of a police officer?

A: Yes.

...

[[Penn’s] Attorney]: So you're going to have to hear from two or 

three police officers in this case. And you—because of your own 

personal experience in working in law enforcement, you would 

give them credibility, extra credibility simply because they are 

police. And there are no right or wrong answers. Would it be 

hard for you not to believe them?

A: I feel like I would be more inclined to believe them, yes.

[[Penn’s] Attorney]: I have nothing else....
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[The Commonwealth]: What it comes down to though, the Judge 

would tell you that you can't give them any more weight or 

credibility. You would be instructed to do that. Do you think you 

could follow the instruction and not raise them up because of 

their position?

A: Yes.

...

[The Commonwealth]: Obviously your relationship with your 

boyfriend, would that—and the testimony of there being police 

officers in this case, would you be able to be fair and impartial?

A: I would think so, yes.

[The Commonwealth]: Follow up?

[[Penn’s] Attorney]: Well, when you—well, when you say you 

think so, I mean, basically the entire Commonwealth case is 

going to be testimony from the police officers. Would it be 

difficult for you to just not believe them because of your 

experience? I mean, you’ve been a police officer, you’ve worked 

with police, you're dating a police officer. I presume you have a 

certain attachment to this profession.

A: Correct.

[[Penn’s] Attorney]: I'm not going to offend you in any way if I 

am—I apologize, but would it be difficult to not—kinship to the 

police to cause for you not to be able—

A: I think it all comes down to evidence, testimony. So as long 

as I’d—

[[Penn’s] Attorney]: If they got up there and said, we don't 

know anything and we didn't see anything, I would understand, 

but if they testify to facts which you believe would be enough to 

convict, would it be hard for you not to believe them because of 

your experience? Would you, as you said before, you would be 

inclined to believe them?

A: (Nods head [in the affirmative].)

[[Penn’s] Attorney]: I know it’s based on the evidence.

A: Right.
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[[Penn’s] Attorney]: But there would be an inclination on your 

part, because of your experience, to be more likely to credit their 

testimony?

A: I mean—again, I think it comes down to the evidence though.

Penn, 132 A.3d at 500-01 (some brackets added).

In holding that R.Z. should have been stricken for cause, we stressed 

that, like the juror in Johnson, R.Z. “initially indicated that she was 

incapable of ‘rendering a fair, impartial and unbiased verdict.’” Id. at 504. 

We also relied on the fact that R.Z. “unequivocally testified during voir dire

that she ‘would be more likely to believe the testimony of a police officer,’ 

thus indicating that [she] was biased in favor of the police and the 

Commonwealth.” Id. Also similar to the juror in Johnson, “R.Z.’s admitted 

bias in favor of the police rested on a firm bedrock,” given R.Z.’s prior 

employment in law enforcement, and that her boyfriend was a police officer. 

Id. at 505. Finally, the Penn panel concluded that,

as in Johnson, R.Z. eventually testified that she would be able 

to follow the trial court’s instructions and render a “fair and 

impartial” decision. However, in the case at bar, almost 

immediately after R.Z. testified that she would be able to “be fair 

and impartial,” R.Z. again testified that, “because of [her] 

experience[,] ... [she] would be inclined to believe” the police. 

Therefore, as we held in Johnson, we hold in the case at bar 

that “[R.Z.’s] eventual assurance to the [trial] court that [she] 

would ‘be fair’ did not dispel the force of [her] admissions” of 

bias.5 Johnson, 445 A.2d at 514. 

5 R.Z.’s declaration that “it comes down to the evidence” 

also did not dispel her admissions of bias, given that R.Z.’s 

admitted view of the evidence was that police officers were 

entitled to more credibility. 
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Id. (emphasis in original). Given that Penn had used a peremptory strike to 

excuse R.Z., and then exhausted his remaining peremptory challenges, the 

Penn panel granted him a new trial. Id. 

In light of Johnson and Penn, we are compelled to likewise grant 

Appellant a new trial in this case. Here, Juror 17 repeatedly stated that he 

believed that Mr. Sherbinko and Ms. Callam were trustworthy, and he 

indicated at least four times that he would be likely to give their testimony 

greater weight than other witnesses he did not know. He also explicitly 

confirmed that he had a “predisposition to believe them.” N.T. Jury Voir Dire

at 75. As in Johnson and Penn, Juror 17 exhibited a clear bias in favor of 

these Commonwealth witnesses. The testimony of these witnesses was an 

important piece of the Commonwealth’s case, as it involved Victim’s first 

reports of abuse by Appellant. Also similar to Johnson and Penn, Juror 

17’s bias in favor of the Commonwealth rested on a ‘firm bedrock’ of his 15 

to 20 year relationship with Mr. Sherbinko and Ms. Callam. 

Moreover, as in Johnson, the court’s questioning of Juror 17 was 

inappropriate in this case. The court effectively cross-examined Juror 17 in 

an attempt to elicit the court’s desired answers. It continuously disregarded 

Juror 17’s wavering about whether he could be fair and impartial, and it 

refused to accept the juror’s statements that he would give greater weight to 

the testimony of the two Commonwealth witnesses. As set forth supra, “[i]t 

is not the court’s function to persuade a prospective juror to put aside 

doubts expressed, and explained, as earnestly as [this juror’s] were.” 
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Johnson, 445 A.2d at 514. Because here, the court did just that, we

conclude that any remarks by Juror 17 that suggested he could be fair and 

impartial “did not dispel the force of [his] admissions” that he was 

predisposed to believing the testimony of these two Commonwealth 

witnesses.2

Finally, as we held in Johnson and reiterated in Penn, “we must 

conclude that the error [of not striking Juror 17 for cause] was not harmless: 

‘[w]here, as here, a defendant is forced to use one of his peremptory 

challenges to excuse a prospective juror who should have been excused for 

cause, and then exhausts his peremptories before the jury is seated, a new 

trial will be granted.’” Penn, 132 A.3d at 505 (quoting Johnson, 445 A.2d 

____________________________________________

2 We point out that in the trial court’s Rule 1925(a) opinion, it cursorily 

states, without any discussion, that Johnson, and our Supreme Court’s 

decision in Ingber, “differ[] greatly” from the present case. TCO at 6. The 

court then declares that Appellant’s case “is more akin to [Commonwealth] 

v. W.P., 691 WDA 2016, 2017 WL 1380759, at *1 (Pa. Super. Apr. 17, 

2017)[,] wherein our Superior Court affirmed the trial court’s decision to 

deny Defendant’s motion to strike potential jurors for cause where 

Defendant was on trial for charges relating to sexual assault of a child.” TCO 

at 6. While our review of W.P. demonstrates that it is clearly distinguishable 

from the present case, even if it were not, W.P. is an unpublished 

memorandum decision. “An unpublished memorandum decision shall not be 

relied upon or cited by a Court or a party in any other action or proceeding, 

except that such a memorandum decision may be relied upon or cited (1) 

when it is relevant under the doctrine of law of the case, res judicata, or 

collateral estoppel, and (2) when the memorandum is relevant to a criminal 

action or proceeding because it recites issues raised and reasons for a 

decision affecting the same defendant in a prior action or proceeding.” 

Superior Court Internal Operating Procedures, § 65.37(A). 
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at 514). Therefore, we are compelled to vacate Appellant’s judgment of 

sentence and remand for a new trial.3

Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished.

Judge Panella joins this memorandum.

President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/18

____________________________________________

3

In light of our disposition, we need not address Appellant’s challenge to his 

SVP designation, as that sentence is now vacated.