Com. v. Slaughter, R. ( 2016 )

J-S26010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.*
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 25, 2016
I would conclude that Appellant has proven that he suffered actual
prejudice due to trial counsel’s failure to object to the trial court’s
inadequate instruction/colloquy when it impaneled the alternate juror. Thus,
I respectfully dissent.
I begin by stressing that the ‘actual prejudice’ standard does not
require certainty that the outcome of the proceeding would have been
different; instead, it requires “a reasonable probability” of that fact.
Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (“To demonstrate
prejudice, the petitioner must show ‘that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceedings
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S26010-14
would have been different.’”) (citation omitted; emphasis added). “[A]
reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.” Id. (citation omitted).
My confidence in the outcome of Appellant’s trial is undermined by the
following facts: Prior to the alternate’s being placed on the jury, the original
jury informed the court that it was deadlocked regarding certain charges.
The court recessed for the weekend, which provided ample time for the
alternate juror to be exposed to outside influences. When the trial
reconvened on Monday, the court decided to empanel the alternate juror,
triggering a presumption of prejudice to Appellant. See Commonwealth v.
Saunders, 686 A.2d 25, 28 (Pa. Super. 1996). The court did not question
the alternate juror about any outside influences to which he/she may have
been exposed. Id. at 29. The court also failed to ask the remaining jurors if
they could begin deliberations anew. Id. Appellant’s counsel did not object
to the court’s inadequate instruction; thus, the presumption of prejudice
suffered by Appellant was not cured. With the alternate juror participating
in deliberations, the newly constituted jury reached a verdict of guilty on the
very same evidence over which the original jury had been deadlocked. This
record makes it impossible for me to have confidence in the validity and
fairness of the verdict in this case. Accordingly, I would conclude that
Appellant has demonstrated that he suffered actual prejudice due to
counsel’s conduct.
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Additionally, trial counsel’s failure to object to the court’s insufficient
jury charge waived that error for appellate review. Had Appellant been able
to assert this claim on direct appeal, he would have had the benefit of the
less stringent ‘harmless error’ standard. In other words, Appellant would
only have had to demonstrate that there was a reasonable possibility that
the trial court’s inadequate instruction/colloquy upon impaneling the
alternate juror might have contributed to his conviction. Based on this
record, as discussed supra, it is reasonable to conclude that this Court would
have held that the trial court’s error was not harmless and awarded
Appellant a new trial. Accordingly, I would conclude that Appellant has also
demonstrated that his trial counsel’s conduct “could have reasonably had an
adverse effect on the outcome of the [appellate] proceedings.” Spotz, 84
A.3d at 315 (citation omitted).
For these reasons, I would hold that Appellant has proven that he
suffered ‘actual prejudice’ and demonstrated trial counsel’s ineffectiveness.
Therefore, I would vacate the PCRA court’s order denying his petition and
remand for a new trial. Because the Majority reaches the opposite result, I
dissent.
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