Com. v. Shiffer, A.

• Court: Superior Court of Pennsylvania
• Decided: February 7, 2023
• Docket: 1549 MDA 2021
• Status: Unpublished

Opinion

J-A27016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALEXANDER CHRISTIAN SHIFFER : : Appellant : No. 1549 MDA 2021

Appeal from the Judgment of Sentence Entered August 3, 2021 In the Court of Common Pleas of Juniata County Criminal Division at No(s): CP-34-CR-0000169-2019

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 7, 2023

Alexander Christian Shiffer appeals the judgment of sentence entered

following his jury convictions for indecent assault (without consent) and

indecent assault (complainant under 16).1 Shiffer challenges the weight of the

evidence and the denial of his motion for a mistrial. We affirm.

Shiffer’s convictions stem from his inappropriate contact with his

stepdaughter, K.C., who was 14 years old at the time. K.C. testified that on

the night in question she was home with her sister, mother, and Shiffer. She

said she was lying on her bed reading and Shiffer entered her room to tuck

her in and say good night. K.C. testified that Shiffer was “crawling under the

covers” and “kept pulling [her] in for hugs[.]” N.T., Trial, 5/25/21, at 22. She

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3126(a)(1) and 3126(a)(8), respectively. J-A27016-22

stated that as Shiffer was pulling her in, his hand “slipped a little” down the

front of K.C.’s shirt. Id. at 23. K.C. testified that she repositioned herself and

“kind of” pulled out his hand and that she thought “he pulled it out a little bit

himself, too.” Id. at 25. The two continued to talk, and when Schiffer pulled

K.C. in for another hug, “his hand slipped down" her pants to her buttocks,

inside her underwear. Id. at 25-26. While his hand was in her underwear,

Shiffer grabbed K.C.’s buttocks. Id. at 26. K.C. testified that his hand

remained inside her underwear for “a few minutes” while she “kept trying to

pull it out[.]” Id. at 27. She kept asking him to stop and was finally able to

pull his hand out of her pants. Id.

The Commonwealth asked K.C. if there were other instances when

Shiffer touched her. K.C. replied that there were times Shiffer would get on

top of her when they would tickle each other and she “could feel him through

his pants.” Id. at 29. When the Commonwealth asked K.C. to explain what

she meant, defense counsel objected and asked for a sidebar. Id. at 29-30.

At sidebar, counsel moved for a mistrial pursuant to Rule 404 of the

Pennsylvania Rules of Evidence. She stated that the tickling incident was not

mentioned in any discovery materials, and it was her first time hearing about

it. Id. at 30. The Commonwealth responded that it learned of the information

“at least as of [the] day of jury selection” and that it was part of the story of

what led to the incident at issue. Id. The court denied the motion for a mistrial

and told the Commonwealth to move on, concluding that the jury had not

been prejudiced. Id. at 31. The sidebar discussion then concluded.

-2- J-A27016-22

K.C.’s mother, Jamie Shiffer, took the stand next. She testified that at

the time in question, she was downstairs at home while K.C. and her sister

were upstairs getting ready for bed. Id. at 52. She explained that K.C. came

downstairs crying and told her that Shiffer “had put his hand down her pants

and squeezed her bottom and that he had put his hand down her shirt.” Id.

at 53. Jamie went upstairs to confront Shiffer who at this time was sleeping

in their bedroom. When Jamie confronted Shiffer with what K.C. had told her,

Shiffer asked her what she was talking about. Jamie then went back

downstairs with K.C. Shiffer also followed Jamie downstairs and said that “he

didn’t know what happened but he was sorry he did something.” Id. at 54.

The Commonwealth also introduced Shiffer’s videotaped police

interview. During the interview, Shiffer stated “he wasn’t going to sit there

and call his daughter a liar. If she says that he did it, then he did.” Id. at 82.

Shiffer testified in defense that he only put K.C. to bed on the night in

question and did not intentionally touch her buttocks. He testified that in the

process of trying to get off K.C.’s bed he could have accidentally touched her.

The jury found Shiffer guilty of the above-referenced charges. The court

sentenced Shiffer in total to 4 to 23 months’ incarceration. Shiffer filed a post-

sentence motion, which the trial court denied. This timely appeal followed.

Shiffer raises the following issues:

1. Did the trial court err in denying [Shiffer’s] motion for mistral where the Commonwealth intentionally solicited the testimony of the complainant to an alleged prior bad act of [Shiffer] and failed to provide notice?

-3- J-A27016-22

2. Did the trial court err in denying [Shiffer’s] post sentence motion requesting a new trial where the verdict for the charges of indecent assault without consent and indecent assault person less than sixteen years of age, was so contrary to the weight of the evidence that it shocks one’s sense of justice, where the uncontradicted testimony of the Commonwealth’s witnesses did not outweigh the testimony of [Shiffer] and other evidence that supported [Shiffer’s] version of events?

Shiffer’s Br. at 5 (suggested answers omitted).

Shiffer’s first issue addresses the court’s denial of his motion for a

mistrial. He maintains that the Commonwealth elicited prior bad act evidence

without providing him notice pursuant to Pa.R.E. 404(b)(3). He alleges that

the Commonwealth did not show a sufficient nexus between the prior bad act

testimony and the acts charged, such as would render the bad act testimony

relevant. Shiffer’s Br. at 14. He also argues that the trial court’s telling the

prosecutor to move on, without giving the jury “clarification,” led the jury to

believe that Shiffer had placed himself on top of K.C. many times. Id.

We review the court’s grant or denial of a motion for a mistrial for an

abuse of discretion. Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa.

2011). An abuse of discretion exists where the court misapplies or overrides

the law, exercises its judgment in a manifestly unreasonably way, or if its

decision is “the result of partiality, prejudice, bias or ill-will[].”

Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008) (citation omitted).

A mistrial is appropriate only “when an incident is of such a nature that its

unavoidable effect is to deprive the [defendant] of a fair and impartial trial.”

-4- J-A27016-22

Commonwealth v. Bennett, 225 A.3d 883, 890 (Pa.Super. 2019) (citation

omitted).

Rule 404(b)(1) of the Pennsylvania Rules of Evidence bars the admission

of evidence of prior bad acts to prove a person’s character in order to show

“that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Such evidence may nonetheless be admissible

for another proper purpose, such as “proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of

accident,” if its probative value outweighs its potential for unfair prejudice.

See id. at 404(b)(2). If in a criminal case the prosecution wishes to admit

such evidence, it must provide “written notice in advance of trial so that the

defendant has a fair opportunity to meet it[.]” Id. at 404(b)(3).

Here, Shiffer’s stated objection at trial was a request for a mistrial based

on the Commonwealth’s failure to give Rule 404(b)(3) notice. The trial court

refused the motion because it found the testimony about the tickling incident

had not prejudiced the jury sufficiently to warrant a mistrial. We perceive no

abuse of discretion in this regard. To the extent Shiffer now objects that there

was an insufficient “nexus” to render the testimony relevant, that objection is

waived for failure to make it at trial. Finally, Shiffer’s argument that the trial

court should have given the jury “clarification” is similarly waived for failure

to ask for a curative instruction at trial. See Pa.R.A.P. 302(a);

Commonwealth v. Johnson, 42 A.3d 1017, 1026 n. 5 (Pa. 2012).

-5- J-A27016-22

Shiffer’s remaining issue challenges the weight of the evidence. Shiffer

states that the uncontradicted portion of the Commonwealth’s evidence only

showed that K.C., her mother, her sister, and Shiffer were all at home on the

night in question, and that Shiffer went into K.C.’s room, tucked her into bed,

and then went to sleep. He contends that the remainder of K.C.’s testimony

regarding the events at issue were directly contradicted by her own testimony,

Shiffer’s testimony, and the Commonwealth’s other witnesses. Shiffer also

states that the victim’s testimony contradicted her statements to the police.

He argues that in determining that the verdict was not contrary to the weight

of evidence, the court “ignored the contradictions and inconsistencies to

[K.C.’s] testimony.” Shiffer’s Br. at 23.

When reviewing a challenge to the weight of the evidence, we determine

whether the court abused its discretion in denying the defendant’s weight

claim. See Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). We

“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. Commonwealth v. Talbert, 129 A.3d

536, 546 (Pa.Super. 2015) (citation omitted). Additionally, “[t]he weight of

the evidence is exclusively for the finder of fact [,] who is free to believe all,

none or some of the evidence and to determine the credibility of the

witnesses.” Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995).

“Resolving contradictory testimony” is also a matter for the factfinder.

-6- J-A27016-22

Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa.Super. 2021), appeal

denied, 265 A.3d 1278 (Pa. 2021).

Here, Shiffer’s argument centers on the victim’s credibility and her

contradictory statements. After reviewing the record, we cannot say that any

contradictions or inconsistencies in the evidence were of such a nature that

trial court abused its discretion in rejecting Shiffer’s weight challenge. We

therefore affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/07/2023

-7-