Com. v. Thomas, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KELLIS A. THOMAS
Appellant No. 1613 MDA 2016
Appeal from the Judgment of Sentence March 1, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001142-2015
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 10, 2017
Appellant, Kellis A. Thomas, appeals from the judgment of sentence
entered March 1, 2016, in the York County Court of Common Pleas.
Appellant contends that the trial court erred by failing to remove a juror
from the jury after information emerged during trial concerning a
relationship between the juror and a party involved in the case. We affirm.
On June 24, 2014, Appellant was arrested following a controlled buy
operation executed by a confidential informant working with several officers
from the York County Drug Taskforce. One of the officers involved in the
operation was Officer Jason Gracey (“Officer Gracey”), who assisted in
searching the confidential informant’s vehicle for contraband prior to the
controlled buy. Following his arrest, Appellant was charged with
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Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver
(cocaine)1 and proceeded to a jury trial.
During the first day of trial, the Commonwealth’s witness, Officer
Adam Bruckhart (“Officer Bruckhart”), mentioned Officer Gracey’s
involvement in the investigation. At the close of Officer Bruckhart’s
testimony, the court adjourned for the day. The next day, the trial court
informed the parties that:
[y]esterday, after we excused the jurors, one of the jurors
approached the TIP staff and indicated that the juror is distantly
related to one of the police officers who was mentioned as taking
part in the operation, not any of the officers who are going to be
a witness. The officer’s name was not mentioned during voir dire
so there was no occasion for it to come up.
N.T., Trial, 1/13/16, at 157.
Defense counsel requested that the juror in question be removed from
the case. The trial court brought the juror before counsel for both parties
and the following examination occurred.
THE COURT: You’re Juror Number 369; is that
correct?
JUROR #369: Yes.
THE COURT: It was indicated to me yesterday after
we excused everyone that you thought
you were related to one of the police
officers whose name was mentioned
during the testimony; is that correct?
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1
35 P.S. § 780-113(a)(30).
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JUROR #369: Yes.
THE COURT: What’s the police officer’s name.
JUROR #369: Officer Gracey.
THE COURT: Okay. And what’s your relationship to
him.
JUROR #369: He’s actually my husband’s cousin’s
husband.
THE COURT: Okay. The fact that there might that
relationship – he’s not going to be
testifying as a witness; is that correct,
[A.D.A.]?
A.D.A: That’s correct.
THE COURT: The fact that there might be that
relationship, would that interfere with
your ability to be fair and impartial in
this case?
JUROR #369: No.
THE COURT: All right. One of the issues of course the
defense is raising is that the police
officers didn’t properly do their job
during the course of the investigation. Do
you think that – knowing that that may
be a possible defense, would that
interfere with your ability to be fair and
impartial in this case?
JUROR #369: No.
THE COURT: All right. [A.D.A.], any questions?
A.D.A. No, Your Honor.
THE COURT: All right. [Defense counsel], do you have
any questions?
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DEFENSE COUNSEL: No, Your Honor.
THE COURT: Okay, thank you. You may return to the
juror room.
(Whereupon Juror #369 left the courtroom)
THE COURT: All right. Anything from counsel?
A.D.A.: No, Your Honor.
THE COURT: [Defense counsel], anything with the
juror?
DEFENSE COUNSEL: Nothing additional, Your Honor.
THE COURT: Okay. All right. Well, if you’re still asking
that the juror be removed, I’ll deny that
request.
Id., at 159-162.
Following the completion of testimony and closing arguments, the jury
convicted Appellant. On March 1, 2016, Appellant was sentenced to thirty-
three months’ to six years’ imprisonment. Appellant filed timely post-
sentence motions, which the trial court denied. This timely appeal follows. 2
On appeal, Appellant’s sole contention is that the trial court erred by
failing to declare a mistrial after Juror #369 realized that there was a familial
relationship with a party involved in Appellant’s police investigation. See
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2
We dismissed Appellant’s original appeal on August 12, 2016, due to
counsel’s failure to file a docketing statement. However, Appellant filed a
petition to reinstate his appellate rights, which the trial court granted on
August 31, 2016. Appellant then filed a timely notice of appeal to this court
and complied with the trial court’s concise statement order.
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Appellant’s Brief, at 4, 10.3 Appellant alleges that there is a presumed bias
when a juror reveals a familial or other close relationship with a litigant,
counsel, victim, or witness, and that the trial court’s inquiry into Juror
#369’s relationship with Officer Gracey was insufficient to overcome the
presumption. See id., at 10. Due to the trial court’s actions, Appellant
contends that he was denied a fair and impartial trial and that his Sixth
Amendment rights were violated, as well as his Article 1, § 9 rights under
the Pennsylvania Constitution. See id.
The Commonwealth responds that the relationship between the juror
and Officer Gracey was not close enough for the presumption of bias to
apply. See Commonwealth’s Brief, at 14. It highlights the fact that, during
voir dire, Juror #369 did not respond affirmatively when asked if any
member of the jury pool had a close relationship with a police officer. See
id., at 15; see also N.T., Voir Dire, 1/12/16, at 30 (“Again, I’m looking for a
close relation, someone you interact with at least monthly or so.”)
Therefore, the Commonwealth argues that the trial court was only required
to ascertain that Juror #369 would be an impartial juror, and as Juror #369
claimed to be impartial, the trial court did not err by failing to remove the
juror. See id., at 17.
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3
Appellant notes that, in a different setting, the correct action for the trial
court to take would have been to remove the juror from the jury panel and
replace that juror with an alternate. However, as there were no alternates
selected to serve on the jury, Appellant contends that the only appropriate
remedy for the trial court to take was to declare a mistrial.
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A criminal defendant’s right to an impartial jury is explicitly
granted by Article 1, Section 9 of the Pennsylvania Constitution
and the Sixth Amendment to the United States Constitution. The
jury selection process is crucial to the preservation of that right.
The sole purpose of examination of jurors under voir dire is to
secure a competent, fair, impartial and unprejudiced jury. It is
therefore appropriate to use such an examination to disclose
fixed opinions or to expose other reasons for disqualification.
Commonwealth v. Kelly, 134 A.3d 59, 61 (Pa. Super. 2016) (internal
citations omitted).
There are two situations in which an attorney’s challenge for cause
should be sustained and a juror disqualified:
(1) when the potential juror has such a close relationship, be it
familial, financial or situational, with parties, counsel, victims, or
witnesses, that the court will presume the likelihood of
prejudice; and (2) when the potential juror’s likelihood of
prejudice is exhibited by his conduct and answers to questions at
[v]oir dire.
Commonwealth v. Colon, 299 A.2d 326, 327 (Pa. Super. 1972) (footnotes
omitted).
In the first situation, our standard of review has been declared to be
“ordinary.” See id., at 327-28. By announcing an “ordinary” standard of
review, we have found, as a matter of law, it is reversible error to allow a
juror to take part in juror deliberations when he or she has a close
relationship with the parties, counsel, victims, or witnesses involved in the
case. See id. However, when the relationship between the juror and a party,
counsel, victim, or witness is not a close relationship, we employ only an
abuse of discretion standard when evaluating a trial judge’s decision to
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remove or not remove a juror. See id. See also Commonwealth v.
Colson, 490 A.2d 811, 818 (Pa. 1985), abrogated on other grounds by
Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001) (“The decision on
whether to disqualify is within the discretion of the trial court and will not be
reversed in the absence of a palpable abuse of discretion[.]”)
Here, our standard of review hinges on whether Juror #369 had such a
close relationship with Officer Gracey that the juror should have been
presumed biased. Our Supreme Court has previously evaluated a series of
cases in which juror relationships to the case did not mandate a presumption
of bias and juror removal.
A remote relationship to an involved party is not a basis for
disqualification where a prospective juror indicated during voir
dire that he or she will not be prejudiced. This is illustrated by a
number of cases. One of these is Commonwealth ex rel.
Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434 (1959). That
case involved challenges to two prospective jurors in a murder
trial. One of them was the son-in-law of the detective who
investigated the crime. The other was the second cousin once
removed to the victim. She testified that she and the victim lived
twenty-five miles apart and never visited each other. We found
no error in not disqualifying these jurors. In Commonwealth v.
Yohn, 271 Pa. Super. 537, 414 A.2d 383 (1979), the court
upheld the refusal to disqualify two jurors in a burglary case.
One of them had been employed by the victim three or four
years before the crime. The other had gone on a fishing trip six
to eight years before the trial with a police officer who was the
superior of the prosecuting officer. No basis for a challenge for
cause of a prospective juror was found in Commonwealth v.
Bright, 279 Pa. Super. 1, 420 A.2d 714 (1980), a prosecution
for assault and resisting arrest, where the juror lived in the same
neighborhood as the prosecuting attorney and had known him
since he was a child. There was likewise no ground for
challenging a prospective juror in a theft and receiving stolen
goods prosecution where she was somehow related to the police
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prosecutor (the record did not disclose how) and was the aunt of
a member of the district attorney’s staff who was not trying the
case. Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d
4 (1981).
Colson, 490 A.2d at 818-19. Additionally, the Court in Colson found that a
juror’s relationship to a case, i.e., knowing the mother of the murder victim,
knowing a witness who discovered the victim’s van, knowing the wife of the
prosecuting police officer, and teaching the victim’s son in school, were not
grounds for a presumption of prejudice where none of the juror’s
relationships were close. See id.
Initially, we admonish both the trial court and defense counsel for
failing to explore the exact nature of the relationship between Juror #369
and Officer Gracey once Juror #369 discovered her relationship to a party
involved with the case. However, as the Commonwealth suggested, we can
discern the nature of the relationship from the fact that Juror #369 indicated
during voir dire that she did not have a close relationship, i.e., at least
monthly contact, with any police officer. As Juror #369 clearly knew that her
husband’s cousin’s husband was a police officer, it logically follows that her
response during voir dire applied to Officer Gracey, and that therefore, she
does not consider her relationship with Officer Gracey to be a close
relationship.
We find Juror #369’s relationship to Officer Gracey to be most
analogous to the relationship between the relationship between the juror
and the police prosecutor in Stamm. There, we found that the fact that a
juror was somehow related to the police prosecutor on the case was
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insufficient for a per se presumption of bias. See 429 A.2d at 7. Here, the
record indicates that even though there is a familial relationship between
Juror #369 and Officer Gracey, that relationship is not considered to be a
close one by Juror #369.
As the relationship between Juror #369 and Officer Gracey was not a
close relationship, the per se standard governing striking a juror for cause
does not apply. Thus, we must analyze the purported conflict under an
abuse of discretion standard. See Colson, 490 A.2d at 818. Because the
abuse of discretion standard does not require a presumption of bias, and
Juror #369 indicated multiple times that her relationship with a party to the
case would not influence her decision and that she could be impartial, we
cannot find that the trial court abused its discretion in refusing to declare a
mistrial.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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