Com. v. Johnson, L.

J. S84040/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LEON JOHNSON, : No. 1355 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, December 16, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0012563-2013,
CP-51-CR-0012702-2011, CP-51-CR-0012703-2011
BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 11, 2019
Leon Johnson appeals from the December 16, 2015 aggregate
judgment of sentence of 10 to 20 years’ imprisonment imposed after a jury
found him guilty of burglary, criminal trespass, and theft by unlawful taking
or disposition.1 After careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts of this case as follows:
Kevin Slusarski is an independent contractor who
lives with his wife [] in Philadelphia. On
September 19, 2013, his wife left their house at
7:15am, and he left their house at 8:15 am.
Slusarski locked the front door before he left the
house. When he returned at 11:00 am, Slusarski
opened his front door with a key and then went to
the basement to obtain a few tools. He was in his
home for 5 minutes and standing in the first floor
dining room when he heard a large loud noise
1 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1), and 3921(a), respectively.
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coming from the second floor. Believing that the
noise must have come from his neighbor’s house,
Slusarski ignored the noise and went downstairs to
the basement to get materials to paint his front
porch. When he was in the basement, he heard loud
footsteps on the first floor.
Slusarski went upstairs to investigate. When he
reached the first floor, Slusarski observed [appellant]
walking into the kitchen. [Appellant] had two bags
on his shoulders. [Appellant] turned around, looked
at Slusarski and then immediately started walking as
fast as he could toward the front door. Slusarski was
eight to ten feet from [appellant] and was able to
see his entire face. Slusarski noted that [appellant]
walked with a limp. Slusarski repeatedly yelled at
[appellant], “What are you doing here?” In
response, [appellant] walked out the front door.
Slusarski called 911 and started to follow
[appellant]. Slusarski stayed 15-20 feet behind
[appellant] and followed him for two to three
minutes. About a block from Slusarski’s house,
[appellant] dropped one of the two bags onto the
street. [Appellant] kept walking and then went into
the backyard of a row home. Slusarski did not follow
[appellant] into the backyard. At trial, Slusarski
identified [appellant] as the same person who was
inside his house. He also used a photograph to
identify the location at which [appellant] entered a
backyard.
Slusarski was on the phone with a 911 dispatcher
during the entire time he followed [appellant]. After
[appellant] went into the backyard, the
911 dispatcher told Slusarski to go back to his house
to meet police. About one minute after he returned
to his house, Slusarski met with a police officer. He
told the police officer that [appellant] dropped a gym
bag about one block from his house and that the
gym bag was a bag that he kept in a closet on the
third floor of his house. Slusarski left his house to
recover the gym bag that [appellant] dropped on the
street. Inside the bag were two laptop computers, a
digital camera, a digital voice recorder, several
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charging cords and a large amount of change.
Slusarski immediately recognized all of the property
as his property including the change, which he kept
in a coffee can in his house.
Slusarski returned to his house for a second time.
He noticed that the window screen for the second
floor bathroom was broken and laying on the
bathroom floor. He also noticed that the third floor
bedroom was ransacked. Slusarski then went to
3783 Cresson Street where he identified [appellant]
as the person who he observed inside his house. He
also observed a police officer pull an iPod out of
[appellant]’s front pants pocket; Slusarski identified
the iPod as his property. Slusarski testified that he
never gave [appellant] permission to enter his house
or to remove any of his property.
Trial court opinion, 9/2/16 at 1-3 (citations to notes of testimony omitted).
Appellant was subsequently arrested in connection with this incident
and charged with burglary, criminal trespass, theft by unlawful taking, and
receiving stolen property.2 On June 22, 2015, the trial court conducted a
voir dire of prospective jurors for appellant’s trial. In response to the trial
court’s inquiries, one of the prospective jurors, Ebonye Williams, indicated
that she knew the prosecutor in this case, Assistant District Attorney
Jennifer Friend-Kelly (“ADA Friend-Kelly”). (Notes of testimony, 6/22/15
at 10.) After the trial court questioned Williams at length, appellant moved
to strike Williams for cause. (Id. at 36-43.) The trial court denied said
motion after confirming with ADA Friend-Kelly that she did not recognize
Williams from the jury pool until she was individually examined by the trial
2 18 Pa.C.S.A. § 3925(a).
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court. (Id. at 43-44.) Thereafter, appellant proceeded to a jury trial and
was ultimately found guilty of burglary, criminal trespass, and theft by
unlawful taking on June 24, 2015. As noted, appellant was sentenced to an
aggregate term of 10 to 20 years’ imprisonment on December 16, 2015. On
December 23, 2015, appellant filed a post-sentence motion for
reconsideration of his sentence, which was denied by operation of law on
April 22, 2016. See Pa.R.Crim.P. 720(B)(3)(a) (stating, “[i]f the judge fails
to decide the motion within 120 days, or to grant an extension as provided
in paragraph (B)(3)(b), the motion shall be deemed denied by operation of
law.”). This timely appeal followed on April 25, 2016.
On April 27, 2016, the trial court directed appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On May 18 and July 13, 2016, appellant filed motions
requesting an extension of time to file his Rule 1925(b) statement upon
receipt of the notes of testimony from the June 22, 2015 voir dire. The trial
court did not rule on appellant’s motions and subsequently filed a
Rule 1925(a) opinion on September 2, 2016. Thereafter, on January 18,
2017, this court granted appellant’s petition to remand the case to the trial
court so that the voir dire notes of testimony could be transcribed, and
ordered him to file a Rule 1925(b) statement within 21 days of receipt.
(See per curiam order, 1/18/17.) Appellant timely complied on June 5,
2018. The trial court filed a supplemental Rule 1925(a) opinion on August 2,
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2018, rejecting appellant’s argument that its failure to strike Williams from
the jury constituted an abuse of discretion. (See supplemental Rule 1925(a)
opinion, 8/2/18 at 4-5.)
Appellant raises the following issue for our review:
Did not the [trial] court abuse its discretion and
violate appellant’s state and federal constitutional
rights to a fair trial and due process of law when it
failed to strike “for cause” a prospective juror whose
answers during voir dire demonstrated that she
would have difficulty being fair and impartial in a
case involving the prosecuting attorney as she had
previously worked with the prosecutor (in a
non-legal setting) for three years?
Appellant’s brief at 3.
Our standard of review in assessing whether a trial court erred in
declining to strike a prospective juror for cause is well settled:
A trial court’s decision regarding whether to
disqualify a juror for cause is within its sound
discretion and will not be reversed in the absence of
a palpable abuse of discretion. In determining if a
motion to strike a prospective juror for cause was
properly denied our Court is guided by the following
precepts:
The test for determining whether a
prospective juror should be disqualified is
whether he is willing and able to
eliminate the influence of any scruples
and render a verdict according to the
evidence, and this is to be determined on
the basis of answers to questions and
demeanor. . . . It must be determined
whether any biases or prejudices can be
put aside on proper instruction of the
court. . . . A challenge for cause should
be granted when the prospective juror
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has such a close relationship, familial,
financial, or situational, with the parties,
counsel, victims, or witnesses that the
court will presume a likelihood of
prejudice or demonstrates a likelihood of
prejudice by his or her conduct or
answers to questions.
Commonwealth v. Briggs, 12 A.3d 291, 332-333 (Pa. 2011) (citations
omitted), cert. denied, 565 U.S. 889 (2011).
Instantly, our review of the record reveals that Williams’ relationship
with ADA Friend-Kelly was not of such a nature that a presumption of
prejudice was warranted, nor did her answers during voir dire indicate that
her ability to serve as a fair and impartial juror had been prejudiced. First, it
is evident Williams did not have a “close [] familial, financial, or situational”
relationship with ADA Friend-Kelly. Id. at 333; see also Commonwealth
v. Cox, 983 A.2d 666, 682 (Pa. 2009). On the contrary, Williams’ testimony
only revealed that she had previously worked with ADA Friend-Kelly before
she became an attorney, had not seen her in “years,” and was only familiar
with her through the online professional networking service, LinkedIn.
Specifically, Williams testified as follows:
THE COURT: You indicated you know someone, who
do you know?
THE WITNESS: Ms. Friend-Kelly.
THE COURT: How do you know Ms. Friend-Kelly?
THE WITNESS: We worked together for a couple
years.
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THE COURT: In what capacity?
THE WITNESS: I was property manager. She was
the intern at the housing authority.
THE COURT: When was the last time you saw
Ms. Friend-Kelly?
THE WITNESS: Years.
....
THE COURT: You also indicated that you or someone
close to you works in law enforcement or as a police
officer, who were you thinking of?
THE WITNESS: My uncle is a police officer.
THE COURT: Anyone else that you were thinking of?
THE WITNESS: No.
THE COURT: When you were answering that
question were you thinking of Ms. Friend-Kelly or
was she so far out of your mind?
THE WITNESS: No.
THE COURT: Did you know she was a lawyer?
THE WITNESS: I did, yes.
THE COURT: Did you know where she worked?
THE WITNESS: Only through our LinkedIn
connection.
Notes of testimony, 6/22/15 at 36-37, 41-42.
Moreover, at no point during the voir dire did Williams’ “conduct or
answers” indicate that she could not be impartial. See Briggs, 12 A.3d at
333; see also Cox, 983 A.2d at 682. Rather, Williams stated unequivocally
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that she was able to be fair and impartial and would not allow any
extraneous matters to influence her:
THE COURT: Anything about the fact that
Ms. Friend-Kelly would be the prosecutor in this case
that you think would impact your ability to be fair
and impartial?
THE WITNESS: No.
....
THE COURT: Ms. Williams, we all come from
different backgrounds and life experiences, is there
anything that we haven’t talked about today that you
think would impact your ability to be fair and
impartial?
THE WITNESS: No.
Notes of testimony, 6/22/15 at 37, 42.
Based on the foregoing, we discern no abuse of the trial court’s
discretion in denying appellant’s motion to strike Williams from the jury with
cause. Accordingly, we affirm appellant’s December 16, 2015 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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