Com. v. Buckley, C. ( 2021 )

J-S02032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES BUCKLEY :
:
Appellant : No. 800 EDA 2020
Appeal from the PCRA Order Entered February 3, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011223-2012
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 1, 2021
Appellant Charles Buckley appeals from the order denying his timely
first petition filed under the Post Conviction Relief Act 1 (PCRA). Appellant
argues that the PCRA court erred in denying his motion for discovery and in
rejecting his claims that trial counsel was ineffective for failing to object to the
admissibility of DNA evidence and failing to request a mistrial.2 Following our
review of the record, we affirm on the basis of the PCRA court’s opinion.
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 As part of his appeal from the final order denying his PCRA petition filed on
February 3, 2020, Appellant challenges the PCRA court’s April 11, 2019
interlocutory order denying Appellant’s motion for PCRA discovery in which he
alleged exceptional circumstances pursuant to Pa.R.Crim.P. 902(E)(1). It is
well established that “an appeal of a final order subsumes challenges to
previous interlocutory decisions.” Betz v. Pneumo Abex, LLC, 44 A.3d 27,
54 (Pa. 2012); see also Pa.R.A.P. 341, note (providing that “[a] party needs
to file only a single notice of appeal to secure review of prior non-final orders
(Footnote Continued Next Page)
J-S02032-21
We adopt the PCRA court’s summary of the facts underlying this matter.
See PCRA Ct. Op., 5/18/20, at 2-4. Briefly, Appellant was charged with
numerous crimes related to the murder of Tanisha Finch and attempted
murder of Rahim Hartzog. The matter proceeded to trial, and at its conclusion,
the jury found Appellant guilty of first-degree murder, attempted murder,
aggravated assault, and carrying a firearm in public in Philadelphia.3 The trial
court sentenced Appellant to a term of life imprisonment without the
possibility of parole for the murder conviction, a consecutive term of ten to
twenty years of incarceration for attempted murder, and a consecutive term
of two and one-half to five years of incarceration for carrying a firearm in
public in Philadelphia. The aggravated assault conviction merged for
sentencing purposes.
Appellant filed post-sentence motions, which the trial court denied on
November 7, 2014. Appellant filed a timely direct appeal. On December 11,
2015, we affirmed Appellant’s judgment of sentence, and on April 16, 2016,
our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Buckley, 3492 EDA 2014, 2015 WL 8550476 (Pa. Super.
____________________________________________
that are made final by the entry of a final order”). We conclude that the appeal
from the interlocutory order denying discovery was made final by the order
denying Appellant’s PCRA petition, and these matters are properly before this
Court. See Commonwealth v. Watley, 153 A.3d 1034 (Pa. Super. 2016)
(addressing the merits of a challenge to the PCRA court’s order denying a
motion for discovery as part of the appellant’s appeal from the subsequent
final order denying his PCRA petition).
3 18 Pa.C.S. §§ 2502(a), 901(a), 2702(a), and 6108, respectively.
-2-
J-S02032-21
filed Dec. 11, 2015) (unpublished memo.), appeal denied, 136 A.3d 978 (Pa.
2016).
Appellant filed a timely pro se PCRA petition on July 27, 2016. The PCRA
court subsequently appointed counsel to represent Appellant on May 19, 2017.
On January 22, 2019, Appellant filed a counseled motion for discovery
pursuant to Pa.R.Crim.P. 902(E)(1). In the discovery motion, Appellant
requested forensic examination of an iPhone bearing the telephone number
267-622-1502, which Appellant alleged was in police custody. The PCRA court
denied the motion for discovery on April 11, 2019.
Thereafter, counsel filed an amended PCRA petition on August 22, 2019.
In the amended PCRA petition, Appellant asserted that trial counsel was
ineffective for: (1) failing to object to the admissibility of DNA evidence,
specifically the use of Probabilistic Genotyping Statistics; (2) failing to move
for a mistrial after a third-party spoke to a juror outside the courthouse; and
(3) failing to obtain Appellant’s parole file and cross-examine Appellant’s State
Parole Agent regarding the iPhone with the telephone number 267-622-1502.4
PCRA Pet., 8/22/19, at ¶¶ 8-18.
On January 13, 2020, the PCRA court issued a notice of its intent to
dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On
February 3, 2020, the PCRA court denied Appellant’s PCRA petition. Appellant
____________________________________________
4 Regarding the iPhone, it was Appellant’s contention that his parole records
would reflect that his personal telephone number was 267-622-1502, and the
Commonwealth provided no evidence this telephone number was used to
arrange the murder. Appellant’s Brief at 16.
-3-
J-S02032-21
filed a timely notice of appeal on March 1, 2020. Both the PCRA court and
Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for review:
1. The PCRA court erred as a matter of law and abused its
discretion when it denied Appellant’s [request] for a new trial
[based on trial counsel’s alleged ineffectiveness in failing to]
object to the admission of DNA evidence obtained from a
hooded sweatshirt located near the scene of the crime.
2. The PCRA court erred as a matter of law and abused its
discretion when it denied Appellant’s [request] for a new trial
[based on trial counsel’s alleged ineffectiveness in failing to]
request a mistrial, or, in the alternative, to have the [trial
court] interview each juror regarding third party contact with
the jury during deliberations.
3. The PCRA court erred as a matter of law and abused its
discretion when it denied Appellant’s Discovery Motion
requesting that the Police Department conduct a forensic
analysis of [Appellant’s iPhone with telephone number 267-
622-1502 which was allegedly] held in evidence.
Appellant’s Brief at 4 (some formatting altered).
Following our review of the record, the parties’ briefs, and the well-
reasoned conclusions of the PCRA court, we affirm on the basis of the PCRA
court’s opinion.5 See PCRA Ct. Op., 5/18/20, at 1-13. We agree with the
____________________________________________
5 We note that the PCRA court’s opinion contains a minor misspelling in its
citations to Commonwealth v. Bracey, 795 A.2d 935 (Pa. 2001), and
Commonwealth v. Bennett, 19 A.3d 541 (Pa. Super. 2011). See PCRA Ct.
Op., 5/18/20, at 4, 12. Additionally, we are cognizant that the decision in
Bennett, a case the PCRA court cited to for the definition of “abuse of
discretion,” was reversed by our Supreme Court. See Commonwealth v.
Bennett, 57 A.3d 1185 (Pa. 2012). However, the reversal did not concern or
disturb the definition of abuse of discretion, and the definition set forth in the
(Footnote Continued Next Page)
-4-
J-S02032-21
PCRA court that Appellant was not entitled to discovery and that he failed to
establish ineffective assistance of counsel. See id. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2021
____________________________________________
PCRA court’s opinion is accurate. PCRA Ct. Op., 5/18/20, at 12; see
Commonwealth v. McGhee, 230 A.3d 1277, 1283 (Pa. Super. 2020)
(defining abuse of discretion). Lastly, we note that while the PCRA court
stated that it denied Appellant’s PCRA petition on January 9, 2020, see PCRA
Ct. Op., 5/18/20, at 2, the record reveals that the order denying Appellant’s
PCRA petition was filed on February 3, 2020.
-5-
Circulated 05/10/2021 10:58 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011223-2012
V.
CHARLES BUCKLEY 800 EDA 2020
OPINION
Rose Marie DeFino-Nastasi, J. May 18, 2020
PROCEDURAL HISTORY
On May 17, 2012, Charles Buckley (the "Petitioner") shot and killed Tanisha Finch (the
"decedent") while attempting to kill Rahim Hartzog. On July 28, 2014, the Petitioner was found
guilty by ajury, presided over by this Court, of first-degree murder, Iattempted murder, 2
aggravated assault,' and VUFA §6108. 4 On October 10, 2014, the Petitioner was sentenced to
life imprisonment without the possibility of parole for first-degree murder, along with
consecutive sentences of ten to twenty years' imprisonment and two-and-one-half to five years'
imprisonment for attempted murder and VUFA §6108 respectively.
On October 20, 2014 the Petitioner filed aPost-Sentence Motion. On October 22, 2014,
the Petitioner filed aSupplemental Post-Sentence Motion. On November 6, 2014, the Post
Sentence Motions were denied. On December 5, 2014, the Petitioner filed aNotice of Appeal to
the Superior Court. On December 11, 2015, the Superior Court affirmed the Petitioner's
sentence. On January 4, 2016, the Petitioner filed aPetition for Allowance of Appeal with the
Pennsylvania Supreme Court. On April 6, 2016, allocatur was denied.
FILED
1 18 Pa.S.C. §2502(a).
2 18 Pa.S.C. §901(a). '?MAY 19 wo
3 18 Pa.S.C. §2702(a).
4 18 Pa.S.C. §6108.
Office of &4031 Records
AVpeaO ,;, T4131
On July 27, 2016, the Petitioner filed aPost-Conviction Relief Act ("PCRA") Petition.
On May 22, 2017, PCRA Counsel was appointed. On January 22, 2019, PCRA Counsel filed a
Motion for Discovery. On August 22, 2019, the Petitioner filed an Amended PCRA Petition.
On October 24, 2019, the Commonwealth filed aMotion to Dismiss the PCRA Petition. The
PCRA Petition was denied by this court on January 9, 2020. The Petitioner filed an Appeal to
the Superior Court on March 1, 2020. The Petitioner filed aStatement of Matters Complained of
Pursuant to Rule 1925(b) on March 30, 2020 raising the following issues:
1. That the PCRA Court erred as amatter of law and abused its discretion when it denied
[the Petitioner's] sought after PCRA relief asking for anew trial because of trial
counsel's failure to object to the admission of DNA evidence obtained from ahooded
sweatshirt located near the scene of the crime.
2. That the PCRA Court erred as amatter of law and abused its discretion when it denied
[the Petitioner's] sought-after PCRA relief asking for anew trial because of trial
counsel's failure to request amistrial, or, in the alternative, to have the Court interview
each juror regarding third party contact with the jury during jury deliberations.
3. That the PCRA Court erred as amatter of law and abused its discretion when it denied
[the Petitioner's] Discovery Motion requesting that the Police Department conduct a
forensic analysis of [the Petitioner's] cell phone held in evidence.
STATEMENT OF FACTS
The Superior Court summarized the facts as follows:
On May 17, 2012, [the Petitioner] shot and killed Tanisha Finch [the
decedent] while attempting to kill Rahim Hartzog.
Mr. Hartzog and [the Petitioner] had been acquaintances for over ten years,
during which they sold drugs together. In January 2012, Mr. Hartzog stopped
selling drugs because he became engaged to the [decedent]. Ultimately, however,
2
he lost his job and started selling drugs again. Although he was not selling drugs
with [the Petitioner], he sold drugs to many of the same customers.
Ms. Karen Monk, one of Mr. Hartzog and [the Petitioner's] customers,
testified at trial that she contacted [the Petitioner] on the day of the shooting because
she wanted to buy drugs on credit. [The Petitioner] told Ms. Monk to call Mr.
Hartzog and tell him that she had $100.00 to buy drugs from him, although, as Ms.
Monk testified at trial, she only had at most twenty dollars. Ms. Monk called Mr.
Hartzog and arranged to meet him at the Getty gas station on Mr. Airy Avenue in
Philadelphia.
Mr. Hartzog and the [decedent] drove together and parked outside Ms.
Monk's apartment complex across the street from the gas station. When Ms. Monk
walked up to Mr. Hartzog's vehicle, she handed the [decedent] aone dollar bill.
After Mr. Hartzog told her that she had only given him one dollar instead of
$100.00, Ms. Monk ran back towards her apartment.
Soon after Ms. Monk ran away, the [decedent] told Mr. Hartzog that
somebody suspicious was walking on the sidewalk approaching their vehicle. Mr.
Hartzog testified at trial that he saw aperson afew car lengths behind his vehicle
who had ahood on and hands in the front pocket of his sweatshirt. As the person
walked closer, Mr. Hartzog recognized it was [the Petitioner] and started to drive
away. As Mr. Hartzog drove away, [the Petitioner] started shooting at Mr.
Hartzog's vehicle, hitting the [decedent] in the head with one of his shots.
After dropping the [decedent] off at the hospital, Mr. Hartzog spoke with
the police, told them that he was there when the shooting occurred, and provided a
description of the shooter. Initially, Mr. Hartzog did not identify [the Petitioner] as
the shooter to the police because there is a"no snitch rule on the streets"; however,
he eventually admitted to detectives that [the Petitioner] was the person who shot
at him and the [decedent].
At trial, Ms. Chaquita Nabried testified that she heard gunshots in the early
morning hours and then heard the rattle of the gate near her apartment. Ms. Nabried
looked out of her apartment window and saw aman walk through the breezeway
separating her apartment building from the other. She described the man to the
police as ablack male, five feet nine inches to six feet tall with dark skin, messy
hair, maybe braids, and adark shirt who was carrying alight-colored shirt over his
shoulder and who then dropped the light-colored hooded sweatshirt as he walked
by her bedroom window.
At trial, the Commonwealth introduced evidence that police recovered
seven fired cartridge casings from the scene of the shooting. The Commonwealth
also introduced evidence that police recovered an extra-large sweatshirt with
gunshot residue from the breezeway between the two buildings. A DNA analysis
of genetic material obtained from ahair on the sweatshirt indicated that the DNA
mixture was 261.5 times more likely amixture of DNA from [the Petitioner] and
three random unrelated individuals than amixture from four random unrelated
individuals in the African-American population.
At trial, two alibi witnesses testified that [the Petitioner] was at home at the
time of the shooting because he was on house arrest and had a9:00 p.m. curfew.
3
However, on cross-examination, both stated that they did not have any specific
recollection about the day that the shooting occurred.
[The Petitioner] testified at his own defense at trial. During his testimony,
he explained that on the night of the shooting, Ms. Monk called him to buy drugs
and he referred her to Mr. Hartzog because it was past his curfew so he could not
leave his home to meet her. He testified that his DNA got on the sweatshirt because
while he was selling drugs to Ms. Monk's friends four days prior to the shooting, a
man offered to sell him the sweatshirt and abag of cosmetics, and when he checked
to see the size of the sweatshirt his DNA got in the collar.
Superior Court Opinion, December 11, 2015 at 2-4.
ANALYSIS
Timeliness
A PCRA petition, including asecond or subsequent petition, must be filed within one
year of the date the judgment becomes final 42 Pa.C.S. §9545(b)(1). The Petitioner filed the
instant PCRA within the one year time requirement. Therefore, the PCRA petition is timely, and
the issues may be addressed on the merits.
Ineffective Assistance of Counsel
The Petitioner's first two claims are that the court erred in failing to find that trial counsel
was ineffective. To raise asuccessful claim alleging ineffective assistance of counsel, the
Petitioner must show "(1) that the underlying claim is of arguable merit; (2) that counsel's course
of conduct was without areasonable basis designed to effectuate his client's interest; and (3) that
he was prejudiced by counsel's ineffectiveness." Commonwealth V. Bracy, 795 A.2d 935, 942
(Pa. 2001) (quoting Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)).
The law provides that under the P.C.R.A., counsel is presumed to be effective and the
defendant bears the burden of establishing ineffectiveness. Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987). In order to establish that trial counsel's representation was deficient, the
defendant must prove that the underlying claim has arguable merit and that counsel's conduct
4
lacked any reasonable basis. Commonwealth v. Durst, 559 A.2d 504, 505 (Pa. 1989). Further, a
defendant cannot be granted any relief absent the additional showing that counsel's conduct
adversely affected the outcome of the trial. In assessing aclaim of ineffectiveness, when it is
clear that the defendant has not met the prejudice prong, the court may dispose of the claim on
that basis alone, without adetermination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be ineffective for
failing to pursue ameritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.
2003).
I. Probabilistic Genotyping Statistics
The Petitioner's first claim is that the court erred in not finding trial counsel was
ineffective for failing to object to the admission of DNA evidence obtained from ahooded
sweatshirt located near the scene of the crime. The Petitioner contends that counsel failed to
object to the admission of Probabilistic Genotyping Statistics, 5 which have come under intense
scrutiny for false inclusions generally, and specifically in the Petitioner's case, the statistical
probability of the Petitioner's inclusion in the combination of DNA taken from the sweatshirt
was so low as to be prejudicial to the Petitioner and likely to cause confusion to the jury.
The factual basis for this claim is that on the night of the instant murder Ms. Chaquita
Nabried looked out of her window upon hearing gunfire and saw amale discard asweatshirt,
which was recovered by police. The sweatshirt was tested for DNA. Since there were multiple
contributors, Probabilistic Genotyping was used. A DNA analysis of genetic material obtained
from ahair on the sweatshirt indicated that the DNA mixture was 261.5 times more likely a
5Probabilistic genotyping refers to the use of biological modeling, statistical theory, computer algorithms, and
probability distributions to calculate likelihood ratios and infer genotypes of aDNA profile.
5
mixture of DNA from the Petitioner and three random unrelated individuals than amixture from
four random unrelated individuals in the African-American population.
Initially, Petitioner's argument fails since Petitioner testified on his own behalf and stated
that he touched the sweatshirt in question, within days of the murder, when one of Ms. Monk's
friends tried to sell it to him. The Petitioner was adrug dealer who frequented the neighborhood
where Ms. Monk lived to sell drugs and knew people from the area. Therefore, by the
Petitioner's own admission, there was apossibility that his DNA would be on the sweatshirt.
Furthermore, the defense used the expert testimony regarding the Probabilistic Genotyping
Statistics to its advantage, by pointing out that there was amixture of at least four persons in the
DNA recovered and that there was only one reference sample obtained; that of the Petitioner.
The defense also elicited testimony from the DNA expert that the DNA statistical calculation
was of minimal relevance by getting the expert to admit that it was equally likely that it was "not
the defendant" who discarded the sweatshirt after the shooting. Furthermore, Probabilistic
Genotyping Statistics was described in great detail to the jury and the court asked the jurors to
raise their hands if they did not understand. No juror raised their hand. Therefore, the court did
not err in finding that this issue lacked merit.
Assuming that the DNA evidence was more prejudicial than probative and that counsel
should have objected, the Petitioner still would not prevail since there was overwhelming
evidence of guilt irrespective of the DNA evidence.
The evidence adduced at trial was that the Petitioner and Mr. Hartzog had known each
other for ten years and had worked together selling drugs. They stopped working together and
eventually ended up competing against each other for the same clientele. Ms. Monk testified that
on the day of the murder, she attempted to buy drugs from the Petitioner on credit but was
6
denied. Instead, the Petitioner told her to call Mr. Hartzog, lie about the amount of money that
she had to purchase drugs, and arrange ameeting to purchase the drugs from him. While Ms.
Monk was trying to arrange ameeting with Mr. Hartzog, the Petitioner was continuously calling
her and asking her when Mr. Hartzog was coming.
The testimony of both Mr. Hartzog and Ms. Monk was that they arranged to meet outside
of her apartment and Ms. Monk would purchase $100 worth of drugs. However, when Mr.
Hartzog arrived, Ms. Monk handed him arolled up single dollar bill. When Mr. Hartzog
unrolled the bill and saw it was one dollar, Ms. Monk said she would be back and ran toward her
apartment. Mr. Hartzog presumed it was to get the correct amount of money and return. Ms.
Monk claimed that she went back to her apartment, heard gunshots and decided to stay inside.
Mr. Hartzog testified that after Ms. Monk ran off, asuspicious figure approached his
vehicle. When the figure got closer, Mr. Hartzog saw that it was the Petitioner and immediately
began to drive. As he pulled off, the Petitioner pulled out.a gun and started firing at Mr.
Hartzog's vehicle. The decedent was apassenger in Mr. Hartzog's vehicle and was shot in the
head during the incident.
The Petitioner testified in his own defense and corroborated some of the testimony of Mr.
Hartzog and Ms. Monk. Notably, the Petitioner confirmed that he and Mr. Hartzog worked
together selling drugs, but disputed that there was afalling out and testified that they were still
working together on the night of the murder. The Petitioner confirmed that on the night of the
murder, Ms. Monk tried to buy drugs from him on credit and that he told her to call Mr. Hartzog
instead, because the Petitioner was on curfew and could not leave the house.
Furthermore, there was evidence presented regarding cell phone activity, retrieved from
Ms.Monk's phone, between Ms. Monk and Mr. Hartzog and Ms. Monk and the Petitioner, on the
7
night of the murder. Ms. Monk identified two numbers as belonging to the Petitioner: 267-330-
9519 and 267-499-8464. The latter was anumber used by whomever was on duty selling drugs
and was known as "the Scotty phone".
Ms. Monk's phone log shows that on the night of the murder, Ms.Monk called the
Petitioner at 8:27 p.m., at phone number, 267-330-9519; one minute later, she called Hartzog at
phone number, 267-230-3635. Ms. Monk called the Petitioner and then Hartzog again. Next,
Ms. Monk called Hartzog at 1:43 a.m. Thereafter, at 1:49 a.m., Ms. Monk began receiving calls
from "the Scotty phone." She testified that the calls were from the Petitioner. Ms. Monk called
"the Scotty phone" at 2:05 a.m., and received atali back at 2:08 a.m. Ms. Monk called the
"Scatty phone" at 2:19 a.m., and received acall back. Finally, Ms.Monk called Hartzog at 2:22
a.m., within minutes of the murder. No further phone activity occurred on Ms. Monk's phone
for five hours. N.T., 7/23/14 at 57-177.
Based on the foregoing recitation, the evidence against the Petitioner was overwhelming.
As such, the Petitioner has failed to prove that the outcome of the trial would likely have been
different if the DNA evidence had not been admitted. Therefore, the court did not err in failing
to find counsel ineffective.
2. Third Party Jicror Contact
The Petitioner's second claim is that trial counsel was ineffective for failing to request a
mistrial, or, in the alternative, to have the Court interview each juror regarding third-party
contact with the jury during deliberations.
Initially, it should be noted that the jury was not yet in deliberation, which should be
obvious from the fact that the alternate juror was still present.
The factual basis for this claim is as follows:
8
On July 24, 2015, Juror Fourteen, an alternate juror, was outside with the other jurors
during afire drill, when he was approached by two males that looked familiar. The juror had
walked over to anearby trashcan to discard the remainder of his lunch when the males, who
turned out to be the Petitioner's brother and brother-in-law, asked Juror Fourteen if he had gotten
enough to eat. Juror Fourteen responded "yes" and walked back to where the other jurors were
standing. He pointed at the two males and asked some of the other jurors if the males by the
trashcan were the Petitioner's family. The others stated that they.had seen the males in the
courtroom. Juror Fourteen immediately informed the Court of the interaction. The Court, along
with the Commonwealth and trial counsel immediately questioned Juror Fourteen regarding the
incident. Notes of Testimony ("N.T."), July 24, 2015 at 124-28.
Juror Fourteen stated:
We had afire alarm today. We were all taken outside. Itook the rest of my sandwich out
with me. Ididn't finish it. Irolled it up and Iwalked across catty-corner to go throw it in the
trash. Ithrew it in the trash. Ilooked up and the one guy said did you have enough to eat, big
guy? Isaid what? The other guy said did you have enough to eat, something you didn't have
enough to eat or did you have enough to eat and Iwas like, yeah, yeah. Iturned around and
started walking back. Iwalked back to the rest of the group, said was that the family and they
were like yeah and they said you have to tell the court officer.
THE COURT: Did you feel threatened by these two guys?
JUROR: No. Iam o.k.
THE COURT: Do you think it will affect-
JUROR: No.
9
THE COURT: They will be removed from the courtroom and sent home anyway. They
should know better than to talk to you, although Iam not sure they were in the room when Igave
my instruction. Some people come in after and they don't even know the instructions. [The juror
was then sent back with the other jurors].
THE COURT: You can take that two ways. They are just making conversation.
Obviously they are not supposed to but Idon't know that it is threatening. Maybe they would
have liked it if he answered them and then they could have started aconversation but that didn't
happen. So Ithink that we are okay. We will proceed.
TRIAL COUNSEL: Yes. Isee no problem.
THE PROSECUTOR: Iagree.
The Court then questioned the two men, Michael Buckley and Alver Griffin. Buckley
denied ever speaking to ajuror. Griffin stated that he told ajuror with ahotdog in his hand
"don't eat too much, big guy." The Court reprimanded Griffin and explained that he was not
allowed to have contact with any jurors during the course of the trial. All parties agreed to
remove the two men from the courtroom and take no further action since the jurors were not
alarmed and any further inquiry could highlight the issue. Id. at 124-28, 243-47.
There is no per se rule mandating amistrial anytime there is improper or inadvertent ex
parte contact between ajuror and athird patty. Commonwealth v. Mosley, 637 A.2d 246, 248--49
(Pa. 1993), Commonwealth v. McCamey, 154 A.3d 352,355-56 (Pa. Super. 2017). A mistrial is
an extreme remedy, and is only appropriate when an incident occurs that deprives the defendant
of afair trial. Commonwealth v. Szakal, 50 A.3d 210, 218 (Pa. Super. 2012). When analyzing an
incident that potentially compromises the impartiality and integrity of the jury, the test is whether
that was a"reasonable likelihood of prejudice." Commonwealth v. Bomar, 104 A.3d 1179, 1121
10
(Pa. 2013) (internal citations omitted). The factors are: (1) whether the extraneous influence
relates to acentral issue in the case or merely involves acollateral issue; (2) whether the
extraneous influence provided the jury with information they did not have before them at trial;
and (3) whether the extraneous influence was emotional or inflammatory in nature. Id.In Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012), afamily member of one of the
defendant's prior victims approached ajuror and commented on the "wind and [the juror's]
hairdo." The trial court questioned the one juror who had been approached. Based on the
collateral nature of the remarks, the court decided to conduct no further questioning of the jurors,
removed the victim's family member and proceeded with the trial.
Whereas in Coinm=4,ealth v. McCaniey, 154 A.3d 352 (Pa. Super. 2017), ajuror was
walking in the courthouse when an unknown person said to her, "remember; guilty, guilty,
guilty." The juror told the rest of the panel what occurred before reporting it to the court. Based
on the inflammatory content of the remarks, the court questioned each juror to determine
whether they could remain impartial, and found that each of the jurors and alternates to be of fair
and impartial mind.
The incident in question was more analogous to that in Sneed since the interaction was
vague and collateral to the case, as opposed to McCamey, where the third party interaction was
directly related to the ultimate issue in the case.
In the instant matter, the court, along with counsel, questioned Juror Fourteen and found
that the contact in question was minimal and unrelated to the case. It was unclear whether the
family members were present to hear the court's instruction regarding having no contact with the
jury, so the contact may have been inadvertent. Furthermore, the contact did not provide the jury
with any information that it did not already have. Additionally, the juror stated that he was not
11
threatened by the interaction and that the interaction would not affect his ability to be impartial.
As such, there was no reasonable likelihood of prejudice and amistrial was not warranted.
Based on the foregoing, counsel was not ineffective for failing to request that the entire jury be
interviewed. Counsel cannot be ineffective for failing to pursue afruitless course of action.
3. Discovery Request
The Petitioner's third claim is that the PCRA court erred as amatter of law and abused its
discretion when it denied Petitioner's Discovery Motion requesting that the Police Department
conduct aforensic analysis of Petitioner's cell phone held in evidence.
In PCRA proceedings, discovery is only permitted upon leave of court after ashowing of
exceptional circumstances. 42 Pa. C.S.A. §9545 (d)(2); Pa.R. Crim.P.902(E)(1). The PCRA and
criminal rules do not define the term "exceptional circumstances." Rather, it is for the trial court,
in its discretion, to determine whether acase is exceptional and discovery is therefore warranted.
Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa. Super 2006). A court's determination
regarding the existence of exceptional circumstances will not be disturbed unless the court
abused its discretion. Commonwealth v. Lark, 746 A.2d 585, 591 (Pa. 2000). An abuse of
discretion is not amere error in judgment. Instead, it is adecision based on bias, ill will,
partiality, prejudice, manifest unreasonableness, or misapplication of law. Commonwealth v.
Bennet, 19 A.3d 541, 543 (Pa. Super. 2011).
In the instant matter, the Petitioner claims that his only cell phone with the number of
(267) 622-1502, was confiscated from him upon his arrest. Furthermore, he contends that the
two phone numbers identified as belonging to him, at trial, do not belong to him. Therefore, the
court should order that the cell phone confiscated upon his arrest be forensically analyzed to
show he was not in the area of the murder at the time of the murder.
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While it is true that the Petitioner's probation officer testified that (267) 622-1502 was
the number provided by the Petitioner contained in his file, Mr. Hartzog testified that (267) 622-
1502 was only one of the Petitioner's phone numbers. The Petitioner is under the mistaken
belief that proof of the absence of the phone at the murder scene equates with proof of his
absence from the murder scene. Initially, it should be noted that the Petitioner was not arrested
until over two weeks after the murder, so it is not as if he was arrested soon after the murder with
this particular phone on his person. Both Ms. Monk and Mr. Hartzog testified that the Petitioner
had multiple phone numbers, which would not be unusual for someone who was engaged in
criminal activity while on probation. Therefore, the court found that aforensic analysis of the
phone would have no evidentiary value and did not constitute "exceptional circumstances"
pursuant to 42 Pa. C.S.A. Section 9545 (d)(2).
CONCLUSION
Based on the foregoing, the court's denial of Charles Buckley's PCRA Petition should be
affirmed.
By the Court:
ose Marie DeFino-Nastasi,
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Coinniosnivealth v. Charles Buckley
CP-51-CR-0011223-2012
Opinion
Proof of Service
Ihereby certify that Iam this day serving the foregoing Court Order upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114:
Petitioner: Charles Buckley
NJ9533
SCI Fayette
50 Overlook Drive
LaBelle, PA 15450
Type of Service: First-Class Mail
PCRA counsel: Joseph Schultz, Esq.
1518 Walnut St.
Suite 808
Philadelphia, PA 19102
Type of Service: First-Class mail
District Attorney: Philadelphia District Attorney's Office
Appeals Unit
3South Penn Square
Philadelphia, PA 19107
Type of Service: Inter-Office mail
Date: 5/18/2020
Bryan Foster
Judicial Clerk to the
Honorable Rose Marie DeFino-Nastasi
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