Com. v. Washington, D.

J-A14029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTE WASHINGTON :
:
Appellant : No. 43 MDA 2022
Appeal from the Judgment of Sentence Entered February 14, 2017
In the Court of Common Pleas of Lycoming County
Criminal Division at No: CP-41-CR-0001075-2014
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 22, 2022
Appellant, Dante Washington, appeals nunc pro tunc from the judgment
of sentence imposed on February 14, 2017 in the Court of Common Pleas of
Lycoming County following his convictions of, inter alia, attempted murder,
aggravated assault causing serious bodily injury, aggravated assault with a
deadly weapon, robbery (four counts), and theft by unlawful taking. 1 The
instant appeal involves Appellant’s challenge to the trial court’s denial of a
request for a mistrial that was prompted by statements made by a
venireperson (“Juror 29”) during jury selection. For the reasons that follow,
we affirm.
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 901(a); 2702(a)(1), (4); 3701(a)(1)(i-iv); 3921(a); and
907(b), respectively.
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By way of background, we note that Appellant filed a direct appeal from
his judgment of sentence following denial of his post-sentence motions. This
Court affirmed his judgment of sentence and our Supreme Court denied his
petition for allowance of appeal. Commonwealth v. Washington, 201 A.3d
845 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 207 A.3d
905 (Pa. 2019) (“Direct Appeal”).
Appellant subsequently filed a timely petition for collateral relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, asserting
various claims, including a claim of ineffective assistance of counsel for failing
to appeal the denial of a mistrial based on prejudicial comments made by Juror
29 during voir dire.
In its opinion and order, the PCRA court explained:
Jury selection for [Appellant’s] case occurred on December 13,
2016. In the beginning, this court asked prospective jurors if
anyone was acquainted with [Appellant] either socially or
professionally. Juror 29 answered by saying he believed he had
seen [Appellant’s] name “in a professional capacity,” and inquired
whether he should elaborate further in case it would bias other
potential jurors.[2] A bit later, Juror 29 also stated in front of all
potential jurors that he is a staff physician at the federal
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2 When the trial court asked if anyone was acquainted with Appellant either
socially or professionally, Juror 29 raised his hand and stated, “Juror No. 29,
Brian Buschman. I’ve got a question that I might have seen his name in a
professional capacity.” Excerpt of Juror No. 29, 12/13/16, at 2. The court
asked if “in whatever capacity you may or may not have seen this person or
another person with the same name,” would that exposure affect his ability to
be a fair and impartial juror, “[i]n other words, would you be able to keep that
information out of your mind?” Id. Juror 29 responded that he could, and
that it would not “take any part in the deliberation of this case.” Id.
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penitentiary in Allenwood.[3] Upon hearing this, [lead trial
counsel] made a motion for a mistrial. [PCRA counsel (who was
second chair at trial)] testified at the PCRA hearing that her
concern was that the other potential jurors would assume that
[Appellant] had been in federal prison based on Juror 29’s
statements, when he had never been federally incarcerated. The
Commonwealth’s attorney suggested a cautionary instruction
dictating [Appellant] has never been to federal prison, rather than
declaring a mistrial. This court did not grant either request and
continued with jury selection. [PCRA counsel] testified that she
believed these statements were prejudicial to [Appellant] and
included this issue in her post-sentence motions, which were
summarily denied. However, this particular issue was not raised
on appeal to the Superior Court. . . . [PCRA counsel] testified that,
upon reflection, she believed that the other issues actually raised
on appeal were not as strong as the issue with Juror 29’s
statements. [PCRA counsel] believes omission of this issue from
the brief was a “mighty big” error.
PCRA Court Opinion and Order, 2/2/21, at 11-12 (citations to PCRA Hearing
transcript and some capitalization omitted).
The PCRA court concluded that counsel was not ineffective for failing to
challenge the denial of a mistrial on direct appeal because the statements
made by Juror 29 did not rise to the requisite level of seriousness and were
not “severe enough to make jurors incapable of objectivity.” Id. at 13. On
appeal, this Court disagreed. The court found Appellant’s claim to be of
arguable merit (“the trial court took no steps to ensure that the potential
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3 Later, in response to the court’s inquiry into whether service on the jury
would result in a hardship, Juror 29 responded, “29, Brian Buschman, I’m a
staff physician at the Federal Penitentiary in Allenwood. In my professional
capacity we’re currently short staffed and if you wish I will be here. I can
make it this week, ma’am, but inmate medical care down there is a little bit
lacking until I return. I’m the one designated to work this month while all my
colleagues have vacation.” Excerpt of Juror No. 29, 12/13/16, at 3.
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jurors did not draw any conclusions or form any opinions based on Juror 29’s
statement, nor did it issue a cautionary instruction,” Commonwealth v.
Washington, No. 1035 MDA 2021, unpublished memorandum at 17 (Pa.
Super. filed December 21, 2021); that counsel had no reasonable basis for
her inaction (“the decision not to raise this issue was not motivated by its
merits or any strategic whittling of the issues to be argued on appeal,” rather,
counsel “candidly testified at the PCRA hearing that she elected not to raise
this issue on direct appeal because the deadline for filing the brief was
approaching and she did not have time to research and brief the issue,” id. at
17); and that there was a “reasonable probability”—a standard “less
demanding than the preponderance standard”—that Appellant suffered actual
prejudice as a result, id. at 18 (citations omitted).
After concluding that counsel satisfied the requisite elements of an
ineffectiveness claim, the Court determined that “the correct remedy is to
restore his direct appeal rights nunc pro tunc to allow him to fully litigate the
issue.” Id. at 19. The Court directed Appellant to file a new notice of appeal
within 30 days of the Court’s memorandum in which “he may solely raise the
issue related to the trial court’s denial of a mistrial based on Juror 29’s
statements.” Id.
In compliance with the Court’s directive, Appellant filed a notice of
appeal on January 3, 2022. Both Appellant and the PCRA court complied with
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Pa.R.A.P. 1925. In his brief filed with this Court, Appellant presents the
following “question” for our review:
The trial court errored [sic] by denying [Appellant’s] request for a
new trial due to the statements of Juror Number 29 during voir
dire exposing the entire jury panel to prejudicial and inaccurate
information about [Appellant] which tainted the entire jury pool
and resulted in [Appellant] being denied a fair and impartial jury.
Appellant’s Brief at 4 (some capitalization omitted).
We first reiterate that the purpose of voir dire is to ensure a competent,
fair, impartial, and unprejudiced jury. Commonwealth v. Smith, 131 A.3d
467, 477 (Pa. 2015). “The scope of voir dire rests in the sound discretion of
the trial court, whose decision will not be reversed on appeal absent palpable
error.” Id. at 477 (quoting Commonwealth v. Karenbauer, 715 A.2d 1086,
1094 (Pa. 1998) (citation omitted)).
Further,
[w]e review the denial of a motion for mistrial under the abuse of
discretion standard. Commonwealth v. Travaglia, [28 A.3d
868, 879 (Pa. 2011)] (citation omitted). “A mistrial is an extreme
remedy that is required only where the challenged event deprived
the accused of a fair and impartial trial.” Id. (citation omitted).
Smith, 131 A.3d at 474-75. “A trial court may grant a mistrial only where
the incident upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by preventing the
jury from weighing and rendering a true verdict.” Commonwealth v. Dula,
262 A.3d 609, 633 (Pa. Super. 2021) (quoting Commonwealth v. Gilliam,
249 A.3d 257, 274 (Pa. Super. 2021) (additional citation omitted)).
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As our Supreme Court reiterated in Commonwealth v. Rega, 933 A.3d
997 (Pa. 2007), cert. denied, 552 U.S. 1316 (2008):
The trial court is in the best position to assess the effect of an
allegedly prejudicial statement on the jury, and as such, the grant
or denial of a mistrial will not be overturned absent an abuse of
discretion. A mistrial may be granted only where the incident
upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Id. at 1016 (quoting Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa.
2002) (internal citations omitted)).
The PCRA court correctly recognized that “[t]he minimal standards of
constitutional due process guarantees to the criminally accused a fair trial by
a panel of impartial and ‘indifferent’ jurors[.]” PCRA Court Opinion, 2/2/21,
at 12 (quoting Commonwealth v. Stewart, 295 A.2d 303, 304 (Pa. 1972)).
However, “[t]he mandate for a fair and impartial jury does not require that
the prospective jurors be free of all knowledge of the facts and circumstances
surrounding the incident which forms the basis of the trial.” Id. (quoting
Commonwealth v. Hoss, 364 A.2d 1335, 1338 (Pa. 1976)). The court went
on to distinguish two cases relied on by Appellant before that court as well as
this Court in the instant appeal, i.e., Commonwealth v. Fisher, 591 A.2d
710 (Pa. 1991) and Commonwealth v. Santiago, 318 A.2d 737 (Pa. 1974).
The PCRA court noted:
In Fisher, the defendant was granted a new trial after the
prosecution asked a potential jury member during voir dire about
the defendant’s conviction for violating the civil rights of a witness
that was later overturned. Fisher at [711]. In Santiago, the
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defendant was granted a new trial when members of the jury
heard from a witness that the defendant “killed an innocent boy
and it isn’t the first one he has killed.” Santiago at 739. . . . We
acknowledge that Juror 29’s statements were not factual as
[Appellant] has never served a federal prison sentence. There is
no indication that the juror[]s connected the potential juror’s
statements to one another casting a negative mark on
[Appellant]. Further, nothing in the record showed that any of the
selected jurors for [Appellant’s] trial had any notion of what Juror
29’s statements meant or were influenced to convict by them or
that Juror 29 was certain that he had seen [Appellant].
PCRA Court Opinion and Order, 2/2/21, at 12-13.
In its Rule 1925(a) opinion issued following our remand, the PCRA court
supplemented its earlier opinions, reiterating that defense counsel requested
a mistrial following Juror 29’s second statement in which he disclosed that he
worked as a physician at a federal penitentiary. The Commonwealth
suggested the alternative of a cautionary instruction. PCRA Court Rule
1925(a) Opinion, 2/17/22, at 2. The court explained that defense counsel did
not agree with the cautionary instruction proposal and “it is the practice of
this court not to do so unless defense counsel requests it. This court did not
want to reemphasize any potential prejudice to jury members[.]” Id. (some
capitalization omitted). The court continued:
When an event prejudicial to a defendant occurs, they may move
for a mistrial, otherwise the trial judge may declare a mistrial
solely for reasons of “manifest necessity.” Pa.R.Crim.P. [] 605. It
is the opinion of this court that Juror 29’s statements were not
sufficiently prejudicial to [Appellant] to require a mistrial
declaration. [Appellant’s] name is fairly common and Juror 29
made elusive statements about potentially seeing that name while
at work. In Commonwealth v. Frazier, the Superior Court held
that a juror’s expression that she had made up her mind regarding
the defendant’s guilt in front of the entire jury panel was not “so
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prejudicial as to require the granting of a mistrial.”
Commonwealth v. Frazier, 410 A.2d 826, 831 (Pa. Super.
1979). The Court further articulated that “[n]ot every unwise or
irrelevant remark made in the presence of the jury compels a new
trial. The comment must be of such a nature or made in such a
manner as to deprive the defendant of a fair and impartial trial.”
Id. See also Commonwealth v. Whitman, 380 A.2d 1284 (Pa.
Super. 1977). If a potential juror declaring that she had already
decided the defendant was guilty prior to the start of trial was not
enough prejudice, then Juror 29’s innocuous statement is certainly
insufficient to declare a mistrial.
Id. at 2-3 (some capitalization omitted).
Appellant suggests that “[t]he jury heard information suggesting
[Appellant] was previously convicted of a federal offense and sentenced to
incarceration in a federal facility.” Appellant’s Brief at 15. The Commonwealth
counters, “Not every reference to prior criminal activity requires a mistrial.
Appellant has exaggerated the effect of juror #29’s passing remarks.”
Commonwealth Brief at 4 (citation omitted). We agree. Juror 29’s remarks
did not refer to prior criminal activity. He stated that he might know
Appellant’s name from his work. Although Juror 29 subsequently indicated he
was a physician at a federal penitentiary, his recognition of Appellant’s name
could just as easily have stemmed from Appellant being a prison employee or
professional colleague. There was no mention of any criminal conduct on
Appellant’s part.
As the Commonwealth recognized:
[T]he trial court is vested with discretion to grant a mistrial
whenever the alleged prejudicial event may reasonably be said to
deprive the defendant of a fair and impartial trial. In making its
determination, the court must discern whether misconduct or
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prejudicial error actually occurred, and if so, . . . assess the degree
of any resulting prejudice. Our review of the resulting order is
constrained to determining whether the court abused its
discretion.
Commonwealth Brief at 4 (quoting Commonwealth v. Hogentogler, 53
A.3d 866, 877-78 (Pa. Super. 2012), appeal denied, 69 A.3d 600 (Pa. 2013).
The Commonwealth distinguished the instant appeal from several other cases
in which the trial court was found not to have abused its discretion in denying
a mistrial. For instance, in Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.
2007), a witness testified that the defendant had been imprisoned in New
Jersey. Two witnesses had already testified that some of the crimes with
which the defendant was charged were committed in New Jersey. The trial
court denied a mistrial motion and this Court agreed that a singular passing
reference to a prior incarceration was not sufficient to demonstrate an abuse
of discretion for denying the motion for mistrial. Id. at 200.
This Court recognized that “[t]he central tasks confronting the trial court
upon the making of the motion were to determine whether misconduct of
prejudicial error actually occurred, and if so, to assess the degree of resulting
prejudice.” Id. at 199 (quoting Commonwealth v. Sanchez, 907 A.2d 477,
491 (Pa. 2006)). “Additionally, when dealing with a motion for mistrial due
to a reference to past criminal behavior, ‘[t]he nature of the reference and
whether the remark was intentionally elicited by the Commonwealth are
considerations relevant to the determination of whether a mistrial is
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required.’” Id. (quoting Commonwealth v. Guilford, 861 A.2d 365, 370
(Pa. Super. 2004)).
Here, the “nature of the reference” was vague at best and the
statements made by Juror 29 were not “intentionally elicited” by the
Commonwealth. Moreover—and importantly, Appellant has mischaracterized
the statements by suggesting that “during voir dire, before every potential
juror, the jurors were told [Appellant] had been convicted of a prior federal
offense and had served incarceration at the highest security federal prison
facility available, a federal penitentiary.” Appellant’s Brief at 16. That is
simply not true, as Juror 29’s statements confirm. See n. 2 and n. 3, supra.
As the Commonwealth correctly recognized,
[i]n this case, the jury panel heard nothing about when the
Appellant was incarcerated, the nature of his stay in prison, or the
charges for which he was convicted. There was no definitive
information that [Appellant] had actually been in prison. There
was, in fact, no reference to a conviction at all. The juror was not
even sure if Appellant was ever inside the juror’s facility. The
juror could only say that he “might have” seen Appellant’s name.
The reference to a potential prison stay in this case, a conclusion
that could only be reached if two different statements (with time
separating the two) were pieced together, was certainly less
prejudicial than what the jury heard in Kerrigan.
Commonwealth Brief at 7-8 (emphasis in original).
Further,
[i]n Commonwealth v. Stein, 548 A.2d 1230 (Pa. Super. 1988),
a witness testified to a time prior to the commission of the crime
that the accused “got out of jail.” Id. at 1234. The defense
objected and requested a mistrial, which was denied. The defense
rejected the court’s offer of a cautionary instruction. Id. [This
Court] noted that the trial judge had the benefit of observing the
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effect of the improper evidence, and declined to disturb his decision
absent a “flagrant abuse of discretion.” Id. at 1235. The [C]ourt
in Stein determined that the trial court did not abuse its discretion
in denying a mistrial. The court noted that the statement was brief,
it did not refer to the commission of a any specific crime or a
conviction, and it was not exploited by the Commonwealth. Id.Also, the defense did not request a curative instruction. Id.Id. at 9 (emphasis in original; internal citation omitted).
On direct appeal in the present case, the trial court explained:
The court did not declare a mistrial related to Juror #29’s
statements as they did not so prejudice the jury against
[Appellant] that they would not be able to give a fair and impartial
decision based on the evidence offered at trial. Juror #29
confirmed this with the court when polled. Even after later
disclosing that he was in fact a physician at a federal penitentiary
it was not clear that the jury pool would infer that because Juror
#29 might have known [Appellant] in a professional capacity that
it would necessarily have to be as an inmate physician to inmate.
The court further instructed the jury on the presumption of
innocence at the beginning of trial. . . . [T]he prospective juror’s
statement was not so prejudicial to strip [Appellant] of the
presumption of innocence.
Trial Court Opinion (Direct Appeal), 9/14/17, at 28 (some capitalization
omitted).4 As the Commonwealth argues:
The [trial] court “did not want to reemphasize any potential
prejudice to jury members, particularly if they had not made a
connection between Juror 29’s statements and any purported
ramifications for [Appellant].” [The court] made a reasonable
decision. [The court] further noted that Appellant’s trial counsel
did not agree to a cautionary instruction, so none was given.
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4Again, although Appellant raised the issue of Juror 29’s statements in his
post-sentence motions and in his Rule 1925(b) statement on direct appeal,
and the trial court addressed it in its Rule 1925(a) opinion, Appellant
abandoned the issue in the appellate brief filed with this Court.
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Commonwealth Brief at 8-9 (quoting Rule 1925(a) Opinion, 2/17/22, at 2).
The Commonwealth puts Juror 29’s statements into perspective by
noting that the trial began the day after jury selection and continued for more
than a week.
The evidence presented was extensive. There were dozens of
witnesses. The DNA experts for both sides filled up an entire day
of testimony on their own. A passing reference that [Appellant]
might have been in prison prior to 2016, something the
prospective jurors may or may not have inferred, is insufficient to
warrant a mistrial in light of the flood of information that followed
over the ensuing week.
Commonwealth Brief at 14 (emphasis added).
The Commonwealth then identified a number of instances during
Appellant’s trial in which both Commonwealth and defense witnesses made
references, without objection, to Appellant having been incarcerated. Id. at
14-15.
For example, [during direct examination of one Commonwealth
witness], the Commonwealth introduced a portion of [the
witness’s] police interview in which [the witness] stated,
concerning Appellant, “he told me that he had to have [money]
by that Friday or he was going to go back to jail.” . . . There was
no defense objection, despite the clear reference to Appellant
having been in jail before. There was no motion for a mistrial.
Appellant did not argue in his amended PCRA petition that trial
counsel was ineffective failing to request such.
Id. at 14-15 (emphasis added).
Here, the PCRA court recognized:
Conclusions of guilt or innocence are to be “induced only by
evidence and argument in open court, and not by any outside
influence, whether of private talk or public print.” Patterson v.
Colorado, 205 U.S. 454, 462 (1907). “The mandate for a fair
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and impartial jury does not require that the prospective jurors be
free of all knowledge of the facts and circumstances surrounding
the incident which forms the basis of the trial.” Commonwealth
v. Hoss, 364 A.2d 1335, 1338 (Pa. 1976). “To hold that the mere
existence of any preconceived notion as to the guilt of innocence
of an accused, without more, is sufficient to rebut the presumption
of a prospective juror’s impartiality would be to establish an
impossible standard.” Irwin v. Dowd, 366 U.S. 717, [723]
(1961).
PCRA Opinion and Order, 2/2/21, at 12.
Under the circumstances of this case, we find that the trial court did not
abuse its discretion when it denied Appellant’s motion for a mistrial.
Therefore, we shall not disturb its ruling.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/22/2022
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