Com. v. Slaughter, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 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, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 25, 2016
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 affirm.
In a prior appeal before this Court, we summarized the factual and
procedural history of Appellant’s case as follows:
On April 16, 2003, a jury convicted Appellant of arson,
criminal conspiracy, and [five] 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 aggregate term of 35
to 70 years’ incarceration. On May 19, 2006, this Court affirmed
Appellant’s judgment of sentence, and [on November 9, 2006,]
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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our Supreme Court … 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Super. 2006) (unpublished memorandum), appeal denied, 911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 [February 7, 2007]. See
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
1998) (under the PCRA, petitioner’s judgment of 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
PCRA petition….1 Therein, he alleged ineffective assistance of his
trial and appellate counsels. However, prior to the court’s ruling
on Appellant’s second PCRA petition, Appellant attempted to file
a pro se notice of appeal from the court’s April 8, 2010 order
denying his first petition. That notice of appeal was time
stamped as “Received Accepted For Review Only” on May 4,
2010. Therefore, it is clear that Appellant’s attempt to file his
appeal was timely. See Pa.R.A.P. 903(a) ([stating] “notice of
appeal … shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Nevertheless, the Philadelphia
County Clerk of Courts rejected Appellant’s notice of appeal
because his second PCRA petition was still pending before the
court.2
1
Appellant also filed a “Supplemental Pro Se Motion
for Post Conviction Relief” on April 22, 2010.
2
Specifically, in a handwritten note on its “Returned
Correspondence” Memorandum received by
Appellant, the Clerk of Courts indicated that
Appellant’s notice of appeal was being returned for
the following reason: “On 4-21-10 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 time.” See Appellant’s Exhibit
B-1.
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On July 8, 2011, the PCRA court denied Appellant’s second
petition for post conviction relief as untimely….
Commonwealth v. Slaughter, 2036 EDA 2011, 62 A.3d 465 (Pa. Super.
2012) (unpublished memorandum at 1-3) (“Slaughter I”).
Appellant filed a timely, pro se notice of appeal from the denial of his
second PCRA petition, arguing, inter alia, that “his notice of appeal from the
denial of his first PCRA petition was improperly rejected by the Clerk of
Courts….” Slaughter I, at 3. In Slaughter I, we agreed with Appellant’s
argument and, accordingly, we reinstated his timely appeal from the April 8,
2010 order denying his 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, and
Appellant filed a timely concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant’s case was assigned to a three-
judge panel of this Court. On September 12, 2014, this Court issued a
memorandum decision concluding that Appellant’s trial counsel was
ineffective in failing to appropriately object to the trial court’s impaneling of
an alternate juror after jury deliberations had begun. See Commonwealth
v. Slaughter, No. 367 EDA 2013, ___A.3d ___ (Pa. Super. 2014)
(unpublished memorandum) (“Slaughter II”). The following facts formed
the basis for our decision in Slaughter II:
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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 others. Appellant’s counsel moved for
a mistrial. N.T. Trial, 4/11/03, at 4. The court denied that
motion, instead instructing the jury to continue to deliberate. Id.
at 7. Immediately after providing this instruction, the court
recessed for the weekend and informed jurors that they would
“return to deliberate Monday morning….” Id.
When the trial commenced on Monday, April 14, 2003, one
of the jurors was absent due to illness. N.T. Trial, 4/14/03, at 3.
The court’s staff could not reach the juror to ascertain if or when
she would be able to return to court. Id. at 3, 5. Appellant’s
counsel once again moved for a mistrial. Id. at 8. The court
denied that motion “given the length of this trial and the time
involved….” Id. at 9. The court then stated that it was going to
substitute an alternate juror, to which Appellant’s counsel
objected. Id. at 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 today, as you’re aware by now, a substitution
had to be made 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 the
beginning again with the new juror, the alternate
that’s been substituted for juror number seven. So
you are to disregard and begin anew with regard to
your deliberations.
Again, I instruct you that … in order to return a
verdict, 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
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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 10-12. Appellant’s counsel did not lodge an objection to
this 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. Trial, 4/15/03, at 3.
Appellant’s counsel once 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, the jury
asked the court to provide further instructions regarding the
“definition of circumstantial evidence and the weight a juror can
assign to evidence[,]” and additional instructions “on either
believing or disregarding a witness’s testimony.” N.T. Trial,
4/16/03, at 3. The trial court provided 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.
Slaughter II, at 5-7.
In light of these facts, Appellant contended in Slaughter II that his
trial counsel did not lodge an appropriate objection to the court’s conduct in
seating an alternate juror. Appellant relied on the version of Pa.R.Crim.P.
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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.1
Appellant also relied heavily on Commonwealth v. Saunders, 686
A.2d 25 (Pa. Super. 1996). In Saunders, the appellant’s original jury began
deliberations on Friday and then retired for the weekend. Id. at 26. On
Monday morning, a juror informed the court that she was ill and would not
be able to return to deliberations 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 “exactly what went
on in [their] deliberations so far.” Id. at 26-27, 29-30. Two hours later, the
jury returned with a verdict. Id. at 27.
On appeal in Saunders, 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 refers), “there is no authorization in Pennsylvania for a trial court
to replace a principal juror after deliberations have begun.” Saunders, 686
A.2d at 27. Consequently, we declared that, “where the trial court has
substituted an alternate juror after deliberations have begun, there is a
presumption of prejudice to the defendant.” Id. at 28.
However, we also held in Saunders that this presumption may be
rebutted through “evidence which establishes that sufficient protective
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1
Pa.R.Crim.P. 645 was amended on November 19, 2013, and it now states
that alternate jurors are to be retained until a verdict is reached.
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measures were taken to insure the integrity of the jury function.” Id. In
assessing what “measures need [to] be taken” in this regard, we 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[s] 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
be informed that the discharge of the original juror “was entirely
personal and had nothing to do with the discharged juror’s views
on the case or the juror’s relationship with fellow jurors.” 88
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:
[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 [p]eople 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
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must set aside and disregard the earlier deliberations
as if they had not been had.
[People v.] Collins, [17 Cal. 3d 687,] 552 P.2d [742,] 746–47
[(1976)]. These instructions serve to “eliminate the 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 with the new juror.” [State v.] Lipsky, 395 A.2d
[555,] 558 [(N.J. Super. 1978)].
Id. at 29.2 Because the trial court in Saunders had instructed the jury to
essentially “fill in” for the alternate juror, rather than begin deliberations
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2
As noted above, Rule 645 was amended in 2013. The 2013 amendments
added 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:
(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
(Footnote Continued Next Page)
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anew, and because “a query of the alternate and remaining principal jurors
never took place[,]” we vacated the appellant’s judgment of sentence and
remanded for a new trial. Id. at 29.
In Slaughter II, we concluded that Appellant had proven that his trial
counsel was ineffective and reasoned as follows:
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 court’s informing the jury that the absent juror “fell ill” as
sufficient to satisfy [the] Saunders requirement that the jury be
informed that “the discharge of the original juror ‘was entirely
personal and had nothing to do with the discharged juror’s views
on the case or the juror’s relationship with fellow jurors.’” 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 record reflects that the court did not
“extensively question[] the alternate and remaining jurors” to
ensure “that [the] alternate has not been exposed to any
improper outside influences and that the remaining regular
jurors [were] able to begin their deliberations anew.” 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
_______________________
(Footnote Continued)
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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for failing to do so under the clear dictates of Saunders and the
version of Rule 645(B) in effect at the time of Appellant’s trial.
Slaughter II at 10-11. Accordingly, in Slaughter II, we vacated the PCRA
court’s order denying Appellant’s petition and remanded for a new trial. Id.
at 12.
The Commonwealth filed a timely petition for allowance of appeal to
our Supreme Court, which was granted. On July 28, 2015, the Supreme
Court issued a per curiam order stating that this Court “improperly evaluated
[Appellant’s] ineffectiveness of counsel claim under the harmless error
standard applicable on direct appeal….” Supreme Court Order, 7/28/15.
Consequently, the Supreme Court vacated our decision in Slaughter II and
remanded for us to “reevaluate [Appellant’s] ineffectiveness claim under the
Pierce/Strickland[3] standard requiring a showing of actual prejudice….”
Id. We now do so herein.
Recently, in Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014), the
Supreme Court reiterated the difference between the harmless error and
actual prejudice standards, as follows:
[A] defendant [raising a claim of ineffective
assistance of counsel] is required to show actual
prejudice; that is, that counsel’s ineffectiveness was
of such magnitude that it ‘could have reasonably had
an adverse effect on the outcome of the
proceedings.’ Pierce, 515 Pa. at 162, 527 A.2d at
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3
Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).
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977. This standard is different from the harmless
error analysis that is typically applied when
determining whether the trial court erred in taking or
failing to take certain action. The harmless error
standard, as set forth by this Court in
Commonwealth v. Story, 476 Pa. [391], 409, 383
A.2d [155], 164 [(1978)] (citations omitted), states
that “[w]henever there is a ‘reasonable possibility’
that an error ‘might have contributed to the
conviction,’ the error is not harmless.” This standard,
which places the burden on the Commonwealth to
show that the error did not contribute to the verdict
beyond a reasonable doubt, is a lesser standard than
the Pierce prejudice standard, which requires the
defendant to show that counsel’s conduct had an
actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises
from the difference between a direct attack on error
occurring at trial and a collateral attack on the
stewardship of counsel. In a collateral attack, we
first presume that counsel is effective, and that not
every error by counsel can or will result in a
constitutional violation of a defendant’s Sixth
Amendment right to counsel. Pierce, supra.
Id. at 315 (quoting Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa.
2004) (emphasis in original)).
As noted above, the remand order from the Supreme Court instructed
us to reevaluate Appellant’s ineffectiveness claim under the
Pierce/Strickland standard, which requires a showing of actual prejudice.
Here, Appellant avers that counsel was ineffective in failing “to object to
and/or request that the jury’s partial verdict be recorded before the trial
court terminated deliberations and seated the already dismissed alternate
juror to begin new deliberations[.]” Appellant’s Supplemental Brief at 5.
Underlying his claim of ineffectiveness, Appellant baldly asserts that the trial
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court’s appointment of an alternate juror was prejudicial. However, rather
than proving prejudice, Appellant merely advances speculation and
assumption in this regard, as follows:
To replace the juror after the jury had indicated it was
deadlocked at least to some of the charges, indicates that the
resulting finding of guilt [occurred] after the juror was
replaced. The replacement of the juror negatively effected
[sic] the Appellant to his detriment.
Furthermore, the Saunders case established that there is a
presumption of prejudice. The Superior Court in the original
Slaughter opinion had already explored this issue and found:
Nevertheless, the fact that the trial court satisfied two of the
Saunders prongs cannot cure the prejudice caused to Appellant
where the record reflects that the court did not “extensively
question[] the alternate and remaining jurors” to ensure “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.” 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. See (Opinion, pages 10-11).
If indeed, the juror had been exposed to outside
influences prior to the deliberations beginning anew, it
also clearly affected the outcome of the case since the
jury entered a finding of guilt. Since the Appellant has
satisfied the prejudice prong along with the other prongs of
ineffectiveness, he should be granted a new trial.
Appellant’s Supplemental Brief at 15-16 (emphases added).
Appellant’s argument ignores the fact that the jury remained
deadlocked even after the alternate juror joined in deliberation. N.T., Trial,
4/15/03, at 3-7. It was not until two days after the substitution of the
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alternate juror that the jury reached its verdict.4 This verdict came after the
jury informed the trial court it was deadlocked, after the jury requested
additional instructions, and after the jury was given further instruction on
both circumstantial evidence and how it may weigh the evidence. Id. at 7-
8; N.T., Trial, 4/16/03, at 3-12. There is no proof for Appellant’s position
that the initial partial verdict, which was reached by the original jury, was
favorable to Appellant, and there is no proof that Appellant was prejudiced.
Appellant’s argument is merely unsupported speculation.
Moreover, there is no evidence that the alternate juror, or any other
juror, was exposed to any outside influence. Thus, again, Appellant proffers
mere speculation and fails to establish prejudice.
Accordingly, after careful review, we conclude that while Appellant
argues prejudice, he falls short of proving it under the Pierce/Strickland
standard. As such, we affirm the PCRA court’s order.
Order affirmed.
Justice Fitzgerald joins the Memorandum.
P.J.E. Bender files a Dissenting Memorandum.
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4
We note that Appellant makes a blatant misstatement of fact wherein he
asserts: “Almost immediately after the replacement of the juror, the jury
reached a verdict.” Appellant’s Supplemental Brief at 14.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2016
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