J-S39043-19

                                   2019 PA Super 253


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LUIS ENRIQUE MARRERO                       :
                                               :
                       Appellant               :   No. 2476 EDA 2018

          Appeal from the Judgment of Sentence Entered July 25, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0005376-2017


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 21, 2019

        Appellant, Luis Enrique Marrero, appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County after a jury found

him guilty of driving under the influence of a controlled substance,1 third

offense, and driving while under the influence of alcohol and a drug or

combination of drugs that impaired his ability to drive safely, third offense.2

Sentenced to an aggregate term of twelve to forty-eight months’ incarceration

followed by a twelve-month probationary tail, Appellant now challenges the

trial court’s failure to discharge a juror alleged to have made remarks during

trial indicating racial bias and prejudice. We affirm.

        The trial court discusses the pertinent factual history, as follows:



____________________________________________


1   75 Pa.C.S.A. § 3802(d)(2).
2   75 Pa.C.S.A. § 3802(d)(3).
____________________________________
* Former Justice specially assigned to the Superior Court.
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     The Affidavit of Probable Cause attached to the Criminal Complaint
     . . . filed on May 2, 2017, alleges that Appellant was found
     unconscious in a Chevy Monte Carlo that was in drive and running.
     The front end of the vehicle was up against a fence located on a
     residential property. Responding officers woke Appellant after
     several attempts and Narcan was administered.             An open
     container of beer and a partially smoked cigarette that appeared
     to have been dipped in a controlled substance were in the vehicle.

     ...

     On the second morning of trial, after the Commonwealth had
     presented its final witness, the trial court was advised by the Court
     Crier that Juror #14 reported that he believed that Juror #6 had
     made a disparaging statement on the prior day. See N.T.
     6/27/18, at 9-10. Specifically, Juror #14 reported that in the
     course of a conversation amongst the jurors regarding the concept
     of facing trial before “a jury of your peers,” Juror #6 said, “oh
     well, none of us are [sic] his peers.” N.T. at 4. Juror #14 took
     this comment as possibly referring to Appellant’s Latino heritage.
     Id.

     With trial counsel and the prosecutor present, the trial court
     questioned Juror #6 regarding this statement. She admitted
     having made it and stated further that she was referring to the
     fact that she is older than the Appellant:

           THE COURT:        A question has arisen. One of the
           jurors thought he heard you say something about—
           you were discussing—when I say [‘]you[’], the jury was
           discussing jury by peers and so forth—and you may
           have said something along the lines—

           JUROR #6:          Right.

           THE COURT:         —[‘]well, the [Appellant] certainly is
                              not one of our peers[’] or something
                              like that.

           JUROR #6:          Right.

           THE COURT:         Is that—

           JUROR #6:          Just that I’m a lot older than he is.

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            THE COURT:        Okay.

            JUROR #6:         That’s all I meant by that.

            THE COURT:        Okay. I just wanted to make sure
                              that there was no—any kind of bias
                              or anything—

            JUROR #6:         Oh, no.

            THE COURT:        —that would prevent you from
                              reaching a fair and impartial
                              opinion—

            JUROR #6:         Not at all, no.

            THE COURT:        —on the [Appellant’s]         guilt   or
                              innocence.

            JUROR#6:          No.

            THE COURT:        So you were just talking about
                              disparity in age?

            JUROR#6:          Just – yes, that was it.

            THE COURT:        Okay.     Well, a probably even
                              greater disparity in my case. Any
                              questions?

            [COUNSEL]:        I do not.

            PROSECUTOR: No.

      N.T. at 7-9. The trial court denied Appellant’s motion to remove
      Juror #6, after finding her explanation . . . credible and [her
      statement] harmless.

Trial Court Opinion, filed 10/22/18, at 1-2, 4-5.

      As noted above, the jury convicted Appellant on two counts of DUI. This

timely appeal followed.


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      Appellant presents one question for this Court’s consideration:

      Whether the Trial Court abused its discretion when it refused to
      remove a juror who openly exhibited prejudice and bias against
      [Appellant]?

Appellant’s brief, at 4.

      “The decision to discharge a juror is within the sound discretion of the

trial court and will not be disturbed absent an abuse of that discretion. This

discretion exists even after the jury has been impaneled and the juror sworn.”

Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994) (internal citations

omitted). “[T]he common thread of the cases is that the trial judge, in his

sound discretion, may remove a juror and replace him with an alternate juror

whenever facts are presented which convince the trial judge that the juror's

ability to perform his duty as a juror is impaired.” Bruckshaw v. Frankford

Hosp. of City of Philadelphia, 58 A.3d 102, 110–11 (Pa. 2012) (quoting

United States v. Cameron, 464 F.2d 333, 335 (3d Cir. 1972)).

      Appellant contends in the argument section of his brief that either of

two comments made by Juror #6 revealed that she had settled on a verdict

prematurely, which required her dismissal. Appellant, however, has waived

this claim for failing to object.

      It is well settled in Pennsylvania that a party must make a timely and

specific objection at trial in order to preserve an issue for appellate review.

Pa.R.A.P. 302(a), see also Commonwealth v. Montalvo, 641 A.2d 1176,

1185 (Pa. Super. 1994) (citation omitted) (“In order to preserve an issue for

review, a party must make a timely and specific objection at trial”). Pursuant

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to Pa.R.A.P. 302, issues that are not raised in the lower court are waived and

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).

      The relevant notes of testimony show Juror #14 alerted the trial court

not only about the comment possibly betraying a racial bias, but also about a

second comment causing him to believe Juror #6 had come to a premature

decision in the case:

      THE COURT:        Very briefly, my court crier indicated that Juror
                        #6, specifically, was making comments which
                        might have been in violation at least to the spirit
                        of my instructions not to, in any way, deliberate
                        or discuss the possible outcome or the verdict.
                        Is that correct?

      JUROR #14:        Yes, sir.

      THE COURT:        Tell me exactly what Juror #6 said.

      JUROR #14:        There were two sets of comments. The first
                        were [sic] right after we had been impaneled
                        and went back, before we had actually come in
                        to hear the case.

      THE COURT:        Okay.

      JUROR #14:        And she had said – we were talking about the
                        whole concept of a jury of your peers, and she
                        had said, [‘]oh well, none of us are [sic] his
                        peers,[’] which a number of us took to mean
                        racially none of us were Latino –

      THE COURT:        Okay.

      JUROR #14:        -- or none of us were [sic] his peers [sic].

      THE COURT:        All right.




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     JUROR #14:         The other was, after we came in at the end of
                        the day at about 4:30, she had said, [‘]Oh, well,
                        I guess tomorrow we’ll just deliberate.[’] And
                        somebody had pointed out, well, no, there is the
                        whole defense side of the case to hear and the
                        rest of the – you know, we need to hear
                        everything. She said, [‘]Oh, yeah, I guess we
                        probably should do that, too.[’] But it was very
                        – it seemed from her comments that she has
                        made up her mind –

     THE COURT:         Okay. All right.

     JUROR #14:         -- about what she was going to be doing.

     THE COURT:         All right. That’s what I need. Do you have any
                        additional questions at this point?        [Both
                        defense counsel and the Commonwealth answer
                        in the negative.] Okay, all right, just go back,
                        and we’ll handle the situation.

     JUROR #14:         Okay.

N.T. 6/27/18, at 3-5.

     After Juror #14 left the courtroom, the trial court informed defense

counsel and the Commonwealth that it deemed harmless the alleged

comment, “Well, I guess tomorrow we’ll just deliberate.” The court indicated,

therefore, that it would confine its examination of Juror #6 to her remaining

comment intimating that the jurors were not Appellant’s peers:

     THE COURT:         Counsel, at this point I think I would like to talk
                        to Juror #6 concerning the remark that she
                        made with respect to a jury of our peers. The
                        other comment she said, [‘]Well, I guess
                        we’ll have to deliberate,[’] seems harmless
                        to me. She may have assumed that there
                        wasn’t going to be any case put on by the
                        – I don’t know what exactly she did, but we
                        can ask her about that as well. But I don’t


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                        see at this point any particular need to have her
                        removed.

N.T. at 5 (emphasis added).

      Significantly, defense counsel offered no objection to the court’s

conclusion that the allegedly “prejudicial” comment was harmless, nor did

counsel object when the court failed to ask any questions of Juror #6

pertaining to that comment. Instead, counsel accepted the court’s apparent

decision to narrow the inquiry to the comment alleged to suggest racial bias,

see N.T. 7-9, supra, and he later confined his final argument for dismissal to

this one comment.    Juror #6’s testimony, counsel argued, was “incredible

based upon the fact that a number of the other jurors do appear to be

significantly younger than she and certainly closer in age to my client, the

[Appellant].” N.T. at 9-10.

      With that argument, he moved for dismissal, without also asking the

court to consider the second comment as suggesting a mind prematurely

settled on a guilty verdict. Therefore, to the extent Appellant now advances

in his brief the argument that dismissal was required because of Juror #6’s

allegedly “prejudicial” comment, it is waived.

      In Appellant’s preserved issue, he contends the trial court erred in

accepting Juror #6’s age-based explanation for her remark that Appellant had

“no peers on the jury,” when a number of jurors were close in age to Appellant.

On this point, we observe the trial court questioned Juror #6 directly on the

allegation of racial bias, gained her express assurance that nothing would

prevent her from reaching a fair and impartial decision, and chose ultimately

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to credit her testimony that she had referred not to Appellant’s ethnicity but

only to the age disparity between Appellant and herself.

      Appellant asks this Court to disturb the trial court’s credibility

determination in this regard, but we may not do so under the record.

Specifically, the transcript shows the court gave due regard to the allegations

against Juror #6 by conducting a full examination of both Juror #14 and Juror

#6. In so doing, the court placed itself in the best position to assess what

Juror #6 meant by her statement, and it declined removing her when it

believed her testimony that she had not invoked race and would deliberate

fairly and impartially. Because the court based its decision to retain Juror #6

upon a credibility determination finding sufficient support in the record, we

discern no abuse of the trial court’s discretion.   See Commonwealth v.

Koehler, 737 A.2d 238 (Pa. 1999) (holding trial court did not abuse discretion

in refusing to remove juror where court was in best position to assess juror

credibility and believed juror would be impartial) (citing Commonwealth v.

Chambers, 685 A.2d 96, 107) (Pa. 1996)).

      Judgment of sentence affirmed.




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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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