J-S12004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                      v.

KELLIS A. THOMAS

                            Appellant                   No. 1613 MDA 2016


             Appeal from the Judgment of Sentence March 1, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001142-2015


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

MEMORANDUM BY PANELLA, J.                               FILED MARCH 10, 2017

       Appellant, Kellis A. Thomas, appeals from the judgment of sentence

entered March 1, 2016, in the York County Court of Common Pleas.

Appellant contends that the trial court erred by failing to remove a juror

from   the   jury   after   information   emerged    during   trial   concerning   a

relationship between the juror and a party involved in the case. We affirm.

       On June 24, 2014, Appellant was arrested following a controlled buy

operation executed by a confidential informant working with several officers

from the York County Drug Taskforce. One of the officers involved in the

operation was Officer Jason Gracey (“Officer Gracey”), who assisted in

searching the confidential informant’s vehicle for contraband prior to the

controlled   buy.    Following    his   arrest,   Appellant   was     charged   with
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Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver

(cocaine)1 and proceeded to a jury trial.

        During the first day of trial, the Commonwealth’s witness, Officer

Adam      Bruckhart     (“Officer    Bruckhart”),   mentioned   Officer    Gracey’s

involvement in the investigation. At the close of Officer Bruckhart’s

testimony, the court adjourned for the day. The next day, the trial court

informed the parties that:

        [y]esterday, after we excused the jurors, one of the jurors
        approached the TIP staff and indicated that the juror is distantly
        related to one of the police officers who was mentioned as taking
        part in the operation, not any of the officers who are going to be
        a witness. The officer’s name was not mentioned during voir dire
        so there was no occasion for it to come up.

N.T., Trial, 1/13/16, at 157.

        Defense counsel requested that the juror in question be removed from

the case. The trial court brought the juror before counsel for both parties

and the following examination occurred.

        THE COURT:                  You’re Juror    Number   369;   is    that
                                    correct?

        JUROR #369:                 Yes.

        THE COURT:                  It was indicated to me yesterday after
                                    we excused everyone that you thought
                                    you were related to one of the police
                                    officers whose name was mentioned
                                    during the testimony; is that correct?

____________________________________________


1
    35 P.S. § 780-113(a)(30).


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     JUROR #369:   Yes.

     THE COURT:    What’s the police officer’s name.

     JUROR #369:   Officer Gracey.

     THE COURT:    Okay. And what’s your relationship to
                   him.

     JUROR #369:   He’s actually     my   husband’s    cousin’s
                   husband.

     THE COURT:    Okay. The fact that there might that
                   relationship – he’s not going to be
                   testifying as a witness; is that correct,
                   [A.D.A.]?

     A.D.A:        That’s correct.

     THE COURT:    The fact that there might be that
                   relationship, would that interfere with
                   your ability to be fair and impartial in
                   this case?

     JUROR #369:   No.

     THE COURT:    All right. One of the issues of course the
                   defense is raising is that the police
                   officers didn’t properly do their job
                   during the course of the investigation. Do
                   you think that – knowing that that may
                   be a possible defense, would that
                   interfere with your ability to be fair and
                   impartial in this case?

     JUROR #369:   No.

     THE COURT:    All right. [A.D.A.], any questions?

     A.D.A.        No, Your Honor.

     THE COURT:    All right. [Defense counsel], do you have
                   any questions?


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       DEFENSE COUNSEL:            No, Your Honor.

       THE COURT:                  Okay, thank you. You may return to the
                                   juror room.

                   (Whereupon Juror #369 left the courtroom)

       THE COURT:                  All right. Anything from counsel?

       A.D.A.:                     No, Your Honor.

       THE COURT:                  [Defense counsel], anything with the
                                   juror?

       DEFENSE COUNSEL:            Nothing additional, Your Honor.

       THE COURT:                  Okay. All right. Well, if you’re still asking
                                   that the juror be removed, I’ll deny that
                                   request.

Id., at 159-162.

       Following the completion of testimony and closing arguments, the jury

convicted Appellant. On March 1, 2016, Appellant was sentenced to thirty-

three months’ to six years’ imprisonment. Appellant filed timely post-

sentence motions, which the trial court denied. This timely appeal follows. 2

       On appeal, Appellant’s sole contention is that the trial court erred by

failing to declare a mistrial after Juror #369 realized that there was a familial

relationship with a party involved in Appellant’s police investigation. See

____________________________________________


2
  We dismissed Appellant’s original appeal on August 12, 2016, due to
counsel’s failure to file a docketing statement. However, Appellant filed a
petition to reinstate his appellate rights, which the trial court granted on
August 31, 2016. Appellant then filed a timely notice of appeal to this court
and complied with the trial court’s concise statement order.



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Appellant’s Brief, at 4, 10.3 Appellant alleges that there is a presumed bias

when a juror reveals a familial or other close relationship with a litigant,

counsel, victim, or witness, and that the trial court’s inquiry into Juror

#369’s relationship with Officer Gracey was insufficient to overcome the

presumption. See id., at 10. Due to the trial court’s actions, Appellant

contends that he was denied a fair and impartial trial and that his Sixth

Amendment rights were violated, as well as his Article 1, § 9 rights under

the Pennsylvania Constitution. See id.

       The Commonwealth responds that the relationship between the juror

and Officer Gracey was not close enough for the presumption of bias to

apply. See Commonwealth’s Brief, at 14. It highlights the fact that, during

voir dire, Juror #369 did not respond affirmatively when asked if any

member of the jury pool had a close relationship with a police officer. See

id., at 15; see also N.T., Voir Dire, 1/12/16, at 30 (“Again, I’m looking for a

close relation, someone you interact with at least monthly or so.”)

Therefore, the Commonwealth argues that the trial court was only required

to ascertain that Juror #369 would be an impartial juror, and as Juror #369

claimed to be impartial, the trial court did not err by failing to remove the

juror. See id., at 17.
____________________________________________


3
  Appellant notes that, in a different setting, the correct action for the trial
court to take would have been to remove the juror from the jury panel and
replace that juror with an alternate. However, as there were no alternates
selected to serve on the jury, Appellant contends that the only appropriate
remedy for the trial court to take was to declare a mistrial.


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            A criminal defendant’s right to an impartial jury is explicitly
      granted by Article 1, Section 9 of the Pennsylvania Constitution
      and the Sixth Amendment to the United States Constitution. The
      jury selection process is crucial to the preservation of that right.
      The sole purpose of examination of jurors under voir dire is to
      secure a competent, fair, impartial and unprejudiced jury. It is
      therefore appropriate to use such an examination to disclose
      fixed opinions or to expose other reasons for disqualification.

Commonwealth v. Kelly, 134 A.3d 59, 61 (Pa. Super. 2016) (internal

citations omitted).

      There are two situations in which an attorney’s challenge for cause

should be sustained and a juror disqualified:

      (1) when the potential juror has such a close relationship, be it
      familial, financial or situational, with parties, counsel, victims, or
      witnesses, that the court will presume the likelihood of
      prejudice; and (2) when the potential juror’s likelihood of
      prejudice is exhibited by his conduct and answers to questions at
      [v]oir dire.

Commonwealth v. Colon, 299 A.2d 326, 327 (Pa. Super. 1972) (footnotes

omitted).

      In the first situation, our standard of review has been declared to be

“ordinary.” See id., at 327-28. By announcing an “ordinary” standard of

review, we have found, as a matter of law, it is reversible error to allow a

juror to take part in juror deliberations when he or she has a close

relationship with the parties, counsel, victims, or witnesses involved in the

case. See id. However, when the relationship between the juror and a party,

counsel, victim, or witness is not a close relationship, we employ only an

abuse of discretion standard when evaluating a trial judge’s decision to



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remove or not remove a juror. See id. See also Commonwealth v.

Colson, 490 A.2d 811, 818 (Pa. 1985), abrogated on other grounds by

Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001) (“The decision on

whether to disqualify is within the discretion of the trial court and will not be

reversed in the absence of a palpable abuse of discretion[.]”)

      Here, our standard of review hinges on whether Juror #369 had such a

close relationship with Officer Gracey that the juror should have been

presumed biased. Our Supreme Court has previously evaluated a series of

cases in which juror relationships to the case did not mandate a presumption

of bias and juror removal.

      A remote relationship to an involved party is not a basis for
      disqualification where a prospective juror indicated during voir
      dire that he or she will not be prejudiced. This is illustrated by a
      number of cases. One of these is Commonwealth ex rel.
      Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434 (1959). That
      case involved challenges to two prospective jurors in a murder
      trial. One of them was the son-in-law of the detective who
      investigated the crime. The other was the second cousin once
      removed to the victim. She testified that she and the victim lived
      twenty-five miles apart and never visited each other. We found
      no error in not disqualifying these jurors. In Commonwealth v.
      Yohn, 271 Pa. Super. 537, 414 A.2d 383 (1979), the court
      upheld the refusal to disqualify two jurors in a burglary case.
      One of them had been employed by the victim three or four
      years before the crime. The other had gone on a fishing trip six
      to eight years before the trial with a police officer who was the
      superior of the prosecuting officer. No basis for a challenge for
      cause of a prospective juror was found in Commonwealth v.
      Bright, 279 Pa. Super. 1, 420 A.2d 714 (1980), a prosecution
      for assault and resisting arrest, where the juror lived in the same
      neighborhood as the prosecuting attorney and had known him
      since he was a child. There was likewise no ground for
      challenging a prospective juror in a theft and receiving stolen
      goods prosecution where she was somehow related to the police

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      prosecutor (the record did not disclose how) and was the aunt of
      a member of the district attorney’s staff who was not trying the
      case. Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d
      4 (1981).

Colson, 490 A.2d at 818-19. Additionally, the Court in Colson found that a

juror’s relationship to a case, i.e., knowing the mother of the murder victim,

knowing a witness who discovered the victim’s van, knowing the wife of the

prosecuting police officer, and teaching the victim’s son in school, were not

grounds for a presumption of prejudice where none of the juror’s

relationships were close. See id.

      Initially, we admonish both the trial court and defense counsel for

failing to explore the exact nature of the relationship between Juror #369

and Officer Gracey once Juror #369 discovered her relationship to a party

involved with the case. However, as the Commonwealth suggested, we can

discern the nature of the relationship from the fact that Juror #369 indicated

during voir dire that she did not have a close relationship, i.e., at least

monthly contact, with any police officer. As Juror #369 clearly knew that her

husband’s cousin’s husband was a police officer, it logically follows that her

response during voir dire applied to Officer Gracey, and that therefore, she

does not consider her relationship with Officer Gracey to be a close

relationship.

      We find Juror #369’s relationship to Officer Gracey to be most

analogous to the relationship between the relationship between the juror

and the police prosecutor in Stamm. There, we found that the fact that a

juror was somehow related to the police prosecutor on the case was

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insufficient for a per se presumption of bias. See 429 A.2d at 7. Here, the

record indicates that even though there is a familial relationship between

Juror #369 and Officer Gracey, that relationship is not considered to be a

close one by Juror #369.

      As the relationship between Juror #369 and Officer Gracey was not a

close relationship, the per se standard governing striking a juror for cause

does not apply. Thus, we must analyze the purported conflict under an

abuse of discretion standard. See Colson, 490 A.2d at 818. Because the

abuse of discretion standard does not require a presumption of bias, and

Juror #369 indicated multiple times that her relationship with a party to the

case would not influence her decision and that she could be impartial, we

cannot find that the trial court abused its discretion in refusing to declare a

mistrial.

      Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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