J-S34023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMPSON GOTTLIEB 

SCHIEFELBEIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1481 WDA 2021

Appeal from the Judgment of Sentence Entered December 18, 2020

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): CP-04-CR-0002499-2018

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED: December 7, 2022

Thompson Gottlieb Schiefelbein (Appellant) appeals from the judgment 

of sentence imposed following his jury convictions of one count each of 

aggravated indecent assault - without consent, aggravated indecent assault 

by forcible compulsion, and indecent assault - without consent.1 We affirm.

In October 2018, then 17-year-old K.S. (Victim), who is autistic, sent 

nude photographs of herself to an eighteen-year-old female vocational and 

technical school (vo-tech) classmate. N.T., 8/17/20, at 149, 163-73. Without 

obtaining the Victim’s permission, the classmate forwarded the photographs 

to Appellant, her ex-boyfriend. Id.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3125(a)(1), (2), and 3126(a)(1).
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On October 22, 2018, the Victim attended a meeting with her highschool principal Ryan Yates (Principal Yates), several school officials, and her 

mother to discuss the photographs. Id. at 68. The Victim disclosed that, on 

Friday, October 19, 2018, she arranged for Appellant to pick her up from 

school and take her home. Id. The Victim stated Appellant did not drive her 

home but instead drove her to his house. Id. at 69. Appellant took the Victim 

to his bedroom, took off his pants, grabbed her, and stated he wanted to have 

sex. Id. at 69, 72, 108. The Victim claimed she told him “no,” ran from the 

residence, and waited for Appellant, who eventually drove her home. Id. at 

69.

On October 23, 2018, however, the Victim notified Principal Yates she 

had not told him everything. Id. at 73. She stated when she and Appellant 

were in his bedroom, he took off his pants, grabbed her, pulled down her 

pants, and tried to have vaginal intercourse with her. Id. at 73-74. The 

Victim further said Appellant had choked her. Id. at 104. The Victim told 

Principal Yates there was a sanitary pad in her bathroom garbage can that she 

had used because she began bleeding after the assault. Id. at 42-43.

That same day, Sexual Assault Nurse Examiner Megan McLevey (Nurse 

McLevey) examined the Victim. Deposition Transcript, 7/30/20, at 30-31.2 

Nurse McLevey testified the Victim told her that during the assault, Appellant 

____________________________________________

2 Nurse McLevey’s testimony was given by videotape deposition. The 

Commonwealth played it for the jury during trial. See N.T., 8/18/20, at 160. 
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had kissed her chest, took off her bra, and bit her nipple. Id. at 57. The 

Victim’s mother gave Nurse McLevey the Victim’s used sanitary pad as part of 

the exam. Id. at 63-64. The State Police Crime Lab tested the pad and found 

Appellant’s DNA on it. N.T., 10/19/20, at 49-50.

On October 31, 2018, the police conducted a video-recorded interview 

with Appellant. Id. at 23-24, 27-31. Appellant initially denied to police that 

he knew the Victim. Id. at 27. However, when police indicated a school 

surveillance video showed Appellant picking the Victim up in his car, Appellant 

admitted this but claimed he drove her directly home. Id. at 27-28. Appellant 

later conceded that he did take the Victim to his house, hugged her and laid 

with her on a bed. Id. at 29-30. When questioned further, Appellant 

acknowledged he touched the Victim inappropriately over her clothing, and 

tried to have consensual sex with her but he could not insert his penis into the 

Victim’s vagina. Id. at 30-31. Both Appellant and the Victim agreed they had 

exchanged sexually explicit texts, but the Victim said she had not planned on 

actually having sex with Appellant. Id. at 174-75.

A jury trial took place in August 2020. On August 24, 2020, the jury 

convicted Appellant of the above charges but acquitted him of two counts of 

rape by threat of forcible compulsion, and one count each of rape by forcible 

compulsion, involuntary deviate sexual intercourse, sexual assault, 

aggravated indecent assault by threat of forcible compulsion, indecent assault 
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by threat, and strangulation.3 On December 10, 2020, the trial court 

sentenced Appellant to an aggregate term of 36 – 72 months in prison.

On December 15, 2020, Appellant filed a timely post-sentence motion, 

which included a request for appointment of new counsel, and for an extension 

of time to file supplemental post-sentence motions. On December 18, 2020, 

the trial court issued an amended sentencing order, which did not advise 

Appellant of his appeal rights. On December 18, 2020, the trial court granted 

Appellant an additional 30 days to file a supplemental post-sentence motion.

On January 19, 2021, new counsel filed a motion for another extension 

of time to file supplemental post-sentence motions. The trial court granted 

the motion and gave counsel an additional 30 days to file supplemental postsentence motions. On February 2, 2021, the trial court granted Appellant an 

additional thirty days to file supplemental post-sentence motions upon his 

receipt of the trial transcripts. The trial court docket demonstrates the 

transcripts were filed on February 19 and 23, 2021. On March 17, 2021, the 

trial court entered an order giving Appellant credit for time served. The order 

did not advise Appellant of his appeal rights.

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3 18 Pa.C.S.A. §§ 3121(a)(2), 3121(a)(2), 3123(a)(1), 3124.1, 3125(a)(2), 

3126(a)(3), and 2718(a)(1).
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On July 16, 2021, Appellant filed a supplemental post-sentence motion, 

which the trial court denied on November 9, 2021. The instant appeal 

followed.4 

There is a timeliness issue with Appellant’s filing of his notice of appeal. 

However, we view the events leading to the filing as constituting a breakdown 

in the court’s process.5 We therefore review the merits of Appellant’s five 

issues:

1. Whether the Commonwealth presented sufficient evidence to 

prove the sexual offense for which the Appellant was 

convicted[?]

2. Whether the trial court erred in allowing the jury to hear 

testimony of the [V]ictim having been diagnosed with 

autism[?] ...

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4 Appellant and the trial court complied with Pa.R.A.P. 1925.

5 Generally, appellate courts cannot extend the time for filing an appeal. See

Pa.R.A.P. 105(b). Accordingly, this Court, on January 7, 2022, issued a rule 

to show cause why the appeal should not be quashed as untimely. Appellant 

filed a response on January 25, 2022, arguing the delays were caused by the 

withdrawal of trial counsel, the appointment of new counsel, and the time 

needed for new counsel to obtain and review the trial transcripts. We 

discharged the rule to show cause on February 2, 2022, and directed the 

matter to the attention of the merits panel. 

The record reflects the December 17, 2020, and March 17, 2021 orders 

amending Appellant’s sentence and granting him credit for time-served did 

not advise Appellant about the timeliness requirement for his appeal, and that 

filing an untimely post-trial motion would not toll the appeal period. The 

court’s failure to advise Appellant of his rights constitutes a breakdown in the 

court’s processes. See Commonwealth v. Patterson, 940 A.2d 493, 498 

(Pa. Super. 2007) (compiling cases in which the “courts of this Commonwealth 

have held that a court breakdown occurred in instances where the trial court 

... either failed to advise Appellant of his ... appellate rights or misadvised 

him”); Pa.R.A.P. 907.
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3. Whether the [t]rial [c]ourt erred by not giving an immediate 

curative instruction to the jury to disregard the abovereferenced testimony relating to the [V]ictim’s autism 

diagnosis[?] ...

4. Whether the [t]rial [c]ourt erred when it failed to allow the text 

messages, admitted as evidence during the trial, to be 

published to the jury upon the jury’s request during their 

deliberations[?]

5. Whether the jury’s verdict was against the weight of the 

evidence presented by the Commonwealth at trial[?]

Appellant’s Brief at 3 (reordered).

In his first issue, Appellant contends the evidence was insufficient to 

sustain the verdicts. Id. at 12-15. Specifically, Appellant maintains the 

Commonwealth “failed to prove lack of consent beyond any reasonable doubt.” 

Id. at 13. 

When reviewing a sufficiency challenge, we determine “whether the 

evidence at trial, and all reasonable inferences derived therefrom, when 

viewed in the light most favorable to the Commonwealth as verdict winner, 

are sufficient to establish all elements of the offense beyond a reasonable 

doubt.” Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation 

omitted). “Further, a conviction may be sustained wholly on circumstantial 

evidence, and the trier of fact—while passing on the credibility of the witnesses 

and the weight of the evidence—is free to believe all, part, or none of the 

evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) 

(citation omitted). “In conducting this review, the appellate court may not 

weigh the evidence and substitute its judgment for the fact-finder.” Id. 
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Here, we are constrained to find Appellant waived his sufficiency claim. 

In Appellant’s Pa.R.A.P. 1925(b) concise statement, Appellant claimed the 

Commonwealth failed “to present[] sufficient evidence to prove the elements 

of the sexual offenses charged.” Concise Statement of Errors Complained of 

on Appeal, 12/29/21, at 2 (unnumbered). However, Appellant did not identify 

the element(s) of the crime(s) purportedly not proven by the Commonwealth’s 

evidence. 

“In order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super.

2013) (citation omitted). Where a 1925(b) statement “does not specify the 

allegedly unproven elements[,] ... the sufficiency issue is waived [on 

appeal].” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 

2008) (citation and emphasis omitted). Moreover, “[t]he Pa.R.A.P. 1925(b) 

statement must be sufficiently ‘concise’ and ‘coherent’ such that the trial 

court judge may be able to identify the issues to be raised on 

appeal[.]” Commonwealth v. Vurimindi, 200 A.3d 1031, 1038 (Pa. Super. 

2018) (emphasis added). “[A] Rule 1925(b) statement is a crucial component 

of the appellate process because it allows the trial court to identify and focus 

on those issues the party plans to raise on appeal.” Id.
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Here, the trial court adopted its decision denying post-trial motions as 

its Rule 1925(a) opinion. See Order, 12/30/21, at 1 (unnumbered). While 

that opinion generally addressed the sufficiency of the evidence underlying 

Appellant’s convictions, it did not discuss the claim now raised in Appellant’s 

brief, namely, the Commonwealth failed to prove lack of consent. As 

Appellant’s Rule 1925(b) statement failed to specify what elements of the 

offenses he was challenging and did not identify his challenge with sufficient 

specificity for the trial court to ascertain the nature of the challenge, Appellant 

waived his sufficiency of the evidence claim. See Vurimindi, supra; 

Garland, supra; Williams, supra.

Even if Appellant had preserved his sufficiency challenge, his claim 

would not merit relief. In his brief, Appellant concedes the Victim’s trial 

testimony that Appellant had sexually assaulted her, and that the Victim made 

the same claims to the nurse who had conducted the sexual assault 

examination and to Principal Yates. Appellant’s Brief at 13; N.T., 8/20/20, at 

104-09; Deposition Transcript, 7/30/20, at 56-58; N.T., 8/17/20, at 73-74. 

Appellant argues, however, the jury should have disregarded this trial 

testimony, and should have credited the Victim’s sexually-explicit texts as 

showing consent. Appellant’s Brief at 14-15; N.T., 8/20/20, at 174-75. 

It is settled that “the uncorroborated testimony of the complaining 

witness is sufficient to convict a defendant of sexual offenses.” 

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005)
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(citation omitted). Further, Appellant’s claim that the jury should have

discredited the Victim’s trial testimony goes to the weight, not the sufficiency 

of the evidence. See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 

(Pa. Super. 2007) (finding claim jury should not have believed victim’s version 

of events goes to weight, not sufficiency of evidence). Thus, even if Appellant 

had not waived this claim, it would not merit relief.

In his second issue,6 Appellant contends “the trial court erred in allowing 

the jury to hear testimony of the [V]ictim having been diagnosed with autism.” 

Appellant’s Brief at 9. Appellant maintains this was in contravention of the 

trial court’s pre-trial ruling that no witnesses were allowed “to mention or 

make reference to the [Victim] having been diagnosed with autism.” Id. 

Appellant claims the trial court erred by “not giving an immediate curative 

instruction to the jury to disregard the above-referenced testimony.” Id. 

Appellant argues the record “clearly shows the jury improperly considered the 

[V]ictim’s diagnosis as part of their deliberations in reaching a verdict.” Id. 

We disagree. 

The record is not clear about the circumstances under which the Victim’s 

autism diagnosis came up; Appellant filed no written motions in limine to limit 

testimony regarding the Victim’s autism diagnosis. Rather, our review 

discloses the topic arose during an off-the-record discussion prior to the start 

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6 Appellant conflates his second and third issues in his brief. See Appellant’s 

Brief at 9-11. 
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of trial. See N.T., 8/17/20, at 12. When the parties went on the record, they 

indicated the issue would arise during Principal Yates’ testimony, the Victim’s

mother’s testimony, and the Victim’s testimony. Id. At that time, the trial 

court stated:

I ... want the testimony steered away from anybody testifying that 

she has an autism diagnosis. She has a specialized education plan

[(IEP)] based upon the things [the Commonwealth] just said and 

that I think is acceptable.

Id. at 14. The trial court later clarified:

As I said ... we will see how the testimony develops. If at some 

point we get into ... a medical dissertation or rendering of medical 

opinions or ... something beyond what a principal and an educator 

would or could conclude based upon their observations and review 

of her IEP ... I would sustain an objection to that, so we will 

see how it unfolds.

Id. at 16 (emphasis added).

During Principal Yates’ direct examination, the following occurred:

A. [Principal Yates:] [The Victim] was a student in our life skills 

program, which typically, give or take, on any given year we have 

... anywhere from five to seven students ... in our life skills 

program.

So you kind of get to know those students pretty well just 

because it’s always kind of a small group.

Q. [The Commonwealth:] And what is the —

A. When I say “pretty well”, I just mean, like their needs and their 

schedules, who’s their aides, thing[s] like that.

Q. Can you tell us what the life skills program is?

A. Well, it’s a program ... that serves ... from the special education 

field the ... students with more severe disabilities. In [the 

Victim’s] case she is diagnosed with autism. She is —
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THE COURT. Do you have an objection?

[Defense Counsel:] Objection, Judge.

THE COURT: That would be sustained.

Id. at 57. The Commonwealth then asked its next question. Defense counsel 

did not request a curative instruction and did not move for a mistrial. 

Later, during cross-examination, defense counsel sought to elicit 

information about whether the Victim needed assistance getting on and off 

the bus between the high school and the vo-tech school:

Q. [Defense Counsel:] We’ll keep it simple. [The Victim] had an 

IEP plan; correct?

A. [Principal Yates:] Yes.

Q. Did that IEP plan have something in place to make sure that 

she got on the bus from [high school] to go to vo-tech?

A. I’m not trying to be challenging with you, but that’s a 

document, that, unless, Your Honor, you tell me to discuss it 

that’s, that’s a private document.

Q. Well, sir —

A. I mean, if I’m not allowed to say in the beginning about her 

autism I’m not thinking I should be discussing a student’s IEP.

THE COURT: Let’s go to side bar, and I’ll find out where 

you’re going with this.

Id. at 93. During the lengthy sidebar discussion, defense counsel complained 

about Principal Yates’ second use of the term “autism” and stated if it 

continued, “I’m going to be forced to ask for a mistrial.” Id. at 95; see also 

id. at 94-95. However, defense counsel did not request a curative instruction 
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and did not move for a mistrial. Id. at 95. Principal Yates’ cross-examination 

concluded without further incident. Id. 

The next morning, prior to the testimony of the Victim’s mother, the 

trial court revisited its ruling. N.T., 8/18/20, at 4-6. The trial court ruled the 

Victim’s mother could testify about the Victim’s “communication challenges” 

and “certain limitations that she has in being able to provide descriptions.” 

Id. at 4. Defense counsel objected to any testimony that would go beyond 

the fact the Victim had a “special needs diagnosis.” Id. at 5. However, the 

trial court ruled:

That’s fair. And certainly I’ll entertain any objection [the defense 

wants] to place on the record in front of the jury, with the 

understanding that part of mom’s testimony would be limited in 

the fashion [the Commonwealth] just described.

Id. at 6. Mother then proceeded to testify in accordance with the parameters 

set by the trial court; she never mentioned the word “autism” and defense 

counsel made no objections during her testimony. See id. at 10-75. 

Later that day, the Commonwealth played the video deposition of Nurse 

McLevey, which took place prior to the trial court’s ruling on the parameters 

of testimony regarding autism. At two points during her testimony, both in 

response to questions by the Commonwealth about why Nurse McLevey had 

the Victim’s mother sign a consent form for the medical examination, Nurse 

McLevey stated her understanding that the Victim had been diagnosed with 

autism. Deposition Transcript, 7/30/20, at 35 and 37. Defense counsel did 

not object to the testimony at the time it was taken, or when it was played at 
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trial. Id. Moreover, defense counsel did not seek to redact those portions of 

the video deposition prior to it being played to the jury. N.T., 8/18/20, at 

157-60. 

In its direct examination, the Commonwealth asked the Victim if she 

had been diagnosed with autism; she replied, “Yes.” N.T., 8/19/20, at 88. 

She then explained she had problems forming memories, and problems with 

times and dates, but was able to tell the jury what had happened to her. Id. 

at 88-89. Defense counsel did not object to this testimony. 

During deliberations, the jury informed the court of its confusion7 about 

whether a person with the Victim’s disability was capable of consenting to 

sexual contact. N.T., 8/21/20, at 5. After a lengthy discussion with the trial 

court, the parties agreed to have the trial court reread the standard jury 

instructions for forcible compulsion and consent. Id. at 5-18, 26-29. The trial 

court then read the following instruction, which had been agreed to by the 

parties:

Now, it should be clear to the jury that notwithstanding the 

reference that you may have heard in this case relating to autism 

and the IEP, those references do not mean that the [V]ictim 

cannot consent. Those references do not mean that the 

[V]ictim cannot consent.

In this case and in all cases that relate to the question of consent 

you may consider ... all the testimony you heard during the course 

of this trial to determine whether [the Victim] gave consent, and 

you must consider such factors as the [V]ictim’s age and 

mentality.

____________________________________________

7 The text of the question is not contained in the notes of testimony. 
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Id. at 29 (emphasis added). As noted above, defense counsel participated in 

the drafting of this charge, and when asked if the trial court “missed 

anything[,]” defense counsel replied, “No, sir.” Id. at 31.

To the extent Appellant challenges the adequacy of the trial court’s 

response to alleged breaches of the trial court’s ruling, i.e., that the court did 

not give an immediate cautionary instruction or sua sponte declare a mistrial, 

the claim is waived. See id. It is well-settled that failure to lodge a 

contemporaneous objection results in waiver of a claim on appeal. See 

Commonwealth v. May, 887 A.2d 750, 758 (Pa. 2005) (“To the extent the 

claims would sound in trial court error, they are waived due to the absence of 

contemporaneous objections.”); Commonwealth v. Dougherty, 860 A.2d 

31, 37 (Pa. 2004) (failure to object results in appellate waiver); 

Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa. Super. 2009) (noting 

where defendant objects and trial court sustains objection, failure to request 

either curative instruction or mistrial constitutes waiver on appeal); 

Commonwealth v. Bryant, 462 A.2d 785, 788 (Pa. Super. 1983) (finding 

claim trial court erred in failing to give cautionary instruction waived where 

defendant did not request one).

As our recitation above demonstrates, Appellant made a single objection 

to the use of the term “autism,” during Principal Yates’ testimony, which the 

trial court sustained, and to which Appellant made no further objection. Thus, 

any claim regarding this issue is not before this Court; the trial court did not 
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adversely rule on Appellant’s objection. See Epstein v. Saul Ewing, LLP, 7 

A.3d 303, 314 (Pa. Super. 2010) (declining to address issue where trial ruling 

benefitted appellant).

Even if not waived, Appellant’s claim does not merit relief. “It is within 

a trial judge’s discretion to declare a mistrial sua sponte upon the showing of 

manifest necessity, and absent an abuse of that discretion, we will not disturb 

his or her decision.” Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. 

Super. 2002). Absent a motion by a defendant, a “trial judge may declare a 

mistrial [sua sponte] only for reasons of manifest necessity.” Pa.R.Crim.P.

605(B) (emphasis added). Thus, a trial court exercises the power to declare 

a mistrial sua sponte “with the greatest caution, under urgent circumstances, 

and for very plain and obvious causes[.]” Commonwealth v. Owens, 445 

A.2d 117, 120 (Pa. Super. 1982) (citations omitted).

The trial court’s opinion does not address its failure to declare a mistrial 

sua sponte. Nevertheless, we conclude no error resulted. As the trial court 

tacitly acknowledged in its opinion, its initial decision that only a medical 

expert could testify about the Victim’s autism diagnosis was not supported by 

law:

[C]ase law suggests that lay testimony on a victim’s mental 

disability is admissible in sexual assault cases. In Com. v. 

Crosby, “the victim’s mother testified at length regarding her 

daughter’s brain[-]injured status and limited mental capacity.” 

791 A.2d 366, 370 (Pa. Super. 2002). In Com. v. Provenzano, 

the fifteen-year-old victim’s mental disability was established 

through “the testimony of the victim’s ‘life skills’ teacher,” who 

testified that “the victim had an IQ of 50 and the decision-making 
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capacity of an elementary school student.” 50 A.3d 148, 152 (Pa. 

Super. 2012). In Crosby and Provenzano, the victim’s mental 

disability was not merely a factor to be considered when 

determining consent or forcible compulsion but was an essential 

element of Indecent Assault under 18 Pa.C.S. § 3126(a)(6), which 

requires proof beyond a reasonable doubt that “the complainant 

suffers from a mental disability which renders complainant 

incapable of consent.” No medical expert testified in either

Crosby or Provenzano.

The mother in Crosby and the “life skills” teacher in Provenzano

presented lay testimony on the victim’s mental capacity based on 

their own knowledge and experience. Such testimony was not 

only admissible but was deemed competent to establish an 

essential element of a crime beyond a reasonable doubt. Here, 

[the Victim’s] mother, her principal, and [the Victim] herself 

testified as to the limitations and challenges [the Victim]

experienced as a result of her condition. That testimony was 

based on the witness’s own experience with [the Victim’s]

condition and did not purport to be medical expert testimony. 

Nurse McLevey specified that her notation of [the Victim’s] autism 

was merely based on the mother’s report and not her own medical 

opinion. [Appellant] seems to argue not that these witnesses 

were incompetent to testify as to their own experiences with [the 

Victim’s] condition, but rather that the word “autism’’ cannot be 

uttered by anyone but a doctor. The [trial c]ourt sustained 

any objections [Appellant’s] counsel made to explicit 

mentions of “autism,” though [Appellant] allowed a few to pass 

without objection. With or without objection, none of the 

mentions of autism were prejudicial because they were all 

made within the context of the witness’s own personal 

knowledge and experience dealing with [the Victim]. That 

[the Victim] had been diagnosed with autism was a simple fact of 

life for these witnesses, and none of them testified about the 

effects of that diagnosis on [the Victim’s] mental capacity in a 

manner beyond their own education or experience.

Evidence of [the Victim’s] mental capacity was relevant, 

admissible, and appropriate for the jury’s consideration. The 

victim’s mental capacity is a relevant factor in determining 

essential elements of some of the crimes charged against 

[Appellant], including the element of lack of consent and the 

element of forcible compulsion. See Pennsylvania Suggested 

Standard Criminal Jury Instructions § 15.3126A (“When 
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considering consent, the age and mentality of the victim must be 

considered”) and § 15.3121A (victim’s mental condition is 

relevant to forcible compulsion).

Trial Court Opinion, 11/9/21, at 22-23 (emphases added). See also, 

Commonwealth v. T.J., 2017 WL 2211388, at *2-3 (Pa. Super. May 19, 

2017) (unpublished memorandum) (evidence sufficient to sustain charge of 

indecent assault of person with mental disability where victim’s sister, nurse 

who conducted sexual assault exam, and investigating officer all testified 

victim was autistic and mentally challenged). The trial court’s analysis is 

supported by the law; we discern no error or abuse of discretion. 

Moreover, Appellant’s reliance on this Court’s decision in 

Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super. 2007) is misplaced. 

Padilla does not concern the failure of a trial court to sua sponte declare a 

mistrial or lay testimony about a victim’s mental health status. Instead, it 

concerns whether a defendant was entitled to a new trial when a 

Commonwealth witness violated the trial court’s pre-trial ruling and testified 

the defendant had recently been released from prison. Padilla, 923 A.2d at 

1192. In that case, despite the defendant’s filing, and the trial court’s grant, 

of a motion in limine to preclude testimony about his prior incarceration, a 

police officer testified the defendant had “just got out jail[.]” Id. Defense 

counsel requested a mistrial, which the trial court initially granted. See id. at 

1192-93. However, after an objection by the Commonwealth, the court 

changed its mind. Id. After requesting briefing by both parties, the court 
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ultimately instructed the jury “to disregard the remarks made by this witness 

at this particular time.” Id. at 1193. In finding the trial court erred in not 

granting a mistrial, this Court relied on the following: (1) the trial court 

specifically precluded this testimony prior to trial; (2) it is settled law that 

evidence of past crimes is not admissible absent certain specific 

circumstances; and (3) the trial court’s inadequate response, first by initially 

seeming to grant then denying defense counsel’s motion for mistrial and by 

issuing a curative instruction that was “too vague to have cured the prejudice.” 

Id. at 1194-96.

Here, as discussed, we are unable to determine from the record how the 

issue of the Victim’s autism diagnosis arose and the trial court’s ruling on the 

issue was less than absolute. As the trial court later acknowledged, to the 

extent it did rule lay witnesses could not refer to Victim’s being diagnosed with 

autism, the ruling was not supported by case-law. Appellant largely failed to 

object, never requested a cautionary instruction, and never sought a mistrial. 

Thus, under the circumstances of this case, Padilla does not support 

Appellant’s claim he was entitled to either a mistrial or the grant of new trial. 

Appellant’s second issue is both waived, and even if not, does not merit relief.

In his third issue, Appellant appears to contend the trial court’s 

instruction issued in response to the jury’s inquiry regarding ability to consent 

was inadequate. See Appellant’s Brief at 9-11. Appellant also implies the 
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trial court erred in failing to sua sponte declare a mistrial or grant a new trial 

because of juror misconduct. Id. Again, we are constrained to find waiver. 

The standard governing our review of a challenge to jury instructions is 

as follows:

When reviewing a challenge to part of a jury instruction, we must 

review the jury charge as a whole to determine if it is fair and 

complete. A trial court has wide discretion in phrasing its jury 

instructions, and can choose its own words as long as the law is 

clearly, adequately, and accurately presented to the jury for its 

consideration. The trial court commits an abuse of discretion only 

when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008) (citation 

omitted).

This Court has stated:

In order to preserve a claim that a jury instruction was 

erroneously given, the [a]ppellant must have objected to the 

charge at trial. See Commonwealth v. Spotz, 84 A.3d 294, 318 

n.18 (Pa. 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general 

exception to the charge to the jury will not preserve an issue for 

appeal. Specific exception shall be taken to the language or 

omission complained of.”); Pa.R.Crim.P. 647(B) (“No portions of 

the charge nor omissions from the charge may be assigned as 

error, unless specific objections are made thereto before the jury 

retires to deliberate.”). As our Supreme Court has explained:

The pertinent rules, therefore, require a specific 

objection to the charge or an exception to the trial 

court’s ruling on a proposed point to preserve an issue 

involving a jury instruction. Although obligating 

counsel to take this additional step where a specific 

point for charge has been rejected may appear 

counterintuitive, as the requested instruction can be 

viewed as alerting the trial court to a defendant’s 

substantive legal position, it serves the salutary 

purpose of affording the court an opportunity to avoid 

or remediate potential error, thereby eliminating the 
J-S34023-22

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need for appellate review of an otherwise correctable 

issue.

Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220, 224 

(Pa. 2005) (footnotes and citations omitted); see 

Commonwealth v. Garang, 9 A.3d 237, 244-245 (Pa. Super.

2010) (citations omitted); Commonwealth v. Moury, 992 A.2d 

162, 178 (Pa. Super. 2010) (citations omitted).

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014). 

In Parker, trial counsel objected to the court’s charge on flight at the 

charging conference. Id. However, counsel did not object to the charge when 

given and, when asked, did not propose any changes. Id. We held, because 

of this, the appellant had waived the issue on appeal. Id.

Here, Appellant challenges the charge issued in response to the jury’s 

inquiry regarding ability to consent. However, Appellant assisted in drafting 

the answer to the jury’s question, did not object to the answer, and did not 

take an exception. Thus, Appellant waived any challenge to the jury 

instruction. Parker, 104 A.3d at 29.

Appellant also claims he was entitled to a sua sponte declaration of a 

mistrial or a new trial based upon juror misconduct. Appellant complains “a 

juror conduct[ed] research outside of deliberations about the autism 

spectrum. ... The record shows the [] juror ... was permitted to remain on the 

jury despite his outside research.” Appellant’s Brief at 9. Appellant contends 

the conduct of this juror resulted in Appellant being “at a complete 

disadvantage.” Id. 

As this Court has explained, 
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the refusal of a new trial on grounds of alleged misconduct of a 

juror is largely within the discretion of the trial judge. When the 

facts surrounding the possible misconduct are in dispute, the trial 

judge should examine the various witnesses on the question, and 

his findings of fact will be sustained unless there is an abuse of 

discretion.

Commonwealth v. Cosby, 224 A.3d 372, 426 (Pa. Super. 2019) (internal 

quotation marks omitted), reversed on unrelated grounds, 252 A.3d 1092 

(Pa. 2021). 

While “[t]he right to be judged by a fair and impartial jury of one’s peers 

is, of course, firm and well-established,” our Supreme Court has held “that 

not every act of juror misconduct warrants the declaration of a mistrial.” 

Commonwealth v. Flor, 998 A.2d 606, 639 (Pa. 2010) (citations omitted). 

Rather, “[o]nly when there has been prejudice to the accused does an act of 

juror misconduct require the granting of a new trial.” Id.

Our review shows no grounds for relief. Appellant bases his claim on 

the jury’s inquiry, which included autism terminology that had not been used 

at trial. N.T., 8/21/20, at 7, 21-23. The trial court questioned the juror who 

had authored the note, in the presence of both counsel. Id. at 23-26. The 

juror testified that he conducted no outside research but had employment 

experience in mental health and related fields and his knowledge came out his 

“life experience.” Id. at 24; see id. at 24-26. The trial court recognized the 

juror as a high-school classmate and confirmed, based on its own 

personal knowledge, the juror had work experience in both mentalhealth and juvenile justice. Id. at 24-25. Defense counsel accepted the 
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juror’s explanation and requested removal of the juror or a mistrial. Id. at 

25. Thus, Appellant’s claim that juror misconduct mandated either the sua 

sponte declaration of a mistrial and/or a new trial is not supported in the 

record. Appellant’s third issue is both waived and does not merit relief.

In his fourth issue, Appellant contends the trial court “erred when it 

failed to allow the text messages, submitted as evidence during the trial, to 

be published to the jury upon the jury’s request during their deliberations.” 

Appellant’s Brief at 11; see also id. at 11-12. Again, we are constrained to 

find waiver.

“A trial court’s decision as to which exhibits may be taken out with the 

jury is within the sound discretion of the trial court and will not be reversed 

absent an abuse of that discretion.” Commonwealth v. Hawkins, 701 A.2d 

492, 512 (Pa. 1997). Additionally, “the jury may take with it such exhibits as 

the trial judge deems proper” with the exception of trial transcripts, 

confessions, and the information or indictment. Pa.R.Crim.P. 646(A) & (C). 

The texts in question do not fall within the limitations set forth in Rule 646(C). 

Therefore, publication to the jury was purely within the discretion of the trial 

court. Hawkins, 701 A.2d at 512.
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Here, the trial exhibits are not included in the certified record.

8 Thus,

we are reliant on the discussion in the trial transcripts. The record reflects 

the jury asked to see “Defense Exhibit B and others.” N.T., 8/20/20, at 100. 

The parties agreed Defense Exhibit B was a large “packet” of text messages, 

not all of which had been placed into evidence at trial; they also acknowledged 

the parties’ previous agreement that Defense Exhibit B would not be sent out 

with the jury. See id. at 100-03. The Commonwealth was unable to recall 

which of the text messages it referred to during trial; defense counsel initially 

stated he knew which text messages he referenced at trial, but later admitted 

this was an approximation. Id. Defense counsel accepted that Defense 

Exhibit B could not be published to the jury in its entirety because it contained 

materials not used at trial. Id. at 103. Defense counsel stated that, if 

necessary, he could try to redact Defense Exhibit B but, contrary to counsel’s 

averment on appeal, at no point did he inform the court that he had done so. 

Id. at 101; Appellant’s Brief at 12. Defense counsel also pointed out that 

pictures of some of the text messages had gone out to the jury as part of 

another defense exhibit. Id. at 104. 

Ultimately, the trial court ruled that, given the difficulties discussed 

above, and the vague nature of the jury’s request, it would not give the jury 

____________________________________________

8 “Appellant has the duty to ensure that all documents essential to his case 

are included in the certified record.” Commonwealth v. Walker, 878 A.2d 

887, 888 (Pa. Super. 2005).
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Defense Exhibit B. Id. at 104. However, the court cautioned, if the jury came 

back with a more specific request for some of the text messages, it would 

reconsider its ruling. Id. Defense counsel did not object to this ruling, did 

not take an exception and, in fact, stated: “Thanks, your Honor.” Id. at 107. 

Thus, Appellant waived this claim. See May, 887 A.2d at 758; Dougherty, 

860 A.2d at 37.

Moreover, even if not waived, this claim would not entitle Appellant to 

relief. At trial, the parties agreed the jury was not entitled to have the entire 

Defense Exhibit B. The parties also agreed that the exhibit was voluminous. 

Based on the representations made during the discussion, it is not clear that

Defense Exhibit B could be easily redacted. The trial court informed the jury

that it could make a “more specific” request, the court would revisit the issue. 

N.T., 8/20/20, at 108. The jury did not do so. Under these circumstances, 

we discern no abuse of the trial court’s discretion in not publishing Defense 

Exhibit B to the jury. See Hawkins, 701 A.2d at 512. Appellant’s fourth 

issue is both waived and does not merit relief.

In his fifth issue, Appellant contends the verdict is against the weight of 

the evidence. Appellant’s Brief at 15-16. Appellant claims the

highly prejudicial autism testimony, the lack of an immediate 

curative instruction, the absence of any physical evidence, the 

overwhelming evidence of consent shown through the text 

messages, a juror conducting research outside of deliberations 

about the autism spectrum, and the [t]rial [c]ourt’s decision to 

not allow the jury to have the text messages in deliberations ... 

tainted [the jury as a whole].
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Id. at 16.9 

“A weight of the evidence claim concedes that the evidence is sufficient 

to sustain the verdict but seeks a new trial on the grounds that the evidence 

was so one-sided or so weighted in favor of acquittal that a guilty verdict 

shocks one’s sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 

2016) (citation omitted). “Appellate review of a weight claim is a review of 

the exercise of discretion, not of the underlying question of whether the 

verdict is against the weight of the evidence.” Commonwealth. v. Widmer,

744 A.2d 745, 753 (Pa. 2000) (citation omitted). 

Because the trial judge has had the opportunity to hear and see 

the evidence presented, an appellate court will give the gravest 

consideration to the findings and reasons advanced by the trial 

judge when reviewing a trial court’s determination of whether the 

verdict is against the weight of the evidence. 

Id. (citation omitted).

____________________________________________

9 To the extent Appellant also contends the verdict was against the weight of 

the evidence because the trial court dismissed a juror who discussed the case 

with a third party, see Appellant’s Brief at 16; N.T., 8/21/20, at 31-56, he 

waived the claim because he did not raise it in his post-sentence motions. 

See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and 

cannot be raised for the first time on appeal”). Moreover, our review of the 

record discloses the position taken by counsel now, that this juror’s presence 

tainted jury deliberations, directly contradicts counsel’s statement at trial that,

while the juror’s actions were “noxious,” counsel was not sure they rose to the 

level of dismissal and substitution of an alternate juror. N.T., 8/21/20, at 49. 

The record reflects, that, after an off-the-record discussion, the parties agreed 

to dismiss the juror and substitute the first alternate juror. Id. at 52-53. 

Defense counsel did not object or take an exception. Id. 
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The trial court addressed this claim in its opinion, citing relevant law and 

concluding the claim was meritless. See Trial Court Opinion, 11/9/21, at 21. 

The trial court’s determination is supported by the evidence, and we discern 

no abuse of discretion or error. Accordingly, we adopt the trial court’s analysis 

with regard to Appellant’s fifth issue. See id.

For the reasons discussed above, Appellant’s issues do not merit relief. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2022