Com. v. Fischer, D., 976 WDA 2017

In 2014–2015, Dennis Lynn Fischer (Appellant) lived with his wife and her children; the Commonwealth alleged he forced the then 7–8-year-old child C.Y.G. to perform oral sex at least five times, promising treats.
Photographs of the act and identification of the penis by Appellant’s wife were introduced at trial; C.Y.G.’s brother disclosed the abuse, and an aunt reported it to police.
Appellant was charged with multiple offenses including five counts of involuntary deviate sexual intercourse (IDSI) with a child; a jury convicted him in June 2016.
At trial the court allowed the child to testify with a teddy bear; after testimony the judge spoke briefly with the child on the record in front of the jury (no objection at trial).
Several sidebar conferences occurred off the record; only the first sidebar was transcribed and Appellant’s counsel did not object at trial or request transcription.
Appellant filed post-sentence motions raising (1) the judge’s on-the-record dialogue with the child as impermissible judicial commentary affecting credibility, and (2) failure to transcribe sidebar conferences; the trial court denied relief and the Superior Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial judge’s on-the-record remarks to the child witness in front of the jury amounted to prejudicial judicial commentary requiring a new trial	Commonwealth: judge’s brief, benign remarks did not prejudice defendant or affect fairness of trial	Fischer: judge’s conversation with the child constituted a judicial imprimatur on her credibility and was prejudicial	Waived for failure to contemporaneously object; even substantively, imperfect remarks do not automatically require a new trial unless prejudicial
Whether the court erred by not ensuring all sidebar discussions were transcribed and made part of the record	Commonwealth: no error where counsel did not object or request transcription	Fischer: off-the-record sidebars denied him a complete record and reviewable transcript	Waived for failure to object at trial; prior precedent holds such claims are waived when counsel does not object

Commonwealth v. Rush, 605 A.2d 792 (Pa. 1992) (new trial required only when judge’s remarks are prejudicial and deprive defendant of a fair trial)
Commonwealth v. Thoeun Tha, 64 A.3d 704 (Pa. Super. 2013) (failure to raise contemporaneous objections waives appellate claims)
Commonwealth v. Sanchez, 82 A.3d 943 (Pa. 2013) (claims about off-the-record conferences are waived when counsel does not object)
Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003) (discussing relaxed waiver rule for capital defendants)