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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 25, 2016

        I would conclude that Appellant has proven that he suffered actual

prejudice due to trial counsel’s failure to object to the trial court’s

inadequate instruction/colloquy when it impaneled the alternate juror. Thus,

I respectfully dissent.

        I begin by stressing that the ‘actual prejudice’ standard does not

require certainty that the outcome of the proceeding would have been

different; instead, it requires “a reasonable probability” of that fact.

Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (“To demonstrate

prejudice, the petitioner must show ‘that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceedings

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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would have been different.’”) (citation omitted; emphasis added). “[A]

reasonable probability is a probability that is sufficient to undermine

confidence in the outcome of the proceeding.” Id. (citation omitted).

      My confidence in the outcome of Appellant’s trial is undermined by the

following facts: Prior to the alternate’s being placed on the jury, the original

jury informed the court that it was deadlocked regarding certain charges.

The court recessed for the weekend, which provided ample time for the

alternate juror to be exposed to outside influences.           When the trial

reconvened on Monday, the court decided to empanel the alternate juror,

triggering a presumption of prejudice to Appellant. See Commonwealth v.

Saunders, 686 A.2d 25, 28 (Pa. Super. 1996). The court did not question

the alternate juror about any outside influences to which he/she may have

been exposed. Id. at 29. The court also failed to ask the remaining jurors if

they could begin deliberations anew. Id. Appellant’s counsel did not object

to the court’s inadequate instruction; thus, the presumption of prejudice

suffered by Appellant was not cured. With the alternate juror participating

in deliberations, the newly constituted jury reached a verdict of guilty on the

very same evidence over which the original jury had been deadlocked. This

record makes it impossible for me to have confidence in the validity and

fairness of the verdict in this case.    Accordingly, I would conclude that

Appellant has demonstrated that he suffered actual prejudice due to

counsel’s conduct.




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      Additionally, trial counsel’s failure to object to the court’s insufficient

jury charge waived that error for appellate review. Had Appellant been able

to assert this claim on direct appeal, he would have had the benefit of the

less stringent ‘harmless error’ standard.    In other words, Appellant would

only have had to demonstrate that there was a reasonable possibility that

the trial court’s inadequate      instruction/colloquy upon impaneling the

alternate juror might have contributed to his conviction.        Based on this

record, as discussed supra, it is reasonable to conclude that this Court would

have held that the trial court’s error was not harmless and awarded

Appellant a new trial. Accordingly, I would conclude that Appellant has also

demonstrated that his trial counsel’s conduct “could have reasonably had an

adverse effect on the outcome of the [appellate] proceedings.” Spotz, 84

A.3d at 315 (citation omitted).

      For these reasons, I would hold that Appellant has proven that he

suffered ‘actual prejudice’ and demonstrated trial counsel’s ineffectiveness.

Therefore, I would vacate the PCRA court’s order denying his petition and

remand for a new trial. Because the Majority reaches the opposite result, I

dissent.




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