J-S26010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Entered 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, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 12, 2014

        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 are



        In a prior appeal before this Court, we summarized the factual and



              On April 16, 2003, a jury convicted Appellant of arson,
        criminal conspiracy, and multiple 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


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     our Supreme Court subsequently 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 Super. 2006) (unpublished memorandum), appeal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 August 17,
     2006. See Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.

     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
                     1
                       Therein, he alleged ineffective assistance of his


     a pro se notice of appea
     denying his first petition.    That notice of appeal was time


     appeal was timely.    See Pa.R.A.P.



     because his second PCRA petition was still pending before the
     court.2




                        ______________________

     1
                                               Pro Se Motion for Post
     Conviction
     2




                                            -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
             See                    -1.

                                    -2-
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Commonwealth v. Slaughter, 2036 EDA 2011, unpublished memorandum

at 1-3 (Pa. Super. filed October 26, 2012).

      Appellant filed a timely pro se notice of appeal from the denial of his

second PCRA petition, arguing, inter alia, that

denial of his first PCRA petition was improperly rejected by the Clerk of

            Id. at 3.   We agreed with this argument and, accordingly, we



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 in the

instant appeal.     Counsel filed a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       Herein, Appellant

raises the following five issues for our review:

      A. Whether [] Appellant was denied due process and effective
      assistance of counsel by both trial and appellate counsel where
      there was a f
      partial verdict be recorded before the trial court terminated
      deliberations and seated the already dismissed alternate juror to
      begin new deliberations?

      B. Whether [t]rial counsel was ineffective for failing to introduce
      character witnesses who were willing and available to testify at
      trial?

      C. Whether PCRA counsel was ineffective for failing to raise trial
      and appellate counsel ineffectiveness for failing to argue and
      preserve that the evidence was insufficient as a matter of law to
      convict [] Appellant of the crimes charged?

      D. Whether [a]ppellate and trial counsel were ineffective for
      failing to properly present and argue challenges to the
      discretionary aspects of sentencing[?] [] Appellant also argues

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     that PCRA counsel was ineffective for failing to preserve this
     issue in the PCRA [p]etition.

     E. Whether PCRA [c]ounsel was ineffective for failing to raise

     objections with regard to Detective Brooks
                                     th
                                          Amendment right and its like
     provision?



     To begin, we note that

grant or denial of post-conviction relief is limited to examining whether the



                                    Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

     [A] PCRA petitioner will be granted relief only when he proves,
     by a preponderance of the evidence, that his conviction or

     which, in the circumstances of the particular case, so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence c

     constitutionally adequate, and counsel will only be deemed
     ineffective upon a sufficient showing by the petitioner. To obtain
                                                           performance
     was deficient and that the deficiency prejudiced the petitioner. A


     unprofessional errors, the result of the proceeding would have

     posits that: (1) the underlying legal issue has arguable merit;

                                                                        or
     omission.

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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).



ineffective for not appropriately objecting when the trial court seated an

alternate juror after jury deliberations had begun.      The following facts



      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



The court denied that motion, instead instructing the jury to continue to

deliberate. Id. at 7. Immediately after providing this instruction, the court



                                Id.

      When the trial commenced on Monday, April 14, 2003, one of the

jurors was absent due to illness. N.T. Tri

could not reach the juror to ascertain if or when she would be able to return

to court. Id.

Id.                                                          this trial and the

                   Id. at 9.   The court then stated that it was going to

                                                                        Id. at




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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

     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

     substituted for juror number seven. So you are to disregard and
     begin anew with regard to your deliberations.



     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
     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-                                                          s 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. T

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,

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the jury asked the court to provide further instructions regarding 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.

      In support of his assertion that counsel did not lodge an appropriate



on the version of Pa.R.Crim.P. 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. Appellant also relies heavily on Commonwealth v.

Saunders, 686 A.2d 25 (Pa. Super. 1996). In Saunders

original jury began deliberations on Friday and then retired for the weekend.

Id. at 26. On Monday morning, a juror called the court and informed it that

she was ill and would not be able to return to court 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

                                                         Id. at 26-27, 29-30.

Two hours later, the jury returned with a verdict. Id. at 27.

      On appeal, 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

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                                                     Saunders, 686 A.2d at

27. Consequently,

an alternate juror after deliberations have begun, there is a presumption of

                             Id. at 28.

      However, we went on in Saunders to hold that this presumption may

be rebutted



Id.

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 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

      personal and had nothing to do with the discharged juror's views

      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:


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          [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 People 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 must set aside and disregard
          the earlier deliberations as if they had not been had.

       [People v.] Collins, 552 P.2d [742,] 746 47 [Cal. 1976)].
                                                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
                              State v.] Lipsky, 395 A.2d [555,] 558
       [(N.J. Super. 1978)].

Id. at 29.1 Because the trial court in Saunders had instructed the jury to



____________________________________________


1
  In 2013, Rule 645 was amended to add 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:
(Footnote Continued Next Page)


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                                                         gment of sentence and

remanded for a new trial. Id. at 29.

      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 co

                                                    Saunders requirement that the

jury be informed that

personal and had nothing to do with the discharged juror's views on the case

                                                     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

                                                       ely question[] the alternate



to any improper outside influences and that the remaining regular jurors are
                       _______________________
(Footnote Continued)

          (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
          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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J-S26010-14



                                                   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 for failing to do so under the clear dictates of Saunders




that his trial counsel acted

to seat an alternate juror after deliberations were underway. 2 Accordingly,

____________________________________________


2
    We note that in rejecting this claim of ineffectiveness, the PCRA court

beginning ag
Commonwealth v. Feliciano
                                                                Feliciano is
misplaced. In that case, the trial court granted permission for a juror to
leave deliberations for a short period to smoke a cigarette. Id. at 903. The
appellant claimed that because the trial court did not instruct the jury to
suspend deliberations until the juror returned, the case was comparable to
Saunders and a presumption of prejudice arose. Id. We disagreed,

                                                             Id. at 903.
Because the facts of the instant case are analogous to Saunders, and are
clearly distinct from Feliciano                             Feliciano is
erroneous.



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and remand for a new trial. In light of our disposition, we need not address



     Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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