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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY SHOGAN, J.:                            FILED JANUARY 25, 2016

       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 affirm.

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

procedural history of Appellant’s case as follows:

             On April 16, 2003, a jury convicted Appellant of arson,
       criminal conspiracy, and [five] 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 aggregate term of 35
       to 70 years’ incarceration. On May 19, 2006, this Court affirmed
       Appellant’s judgment of sentence, and [on November 9, 2006,]
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     our Supreme Court … 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     Super. 2006) (unpublished memorandum), appeal denied, 911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 [February 7, 2007]. See
     Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
     1998) (under the PCRA, petitioner’s judgment of 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
     PCRA petition….1 Therein, he alleged ineffective assistance of his
     trial and appellate counsels. However, prior to the court’s ruling
     on Appellant’s second PCRA petition, Appellant attempted to file
     a pro se notice of appeal from the court’s April 8, 2010 order
     denying his first petition.     That notice of appeal was time
     stamped as “Received Accepted For Review Only” on May 4,
     2010. Therefore, it is clear that Appellant’s attempt to file his
     appeal was timely. See Pa.R.A.P. 903(a) ([stating] “notice of
     appeal … shall be filed within 30 days after the entry of the order
     from which the appeal is taken”). Nevertheless, the Philadelphia
     County Clerk of Courts rejected Appellant’s notice of appeal
     because his second PCRA petition was still pending before the
     court.2
           1
             Appellant also filed a “Supplemental Pro Se Motion
           for Post Conviction Relief” on April 22, 2010.
           2
             Specifically, in a handwritten note on its “Returned
           Correspondence”        Memorandum       received    by
           Appellant, the Clerk of Courts indicated that
           Appellant’s notice of appeal was being returned for
           the following reason: “On 4-21-10 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 time.” See Appellant’s Exhibit
           B-1.




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             On July 8, 2011, the PCRA court denied Appellant’s second
      petition for post conviction relief as untimely….

Commonwealth v. Slaughter, 2036 EDA 2011, 62 A.3d 465 (Pa. Super.

2012) (unpublished memorandum at 1-3) (“Slaughter I”).

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

second PCRA petition, arguing, inter alia, that “his notice of appeal from the

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

Courts….” Slaughter I, at 3. In Slaughter I, we agreed with Appellant’s

argument and, accordingly, we reinstated his timely appeal from the April 8,

2010 order denying his 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, and

Appellant filed a timely concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).     Appellant’s case was assigned to a three-

judge panel of this Court.     On September 12, 2014, this Court issued a

memorandum      decision   concluding   that   Appellant’s   trial   counsel   was

ineffective in failing to appropriately object to the trial court’s impaneling of

an alternate juror after jury deliberations had begun. See Commonwealth

v. Slaughter, No. 367 EDA 2013, ___A.3d ___ (Pa. Super. 2014)

(unpublished memorandum) (“Slaughter II”). The following facts formed

the basis for our decision in Slaughter II:




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            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 others. Appellant’s counsel moved for
     a mistrial. N.T. Trial, 4/11/03, at 4. The court denied that
     motion, instead instructing the jury to continue to deliberate. Id.
     at 7. Immediately after providing this instruction, the court
     recessed for the weekend and informed jurors that they would
     “return to deliberate Monday morning….” Id.

           When the trial commenced on Monday, April 14, 2003, one
     of the jurors was absent due to illness. N.T. Trial, 4/14/03, at 3.
     The court’s staff could not reach the juror to ascertain if or when
     she would be able to return to court. Id. at 3, 5. Appellant’s
     counsel once again moved for a mistrial. Id. at 8. The court
     denied that motion “given the length of this trial and the time
     involved….” Id. at 9. The court then stated that it was going to
     substitute an alternate juror, to which Appellant’s counsel
     objected. Id. at 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 today, as you’re aware by now, a substitution
           had to be made 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 the
           beginning again with the new juror, the alternate
           that’s been substituted for juror number seven. So
           you are to disregard and begin anew with regard to
           your deliberations.

              Again, I instruct you that … in order to return a
           verdict, 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

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            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 10-12. Appellant’s counsel did not lodge an objection to
      this 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. Trial, 4/15/03, at 3.
      Appellant’s counsel once 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, the jury
      asked the court to provide further instructions regarding the
      “definition of circumstantial evidence and the weight a juror can
      assign to evidence[,]” and additional instructions “on either
      believing or disregarding a witness’s testimony.” N.T. Trial,
      4/16/03, at 3. The trial court provided 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.

Slaughter II, at 5-7.

      In light of these facts, Appellant contended in Slaughter II that his

trial counsel did not lodge an appropriate objection to the court’s conduct in

seating an alternate juror. Appellant relied on the version of Pa.R.Crim.P.




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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.1

       Appellant also relied heavily on Commonwealth v. Saunders, 686

A.2d 25 (Pa. Super. 1996). In Saunders, the appellant’s original jury began

deliberations on Friday and then retired for the weekend.      Id. at 26.     On

Monday morning, a juror informed the court that she was ill and would not

be able to return to deliberations 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 “exactly what went

on in [their] deliberations so far.” Id. at 26-27, 29-30. Two hours later, the

jury returned with a verdict. Id. at 27.

       On appeal in Saunders, 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 refers), “there is no authorization in Pennsylvania for a trial court

to replace a principal juror after deliberations have begun.” Saunders, 686

A.2d at 27.      Consequently, we declared that, “where the trial court has

substituted an alternate juror after deliberations have begun, there is a

presumption of prejudice to the defendant.” Id. at 28.

       However, we also held in Saunders that this presumption may be

rebutted through “evidence which establishes that sufficient protective
____________________________________________


1
  Pa.R.Crim.P. 645 was amended on November 19, 2013, and it now states
that alternate jurors are to be retained until a verdict is reached.



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measures were taken to insure the integrity of the jury function.”    Id. In

assessing what “measures need [to] be taken” in this regard, we 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[s] 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
     be informed that the discharge of the original juror “was entirely
     personal and had nothing to do with the discharged juror’s views
     on the case or the juror’s relationship with fellow jurors.” 88
     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:

           [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 [p]eople 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


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

       [People v.] Collins, [17 Cal.3d 687,] 552 P.2d [742,] 746–47
       [(1976)]. These instructions serve to “eliminate the 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 with the new juror.” [State v.] Lipsky, 395 A.2d
       [555,] 558 [(N.J. Super. 1978)].

Id. at 29.2 Because the trial court in Saunders had instructed the jury to

essentially “fill in” for the alternate juror, rather than begin deliberations



____________________________________________


2
 As noted above, Rule 645 was amended in 2013. The 2013 amendments
added 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:

             (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
(Footnote Continued Next Page)


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anew, and because “a query of the alternate and remaining principal jurors

never took place[,]” we vacated the appellant’s judgment of sentence and

remanded for a new trial. Id. at 29.

      In Slaughter II, we concluded that Appellant had proven that his trial

counsel was ineffective and reasoned as follows:

             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 court’s informing the jury that the absent juror “fell ill” as
      sufficient to satisfy [the] Saunders requirement that the jury be
      informed that “the discharge of the original juror ‘was entirely
      personal and had nothing to do with the discharged juror’s views
      on the case or the juror’s relationship with fellow jurors.’” 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 record reflects that the court did not
      “extensively question[] the alternate and remaining jurors” to
      ensure “that [the] alternate has not been exposed to any
      improper outside influences and that the remaining regular
      jurors [were] able to begin their deliberations anew.” 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
                       _______________________
(Footnote Continued)

          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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         for failing to do so under the clear dictates of Saunders and the
         version of Rule 645(B) in effect at the time of Appellant’s trial.

Slaughter II at 10-11. Accordingly, in Slaughter II, we vacated the PCRA

court’s order denying Appellant’s petition and remanded for a new trial. Id.

at 12.

         The Commonwealth filed a timely petition for allowance of appeal to

our Supreme Court, which was granted.              On July 28, 2015, the Supreme

Court issued a per curiam order stating that this Court “improperly evaluated

[Appellant’s] ineffectiveness of counsel claim under the harmless error

standard applicable on direct appeal….”            Supreme Court Order, 7/28/15.

Consequently, the Supreme Court vacated our decision in Slaughter II and

remanded for us to “reevaluate [Appellant’s] ineffectiveness claim under the

Pierce/Strickland[3] standard requiring a showing of actual prejudice….”

Id. We now do so herein.

         Recently, in Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014), the

Supreme Court reiterated the difference between the harmless error and

actual prejudice standards, as follows:

               [A] defendant [raising a claim of ineffective
               assistance of counsel] is required to show actual
               prejudice; that is, that counsel’s ineffectiveness was
               of such magnitude that it ‘could have reasonably had
               an adverse effect on the outcome of the
               proceedings.’ Pierce, 515 Pa. at 162, 527 A.2d at
____________________________________________


3
  Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).



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            977. This standard is different from the harmless
            error analysis that is typically applied when
            determining whether the trial court erred in taking or
            failing to take certain action. The harmless error
            standard, as set forth by this Court in
            Commonwealth v. Story, 476 Pa. [391], 409, 383
            A.2d [155], 164 [(1978)] (citations omitted), states
            that “[w]henever there is a ‘reasonable possibility’
            that an error ‘might have contributed to the
            conviction,’ the error is not harmless.” This standard,
            which places the burden on the Commonwealth to
            show that the error did not contribute to the verdict
            beyond a reasonable doubt, is a lesser standard than
            the Pierce prejudice standard, which requires the
            defendant to show that counsel’s conduct had an
            actual adverse effect on the outcome of the
            proceedings. This distinction appropriately arises
            from the difference between a direct attack on error
            occurring at trial and a collateral attack on the
            stewardship of counsel. In a collateral attack, we
            first presume that counsel is effective, and that not
            every error by counsel can or will result in a
            constitutional violation of a defendant’s Sixth
            Amendment right to counsel. Pierce, supra.

Id. at 315 (quoting Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa.

2004) (emphasis in original)).

      As noted above, the remand order from the Supreme Court instructed

us   to    reevaluate    Appellant’s     ineffectiveness   claim   under    the

Pierce/Strickland standard, which requires a showing of actual prejudice.

Here, Appellant avers that counsel was ineffective in failing “to object to

and/or request that the jury’s partial verdict be recorded before the trial

court terminated deliberations and seated the already dismissed alternate

juror to begin new deliberations[.]”      Appellant’s Supplemental Brief at 5.

Underlying his claim of ineffectiveness, Appellant baldly asserts that the trial

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court’s appointment of an alternate juror was prejudicial. However, rather

than   proving   prejudice,   Appellant   merely       advances      speculation   and

assumption in this regard, as follows:

       To replace the juror after the jury had indicated it was
       deadlocked at least to some of the charges, indicates that the
       resulting finding of guilt [occurred] after the juror was
       replaced. The replacement of the juror negatively effected
       [sic] the Appellant to his detriment.

            Furthermore, the Saunders case established that there is a
       presumption of prejudice. The Superior Court in the original
       Slaughter opinion had already explored this issue and found:

       Nevertheless, the fact that the trial court satisfied two of the
       Saunders prongs cannot cure the prejudice caused to Appellant
       where the record reflects that the court did not “extensively
       question[] the alternate and remaining jurors” to ensure “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.” 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. See (Opinion, pages 10-11).

              If indeed, the juror had been exposed to outside
       influences prior to the deliberations beginning anew, it
       also clearly affected the outcome of the case since the
       jury entered a finding of guilt. Since the Appellant has
       satisfied the prejudice prong along with the other prongs of
       ineffectiveness, he should be granted a new trial.

Appellant’s Supplemental Brief at 15-16 (emphases added).

       Appellant’s   argument   ignores   the   fact    that   the    jury   remained

deadlocked even after the alternate juror joined in deliberation. N.T., Trial,

4/15/03, at 3-7.     It was not until two days after the substitution of the




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alternate juror that the jury reached its verdict.4 This verdict came after the

jury informed the trial court it was deadlocked, after the jury requested

additional instructions, and after the jury was given further instruction on

both circumstantial evidence and how it may weigh the evidence. Id. at 7-

8; N.T., Trial, 4/16/03, at 3-12. There is no proof for Appellant’s position

that the initial partial verdict, which was reached by the original jury, was

favorable to Appellant, and there is no proof that Appellant was prejudiced.

Appellant’s argument is merely unsupported speculation.

       Moreover, there is no evidence that the alternate juror, or any other

juror, was exposed to any outside influence. Thus, again, Appellant proffers

mere speculation and fails to establish prejudice.

       Accordingly, after careful review, we conclude that while Appellant

argues prejudice, he falls short of proving it under the Pierce/Strickland

standard. As such, we affirm the PCRA court’s order.

       Order affirmed.

       Justice Fitzgerald joins the Memorandum.

       P.J.E. Bender files a Dissenting Memorandum.




____________________________________________


4
  We note that Appellant makes a blatant misstatement of fact wherein he
asserts: “Almost immediately after the replacement of the juror, the jury
reached a verdict.” Appellant’s Supplemental Brief at 14.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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