Com. v. Harris, K.

J-S39037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN LEEMON HARRIS :
:
Appellant : No. 795 MDA 2023
Appeal from the Judgment of Sentence Entered May 5, 2023
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001954-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 22, 2023
Kevin Leemon Harris (Appellant) appeals from the judgment of sentence
entered in the Schuylkill County Court of Common Pleas following his jury
convictions for, inter alia, attempted first-degree murder.1 Appellant’s sole
issue on appeal relates to a juror commenting, apparently to another juror,
during Appellant’s trial testimony. Appellant claims that the trial court erred
in denying his motion for a mistrial. We affirm.
The detailed facts underlying Appellant’s convictions are not relevant to
the legal issue presented. As it pertains to his appellate claim, Appellant
testified in his own defense, during which he discussed issues with his car. On
cross-examination, Appellant admitted that he had supplied his brother and
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1 18 Pa.C.S. §§ 901(a), 2502(a).
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three other individuals with “methamphetamine and weed.” N.T. Jury Trial
Vol. II, 3/7/23, at 416. The Commonwealth asked, “Okay. Where did the
methamphetamine and the weed come from? . . . . Like, did you have it on
you or was it in your room?” Id. Appellant explained that he took the drugs
inside his mother’s house because he could not lock his car door, as his key
fob was missing. Id. at 417. At that moment, a juror interjected, and
Appellant responded to him, as follows:
[APPELLANT]: So when I told you I got my stuff out of my
car, I didn’t have my key fob. So I couldn’t lock my door. . . .
So I brought my bag in my mom’s house.
JUROR NO. 4: Just push the lock button.
[APPELLANT]: I wouldn’t have been able to unlock it then.
See, I could have pushed the lock button, but then would have
been locked out.
Id.
The following exchange occurred immediately thereafter:
[COMMONWEALTH:] Judge, you might want to say something
here.
[APPELLANT’S COUNSEL]: I don’t know what happened.
THE COURT: I was taking notes. You’re talking directly to the
jury.
Juror No. 4, did you say something to your neighbor?
JUROR NO. 4: Just all he had to do was push it down, push
the button.
THE COURT: Push his hand down?
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[APPELLANT]: No. He said all I had to do was push the lock
button. But then I would have been locked out of my car.
THE COURT: You can’t — I’m going to instruct everyone to
disregard what just happened. You cannot say things like that.
In my instructions I told you, you are not to talk about the
case with anyone. You’re to pay attention and listen to everything
that’s said. . . .
N.T., 3/7/23, at 417-18.
The trial court then directed a sidebar discussion, at which the court
asked the attorneys, “What do you want to do with No. 4?” N.T., 3/7/23, at
418. Appellant requested a mistrial, arguing that Juror No. 4 was “talking to
another juror, contradicting the testimony of [Appellant].” Id. The court
declined to grant a mistrial but concluded that dismissal of Juror No. 4 was
warranted. Id. The parties were not sure, however, if Juror No. 3, to whom
Appellant had apparently directed the comment, said anything in response.
Id. at 419. The Commonwealth stated, “I think [Juror] No. 3 just kind of,
like, shook his head yes. He didn’t verbalize any response.” Id. The court
again expressed reluctance to declare a mistrial: “I don’t think we need to do
that. It was only those two that were involved.” Id. Appellant then stated,
“[Y]ou may have to ask Juror No. 3, did this have any effect on him. He did
nod, but that could mean many different things.” Id.
The trial court then excused all the jurors but numbers three and four.
The court informed Juror No. 4 he would be excused but did not ask him any
questions. The court then asked Juror No. 3, “[D]id you hear what he said to
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you?” N.T., 3/7/23, at 421. Juror No. 3 confirmed that he did, and the court
asked additional questions:
THE COURT: Juror No. 3, did you respond in any fashion?
JUROR NO. 3: No.
THE COURT: The attorneys thought that they saw you shake
your head or nod.
JUROR NO. 3: I guess. I mean, I definitely looked over at
him and I looked on the witness stand.
THE COURT: Did you acknowledge to Juror No. 4 the
comment that he made to you?
JUROR NO. 3: Maybe nonverbally I shook my head like, Why
would you say that? Because then it started that [sic].
THE COURT: Do you feel that the comment that he made
taints your ability to remain impartial?
JUROR NO. 3: No.
Id.
The parties declined to ask Juror No. 3 any questions. The court asked
Appellant if he were seeking removal of Juror No. 3, and Appellant replied that
he was not. Appellant did not renew his request for a mistrial or ask to make
inquiry of any other juror. N.T., 3/7/23, at 422.
Appellant filed a timely notice of appeal and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement of matters complained of
on appeal.
Appellant now raises one issue on review:
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Whether the trial court committed reversible error, when it failed
to declare a mistrial upon request of Appellant’s counsel after a
seated juror acted improperly by openly questioning [Appellant]
during his testimony, which unduly prejudiced the Appellant and
resulted in an improper verdict.
Appellant’s Brief at 5.
Appellant
We reproduce Appellant’s entire counseled argument:
It is well established that the discharge of a juror is within the
sound discretion of the trial court and that determination will not
be reversed absent an abuse of that discretion. Commonwealth
v Jennings, 285 A. 2d 143 ([Pa.] 1971)[;] Commonwealth v.
Bent[ley], 135 [A.] 310 ([Pa.] 1926). Additionally, "A fair trial in
a fair tribunal is a basic requirement of due process". Ervin v.
Dowd, 366 U.S. 717 . . . (1961).
In this particular case, while the Appellant was testifying,
juror number four made an inappropriate comment to juror
number three concerning the testimony of the Appellant. While
the juror was not asking the Appellant questions per se, the juror
was openly questioning the credibility and truthfulness of
the Appellant’s testimony. At the time of the trial, the
Appellant was discussing his automobile and his inability to open
the doors of his automobile. Juror number four stated to jury
number three, out loud, “Just push the lock button.” In response,
juror number three nodded his head in agreement. While the
[t]rial [j]udge did later dismiss juror number four and placed an
alternate juror in his place, the damage had already been done.
Appellant’s counsel was unable to find case law addressing
the exact scenario that had occurred in the instant appeal.
However, given the circumstances, the [t]rial [c]ourt’s power to
grant a new trial is inherent in the court, and the decision to grant
or deny a new trial rests within its sound discretion. Kralik v.
Cromwell, 258 A 2d 654 ([Pa.] 1969). Additionally, a mistrial in
a criminal proceeding is governed by Rule 605(b) of Pennsylvania
Rules of Criminal Procedure, which is as follows: “When an event
prejudicial to the Defendant occurs during trial only the Defendant
may move for a mistrial; the motion shall be made when the event
is disclosed. Otherwise, the trial judge may call a mistrial only for
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reasons of manifest necessity”. In this case the Appellant’s
attorney timely requested a mistrial when the prejudicial event
occurred implicating the Appellant. It is the position of the
Appellant that the [t]rial [c]ourt’s failure to declare a mistrial was
reversible error.
Appellant’s Brief at 8-9 (emphasis and paragraph break added).
The trial court explained it removed Juror No. 4 “as a precautionary
measure to [e]nsure an impartial trial, free of outside influences, and to avoid
the appearance of impropriety.” Trial Ct. Op., 7/7/23, at 4 (citation omitted).
The court reasoned that juror, “as evidenced by his comment, violated the
oath he took to remain impartial and this [c]ourt’s instructions to refrain from
communication about the case with anyone prior to deliberation.” Id. The
court then concluded that it “swiftly addressed” “the possibility of prejudice or
bias resulting from the limited comment made quietly by [Juror No. 4] to
[Juror No. 3.”] Id.Preliminarily, we note that while Appellant sets forth the standard of
appellate review of a “discharge of a juror,” he is not challenging the trial
court’s removal of Juror No. 4. See Appellant’s Brief at 8. Furthermore, while
Appellant avers Juror N. 4 “openly question[ed] the credibility” of his trial
testimony, Appellant ignores that the trial court: removed Juror No. 4;
directed that an alternate juror take his place; and, at Appellant’s request,
questioned Juror No. 3 as to what effect, if any, Juror No. 4’s comment had
on him. See id. Additionally, Appellant does not address that when the trial
court asked if he wished that Juror No. 3 also be removed, Appellant declined,
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and he declined to make inquiry of any other juror. See N.T., 3/7/23, at 422.
Accordingly, while Appellant broadly suggests that the trial court’s failure to
grant a mistrial deprived him of a fair trial, he does not develop any discussion
why, in light of the particular circumstances presented, Juror No. 4’s comment
deprived him of a fair trial.
Accordingly, we conclude that Appellant has waived his claim on appeal
for failing to develop an argument. “The failure to develop an adequate
argument in an appellate brief may [ ] result in waiver of the claim under
Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007) (citation and quotation marks omitted). Accordingly, we
conclude no relief is due.
Moreover, even if Appellant had presented a reviewable issue on appeal,
we would conclude he is not entitled to relief. Appellant appears to forward
an argument that the juror’s comment warranted a new trial per se,
presumably on the basis that Juror No. 4 prejudged the defendant’s guilt,
which in turn deprived him of a fair trial. We would disagree.
This Court’s decision in Commonwealth v. Szakal, 50 A.3d 210 (Pa.
Super. 2012), involved a spontaneous comment by a juror, which the
defendant alleged warranted a mistrial. During jury selection, a potential juror
“complained . . . about the wait and said he was going to leave. He further
stated that he had already made up his mind, because ‘[Szakal] is fucking
guilty anyway.’” Id. at 218. That juror was removed from the courtroom.
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The trial court then questioned the jury pool regarding this disruption; six
jurors heard the exchange and were not empaneled. Szakal moved for a
mistrial. We reviewed that claim under the following principles of law:
It is well-settled that “[a] defendant has the right to have his case
heard by a fair, impartial, and unbiased jury and contact among
jurors, parties, and witnesses is viewed with disfavor.” However,
“[t]he decision to declare a mistrial is within the sound discretion
of the [trial] court and will not be reversed absent a flagrant abuse
of discretion. A mistrial is an extreme remedy . . . [that] . . . must
be granted only when an incident is of such a nature that its
unavoidable effect is to deprive defendant of a fair trial.”
Szakal, 50 A.3d at 218 (citations omitted).
The Szakal Court concluded that Szakal was not denied a fair trial, as
the offending juror “was immediately removed from the courtroom and the
trial court conducted a colloquy of the remainder of the venire.” Szakal, 50
A.3d at 218. We additionally opined, “[T]o the extent [Szakal] suggests that
more than six prospective jurors necessarily heard the outburst and members
of the venire were untruthful with the trial court,” the record did not support
that claim. Id. at 219. Furthermore, this Court reasoned: “Regardless,
counsel . . . was given the opportunity to question prospective jurors following
the incident and, most importantly, the jurors ultimately empaneled were not
affected by [the removed juror’s] comments.” Id.
We reiterate that in the case sub judice, the trial court removed Juror
No. 4 following his interjection. Although Appellant asked the trial court to
question Juror No. 3, to whom the Juror No. 4’s comment was apparently
made, Appellant declined to question other jurors as to whether they
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overheard Juror No. 4’s comment and, if so, whether it affected their ability
to impartially render a verdict. Presently Appellant raises no claim that the
remaining jurors shared Juror No. 4’s sentiment, nor that Juror No. 4’s
comment somehow infected the rest of the jury.
Finally, we observe that decisional authority, which held a mistrial was
warranted due to the entire jury’s being tainted, tend to involve the conveying
of extra-trial information, rather than an opinion. For example, in
Commonwealth v. Harkins, 328 A.2d 156 (Pa. 1974), prospective jurors
were questioned collectively by the trial court. Id. at 156-57. No juror
responded when the court asked if anyone knew the prosecutor. Id. A juror
then announced, however, that he (the juror) should not sit on the case. Id.The court asked, “Have you had some contact with [the prosecutor] that would
not qualify you?” Id. at 157. The juror replied, “Yes, he stole my car [sic].”
Id. The juror was referring to the defendant, whom he did suspect to have
stolen his car. Id. The trial court removed that juror from the panel but
denied the defendant’s request to strike the entire panel. Id.On appeal, the Pennsylvania Supreme Court reversed, determining that
“the other prospective jurors . . . could have reasonably understood that the
accusation was directed at” the defendant and held that the trial court erred
in failing to strike the panel. Harkins, 328 A.2d at 157. The Court held the
defendant was “deprived of a fair trial by a panel of impartial and indifferent
jurors,” where the jury “received nontestimonial information of a prior crime
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other than that for which the [defendant] was being tried.” Id. The Court
rejected the Commonwealth’s assertion that any error by the trial court was
harmless: “When the jury learns that the person being tried has previously
committed another crime, the prejudicial impact cannot be considered
insignificant.” Id. at 157-58.
Unlike Harkins, here, Juror No. 4 did not claim knowledge of facts
concerning Appellant or his crimes. At most, he expressed an opinion that
Appellant was not credible. Appellant does not argue the other jurors shared
this view, which in any event could have been explored if Appellant had
requested the trial court to individually ask each juror if the comment had any
bearing on their view of the case.
Finally, the fact that the trial court immediately informed the jury that
it should ignore the comment would tend to ameliorate any prejudice, as we
presume that jurors follow a court’s instructions. See Commonwealth v.
Coleman, 230 A.3d 1042, 1050 (Pa. 2020). We cannot agree that the
comment at issue here was prejudicial to the extent a mistrial was required.
For the forgoing reasons, we conclude no relief is due and affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow joins the Memorandum.
Judge McLaughlin Concurs in the Result.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/22/2023
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