J-S43007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREDERICK S. WALTER, II

Appellant No. 1348 WDA 2016

Appeal from the Judgment of Sentence August 9, 2016

In the Court of Common Pleas of Venango County

Criminal Division at Nos: CP-61-CR-0000474-2015; CP-61-CR-0000666-

2015

BEFORE: STABILE, SOLANO, and FITZGERALD, *JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 14, 2017

Appellant, Frederick S. Walter, II, appeals from the August 9, 2016 

judgment of sentence entered in the Court of Common Pleas of Venango 

County (“trial court”) sentencing him to an aggregate term of 14-30 years’ 

incarceration. Upon review, we affirm.

Appellant was charged in docket CR 474-2015 with two counts of 

aggravated indecent assault and two counts of indecent assault,1stemming 

from an incident wherein Appellant digitally penetrated a fourteen-year-old 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3125(a)(1), 3125(a)(8), 3126(a)(1), and 3126(a)(8), 

respectively. 
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girl. On January 23, 2015, Appellant was at K.T.’s2, residence, assisting her 

step-father with a vehicle repair. See N.T. Preliminary Hearing, 9/9/15, at 

6-7.3 Appellant led K.T. up to her bedroom to play some music. While in 

K.T.’s bedroom, Appellant was drinking rum, and unzipped K.T.’s pants, and 

digitally penetrated her vagina. Id. at 9-10. K.T. told Appellant to stop, 

after which Appellant asked K.T. if she wanted to kiss him, which she 

responded in the negative. Id. at 11. Shortly after this incident K.T. 

reported the assault to her mother. Id. 

In docket CR 666-2015, Appellant was charged with four counts of 

aggravated indecent assault and two counts of indecent assault,4stemming 

from multiple incidents wherein Appellant digitally penetrated E.P., a young 

girl, who was between ten and eleven years old. Multiple incidents took 

place and typically involved Appellant going into E.P.’s bedroom at night, 

while drinking rum, and digitally penetrating her vagina. N.T. Preliminary 

Hearing, 12/9/15, at 9-12. 

____________________________________________

2 At the time of the assault, K.T. was a fourteen year old girl. 

3 All relevant factual information is derived from the transcripts of the 

preliminary hearings held on September 9, 2015, and December 9, 2015. 

The transcripts were admitted into evidence at the pretrial hearing on 

joinder. As the only challenge pertaining to the facts of the matter sub 

judice relate to Appellant’s pretrial objection to joinder, we cite to these 

transcripts. 

4 18 Pa.C.S.A. §§ 3125(b), 3125(a)(7), 3125(a)(8), 3126(a)(1), 3126(a)(7), 

and 3125(a)(1), respectively. 
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On March 24, 2016, the Commonwealth filed a notice of joinder 

pursuant to Pa.R.Crim.P. 582. Appellant filed an objection to the 

Commonwealth’s notice on March 28, 2016. The trial court held a hearing 

on April 4, 2016, at which it admitted into evidence the transcripts of the 

preliminary hearings held on September 9, 2015,5and December 9, 2016.6 

The trial court overruled the objection on April 6, 2016. 

On May 19, 2016, Appellant filed a motion in limine seeking to strike 

the seven shared jurors that sat on the unrelated case of Commonwealth 

v. Mays, CR No. 594-2015. Appellant asserted that following the conclusion 

of the Mays trial, Assistant District Attorney Brenda Servidio spoke to 

members of the Mays jury regarding inadmissible criminal background 

information, specifically, whether that information would have changed the 

verdict from not guilty to guilty. The trial court held a hearing on May 20, 

2016, on Appellant’s motion. After hearing from juror number 3, on the 

record, the trial court determined that the juror was competent and qualified 

to continue serving on the jury. See N.T. Jury Trial Day 1, 5/20/16, at 20-

21. At the beginning of the jury trial, the trial court questioned the jury 

panel as a whole, as to whether any member of the jury, excluding juror 

number 3, had any contact with Assistant District Attorney Brenda Servidio, 

____________________________________________

5

In case CR 474-2015.

6

In case CR 666-2015.
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or overheard any of the conversation discussed above. Id. at 41-42. There 

were no additional responses from the jury. 

Following a two-day jury trial held on May 20, and 23, 2016, the jury 

convicted Appellant on all counts. The trial court ordered a presentence 

investigation and a Sexual Offender Assessment Board (“SOAB”) 

assessment. On August 23, 2016, the trial court conducted a sexually 

violent predator (“SVP”) hearing, at the conclusion of which it found 

Appellant to be a SVP and sentenced him to an aggregate term of 14 to 30 

years’ incarceration. Appellant did not file any post-sentence motions. 

Appellant filed a timely notice of appeal on September 7, 2016, and an 

amended notice of appeal on September 8, 2016. The same date, the trial 

court directed Appellant to filed a concise statement of errors complained of 

on appeal. Appellant filed his concise statement on September 13, 2016, 

and the trial court issued a Pa.R.A.P. 1925(a) opinion on October 28, 2016. 

Appellant raises three issues for our review, which we repeat verbatim.

[I.] Whether the trial court erred as a matter of law or abused 

its discretion when granting the motion to consolidate CR 

No. 474-2015 and CR No. 666-2015, when there was no 

evidence that cases were similar[,] having a common plan 

or scheme[,] and in fact were two separate and distinct 

cases.

[II.] Whether the trial court erred as a matter of law or abused 

its discretion by not dismissing the jury panel after 

discovering that the Assistant District Attorney, Brenda 

Serivdo, Esquire, had tainted the jury by talking to a 

shared juror in a prior case about criminal defendants 

having prior records that jurors are not told about.
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[III.] Whether the trial court erred as a matter of law or abused 

its discretion when the trial court permitted the District 

Attorney to talk about expert evidence in his closing that 

was not presented in trial and the instruction to fix this 

error did not address that the [C]ommonwealth could not 

make this argument but rather said both sides could not 

address expert testimony.

Appellant’s Brief at 5. 

Appellant asserts that the trial court erred when it granted the 

Commonwealth’s motion to consolidate cases pursuant to Pa.R.Crim.P. 582 

based on a common scheme. “It is well settled that the decision of whether 

to join or sever offenses for trial is within the discretion of the trial court, 

and such decision will not be reversed on appeal absent a manifest abuse of 

that discretion or a showing of prejudice and clear injustice to the 

defendant.” Commonwealth v. Stiles, 143 A.3d 968, 975 (Pa. Super. 

2016) (citing Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 

2010)). “Discretion is abused when the course pursued [by the trial court] 

represents not merely an error of judgment, but where the judgment is 

manifestly unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill will.” 

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006) 

(alteration in orginal) (quoting Commonwealth v. Hood, 872 A.2d 175, 

178 (Pa. Super. 2005) appeal denied, 889 A.2d 88 (Pa. 2005)). Rule 528 

provides for joinder of certain offenses in certain instances.

(A) Standards
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(1) Offenses charged in separate indictments or informations 

may be tried together if:

(a) The evidence of each of the offenses would be 

admissible in a separate trial for the other and is capable 

of separation by the jury so that there is no danger of 

confusion; or

(b) The offenses charged are based on the same act or 

transaction.

Pa.R.Crim.P. 582. “Evidence of other bad acts is not admissible in a criminal 

trial in order to prove that the defendant had a propensity to act in such a 

manner.” Commonwealth v. Judge, 897 A.2d 1224, 1231 (Pa. Super. 

2006) (citing Pa.R.E. Rule 404(b)(1)). However, it is well established that 

“evidence of prior bad acts could be admitted if it were relevant to show: (1) 

motive; (2) intent or knowledge; (3) absence of mistake or accident; (4) 

common scheme or plan; or (5) identity.” Id. (citing Commonwealth v. 

Sam, 635 A.2d 603 (Pa. 1993), cert. denied, 511 U.S. 1115 (1994)). Thus, 

if the evidence tends to show a common scheme or plan, the offenses may 

be charged together. In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. 

Super. 2010), this Court affirmed a challenge to the admission of a prior 

sexual assault under the common scheme exception where the victims were 

of similar ages (14 and 15), victims were the defendant’s biological 

daughters, his sexual abuse started the same way, and the assaults 

occurred in bed. Id. at 1186. 

In the matter sub judice, the assault of K.T., who at the time was 14 

years of age, took place in her bedroom, Appellant was drinking rum, and 
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Appellant placed his hand in her vagina. Similarly, the assaults of E.P., who 

was approximately 10 or 11 years old, took place in her bedroom, Appellant 

was drinking rum, and placed his hand in her vagina. Further, Appellant was 

not related to either victim, he was dating E.P.’s mother, and was a family 

friend of K.T.’s stepfather. Appellant asserts that there were differences in 

the timing of the act, specifically that one occurred at night and one 

occurred in the morning. Appellant further argues that there were different 

people present in the house at the time of the assaults and that E.P. was 

sleeping when the assaults occurred, establishes that there is insufficient 

commonality between the events. We disagree. The similarities in the 

assaults “were not confined to insignificant details that would likely be 

common elements regardless of who committed the crimes.” Aikens, 990 

A.2d at 1186 (quoting Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 

1989)). The victims were of similar ages, the assaults took place in the 

victim’s bedrooms, Appellant was drinking rum at the time of each assault, 

and the manner of the assaults were similar. Thus, the evidence is similar 

and would be admissible in a separate trial to show a common plan or 

scheme, and the instances are capable of separation by the jury. Therefore, 

the trial court did not abuse its discretion when it permitted the cases to be 

tried together pursuant to Rule 582. Appellant’s claim fails. 

Next, Appellant asserts that the jury was tainted via contact in the 

hallway with a member of the Venango County District Attorney’s office. 

Specifically, the assistant district attorney spoke to a juror about 
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inadmissible criminal history evidence in a prior case, and whether if they 

heard such evidence would it have changed the jury’s verdict from not guilty 

to guilty. “Pennsylvania law generally requires a showing that ex parte 

communications with a jury resulted in prejudice in order to warrant relief.” 

Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa. 2014) (citing 

Commonwealth v. Ali, 10 A.3d 282, 313 (Pa. 2010)). Prior to ruling on 

Appellant’s motion in limine, the trial court questioned the purportedly 

tainted juror as follows.

Q: . . . The court has been made aware that you may have 

overheard a conversation between the Commonwealth and one 

of the other jurors that was involved in the May case. The 

Commonwealth’s attorney was asking him some questions.

A. You talking about after the trial?

Q. After the trial, yes. That’s what we need to inquire about 

right now. Do you recall that? Did you overhear anything?

A. The DA you mean?

Q. Yes.

A. Yes.

Q. Okay. You know what part of the conversation you heard?

A. She was talking directly actually to me, and what it was was, 

would it have made any difference if we could have presented 

this extra evidence? I said, well it may have. But I says, that’s 

not how the court system works.. Yeah, there’s stuff that has to 

be suppressed, it’s not related directly to that trial so .. .

Q. Okay. Now, can you tell us who all was present at that time?

A. There was one other juror, also. 

Q. And I did speak with Ms. Servidio and she indicated it was 

[M.B.]?
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A. The younger, gentleman?

Q. Yes.

A. Yes.

Q. That would’ve been him. All right. Were there any other 

jurors around?

A. Not that I’m aware of.

Q. Okay. Now, given that position, I just want to make sure 

that doesn’t in any way affect your ability to be fair and impartial 

in this case?

A. No, because I’m quite aware of the judicial system and 

evidence is evidence. What’s presented here is what decides the 

case not anything else.

Q. And that is part of the instructions that we give you that you 

cannot consider any other evidence that you may learn about 

this case outside what’s delivered from a witness on the witness 

stand under oath. So, you can follow that instruction?

A. Yes.

Q. You believe you can be fair and impartial in this case?

A. Most definitely, yes. 

N.T. Jury Trial Day 1, 5/20/16, at 17-18. It is troubling that an assistant 

district attorney would discuss patently inadmissible testimony with a juror, 

and ask whether that extremely prejudicial information would have an effect 

on a verdict. The fact that this juror was not yet excused from jury duty 

service compounds the inexplicable conduct of Attorney Servidio. 

However, the juror was astute and honest and credibly testified that s/he 

would remain fair and impartial in this case. Moreover, the juror accurately 

explained the role of a juror and that the decision of the jury must be made 
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solely on the evidence admitted at trial. Thus, we find that the trial court 

did not abuse its discretion when it did not excuse this juror. Appellant’s 

claim fails. 

Next, Appellant asserts the trial court erred in its charge to the jury 

when it provided a curative instruction regarding expert evidence. While 

Appellant did object to the Commonwealth’s closing argument, Appellant 

failed to object to the trial court’s curative jury instruction. Pennsylvania 

Rule of Criminal Procedure 647 provides that “[n]o 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.” 

Pa.R.Crim.P. 647(C). Further, “the mere submission and subsequent denial 

of proposed points for charge that are inconsistent with or omitted from the 

instructions actually given will not suffice to preserve an issue, absent a 

specific objection or exception to the charge.” Commonwealth v. 

Pressley, 887 A.2d 220, 225 (Pa. 2005). As discussed above, Appellant did 

not object pursuant to Rule 647(C) before the jury retired to deliberate. 

See N.T. Jury Trial Day 2, 5/23/16, at 317-348. Thus, Appellant’s claim is 

waived. 

Judgment of sentence affirmed.

Judge Solano joins the memorandum.

Justice Fitzgerald concurs in the result. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2017