J. 

### S70005/18 NON-PRECEDENTIAL DECISION

## - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : INTHE SUPERIORCOURTOF PENNSYLVANIA v. MELVIN IRVIN DAVIS, No. 497 EDA 2017 

### Appellant Appeal

### from theJudgmentofSentence,

### August 22, 2016, in

### theCourtofCommon 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.: 

### FILEDJANUARY

### 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 yearsofage), and rapeof a 

### child.' The

### trial court imposed an 

### aggregate sentence of 25 to 50 years of 

### imprisonment. We 

### affirm. The

### trial courtset

### forththe

### following: Complainant, A.G., lived 

### with her 

### mother and 

### sister

. . . in Philadelphia, Pennsylvania. At

### thattime, 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.J. 

### S70005/18 wenttherealmosteverydayto 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 nearthe 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 

### manyofthose 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, hewould kill her

### family. Trial

### courtopinion, 

### 12/21/17 at 2-3 (record 

### citations

### omitted; some brackets in 

### original). Following 

### appellant'sconvictions, [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 

## -2J. 

### S70005/18 Relief and a 

### motion to vacate the child advocate. Both 

### motions were denied. On 

### that same date, 

### [appellant] was sentenced to

### 20-40years

### 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 

### ofappeal. 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 raisesthefollowing issues

### forour 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

### jurytrial underthe state and federal 

### constitutions, when it was discovered during 

### jury deliberations 

### that spectators had coached a child 

### complainingwitness during her 

### testimony, as such 

### misconduct was 

### prejudicial and was not discovered by parties until 

### after the close 

### of 

### trial, thus preventing 

### effective remedysuch as 

### completecross-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 withthe consecutive sentences. 

## -3J. 

### S70005/18 alternate or to 

### properly instruct the reconstituted 

### jury, thereby 

### further prejudicing 

### [appellant] and 

### violating his 

### rights to due process and a

### fair

### jurytrial? Appellant's briefat 3. With regard to the denial of 

### mistrials, the following standardsgovern 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 

### determiningwhether the

### court abused its 

### discretion. 

### Commonwealthv. 

### Hogentogler, 53 A.3d 866, 

### 877-878 (Pa.Super. 

### 2012), 

### appealdenied, 69 A.3d 600 (Pa. 2013) 

### (citations 

### omitted). "The 

### remedy of a 

### mistrial is an 

### extreme remedy required

### 'onlywhen an 

### incident is 

### ofsuch

a nature

### that its 

### unavoidable effect is to 

### deprive the appellant of a 

### fair and 

### impartial

### tribunal.' Id. at878 

### (citations

### omitted). 

## -4J. 

### S70005/18
To obtain 

### relief on a claim

### thatthe

### trial courtabused 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, 662A.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 denythe 

### defendant a 

### fairtrial, there is no 

### error." 

### Philistin, 774 A.2d at 

### 743; 

### Johnson, 668A.2d 

### at 104. 

### Commonwealthv.

### Sanchez, 36A.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 ofactual 

### 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 

## -5J. 

### S70005/18

was too late 

### for the defense to 

### effectivelycombat such 

### misconductthrough cross-examination or 

### argument, or even 

### for the 

### [trial court] to 

### offer [an] effectivecurative 

### instruction." (Appellant's briefat 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 ofthe audience were coaching 

### [A.G.] during her 

### testimony. That's whywe 

### wantto know if

### their reactions are to be

### considered." 

### (Id. at

### 93-94.) Appellantthen 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 courtsaw

### the:



### Id. at97.

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 beforewe

### jump ahead ofourselves and conclude 

### that it's coaching when it could be a reaction, something 

### they saw in 

### the audience 

### from peoplewho have nothing to do

### with anything.

When the foreperson arrived in chambers, the following colloquy 

### took



## -6J. 

### S70005/18

THE COURT: Concerning Question No. 4, it was observed by 

### members ofthe

### 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

### theysaw

### whoever was

### sitting in 

### theaudience -- 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, theywere, like, nodding to her or

### trying to coach her insome kind ofway. THE COURT: Well, how -- 

### that'swhatwe'retrying to getat. What did you observe? JURY FOREPERSON: I

### didn'tobserve it. THE COURT: You 

### didn'tobserve it? JURY FOREPERSON: No, a couple

### othermembers. THE COURT: Soyou 

### didn'tsee 

### anything? JURY FOREPERSON: I did not. THE COURT: Okay. JURY FOREPERSON: And a lot of us did not. We were focused onthewitness. 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.J. 

### S70005/18

THE COURT: Okay. But 

### you're saying you 

### didn't observe

### anything? JURY FOREPERSON: I did not. 

### Id. at

### 99-100. The

### trial courtthen excused the

### juryforeperson, summonedeach

### juror into chambers 

### individually, and asked each 

### juror whether he or she had observed any 

### behaviorfrom 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 shewas 

### "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 

### affectthe

### juror's abilityto 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

### thatwhat



## -8J. 

### S70005/18

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 courtexplained

### that: 

### [o]nly four people said 

### they saw 

### something. All 

### three of them indicated it had no 

### effect on 

### them, 

### that theycould 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 

### whatthe behavior was. 

### Id. at 111. 

### Subsequently, the 

### trial court 

### voirdiredJuror 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 ofthe

### transcript reveals

### thatJuror No. 12'sgender is male.

4 A reading ofthe

### transcript reveals

### thatJuror No. 13'sgender is male.

- 9 -J. 

### S70005/18 testimony, 

### 5/4/16at 

### 12-13.) The

### trial courtthen 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.) Appellantcomplains

### thatthe

### trial courtabused its 

### discretion in denying his 

### motion 

### for a 

### mistrial because 

### "prejudice was 

### established, and itwas 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 ofthe 

### 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 

### voirdire, stated 

### that he was able to proceed as an 

### impartial and unbiased

- 10 -J. 

### S70005/18 

### juror and 

### that he did not observe any 

### behavior in the audience. (Notes of 

### testimony, 

### 5/4/16 at 

### 12-13.) Wefind no abuse of

### discretion. Appellant nextcomplains

### thatthe

### trial courtabused its

### discretionwhen 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 ofthe

### 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 courtfailed 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 courtfailed to insure 

### thatthe 

### alternate

### juror called to replace 

### JurorTwelve 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 courtfailed 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 misconductand 

### violated the 

### integrity ofthe

### juryfunction." 

### (Id. at38 

### (unnecessary capitalization 

### omitted).)J. 

### S70005/18 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 respectto 

### Juror No. 12: 

## "Itwas 

### error and an abuse of

### discretion to dismiss 

### juror number 

### twelve (12), who said 

### that the coaching made him sickto 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

### thatthe

### 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 at32 

### (unnecessary capitalization 

### omitted).) Appellantwaives the remaining claims

### that he

### attempts to raise

### within this issue 

### forfailureto preservethem below. 

### See Pa.R.A.P. 

### 302(a) ("Issues not raised in the lower 

### court are waived and 

### cannot be raised

### forthe

### firsttime 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 beclear,

### though, we note

### that:

- 12 -J. 

### S70005/18 

### [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 upsetduringthe

### 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]: Theywereshaking

### their head[s]. THE COURT: Okay. 

### Anything else? JUROR [NO. 

### 12]: Thatwas it. THE COURT: Would 

### that affect 

### your ability to 

### continue deliberations and be 

### fair and 

### impartial as a 

### juror?

- 13 -J. 

### S70005/18
JUROR [NO. 

### 12]: Yes, 

### ma'am. THE COURT: 

### Itwould? JUROR [NO. 

### 12]: Yes, 

### ma'am. THE COURT: 

### Itwould

### affectyou? JUROR [NO. 

### 12]: Yes, 

### ma'am. THE COURT: Howwould it

### affectyou? JUROR [NO 

### 12]: I 

### felt that they were -- 

### that they were coaching thewitness. 

### It kind of made me sick to mystomach. Notesof

### testimony, 

### 5/3/16at 

### 108-109. Undoubtedly, the record belies 

### appellant's claim 

### that the 

### trial court failed toestablish 

### thatJuror No. 12 could not 

### continue

### with deliberationsor 

### 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 

### continuedeliberating and

### that he could not be 

### fair and 

### impartial. The 

### trial court did not abuse its 

### discretion when itdischarged 

### Juror No. 12. 

### Judgmentofsentence

### affirmed.

- 14 -J. 

### S70005/18

JudgmentEntered.

Joseph D. 

### Seletyn, Prothonotary Date: 

### 1/7/19

- 15 -