Com. v. Slaughter, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONDELL SLAUGHTER,
Appellant No. 367 EDA 2013
Appeal from the PCRA Order Entered April 8, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):CP-51-CR-0809732-2001
BEFORE: BENDER, P.J.E., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 12, 2014
Appellant, Rondell Slaughter, appeals from the April 8, 2010 order
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we are
In a prior appeal before this Court, we summarized the factual and
On April 16, 2003, a jury convicted Appellant of arson,
criminal conspiracy, and multiple counts of aggravated assault.
His convictions stemmed from the February 26, 2001
firebombing of a home in which a drug dealing and prostitution
operation was conducted. Six people were wounded in this
attack. On June 19, 2003, Appellant was sentenced to an
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*
Former Justice specially assigned to the Superior Court.
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our Supreme Court subsequently denied his petition for
permission to appeal. Commonwealth v. Slaughter, 903 A.2d
52 (Pa. Super. 2006) (unpublished memorandum), appeal
denied, 911 A.2d 935 (Pa. 2006). Appellant did not petition for
permission to appeal to the United States Supreme Court and,
therefore, his judgment of sentence became final on August 17,
2006. See Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
sentence becomes final ninety days after our Supreme Court
rejects his or her petition for allowance of appeal since petitioner
had ninety additional days to seek review with the United States
Supreme Court).
On October 24, 2007, Appellant filed his first pro se PCRA
petition and counsel was appointed. That petition was denied on
April 8, 2010. On April 21, 2010, Appellant filed a second pro se
1
Therein, he alleged ineffective assistance of his
a pro se notice of appea
denying his first petition. That notice of appeal was time
appeal was timely. See Pa.R.A.P.
because his second PCRA petition was still pending before the
court.2
______________________
1
Pro Se Motion for Post
Conviction
2
-21-10 you filed a new
PCRA Petition. You now have to wait until Judge rules on that
Petition before you file an appeal. You can only do one at a
See -1.
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Commonwealth v. Slaughter, 2036 EDA 2011, unpublished memorandum
at 1-3 (Pa. Super. filed October 26, 2012).
Appellant filed a timely pro se notice of appeal from the denial of his
second PCRA petition, arguing, inter alia, that
denial of his first PCRA petition was improperly rejected by the Clerk of
Id. at 3. We agreed with this argument and, accordingly, we
first PCRA petition. Id. at 5. We also directed that counsel be appointed to
represent Appellant on appeal. Id.
Upon remand, counsel was appointed to represent Appellant in the
instant appeal. Counsel filed a timely concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, Appellant
raises the following five issues for our review:
A. Whether [] Appellant was denied due process and effective
assistance of counsel by both trial and appellate counsel where
there was a f
partial verdict be recorded before the trial court terminated
deliberations and seated the already dismissed alternate juror to
begin new deliberations?
B. Whether [t]rial counsel was ineffective for failing to introduce
character witnesses who were willing and available to testify at
trial?
C. Whether PCRA counsel was ineffective for failing to raise trial
and appellate counsel ineffectiveness for failing to argue and
preserve that the evidence was insufficient as a matter of law to
convict [] Appellant of the crimes charged?
D. Whether [a]ppellate and trial counsel were ineffective for
failing to properly present and argue challenges to the
discretionary aspects of sentencing[?] [] Appellant also argues
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that PCRA counsel was ineffective for failing to preserve this
issue in the PCRA [p]etition.
E. Whether PCRA [c]ounsel was ineffective for failing to raise
objections with regard to Detective Brooks
th
Amendment right and its like
provision?
To begin, we note that
grant or denial of post-conviction relief is limited to examining whether the
Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence c
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
performance
was deficient and that the deficiency prejudiced the petitioner. A
unprofessional errors, the result of the proceeding would have
posits that: (1) the underlying legal issue has arguable merit;
or
omission.
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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
ineffective for not appropriately objecting when the trial court seated an
alternate juror after jury deliberations had begun. The following facts
On April 11, 2003, after the jury had retired to deliberate its verdict,
the jurors sent a note to the court indicating that they had reached an
agreement regarding some of the charges, but were at an impasse on
The court denied that motion, instead instructing the jury to continue to
deliberate. Id. at 7. Immediately after providing this instruction, the court
Id.
When the trial commenced on Monday, April 14, 2003, one of the
jurors was absent due to illness. N.T. Tri
could not reach the juror to ascertain if or when she would be able to return
to court. Id.
Id. this trial and the
Id. at 9. The court then stated that it was going to
Id. at
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9-10. The court overruled that objection and, when the jury reentered the
courtroom, the court provided the following instruction:
The Court: Just so you have an understanding of the delay
because one of your number fell ill so we had to make a
substitution. What that means is that at this time you are to
disregard your previous deliberations and you are to start from
substituted for juror number seven. So you are to disregard and
begin anew with regard to your deliberations.
each juror must agree. Your verdict must be unanimous. A
majority vote is not permissible. You as jurors have a duty to
consult with one another and deliberate with a view towards
reaching a unanimous agreement if it can be done without
violence to your individual judgment. That is to say, each juror
must decide the case for himself or herself but only after an
impartial consideration of the evidence with his and her fellow
jurors. In the course of such deliberations, the jurors should not
hesitate to reexamine his or her own views and to change his or
her opinion if convinced that it is erroneous, but no juror should
surrender his or her honest convictions as to the weight or effect
of his [opinion] solely because of the opinion of his or her fellow
jurors or for the mere purpose of returning a unanimous verdict.
With that, I will send you to your deliberations.
Id. at 10- s charge,
and the jury, with the alternate juror included, retired to deliberate. Id. at
2.
On April 15, 2003, the jury once again sent a note to the court
indicating that it had reached a verdict on certain charges, but was
deadlocked on others. N.T. T
again moved for a mistrial. Id. However, the court denied that motion and
instructed the jury to continue to deliberate. Id. at 6. On April 16, 2003,
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the jury asked the court to provide further instructions regarding the
jury with instructions regarding these two issues and the jury resumed its
deliberations. Id. at 3-12. That same day, the jury returned a verdict of
guilty on the charges of arson, criminal conspiracy, and multiple counts of
aggravated assault.
In support of his assertion that counsel did not lodge an appropriate
on the version of Pa.R.Crim.P. 645 that was in effect at the time of his trial,
which stated that alternate jurors must be discharged before the jury retired
to consider its verdict. Appellant also relies heavily on Commonwealth v.
Saunders, 686 A.2d 25 (Pa. Super. 1996). In Saunders
original jury began deliberations on Friday and then retired for the weekend.
Id. at 26. On Monday morning, a juror called the court and informed it that
she was ill and would not be able to return to court until the end of the
week. Id. In order to avoid a mistrial, the court replaced the sick juror with
an alternate and instructed the remaining jurors to advise the alternate of
Id. at 26-27, 29-30.
Two hours later, the jury returned with a verdict. Id. at 27.
On appeal, our Court held that under the plain language of Rule
645(B) (which was derived from Pa.R.Crim.P. 1108(a), to which Saunders
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Saunders, 686 A.2d at
27. Consequently,
an alternate juror after deliberations have begun, there is a presumption of
Id. at 28.
However, we went on in Saunders to hold that this presumption may
be rebutted
Id.
stated:
While this question has no precise answer, we are convinced that
its solution begins with the trial court, prior to impaneling the
alternate juror, extensively questioning the alternate and
remaining jurors. The trial court must insure that [the] alternate
has not been exposed to any improper outside influences and
that the remaining regular jurors are able to begin their
deliberations anew. These are fundamental consideration that
can not [sic] be ignored.
Further, after questioning the jurors, the trial court's
instructions to the recomposed jury are of the uppermost
importance. These instructions are the linchpin to securing the
uprightness of the jury's verdict. First, the recomposed jury must
personal and had nothing to do with the discharged juror's views
A.L.R.4th 711, § 21a (citing Commonwealth v. Connor, 392
Mass. 838, 467 N.E.2d 1340 (1984)). This charge eliminates any
impression among the remaining jurors that the discharged
member's views on the case were improper and that they risk
removal for having similar beliefs.
Next, the recomposed jury must be directed to begin
deliberations anew. As noted by the Supreme Court of California:
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[D]eliberations must begin anew when a substitution is
made after final submission to the jury. This will insure
that each of the 12 jurors reaching the verdict has fully
participated in the deliberations, just as each had observed
and heard all proceedings in the case.... [T]he court
[must] instruct the jury to set aside and disregard all past
deliberations and begin deliberating anew. The jury should
be further advised that ... the law grants to the People and
to the defendant the right to a verdict reached only after
full participation of the 12 jurors who ultimately return a
verdict; that this right may only be assured if the jury
begins deliberations again from the beginning; and that
each remaining original juror must set aside and disregard
the earlier deliberations as if they had not been had.
[People v.] Collins, 552 P.2d [742,] 746 47 [Cal. 1976)].
impact of the influence
of the excused juror, and [allow the regular jurors to] consider
the evidence in the context of full and complete deliberations
State v.] Lipsky, 395 A.2d [555,] 558
[(N.J. Super. 1978)].
Id. at 29.1 Because the trial court in Saunders had instructed the jury to
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1
In 2013, Rule 645 was amended to add subpart (C), which mirrors the
colloquy requirements set forth in Saunders. That section reads:
(C) After the jury has retired to consider its verdict, a principal
juror who becomes unable to perform his or her duties or is
disqualified may be replaced with a retained alternate juror only
if the trial judge is satisfied that the proper jury function is not
harmed by the replacement. To ensure this, the trial judge shall:
(1) colloquy the alternate juror on the record that the alternate
juror has not been exposed to any improper influences; and
(2) once the jury is reconstituted following the replacement of
the principal juror by the alternate juror, colloquy and instruct
the reconstituted jury on the record that:
(Footnote Continued Next Page)
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gment of sentence and
remanded for a new trial. Id. at 29.
While the facts of this case closely mirror Saunders, we acknowledge
that, here, the trial court correctly instructed the jury to begin deliberations
anew. We also will liberally construe the co
Saunders requirement that the
jury be informed that
personal and had nothing to do with the discharged juror's views on the case
Id. at 29.
Nevertheless, the fact that the trial court satisfied two of the
Saunders prongs cannot cure the prejudice caused to Appellant where the
ely question[] the alternate
to any improper outside influences and that the remaining regular jurors are
_______________________
(Footnote Continued)
(a) the jurors understand that the reason the discharged
juror was being replaced has nothing to do with the
discharged juror's views on the case; and
(b) the reconstituted jury understands that they must set
aside and disregard all past deliberations and begin
deliberations anew so as to eliminate the influence of the
excused juror and so that the reconstituted jury will
consider the evidence in the context of full and complete
deliberations with the new juror.
Pa.R.Crim.P. 645(C).
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Id. Because the court did not
satisfy these requirements, we agree with Appellant that counsel did not
lodge an appropriate objection to the seating of an alternate juror.
Admittedly, counsel did object when the court indicated it was going to
substitute the alternate. However, after the court provided an instruction
that was inadequate under the dictates of Saunders, counsel should have
objected on this precise basis to allow the court the opportunity to correct its
charge and cure the prejudice caused to Appellant. Counsel could have had
no reasonable basis for failing to do so under the clear dictates of Saunders
that his trial counsel acted
to seat an alternate juror after deliberations were underway. 2 Accordingly,
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2
We note that in rejecting this claim of ineffectiveness, the PCRA court
beginning ag
Commonwealth v. Feliciano
Feliciano is
misplaced. In that case, the trial court granted permission for a juror to
leave deliberations for a short period to smoke a cigarette. Id. at 903. The
appellant claimed that because the trial court did not instruct the jury to
suspend deliberations until the juror returned, the case was comparable to
Saunders and a presumption of prejudice arose. Id. We disagreed,
Id. at 903.
Because the facts of the instant case are analogous to Saunders, and are
clearly distinct from Feliciano Feliciano is
erroneous.
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and remand for a new trial. In light of our disposition, we need not address
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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