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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

MELVIN IRVIN DAVIS, No. 497 EDA 2017 

Appellant 

Appeal from the Judgment of Sentence, August 22, 2016, 

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No. CP-51-CR-0015706-2013 

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2019 

Melvin Irvin Davis appeals from the August 22, 2016 judgment of 

sentence entered in the Court of Common Pleas of Philadelphia County 

following his convictions in a jury trial of unlawful contact with minor 

(relating to sexual offenses), corruption of minors, indecent assault 

(complainant less than 13 years of age), and rape of a child.' The trial court 

imposed an aggregate sentence of 25 to 50 years of imprisonment. We 

affirm. 

The trial court set forth the following: 

Complainant, A.G., lived with her mother and sister 

. . . in Philadelphia, Pennsylvania. At that time, A.G. 

was 9 and 10 years old. Because the home was 

located close to West Mill Creek Playground, A.G. 

' 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(ii), 3126(a)(7), and 3121(c), 

respectively. 
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went there almost every day to play with her friends. 

While playing at the park, A.G. met a girl named 

[A.], who was [appellant's] niece. [A.] invited A.G. 

to [appellant's] house on Parrish Street, which is also 

located near the park. While [A.] was upstairs using 

the bathroom, [appellant] told A.G. she was pretty, 

then approached A.G. and pulled down her pants; 

she asked him to stop and [appellant] said no. He 

then proceeded to pull down her underwear and 

licked her "private part." A.G. stated that she had 

contact with [appellant] on several occasions, and 

that she was inside of his Parrish Street residence 

during many of those times. 

Following that incident and on several other 

occasions, [appellant] gave A.G. money after 

performing oral sex on her. [Appellant] only gave 

money to her after he licked her private part. A.G. 

also testified that [appellant] penetrated her with his 

penis on several occasions. In one instance, A.G. 

was sitting on the couch, at which point [appellant] 

pulled down her pants and her underwear, then 

penetrated her with his penis while saying "oohs and 

aahs." She testified that [appellant] also used his 

fingers to penetrate her vagina, and that it was 

"really scary" and hurt her. She stated that this 

occurred more than one time. Finally, A.G. testified 

that [appellant] gave her money several times after 

"licking [her] private parts.["] However, A.G. did not 

tell anyone about [appellant's] behavior, as he 

threatened that that [sic] if she were to tell anyone, 

he would kill her family. 

Trial court opinion, 12/21/17 at 2-3 (record citations omitted; some brackets 

in original). 

Following appellant's convictions, 

[s]entencing was deferred for the preparation of a 

Mental Health Report, presentence investigation 

report ("PSI") and a report by the Sex Offenders 

Assessment Board ("SOAB report"). On August 22, 

2016, [appellant] filed a motion for Extraordinary 

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Relief and a motion to vacate the child advocate. 

Both motions were denied. On that same date, 

[appellant] was sentenced to 20-40 years for Rape of 

a Child to be served consecutively with 5-10 years 

for Unlawful Contact With a Minor. [Appellant] was 

also sentenced to 3 1/2 to 7 years for Corruption of 

Minors and Indecent Assault.[2] On September 1, 

2016, [appellant] filed a Post -Sentence Motion. The 

motion was denied by operation of law on January 3, 

2017. On February 1, 2017, [appellant] filed a 

timely notice of appeal. On June 9, 2017, the [trial] 

court issued an order pursuant to Pa.R.A.P. 1925(b) 

directing counsel to file a Statement of Matters 

within twenty-one days from the date of the order. 

[Appellant] filed a 1925(b) statement on June 27, 

2017. 

Id. at 1-2 (record citations omitted). 

Appellant raises the following issues for our review: 

[1.] Did not the trial court err and abuse its 

discretion when it denied [appellant's] motion 

for mistrial, in violation of his rights to due 

process and a fair jury trial under the state and 

federal constitutions, when it was discovered 

during jury deliberations that spectators had 

coached a child complaining witness during her 

testimony, as such misconduct was prejudicial 

and was not discovered by parties until after 

the close of trial, thus preventing effective 

remedy such as complete cross-examination? 

[2.] Did not the trial court err and abuse its 

discretion when it replaced juror number 

twelve with an alternate juror after 

deliberations had begun where evidence was 

insufficient to establish that juror number 

twelve could not fulfill his duties and the trial 

court failed to thoroughly question the 

2 The record reflects that the sentences imposed for the unlawful contact 

with minor and corruption of minors convictions were to run concurrently 

with the consecutive sentences. 

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alternate or to properly instruct the 

reconstituted jury, thereby further prejudicing 

[appellant] and violating his rights to due 

process and a fair jury trial? 

Appellant's brief at 3. 

With regard to the denial of mistrials, the following 

standards govern our review: 

In criminal trials, the declaration of a 

mistrial serves to eliminate the negative 

effect wrought upon a defendant when 

prejudicial elements are injected into the 

case or otherwise discovered at trial. By 

nullifying the tainted process of the 

former trial and allowing a new trial to 

convene, declaration of a mistrial serves 

not only the defendant's interests but, 

equally important, the public's interest in 

fair trials designed to end in just 

judgments. Accordingly, the trial court is 

vested with discretion to grant a mistrial 

whenever the alleged prejudicial event 

may reasonably be said to deprive the 

defendant of a fair and impartial trial. In 

making its determination, the court must 

discern whether misconduct or 

prejudicial error actually occurred, and if 

so, . . . assess the degree of any 

resulting prejudice. Our review of the 

resulting order is constrained to 

determining whether the court abused its 

discretion. 

Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012), 

appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). "The remedy 

of a mistrial is an extreme remedy required 'only when an incident is of such 

a nature that its unavoidable effect is to deprive the appellant of a fair and 

impartial tribunal.' Id. at 878 (citations omitted). 

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To obtain relief on a claim that the trial court abused 

its discretion in responding to spectator conduct at 

trial, appellant must show that the spectator's 

actions caused actual prejudice or were inherently 

prejudicial. Commonwealth v. Philistin, 565 Pa. 

455, 774 A.2d 741, 743 (Pa. 2001); see Carey v. 

Musladin, 549 U.S. 70, 73, 127 S. Ct. 649, 166 L. 

Ed. 2d 482 (2006). The U.S. Supreme Court has 

held it is still an open question as to whether 

spectator versus state conduct can be inherently 

prejudicial. Carey, 549 U.S. at 76 (citing Holbrook 

v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 

2d 525 (1986)). The trial court has discretion to 

determine whether a party was prejudiced by a 

spectator's conduct. Philistin, 774 A.2d at 743; 

Commonwealth v. Bracey, 541 Pa. 322, 662 A.2d 

1062, 1072 (Pa. 1995). The trial court may 

implement any appropriate remedy requested, 

including offering a remedial instruction, removing 

the responsible spectator, or declaring a mistrial. 

See, e.g., Bracey, 662 A.2d at 1072; 

Commonwealth v. Johnson, 542 Pa. 384, 668 

A.2d 97, 104-05 (Pa. 1995); Commonwealth v. 

Styles, 494 Pa. 524, 431 A.2d 978, 980-81 (Pa. 

1981). "[U]nless the unavoidable effect of the 

incident is to deny the defendant a fair trial, there is 

no error." Philistin, 774 A.2d at 743; Johnson, 

668 A.2d at 104. 

Commonwealth v. Sanchez, 36 A.3d 24, 47 (Pa. 2011). 

Furthermore, the law does not presume that spectator conduct is 

inherently and irremediably prejudicial. Id. An appellant must develop 

factual or legal support in favor of a finding of actual prejudice. See id. 

Appellant first complains that the trial court abused its discretion in 

denying its motion for a mistrial when, during jury deliberations, it was 

discovered that four jurors observed spectators "coaching" A.G. during her 

testimony and, according to appellant, a mistrial was required because "it 

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was too late for the defense to effectively combat such misconduct through 

cross-examination or argument, or even for the [trial court] to offer [an] 

effective curative instruction." (Appellant's brief at 12.) 

The record reflects that during deliberations, the jury submitted the 

following question: "Are we to consider the reactions of members of the 

audience?" (Notes of testimony, 5/3/16 at 78.) The trial court's answer to 

the question was, "No." (Id.) The jury later submitted the following: "It 

was observed by members of the jury that members of the audience were 

coaching [A.G.] during her testimony. That's why we want to know if their 

reactions are to be considered." (Id. at 93-94.) Appellant then moved for a 

mistrial, which the trial court denied. (Id. at 94.) The trial court then 

summoned the foreperson, Juror No. 6, into chambers because the trial 

court saw the: 

Id. at 97. 

place: 

need to ascertain what they're referring to. Because 

someone could be making a face that has nothing to 

do with -- remember, there were people in this 

audience that had nothing to do with this case, 

nothing, that were audience [sic], and they may 

have reacted to something because of what they 

heard, and that could be perceived that way. So 

that's what I'm saying. We need to see what they're 

talking about before we jump ahead of ourselves and 

conclude that it's coaching when it could be a 

reaction, something they saw in the audience from 

people who have nothing to do with anything. 

When the foreperson arrived in chambers, the following colloquy took 

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THE COURT: Concerning Question No. 4, it was 

observed by members of the jury that members of 

the audience were coaching [A.G.] during her 

testimony, that's why we want to know if her 

reactions are to be considered, now, what are you 

referring to? 

JURY FOREPERSON: A couple members of the jury 

said they saw whoever was sitting in the audience -- THE COURT: Who in the audience, like on what 

side? 

JURY FOREPERSON: Wherever that group was that 

was sitting back in the audience while [A.G.] was 

testifying, they were, like, nodding to her or trying to 

coach her in some kind of way. 

THE COURT: Well, how -- that's what we're trying to 

get at. What did you observe? 

JURY FOREPERSON: I didn't observe it. 

THE COURT: You didn't observe it? 

JURY FOREPERSON: No, a couple other members. 

THE COURT: So you didn't see anything? 

JURY FOREPERSON: I did not. 

THE COURT: Okay. 

JURY FOREPERSON: And a lot of us did not. We 

were focused on the witness. 

THE COURT: Okay. Without saying -- do you know 

what numbers, who observed -- JURY FOREPERSON: No, because we're not sitting in 

order. We're just sitting around the table throwing 

things back and forth. 
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THE COURT: Okay. But you're saying you didn't 

observe anything? 

JURY FOREPERSON: I did not. 

Id. at 99-100. 

The trial court then excused the jury foreperson, summoned each juror 

into chambers individually, and asked each juror whether he or she had 

observed any behavior from the audience. (Id. at 101-109.) In addition to 

the foreperson (Juror No. 6), Juror Nos. 2, 3, 4, 5, 8, 10, and 11 answered 

in the negative. (Id. at 99-108.) 

Juror No. 1 responded that he or she had observed "three people that 

walked out with [A.G.]" who were shaking their heads at A.G. during her 

testimony. (Id. at 102.) When the trial court asked whether that 

observation would affect Juror No. l's ability to be fair and impartial, 

Juror No. 1 stated that he or she was "still considering everything" and that 

the observation was not "making or breaking my decision." (Id. at 103.) 

Juror No. 7 responded that he or she saw two women "smiling and 

nodding" during A.G.'s testimony. (Id. at 105.) Juror No. 7 further stated 

that his or her observation would not affect the juror's ability to be fair and 

impartial. (Id.) 

Juror No. 9 responded that he or she noticed "some people just, like, 

nodding their head and smiling" during [A.G.'s] testimony and that it "could 

have been just, like, reassuring." (Id. at 106.) Juror No. 9 stated that what 

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he or she observed would not affect the juror's ability to be fair and 

impartial. (Id. at 106-107.) 

Juror No. 12 responded that he3 saw "two ladies" that were "shaking 

their head[s]" during [A.G.'s] testimony. (Id. at 108.) Juror No. 12 further 

stated that his observation would affect his ability to be fair and impartial 

because he felt "they were coaching the witness." (Id. at 109.) 

Juror No. 12 added that the observation "made me sick to my stomach." 

(Id.) 

After the trial court excused Juror No. 12 from chambers, defense 

counsel again moved for a mistrial. (Id. at 109-110.) In denying the 

motion, the trial court explained that: 

[o]nly four people said they saw something. All 

three of them indicated it had no effect on them, 

that they could be fair and impartial, except the last 

one. There's only one person that said he felt it 

made him sick to his stomach, and we're talking 

about nodding and smiling. That's what the behavior 

was. 

Id. at 111. 

Subsequently, the trial court voir dired Juror No. 13, an alternate, 

who stated, among other things, that he4 had followed the trial court's final 

instructions to the jury, was able to proceed as an impartial and unbiased 

juror, and did not observe any behavior in the audience. (Notes of 

3 A reading of the transcript reveals that Juror No. 12's gender is male. 

4 A reading of the transcript reveals that Juror No. 13's gender is male. 

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testimony, 5/4/16 at 12-13.) The trial court then removed Juror No. 12 and 

replaced him with Juror No 13. (Id. at 13-14.) The trial court then 

instructed the reconstituted jury to disregard past deliberations and start 

deliberations anew. (Id. at 14-15.) 

Appellant complains that the trial court abused its discretion in denying 

his motion for a mistrial because "prejudice was established, and it was too 

late for effective curative action or remedy" because he could not 

cross-examine A.G. with respect to the alleged spectator coaching. 

(Appellant's brief at 24-26.) In order to establish prejudice, however, 

appellant must demonstrate that he was denied a fair trial. See Sanchez, 

36 A.3d at 47. Stated differently, appellant's bald assertion that "prejudice 

was established" is not enough; rather, appellant must show how the trial 

court's remedy of replacing Juror No. 12 with Juror No. 13 denied him a fair 

trial. Appellant has failed to do so. 

The record clearly reflects that three of the four jurors who observed 

spectator behavior stated that their observations would not affect their 

ability to be fair and impartial. (Id. at 102-103, 105-107.) Only 

Juror No. 12 stated that he could not be fair and impartial. (Id. at 108.) 

The trial court properly excused Juror No. 12 who stated that he could not 

be fair and impartial and replaced him with Juror No. 13 who, during 

voir dire, stated that he was able to proceed as an impartial and unbiased 

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juror and that he did not observe any behavior in the audience. (Notes of 

testimony, 5/4/16 at 12-13.) We find no abuse of discretion. 

Appellant next complains that the trial court abused its discretion when 

it excused Juror No. 12 and impaneled Juror No. 13. In his brief, appellant 

attempts to raise five claims of error in this regard. First, appellant claims 

that the trial court violated "standards and procedures [that] have been 

developed in Pennsylvania to insure the integrity of the jury function when 

replacing a deliberating juror"; specifically, Pa.R.Crim.P. 645 (seating and 

retention of alternate jurors). (Appellant's brief at 29, 31-32 (unnecessary 

capitalization omitted).) Second, appellant claims that "the trial court failed 

to establish that Juror Twelve could not continue deliberations, or that he 

was otherwise disqualified and needed to be replaced." (Id. at 32 

(unnecessary capitalization omitted).) Third, appellant claims that "the trial 

court failed to insure that the alternate juror called to replace Juror Twelve 

had not been exposed to any improper outside influence or that the 

remaining jurors could begin deliberations anew." (Id. at 35 (unnecessary 

capitalization omitted).) Fourth, appellant claims that "the trial court failed 

to properly instruct the reconstituted juror." (Id. at 36 (unnecessary 

capitalization omitted).) Finally, appellant claims that "removing Juror 

Twelve because of his reaction to witness coaching further compounded the 

prejudicial errors created by spectator misconduct and violated the integrity 

of the jury function." (Id. at 38 (unnecessary capitalization omitted).) 
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The record reflects that after the jury informed the trial court of 

spectator behavior during A.G.'s testimony, appellant moved for a mistrial 

several times. (Notes of testimony, 5/3/18 at 94, 109-110, 113; 5/4/16 at 

9, 17). Appellant also made a motion to retain Juror No. 12 because "you 

can't effectively restart deliberations." (Notes of testimony 5/4/16 at 9.) 

Appellant further argued that because the "truth -determining process has 

been tainted" by the spectator misconduct, "a mistrial is required." (Id. at 

11.) In his post -sentence motion, appellant raised the following issue with 

respect to Juror No. 12: "It was error and an abuse of discretion to dismiss 

juror number twelve (12), who said that the coaching made him sick to his 

stomach." (Appellant's post -sentence motion, 9/1/16 at 1.) Therefore, with 

respect to Juror No. 12's dismissal, the issue that appellant arguably 

preserved below is that the trial court abused its discretion because it "failed 

to establish that Juror Twelve could not continue deliberations, or that he 

was otherwise disqualified and needed to be replaced." (Appellant's brief 

at 32 (unnecessary capitalization omitted).) Appellant waives the remaining 

claims that he attempts to raise within this issue for failure to preserve them 

below. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal."). 

That being said, our resolution of appellant's first issue, above, 

necessarily resolves appellant's claim of error with respect to removal of 

Juror No. 12. To be clear, though, we note that: 

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[t]he decision to discharge a juror is within the 

sound discretion of the trial court and will not be 

disturbed absent an abuse of that discretion. This 

discretion exists even after the jury has been 

[e]mpanelled and the juror sworn. Our Supreme 

Court explained that a finding regarding a 

venireman's impartiality is based upon 

determinations of demeanor and credibility that are 

peculiarly within a trial [court]'s province. . . . [Its] 

predominant function in determining juror bias 

involves credibility findings whose basis cannot be 

easily discerned from an appellate record. It is the 

appellant's burden to show that the jury was not 

impartial. Further, this Court has found that per se 

prejudice does not result where a juror becomes 

upset during the trial. 

Commonwealth v. Rush, 162 A.3d 530, 537 (Pa.Super. 2017), appeal 

denied, 170 A.3d 1049 (Pa. 2017) (citations, emphasis, and quotation 

marks omitted). 

Here, when the trial court asked Juror 12 what he had observed, the 

following took place: 

JUROR [NO. 12]: I seen [sic] the two ladies that 

were sitting right here, and they were -- when the 

victim was on the stand, they were saying yes and 

no. 

THE COURT: You could hear -- JUROR [NO. 12]: They were shaking their head[s]. 

THE COURT: Okay. Anything else? 

JUROR [NO. 12]: That was it. 

THE COURT: Would that affect your ability to 

continue deliberations and be fair and impartial as a 

juror? 

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JUROR [NO. 12]: Yes, ma'am. 

THE COURT: It would? 

JUROR [NO. 12]: Yes, ma'am. 

THE COURT: It would affect you? 

JUROR [NO. 12]: Yes, ma'am. 

THE COURT: How would it affect you? 

JUROR [NO 12]: I felt that they were -- that they 

were coaching the witness. It kind of made me sick 

to my stomach. 

Notes of testimony, 5/3/16 at 108-109. 

Undoubtedly, the record belies appellant's claim that the trial court 

failed to establish that Juror No. 12 could not continue with deliberations or 

that he was otherwise disqualified and needed to be replaced. The record 

clearly demonstrates that Juror No. 12 stated that as a result of his 

observations, he could not continue deliberating and that he could not be fair 

and impartial. The trial court did not abuse its discretion when it discharged 

Juror No. 12. 

Judgment of sentence affirmed. 

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Judgment Entered. 

Joseph D. Seletyn, 

Prothonotary 

Date: 1/7/19 

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