J-S39030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                               Appellee

                         v.

FOFEE SAYON,

                               Appellant                     No. 55 EDA 2015


                 Appeal from the PCRA Order December 9, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004236-2011


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                   FILED OCTOBER 14, 2015

       Fofee Sayon appeals from the order entered December 9, 2014, in the

Chester County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Sayon seeks relief from the judgment of sentence of an aggregate 18 to 48

months’ imprisonment, followed by 10 years’ probation, imposed on

December 13, 2012, after his jury conviction of institutional sexual assault

(two counts), corruption of minors (two counts), unlawful contact with

minors (two counts), and endangering the welfare of a child. 1 His sole claim

on appeal asserts trial counsel’s ineffectiveness for failing to adequately

____________________________________________


1
   18 Pa.C.S.       §§        3124.2,   6301(a)(1),   6318(a)(1),   and   4304(a)(1),
respectively.
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consult with him before agreeing to proceed with a verdict decided by only

11 jurors. Based on the following, we vacate the order denying PCRA relief,

and remand for a new trial.

      The facts underlying Sayon’s conviction were summarized by this

Court in a prior appeal as follows:

              In 2010, [Sayon] . . . was employed as a residential
      counselor at the Devereux Foundation in Malvern, Chester
      County, Pennsylvania. The Devereux Foundation is a residential
      facility licensed by the State of Pennsylvania, and provides
      treatment for children with behavioral and emotional disorders.
      Approximately seventy-five girls between the ages of eight and
      eighteen live at the Malvern facility. The average stay for the
      girls at the facility is between nine and twelve months.

            Employees of Devereux receive training regarding
      professional boundaries between staff and residents. Absolutely
      no sexual contact of any kind is permitted between an employee
      and a resident of Devereux, including after the resident has been
      discharged from the facility. Prior to beginning his employment
      at Devereux, [Sayon] was notified of this policy in writing, and
      signed an acknowledgment that he had read and understood the
      policy.

            Beginning in June, 2010, sixteen[-]year-old M.W. was a
      resident in treatment at the Devereux Foundation. While in
      residence, M.W. confessed to Victoria Jackson, program manager
      at Devereux and [Sayon’s] supervisor, that she had a crush on
      [Sayon]. Ms. Jackson informed [Sayon] of this crush, and
      stressed to him the importance of maintaining a “safe distance.”

             On October 22, 2010, M.W. met with Devereux’s senior
      program manager, Kenyatta Smith, and informed Ms. Smith that
      [Sayon] had been making advances towards her. M.W. told Ms.
      Smith [that] she and [Sayon] had kissed in the past, but that
      she didn’t want it to happen [anymore]. Later, M.W. admitted
      that, when out of the view of other residents, she and [Sayon]
      had kissed each other several times. During these episodes
      [Sayon] also grasped M.W.’s breasts or buttocks, and attempted
      to put his hands down her pants. M.W. also stated that [Sayon]


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      had also asked M.W. to engage in vaginal and oral sex, and had
      used gestures to indicate to her his desire for oral sex.

Commonwealth v. Sayon, 87 A.3d 371 [225 EDA 2013] (Pa. 2013)

(unpublished memorandum at 1-2) (citation omitted).

      Sayon was arrested and charged with the above-listed offenses. The

case proceeded to a jury trial. After the jury retired to deliberate, they sent

a note to the trial court requesting how to proceed “if one juror did not hear

some of the testimony and has a language barrier[.]” N.T., 6/28/2012, at

126. Thereafter, the following exchange took place:

             THE COURT: … Suggestions counsel? We could go with 11
      if everybody agrees.

            [Commonwealth]:      I wouldn’t have a problem with that,
      your Honor.

            THE COURT: Defense?

            [Defense Counsel]: I would be fine with that, your Honor.

             THE COURT: I’ll ask the jury to come in, please. And then
      I’ll ask the foreman to identify the – actually, yes, I’ll ask the
      foreman to identify the juror who has the problem. I’ll then
      excuse that juror and tell the jury to go back and deliberate with
      11.

           And, Mr. Sayon, do you agree with that response that your
      lawyer gave for the 11 to decide this case?

            [Sayon]: Yes, your Honor.

           THE COURT: Thank you, very much. That is the way we’ll
      proceed.

Id. at 126-127.

      The   court   then   dismissed   juror   number   eight   after   the   juror

acknowledged he did not hear some of the testimony, and instructed the



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jury to resume deliberations.          The jury later returned with its verdict of

guilty on all charges.

       On December 13, 2012, Sayon was sentenced to an aggregate term of

18 to 48 months’ imprisonment, followed by 10 years’ probation. 2              His

judgment of sentence was affirmed by a panel of this Court on appeal. See

Sayon, supra.        On April 25, 2014, Sayon filed a timely, counseled PCRA

petition raising numerous claims asserting the ineffectiveness of trial

counsel.     The PCRA court conducted an evidentiary hearing, and on

December 9, 2014, entered an order denying Sayon’s PCRA petition. This

timely appeal follows.3

       Our standard of review is well-established:

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

____________________________________________


2
   Prior to sentencing, the trial court ordered Sayon to undergo an
assessment by the Sexual Offenders Assessment Board (“SOAB”) to
determine if he met the criteria for classification as a sexually violent
predator under the Sexual Offenders Registration and Notification Act
(“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.14.           The SOAB evaluator
determined Sayon did not meet the criteria for classification as a sexually
violent predator. See N.T., 12/13/2012, at 3.
3
  On January 5, 2014, the PCRA court ordered Sayon to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Sayon complied with the court’s directive, and filed a concise statement on
January 20, 2014.




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Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      Sayon’s sole issue on appeal involves the ineffective assistance of trial

counsel.

      In order to obtain relief on a claim of counsel ineffectiveness, a
      PCRA petitioner must satisfy the performance and prejudice test
      set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
      2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied
      the Strickland test by requiring that a petitioner establish that
      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s action or failure to act; and (3) the
      petitioner suffered prejudice as a result of counsel’s error, with
      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.
      Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
      (2001).     Counsel is presumed to have rendered effective
      assistance, and, if a claim fails under any required element of
      the Strickland test, the court may dismiss the claim on that
      basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291
      (2010).

Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014).

      Sayon asserts trial counsel was ineffective for failing to adequately

consult with him before agreeing to continue deliberations with only 11

jurors.    He states counsel did not “adequately advise … [him] as to his

choices and the ramification of his choices.” Sayon’s Brief at 12. Further,

Sayon emphasizes trial counsel testified during the PCRA hearing that he

was unaware he could request a mistrial, but that “had he known that a

mistrial was a possibility then he would have recommended to … Sayon that

he request and then receive a mistrial.”     Id.   Accordingly, Sayon asserts




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counsel’s decision to proceed with 11 jurors had no “sound legal basis,” and

that he was prejudiced by counsel’s ineffectiveness. Id. at 12-13.

     “It is clear from this Commonwealth’s history and case law that our

Constitution in 1776 meant ‘trial by jury’ was a jury of twelve.” Blum by

Blum v. Merrell Dow Pharm., Inc., 626 A.2d 537, 549 (Pa. 1993)

(reversing judgment and remanding for new trial when trial court overruled

defendant’s request for mistrial after one juror became ill).   Nevertheless,

there are circumstances in which a criminal defendant may waive this right,

and proceed to verdict with fewer than 12 jurors.      Pennsylvania Rule of

Criminal Procedure 641 provides:

     In all cases, at any time after a jury of 12 is initially sworn and
     before verdict, the defendant and the attorney for the
     Commonwealth, with approval of the judge, may agree to
     a jury of fewer than 12 but not fewer than 6. Such
     agreement shall be made a part of the record. The verdict in
     such a case shall have the same force and effect as a verdict by
     a jury of 12.

Pa. R. Crim. P. 641 (emphasis supplied).

     Here, the PCRA court determined the requirements of Rule 641 were

fulfilled, and that Sayon failed to demonstrate counsel was ineffective. The

court opined:

     In denying his PCRA [petition], we found [Sayon] had failed to
     argue or establish how he was actually prejudiced by his
     attorney’s actions.    We also found that [Sayon] failed to
     establish counsel ineffectiveness which “so undermined the
     truth-determining process that no reliable adjudication of guilt or
     innocence could have taken place.”             42 Pa.C.S.A. §
     9543(a)(2)(ii). We noted that both [Sayon] and his attorney did
     agree, on the record, to proceed with eleven jurors, and thus the


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      requirements of Pa.R.Crim.P. 641 were satisfied. We also found
      no additional colloquy was required by Rule 641 or by caselaw,
      before trial could proceed. Commonwealth v. Stewart, 448
      A.2d 598, 600 (Pa. Super. 1982)[, aff’d, 460 A.2d 756 (Pa.
      1983)]. Finally, we noted that even had a mistrial been granted,
      trial counsel acknowledged that the evidence presented at any
      new trial would have been the same as that offered in the
      instant case, and this Court had already reviewed and found
      meritless [Sayon’s] claim on [direct] appeal that the evidence at
      trial was insufficient to sustain his convictions. See: Opinion
      Pursuant to Pa.R.A.P. 1925(a), 3/6/13, pp. 3-6; N.T. 7/22/14, p.
      27.     Thus, [Sayon] had failed to successfully rebut the
      presumption that his counsel was effective.

PCRA Court Opinion, 2/2/2015, at 3-4.

      Based on our review of the record, the parties’ briefs, and the relevant

case law we disagree with the PCRA court’s analysis. This Court’s decision in

Stewart, supra, is instructive.

      In Stewart, on the final day of trial, one of the jurors declined to

appear for service. The proceedings continued without objection until after

the verdict was entered. On appeal, the defendant, relying on Pa.R.Crim.P.

1103 (the predecessor to Rule 641), first argued the trial court erred in

continuing the trial without his agreement. However, this Court found that a

challenge to the number of jurors may be waived when a defendant fails to

object. Stewart, supra, 448 A.2d at 600. Furthermore, the Stewart Court

held that when a defendant agrees to proceed with fewer than 12 jurors (or

fails to object when the court so proceeds), “[t]here is no requirement that

the court engage in a colloquy.”   Id. (emphasis supplied).      Therefore, the

Stewart Court concluded that the defendant “waived his right to attack the

numerical composition of his jury in this appeal.” Id. at 601.


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      Nevertheless, in his second claim, the defendant argued trial counsel

was ineffective for failing to object to the jury’s composition. With regard to

this particular claim, the Stewart Court remanded for an evidentiary

hearing. The Court opined:

      We are unable to determine from the record whether trial
      counsel had any reasonable basis for failing to object to the
      numerical composition of the jury under Rule 1103. Accordingly,
      we are obliged to vacate the judgment of sentence and remand
      for an evidentiary hearing. Commonwealth v. Hubbard, 272
      Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v.
      Twiggs, 460 Pa. 105, 106, 111, 331 A.2d 440, 443 (1975). If
      the trial court finds that counsel was ineffective, then it shall
      permit Stewart to file a Rule 1103 objection nunc pro tunc. If
      appellant is unable to sustain his contention that counsel was
      ineffective, then the judgment of sentence should be reimposed.

Id. (footnote omitted).

      Here, Sayon contends trial counsel was ineffective for failing to

properly advise him of his right to proceed with 12 jurors, and for failing to

request a mistrial when the trial court chose to proceed with only 11 jurors.

Turning to the ineffectiveness test, we conclude this claim has arguable

merit. Even though Stewart emphasizes that a trial court need not engage

in a full colloquy with a defendant to determine if his decision to proceed

with a jury of less than 12 is knowing and voluntary, it does not stand for

the proposition that counsel has no obligation to provide his client with

the information necessary to make an informed decision as to whether to

proceed.    Indeed, Sayon had the option to decline the trial court’s

“suggestion” to proceed with 11 jurors and request a mistrial. Based on the



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testimony at the PCRA hearing, his trial counsel was not aware of this

option, and, therefore, neither was Sayon.

      Specifically, Sayon testified that (1) he did not know he could have

requested a mistrial rather than proceed with 11 jurors; (2) trial counsel did

not consult with him before the court asked him if he wanted to proceed; (3)

he agreed to proceed because his “legal representation” had already agreed;

(4) when he later asked counsel “if you proceed, what would be the next

outcome,” counsel responded, “it’s up to the jury[;]” and (5) had he known

he could have requested a mistrial, he would have. N.T., 7/22/2014, at 16-

18. Trial counsel confirmed that his own decision to agree to proceed with

11 jurors involved “no thought process” and no consultation with his client.

Id. at 24. In fact, counsel admitted he “did not realize that [they] had a

right to have a mistrial in this case.” Id. at 28. Counsel explained:

      … I also do civil work, and sometimes there are 8 or 6 jurors. I
      never had the situation come up where after the alternates had
      left, then there was a problem with a juror, and I didn’t really
      understand what the consequences of that might have been.

                                   ****

      Well, I understand that there are 12 jurors which is the standard
      and that’s what’s supposed to happen. I totally understand that.
      There’s not a question about that in my mind at all.

                                   ****

      The question is, what happens if one of [the 12 jurors] at the
      very last minute is unable to serve. Does that mean the whole
      thing is a mistrial. That I didn’t know the case law on. That is a
      legal point of the case law. It’s not something that says –


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       there’s not something in the law that says if there’s – if there’s
       not 12 jurors then it must be a mistrial. That’s a case law issue
       and I did not know the case law.

Id. at 31-32.

       Furthermore, pursuant to the second ineffectiveness prong, trial

counsel’s testimony at the PCRA hearing demonstrates that counsel had no

reasonable basis for his failure to request a mistrial, rather than proceed

with 11 jurors. First, as noted above, counsel conceded he “did not know

the case law” and was unaware he could request a mistrial. Id. Second,

counsel testified that if he had the time to think through the issue, he

“probably would have recommended to Mr. Sayon to have a mistrial[.]” Id.

at 26. Counsel explained he was “totally beat up by the [trial] judge,” and,

in fact, had been held in contempt before the jury and admonished “10 to 15

times” during the trial. Id. at 26, 37. See N.T., 6/27/2012, at 20, 39-40,

49-51. Counsel further stated “I just felt like it might have been better for

Mr. Sayon to have a situation where he didn’t have to have his attorney look

so bad.” Id. at 26. Therefore, counsel admitted, himself, that he had no

strategic basis for his failure to request a mistrial, rather than to proceed

with 11 jurors during deliberations.4

____________________________________________


4
  We note the Commonwealth asserts trial counsel’s PCRA hearing testimony
“was merely trial counsel’s act of pretending he was unaware of the options
at trial when a juror was excused” and that counsel “was attempting to
basically agree to his own ineffectiveness.” Commonwealth’s Brief at 13.
However, when, as here, the PCRA court has not determined counsel’s
testimony to be incredible, and the record contains no reason why counsel
(Footnote Continued Next Page)


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      Lastly, with regard to the third ineffectiveness prong, we conclude

Sayon demonstrated he was prejudiced by counsel’s actions. Had Sayon not

agreed to proceed with 11 jurors, the trial court would have been compelled

to declare a mistrial.       Furthermore, had the court declared a mistrial, the

outcome of the proceedings could have been different.             Reid, supra.

Contrary to the PCRA court’s contention, Sayon was not required to

demonstrate that a new trial would result in a not guilty verdict. 5 Rather, it

was sufficient for Sayon to establish that he “wanted the mistrial, the trial

court would have granted it, and therefore, but for [trial counsel’s] actions,

the result of the proceeding would have been different.” Commonwealth

v. Jones, 871 A.2d 1258, 1261 (Pa. Super. 2005).6           Sayon could not be
                       _______________________
(Footnote Continued)

would lie on the stand, we decline to “look with disfavor” on trial counsel’s
concession that he had no reasonable basis for his actions. Id.
5
  We note the PCRA court found no prejudice because the evidence, which
would remain the same on retrial, was sufficient to support the verdict. See
PCRA Court Opinion, 2/2/2015, at 4. However, the entire case depended
upon the jury’s credibility assessment of Sayon, who testified and denied the
allegations, versus that of the victim and her friend, who claimed to have
observed some inappropriate conduct, albeit none of the alleged physical
conduct. See Trial Court Opinion, 3/16/2013, at 4-6. Therefore, the
substitution of one juror could have altered this credibility determination,
and, ultimately, the verdict.
6
  In Jones, the appellant asserted trial counsel was ineffective “for failing to
move for a mistrial regarding an improper communication with a juror, and
for failing to communicate this issue” to the appellant. Jones, supra, 871
A.2d at 1260. When the issue was brought to the court’s attention, the
court questioned all of the jurors about the incident.        Thereafter, co-
defendant’s counsel declined a mistrial and the appellant’s counsel that day,
who was substituting for appellant’s regular counsel, followed his lead and
(Footnote Continued Next Page)


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compelled to proceed with less than 12 jurors. If he had declined the court’s

suggestion to continue deliberations with only 11 jurors, the court would

have had to declare a mistrial.

      Accordingly, because we conclude Sayon has demonstrated trial

counsel’s ineffectiveness in failing to advise him to request a mistrial when

one juror had to be dismissed, we vacate the order denying PCRA relief, and

remand for a new trial.

      Order vacated.        Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




                       _______________________
(Footnote Continued)

did the same. Id. at 1261 On appeal, this Court determined the appellant
was entitled to a new trial because (1) the appellant had a right to be
present during the jury questioning, and (2) his substitute counsel had no
reasonable strategy in blindly following the lead of co-defendant’s counsel.
Id.



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