J-S14025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL STONE                              :
                                               :   No. 2632 EDA 2016
                       Appellant               :

             Appeal from the Judgment of Sentence August 4, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010016-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED JUNE 08, 2018

        Appellant Michael Stone appeals from the judgment of sentence

imposed following his jury trial convictions for robbery and burglary.1 Stone

complains that the trial court erred in refusing to grant his peremptory strike

against a potential juror, and in submitting the charge of burglary to the jury

after the court allegedly failed to properly arraign him on that charge. We

affirm.

        Stone was arrested in August 2015, and charged by criminal complaint

with robbery, burglary, and related offenses. See Complaint, 8/11/15, at 2.

The factual description supporting the charges read:


____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa. C.S.A. §§ 3701(a)(1)(iv) and 3502(a)(1), respectively.
J-S14025-18


      At 439 Domino Lane [Stone], with intent to commit a crime
      therein, unlawfully entered a building or occupied structure
      belonging to the complainant, John McFarland, by forcing open a
      door, and [Stone] forcibly took money from the complainant by
      struggling with the complainant and taking the complainant’s
      wallet and phone, and [Stone] intimidated or attempted to
      intimidate the complainant to refrain from reporting the incident
      by telling the complainant that “it would be worse” if
      complainant[] called police.

Id. (unnecessary capitalization omitted).

      The trial court held a preliminary hearing on October 6, 2015, and found

that the Commonwealth had established a prima facie case on most of the

charged offenses, including robbery and burglary. See Trial Disposition and

Dismissal Form at 1. The Commonwealth thereafter filed a bill of information

on October 14, 2015, charging Stone with robbery, burglary, and other

offenses. See Information at 1. The burglary charge specified John McFarland

as the victim, and 439 Domino Lane, Philadelphia, as the location. Id.

      Formal arraignment took place on October 27, 2015. Although the

record does not reflect what occurred during those proceedings, Stone’s

counsel later stated that the burglary charge had been included in that

arraignment. See N.T., 5/17/16 (Trial), at 112.

      Jury selection for Stone’s trial commenced on May 17, 2016. The court

informed the prospective jurors that Stone was charged with burglary and

robbery, and specifically that “the defendant entered the home of John

McFarland located at 439 Domino Lane in the City of Philadelphia with the

intent to commit a crime therein.” N.T., 5/17/16 (Voir Dire), at 7.




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       The court and counsel began to question the prospective jurors

individually. After questioning prospective juror number nine, a white woman,

Stone used his fourth peremptory strike to remove her from the jury. The

Commonwealth then stated, “Your Honor [], every white woman we’ve had so

far has been struck. I don’t know at what point this becomes a pattern, but I

just want to bring that to the Court’s attention.” Id. at 30. The Commonwealth

stated that Stone had thus far used four peremptory strikes, three of which

had been used to remove each of the white female potential jury candidates

that had been questioned. Id.2

       Stone’s counsel explained that he struck prospective juror number nine

because she was the victim of a break-in and a theft, which were similar to

Stone’s charges. Id. at 30-31. The court questioned Stone’s motives for the

other two peremptory strikes which had been used to remove white women.

Stone’s counsel explained that he struck potential juror number one because

she had a cousin who was a police officer, id. at 32, and he struck potential

juror number seven because she was married, had a child, and both she and

her husband had been working consistently for ten years, which “seems to be

at least on a superficial level, a very stable home environment, a very stable

work environment” and thus “she might not necessarily have an experience

with certain situations” that the defense would ask her to accept as true. Id.



____________________________________________


2Stone used his second peremptory strike against potential juror number five,
who was a white man.

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at 31-32. The court allowed the questioning to proceed, but cautioned that it

was “aware of the pattern.” Id. at 33.

      Stone thereafter used his fifth peremptory strike against potential juror

number 18, another white woman. Id. at 52; see also id. at 69 (trial court

later noting that Stone used a peremptory strike on a white woman after the

first discussion regarding the issue); Supplemental Trial Court Opinion, filed

5/31/17, at 8. The Commonwealth did not object to the strike, nor did the

trial court question it.

      Potential juror number 26 was a white woman. When Stone attempted

to use his sixth peremptory strike to remove potential juror number 26, the

court stated “You come up with a reason for this every time, but a trend is a

trend, and it’s a very strong trend. . . . So let’s share the reason for this one

and I may or may not make this selection anyway.” Id. at 69. Stone’s counsel

responded that the reason for the strike was that Stone had lost concentration

during the questioning. The court asked Stone’s counsel to relay to Stone what

the prospective juror had said during questioning; the proceedings paused

while Stone and his counsel conferred. However, Stone’s counsel then

reasserted that Stone wished to strike the prospective juror, and offered no

other explanation. The court denied the request and placed prospective juror

number 26 on the jury as juror number eight. Id. at 70. The court noted

Stone’s objection to the placement.

      After selection was completed and the jurors were seated, the court crier

stated, “Michael Stone, to this docket number CP-51-CR-0010016-2016, sir

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you’re being charged with robbery. How do you plead to the charge on that

one transcript, sir?” N.T. (Trial) at 5. Stone responded, “Not guilty.” Id. The

crier did not ask Stone to plead to a burglary charge.3

         In its opening statement, the Commonwealth referred to the burglary

charge against Stone several times. See N.T., 5/17/16 (Opening/Closing

Argument) at 9, 11. Stone’s counsel did not use the word “burglary” in his

opening statement, but stated that Stone “didn’t break into” the apartment,

id. at 13, and acknowledged that “the allegations are that Mike Stone forced

his way into an apartment” and put the complainant in a headlock. Id. at 16.

Defense counsel also characterized the allegations as a “breaking and entering

wrestling to the ground struggle for life robbery.” Id. at 19. The

Commonwealth then presented evidence that supported the burglary and

robbery charges. See Trial Court Opinion, filed January 30, 2017, at 2-4.

Stone’s defense was, in short, that the complainant had fabricated the entire

story.

         After testimony had concluded, the court advised counsel that it had

come to its attention that Stone had not been arraigned on the burglary charge

at the beginning of trial, but that it intended to include the burglary charge on

the verdict sheet. N.T. (Trial) at 111. Stone objected. Stone’s counsel

acknowledged that “the burglary charge was held for court after the
____________________________________________


3 Stone had also been charged with robbery under another docket number,
CP-51-CR-0010017-2015, which was consolidated with the instant case for
trial. The crier did ask Stone how he pleaded to the charge of robbery under
that docket number, and Stone pleaded not guilty.

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preliminary hearing”; the charge was included in Stone’s formal arraignment

and was listed on the bill of information; and Stone had addressed the burglary

charge in his opening statement. Id. at 112. Stone’s counsel also admitted

that “[t]he defense has been on notice.” Id. Nonetheless, Stone’s counsel

argued “after arraignment occurred in this trial today . . . jeopardy attaches

to the trial, and therefore the district attorney waives by not making an

objection or asking that those charges be included at the initial arraignment.”

Id. at 113.

        The court noted that Stone “not only had notice, but has been acting

accordingly. In fact, we were all under the impression that burglary was in

place in this case.” Id. at 115.4 The court overruled the objection, stating that

it would “not let an error in form affect this trial in that way since there’s been

no prejudice whatsoever, and the defendant’s right[s] have not been infringed

whatsoever.” Id. at 117. Accordingly, the court instructed the jury on the

elements of burglary, and the verdict sheet included the burglary charge.

        The jury found Stone guilty of both robbery and burglary. 5 The court

sentenced Stone on August 4, 2016, to consecutive terms of ten to 20 years’

incarceration for burglary and one to five years’ incarceration for robbery.


____________________________________________


4The court later repeated, “Now as I said, not only has there been notice, but
both parties, everyone has been acting in conformity with burglary being at
play.” N.T. (Trial) at 117.

5   Stone was found not guilty of robbery at CP-51-CR-0010017-2015.



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       Stone filed a timely notice of appeal,6 and raises the following issues:

       1. Did the trial court err by refusing [Stone]’s peremptory
       challenge to [potential] juror number 26 where the
       Commonwealth never made a formal Batson[7] objection; the trial
       court never ruled that there was a prima facie showing that
       [Stone’s] challenge to the juror was based on race or gender;
       [Stone] provided race/gender-neutral explanations for his
       challenges; and the trial court never determined that there was
       purposeful discrimination, instead noting a “strong trend”?


____________________________________________


6 Stone’s appeal has experienced some delay. First, Stone’s Rule 1925(b)
Statement of Errors was filed after the deadline imposed by the trial court.
The trial court accepted Stone’s Statement as timely, because Stone’s
appellate counsel had not received a copy of the trial court’s order requesting
a 1925(b) statement, which had been served on Stone’s trial counsel. In his
Statement, Stone asserted that he had not yet received the transcripts
necessary for appeal. The trial court therefore entered an order allowing Stone
to submit a supplemental Statement within 21 days of receipt of the
transcripts. After the transcripts of trial and sentencing became available on
the court’s system, the trial court entered a Rule 1925(a) Opinion, and the
certified record was transmitted to this Court. In its Opinion, the court
concluded that Stone had waived one of his issues—related to jury selection—
because he had failed to request that those transcripts be made part of the
record, despite the warning on the court’s standard transcript-request form
that voir dire transcripts are not provided with trial transcripts unless
specifically requested.

       Stone petitioned this Court to remand, as the transcripts of trial and
sentencing had not been transmitted to this Court with the rest of the certified
record, and because the transcripts of jury selection had not yet been made
part of the record. We remanded the record with the direction that the trial
court add all relevant transcripts, including the transcripts of jury selection;
ordered Stone to submit a supplemental Rule 1925(b) Statement of Errors;
and ordered the trial court to submit a supplemental Rule 1925(a) opinion.
After the jury selection transcripts were posted to the trial court’s system,
Stone filed a supplemental Rule 1925(b) Statement of Errors. The trial court
thereafter filed a Supplemental Rule 1925(a) Opinion, and a supplemental
certified record was transmitted to this Court.

7   Batson v. Kentucky, 476 U.S. 79 (1986).

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      2. Should not [Stone]’s conviction for burglary be vacated where
      the trial court erroneously instructed and submitted a verdict slip
      to the jury on the charge of burglary when [Stone] was not
      arraigned on, and therefore did not make any plea to, the burglary
      charge prior to commencement of trial, thereby denying [Stone]
      due process of law in violation of his constitutional rights?

Stone’s Br. at 3 (answers below omitted).

                              I. Batson Claim

      Stone argues that the trial court erred in refusing to grant his

peremptory strike against the 26th potential juror. Stone first claims that the

trial court’s action was improper because the Commonwealth never made a

formal Batson objection, but “merely noted” that Stone “was striking every

white woman on the panel.” Stone’s Br. at 16. Next, Stone complains that

“the trial court never ruled that the Commonwealth had made a prima facie

showing that the circumstances gave rise to an inference that [Stone] struck

jurors on account of race or gender.” Id. at 17. Third, Stone asserts that he

offered race- and gender-neutral explanations for each of his strikes and “the

trial court never made a determination that the Commonwealth proved

purposeful discrimination.” Id. Stone also argues that his race- and gender-

neutral explanations for striking jurors were not a pretext, but rather part of

the jury-selection strategy counsel consistently employed for all potential

jurors. Id. at 22.

      In Batson, the United States Supreme Court established a three-part

test to evaluate claims that a party engaged in discrimination during jury

selection. Commonwealth v. Johnson, 139 A.3d 1257, 1282 (Pa. 2016).

First, the objecting party must make a prima facie demonstration that the

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other party exercised a peremptory challenge on the basis of race or gender.

Id.; see also Commonwealth v. Rico, 711 A.2d 990, 992 (Pa. 1998).

Second, the burden shifts to the striking party to articulate a neutral reason

for striking the prospective juror. Johnson, 139 A.3d at 1282. Third, “the trial

court must determine whether the [objecting party] has carried his burden of

proving purposeful discrimination.” Id.

      In determining whether peremptory challenges were used to exclude

potential jurors on the basis of race or gender, “the trial court must consider

the totality of the circumstances.” Commonwealth v. Simmons, 662 A.2d

621, 631 (Pa. 1995). “The decisive question” in the inquiry is “whether

counsel’s race-neutral explanation for a peremptory challenge should be

believed.” Commonwealth v. Harris, 817 A.2d 1033, 1043 (Pa. 2002)

(citing Hernandez v. New York, 500 U.S. 352, 365 (1991)). The trial court’s

answer to this question “must be accorded great deference on appeal,” as it

depends upon an assessment of credibility. Id. We may therefore only

overturn the trial court’s determination if “clearly erroneous.” Id.

      In its Supplementary Rule 1925(a) Opinion, the court explained that all

three prongs of the Batson inquiry were met. First, “the use of five of the first

six defense peremptory challenges against white women established a prima

facie showing that the defense had exercised peremptory challenges on the

basis of race.” Suppl. Trial Ct. Op. at 9 (italicization added). Second, “though




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not credible,[8] the explanations offered by the defense for the first three

peremptory challenges . . . were theoretically race-neutral,” but “in the case

of the peremptory challenges to Jurors [18] and [26], no reasons at all were

offered.” Id. And third, “the record supported a determination that the pattern

of defense peremptory challenges of five white women constituted purposeful

discrimination, where the reasons, when any were offered at all, were neither

credible nor consistent.” Id. The court denied Stone’s peremptory strike of

prospective juror number 26 “[i]n light of the clear pattern of race-based

peremptory challenges and in the absence of any offered reason for the

strike.” Id.

       We see no reason to disturb the trial court’s handling of this issue. The

Commonwealth established a prima facie case for a Batson violation when,

after Stone struck potential juror number nine, it raised with the trial court

that Stone had struck each white, female potential juror that the court had

questioned, and had used three of his four peremptory strikes to do so. The

trial court noted the “strong trend,” and prompted Stone to provide race- and

gender-neutral explanations, which the court at first accepted. When Stone

attempted to strike a fifth white woman, potential juror number 26, his

counsel stated it was because Stone could not remember her answers to the

____________________________________________


8 The trial court noted in a footnote that Stone had struck potential juror
number one, a white woman, because her cousin was a police officer, but
Stone did not strike potential juror number six, a black man, even though his
father had been a police officer. See Suppl. Trial Ct. Op. at 8 (citing N.T. (Voir
Dire) at 25-27).

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court’s questions. However, the questioning of the potential juror was not

lengthy; the court gave Stone’s counsel time to repeat the potential juror’s

answers to Stone; and Stone’s counsel did not ask the court for permission to

recall the potential juror for follow-up questions. The court determined that

the reason offered by Stone for striking the potential juror was pretextual, and

that discriminatory intent existed.

      Under the facts and circumstances of this case, the trial court’s ruling

on the Batson issue was not clearly erroneous. Stone is due no relief on his

first issue.

                            II. Burglary Charge

      In his second issue, Stone argues that the trial court erred in submitting

the burglary charge to the jury, because the court did not “arraign” Stone on

that charge at the commencement of trial. Stone compares his case to

Commonwealth v. Hartman, 638 A.2d 968 (Pa. 1994), and claims that the

Commonwealth “constructively amended the Bills of Information,” when it did

not object to the court’s arraignment. Stone’s Br. at 27-28. Stone further

asserts that he was deprived of due process because he never entered a plea

to the burglary charge, including at his formal arraignment, which took place

on October 27, 2015. Id. at 29.




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       Arraignment is governed by Rule 571 of the Pennsylvania Rules of

Criminal Procedure.9 Pa.R.Crim.P. 571; see also 42 Pa. C.S.A. § 8703

(“Except for the provisions of this section, arraignments shall be in the form

and in the manner as provided by court rule”). The rule provides that the court

shall advise the defendant of (1) the right to be represented by counsel, (2)

the nature of the charges, (3) the right to file motions, and (4) that a failure

to appear at any proceeding may be deemed a waiver of the defendant’s right

to be present. See Pa.R.Crim.P. 571(C).

       Notably, the rule does not facially require that a defendant be given the

opportunity to plead to the charges during formal arraignment. This is

consistent with the official comment, which explains that “[t]he main purposes

of arraignment” are “to ensure that the defendant is advised of the charges;

to have counsel enter an appearance, or if the defendant has no counsel, to

consider the defendant’s right to counsel; and to commence the period of time

within which to initiate pretrial discovery and to file other motions.” Id.,

Official Comment. This varies slightly from our jurisprudence, which has

maintained that a core function of arraignment is to afford the defendant an

opportunity to enter a plea. See Commonwealth v. Phelan, 234 A.2d 540,
____________________________________________


9 Arraignment is distinct from preliminary arraignment, which is not at issue
in this case. See Pa.R.Crim.P. 540, cmt. (“A preliminary arraignment as
provided in this rule bears no relationship to arraignment in criminal courts of
record”). The arraignment process is also governed by local rule. See
Pa.R.Crim.P. 571(A). The local rule of the Philadelphia Court of Common Pleas
does not materially vary from the statewide rule. See Phila.Crim.R. 571.



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545 (Pa. 1967) (stating “the purpose and necessity of an arraignment is to fix

the identity of the accused, to inform him of the nature of the charges against

him and to give him the opportunity of informing the court of his plea thereto,”

citing 21 Am.Jur.2d, Criminal Law § 452 (1965)), overruled on other grounds

by Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976).10

       Regardless of whether a plea is required under the rule, a technical

violation of a rule of criminal procedure does not result in dismissal in the

absence of prejudice. See Commonwealth v. Bowman, 840 A.2d 311, 317

(Pa.Super. 2003). This precept applies to the rule governing arraignment, as

“[d]ue process of law does not require that any technical form of procedure

be followed.” Phelan, 234 A.2d at 545. The relevant inquiry is whether the

purposes of arraignment have been fulfilled, and whether the defendant

suffered prejudice. See Jones, 308 A.2d at 602-03 (finding no due process

violation where defendant pleaded not guilty while unrepresented during

arraignment, because (1) the purposes of arraignment were fulfilled and (2)

defendant’s lack of representation caused him no prejudice because defendant

would have entered same plea if counsel had been present).11 Accordingly, for

example, no relief is due where the full contents of the charging document are

____________________________________________


10Accord Commonwealth v. Jones, 308 A.2d 598, 602-03 (Pa. 1973);
Commonwealth v. Jennings, 285 A.2d 143, 148 (Pa. 1971);
Commonwealth v. Blackwell, 458 A.2d 541, 543-44 (Pa.Super. 1983).
11See also Commonwealth v. Paskings, 290 A.2d 82, 84 (Pa. 1972);
Blackwell, 458 A.2d at 543-44; Commonwealth v. Andrews, 426 A.2d
1160, 1162 (Pa.Super. 1981).

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not read aloud during arraignment, but the defendant is fully aware of the

charges against him or her, and no prejudice occurred. See, e.g., Phelan,

234 A.2d at 545 (“[E]ven in the absence of a reading of the contents of the

indictments, all of the basic requirements of an arraignment were fully

complied with in this case”); Jennings, 285 A.2d at 148.

      Here, Stone contends that the trial court erred when it failed to read the

burglary charge or ask him to enter a plea to burglary at the commencement

of trial. However, Stone failed to argue to the trial court that he was prejudiced

by the court’s error. See N.T. (Trial) 111-117. He therefore has waived this

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

appeal).

      Even if Stone had properly preserved the objection, his claims of

prejudice—raised for the first time on appeal—are without merit. Stone does

not allege that he was unaware that he faced a burglary charge, and indeed,

he acknowledged to the trial court that he was on notice of this charge at

every stage of the proceedings. Nor does he claim any prejudice specifically

resulting from the court’s failure to ask for his plea to the burglary charge. He

does not assert, for example, that he would have pled guilty and thereby

received a reduced sentence, or that the jury was unaware that he was

contesting the charges and professing his innocence, but for the error.

      Instead, Stone offers two reasons that he suffered prejudice. First, he

claims that defense counsel “referenced a break-in” during his opening

remarks, and did not object to the Commonwealth’s reference to burglary,

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“because he knew, based on the open-court plea of not guilty to robbery only,

that burglary was not a charge that he had to defend against.” Stone’s Br. at

28. However, Stone offers no substantive explanation of how his trial evidence

or strategy would have changed, had the court read the burglary charge. The

record reflects that Stone’s defense against both the burglary and robbery

charges—namely, that McFarland had fabricated the events—was the same,

and unaltered by the court’s failure to recite the burglary charge.12

       Second, Stone offers that he was “clearly prejudiced by the trial court’s

error as he was subsequently convicted of the burglary charge[.]” Id.

However, this argument misses the mark, as the court’s error in arraignment

did not result in Stone’s conviction. Stone fails to establish any prejudice from

any technical failure in his arraignment.

       Finally, Stone argues that the Commonwealth’s failure to object to the

court’s error could be construed as a “constructive amendment” to the

information. Stone’s only support is Hartman, in which the defendant argued

that the Commonwealth had “constructively amended” the charging document

when it verbally assured the defendant that it would not proceed on a certain

charge at trial. Hartman, 638 A.2d at 969. However, in deciding the case,

the Supreme Court did not reach the question of “constructive amendment.”



____________________________________________


12Indeed, it is unclear whether Stone was even aware of the failure, before it
was brought to the court’s attention by unknown means.



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See Hartman, 638 A.2d at 970.13 Regardless, an amendment to an

information only warrants relief when the amendment prejudices the

defendant. See Commonwealth v. Roser, 914 A.2d 447, 454 (Pa.Super.

2006). As Stone failed to establish prejudice before the trial court, we affirm

his judgment of sentence.

       Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




____________________________________________


13 In Hartman, the prosecution charged the defendant with forcible rape, but
verbally assured the defendant that it would not pursue a theory of guilt based
on the victim’s mental capacity to consent. Hartman, 638 A.2d at 969-70.
However, at the conclusion of trial, the court sua sponte charged the jury
regarding capacity to consent. Id. Our Supreme Court granted relief on the
basis that the court had deprived the defendant of the “basic elements of
procedural due process”: “adequate notice, opportunity to be heard, and the
chance to defend oneself before a fair and impartial tribunal having jurisdiction
over the case.” Id. at 970-71 (quoting Commonwealth v. Thompson, 281
A.2d 856, 858 (Pa. 1971)). Here, unlike in Hartman, neither the prosecution
nor the court assured Stone that the burglary charge would not be pursued at
trial or prevented him from introducing evidence to defend against the
charges. And, unlike the defendant in Hartman, Stone has not established
that he was deprived of adequate notice of the burglary charge, or an
opportunity to defend himself against it.


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