J-S83022-16


                                    2017 PA Super 9

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

PATRICK SHAWN MCCAMEY,

                            Appellant                     No. 321 WDA 2016


           Appeal from the Judgment of Sentence January 28, 2016
               In the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0001529-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

OPINION BY SHOGAN, J.:                                 FILED JANUARY 13, 2017

       Appellant, Patrick Shawn McCamey, appeals from the judgment of

sentence entered on January 28, 2016, in the Mercer County Court of

Common Pleas following the trial court’s denial of a motion for a mistrial.

We affirm the order denying Appellant’s motion for a mistrial; however, after

reviewing the legality of the sentence imposed, we are constrained to vacate

Appellant’s judgment of sentence and remand for resentencing.

       The record reflects that on the afternoon of September 28, 2014,

Pennsylvania State Police Trooper Timothy Callahan responded to a report of

a suspicious death. N.T., 11/12/15, at 58. The report led him to a mobile

home near the intersection of Route 58 and Irishtown Road in Mercer
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S83022-16


County. Id. When Trooper Callahan arrived, there were other police officers

and ambulance personnel at the scene.               Id. at 59.   Trooper Callahan

approached Trooper James Mason and Corporal James Powell of the

Pennsylvania State Police, and at this point he saw the deceased. Id. The

deceased individual was identified as Michael Johns, and his death was a

result of asphyxiation caused by dual components of strangulation and

smothering. Id. at 37, 75, 99.

       The investigation into Mr. Johns’s death led the state police to

Appellant.     N.T., 11/16/15, at 25.            When Trooper Chris Birckbichler

questioned Appellant, he informed Appellant of his Miranda1 rights, and

Appellant signed a form acknowledging that he understood them. Id. at 28.

Appellant provided Trooper Birckbichler inconsistent versions of the events

of the day that Mr. Johns was killed.          Id. at 37.   However, Appellant did

inform Trooper Birckbichler that he was at Mr. Johns’s home, and he wanted

to buy drugs from the victim. Id. There was a struggle between the two

men, and Appellant bled on the floor of the home after the victim stabbed

him during the struggle. N.T., 11/12/15, at 115. Appellant obtained Comet

cleanser and poured it on the blood so that his DNA could not be discovered.

N.T., 11/16/15, at 37.



____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -2-
J-S83022-16


      The Commonwealth charged Appellant with murder, alleging that

Appellant and his cohort, Ryan Bowers, killed Mr. Johns while engaged in

both robbing Mr. Johns and burglarizing his home.        Criminal Information,

12/8/14, at unnumbered 1.         Specifically, the Commonwealth charged

Appellant with second-degree murder (robbery), second-degree murder

(burglary), third-degree murder, robbery, conspiracy (robbery), burglary,

and conspiracy (burglary). Id. at unnumbered 1-4.

      A jury trial began on November 12, 2015.         On the third day of the

trial, Monday, November 16, 2015, Juror Number Three returned from the

lunch break and informed the trial court’s tipstaff that an unknown individual

made a comment to her in the hallway.         N.T., 11/16/15, at 45.     Juror

Number Three also mentioned this extraneous comment to the other jurors.

Id. at 46.    The trial judge questioned the jurors individually about the

statement made to Juror Number Three and inquired whether the jurors

could remain impartial.   Id. at 45-68.    Satisfied that the jurors were not

tainted and remained capable of reaching a true verdict, the trial court

denied Appellant’s motion for a mistrial. Id. at 71.

      Appellant was found guilty of all charges on November 17, 2015. On

January 28, 2016, the trial court sentenced Appellant as follows: life

imprisonment for second-degree murder (robbery); life imprisonment for

second-degree murder (burglary); ten to twenty years of imprisonment

for third-degree murder; and five to twenty years of imprisonment for


                                     -3-
J-S83022-16


conspiracy (robbery).    The conspiracy (burglary) merged with conspiracy

(robbery), and robbery and burglary merged with the second-degree murder

convictions. All sentences were ordered to run concurrently.

      On February 26, 2016, Appellant filed a timely notice of appeal to this

Court. Appellant and the trial court have complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issue for this Court’s

consideration:

            1. Whether the Trial Court abused its discretion in denying
      the Appellant’s motion for a mistrial relating to misconduct that
      occurred to the jury panel during trial?

Appellant’s Brief at 4 (verbatim).

      We review Appellant’s claim of error bearing in mind the following

principles:

      A defendant has the right to have his or her case heard by a fair,
      impartial, and unbiased jury and ex parte contact between jurors
      and witnesses is viewed with disfavor. Commonwealth v.
      Brown, 567 Pa. 272, 786 A.2d 961, 972 (2001). There is,
      however, no per se rule in this Commonwealth requiring a
      mistrial anytime there is improper or inadvertent contact
      between a juror and a witness.         See Commonwealth v.
      Mosley, 535 Pa. 549, 637 A.2d 246, 249 (1993) (declining to
      adopt per se rule which would require disqualification of juror
      anytime there is ex parte contact between that juror and
      witness). Whether such contact warrants a mistrial is a matter
      addressed primarily to the discretion of the trial court. Brown,
      786 A.2d at 972 (citation omitted). A trial court need only grant
      a mistrial where the alleged prejudicial event may reasonably be
      said to have deprived the moving party of a fair and impartial
      trial. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261,
      282 (2000) (citation omitted).




                                     -4-
J-S83022-16


Commonwealth            v.   Tharp,        830    A.2d    519,   532-533   (Pa.   2003).2

Additionally,     the    burden       is     on     the    party   claiming   prejudice.

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012).

       The trial court addressed this issue as follows:

              Appellant contends that a juror was approached by
       individuals outside of the Mercer County District Attorney’s Office
       (which shares a common hallway with access to the jury room)
       who requested that the juror find Appellant guilty. Further,
       Appellant contends that the juror in question reported this
       conduct to a tipstaff in the presence of the entire jury panel,
       which allegedly tainted the panel.

             Juror No. 3 was identified by tipstaffs as reporting to them
       a brief encounter from three men outside the District Attorney’s
       Office as she passed them in the hallway, and one of the men
       suggested she remember to find McCamey guilty. See Trial
       Transcript, Vol. II, Page 45. The Court had the following colloquy
       with Juror No. 3:

              THE COURT: Your name, please?

              JUROR NO. 3: [Juror No. 3].

              THE COURT: [Juror No. 3], you apparently reported
              to a tipstaff that somebody said something to you.
              So when did that occur?

              JUROR NO. 3: I was coming back from lunch. It was
              probably about 1:00 o’clock, and I was in the
              hallway out just across from the District Attorney’s
              Office, and there were three men, one was standing
              with his back toward the office, and the other two
              were seated on the bench and they were having a
____________________________________________


2
   While Tharp refers to a juror’s ex parte communication with a witness,
the same considerations apply when the potentially prejudicial contact is
between a juror and a person other than a witness. Mosley, 637 A.2d at
248.



                                             -5-
J-S83022-16


          conversation. So I said before I went between them,
          I said, “Excuse me.” And the guy says, “Oh, you are
          excused. Just remember, guilty, guilty, guilty.”

          THE COURT: And do you recognize any of those
          men?

          JUROR NO. 3: I really didn’t even look at them. I
          kept going straight ahead, never acknowledged that
          he said that to me.

          THE COURT: Did you recognize the voice as any
          witness who has testified?

          JUROR NO. 3: No, I did not.

          THE COURT: So you don’t know if the person was
          connected with this case at all?

          JUROR NO. 3: I do not. No.

          JUROR NO. 3: Did you mention this to any other
          juror?

          JUROR NO. 3: I – I mentioned it – after I told the
          tipstaff, after I told her, the rest – rest of them in
          the – in the jury room heard me, uh-huh.

          THE COURT: Say that again?

          JUROR NO. 3: The rest of the jurors in the jury room
          heard me tell the tipstaff that.

          THE COURT: What you have just mentioned, you
          mean?

          JUROR NO. 3: Yes, uh-huh.

          THE COURT: [W]ill that influence you in any way in
          reaching a verdict in this case?

          JUROR NO. 3: Not at all.




                                     -6-
J-S83022-16


            THE COURT: Are you still able to keep an open mind
            and decide this case based upon the evidence, which
            is not complete yet, and the law that the Court gives
            to you?

            JUROR NO. 3: I am.

            THE COURT: Any follow-up questions, Ms. Odem?

            MS. ODEM: No, Your Honor.

            THE COURT: Mr. Hetrick.

            MR. HETRICK: No, Your Honor.

            THE COURT: Thank you, [Juror No. 3]. You may go
            back into the jury room.

            JUROR NO. 3: Thank you.

            Juror No. 3 claimed she was able to keep an open mind
      and decide the case based on the evidence. Id. at 46. At the
      request of Defense Counsel, this Court then proceeded to
      interview individually and privately each juror and alternate juror
      to determine what they heard, if anything, and whether they
      could continue to be fair and impartial throughout the trial. Id. at
      48-70. No juror or alternate juror was able to identify the person
      who made the suggestion to Juror No. 3. Assistant District
      Attorney Odem disclosed that the three individuals involved in
      the conduct with Juror No. 3 were victims in an unrelated case.
      Id. at 70. After the individual interviews, Defense Counsel orally
      moved for a mistrial on the basis of Juror No. 3’s mentioning the
      suggestion of guilt in front of the entire jury panel. Id.

             This Court concluded that there was no factual basis for a
      mistrial. Id. at 71. Even though Juror No. 3 spoke of an unknown
      individual suggesting she find the Appellant guilty, the jurors and
      alternates were examined individually and found to be of a fair
      and impartial mind. Id. Therefore, this Court determined there
      was no undue influence that compromised the jury and denied
      the motion for mistrial.

Trial Court Opinion, 4/5/16, at 2-4 (brackets in original).


                                     -7-
J-S83022-16


      After review, we are satisfied that the trial court appropriately

responded to this ex parte communication between a member of the public

and Juror Number Three by questioning each juror and alternate juror on the

record to determine whether the jury could remain impartial. Moreover, we

discern no abuse of discretion in the trial court’s conclusion that despite the

ex parte communication, Appellant was not deprived of a fair and impartial

trial. Tharp, 830 A.2d at 533. Accordingly, a mistrial was not warranted.

      Before we conclude our disposition of this appeal, however, we discern

an issue concerning double jeopardy and merger, and we note that these

principles implicate the legality of Appellant’s sentence. Commonwealth v.

Andrews, 768 A.2d 309, 313 (Pa. 2001). It is well settled that this Court

may address the legality of a sentence sua sponte.        Commonwealth v.

Infante, 63 A.3d 358, 363 (Pa. Super. 2013).

      The Supreme Court of the United States has made it clear that the

Fifth Amendment guarantee against double jeopardy is enforceable against

the states through the Fourteenth Amendment. North Carolina v. Pearce,

395 U.S. 711, 717 (1969) (citations omitted).      That guarantee consists of

three separate constitutional protections: it protects against 1) a second

prosecution for the same offense after acquittal; 2) a second prosecution for

the same offense after conviction; and 3) multiple punishments for the same

offense. Id. (citations omitted).




                                     -8-
J-S83022-16


       In Pennsylvania:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the
       other offense. Where crimes merge for sentencing purposes, the
       court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S. § 9765.3

       There is a dearth of legal authority in Pennsylvania addressing the

situation at bar, i.e., where a defendant is charged, convicted, and

sentenced on multiple homicide counts where there is only one victim. In

Commonwealth v. Meadows, 787 A.2d 312, 317 (Pa. 2001), our Supreme

Court held that separate convictions for first, second, and third-degree

murder, when there is a single victim, are not mutually exclusive. However,

____________________________________________


3
   In Pennsylvania, the merger and double jeopardy considerations are the
same. Commonwealth v. Anderson, 650 A.2d 20, 23 (Pa. 1994). The
proper analysis “is whether the elements of the lesser crime are all included
within the elements of the greater crime, and the greater offense includes at
least one additional element which is different, in which case the sentences
merge[.]” Id. at 24. Stated differently, “The applicable rule is that where
the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of a fact which
the other does not.” Commonwealth v. Tarver, 426 A.2d 569, 572 (Pa.
1981) (quoting Blockburger v. U.S., 284 U.S. 299, 304 (1932)). “Our
merger statute merely codified the adoption by the Tarver/Anderson
decisions of the Blockburger test and upholds the long-standing merger
doctrine relative to greater and lesser-included offenses.” Commonwealth
v. Wade, 33 A.3d 108, 120 (Pa. Super. 2011). Ultimately, the double
jeopardy prohibition against multiple punishment for the same offense
“prevent[s] the sentencing court from prescribing greater punishment than
the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).



                                           -9-
J-S83022-16


in Meadows, while the appellant was convicted of multiple counts, it does

not appear that the appellant was sentenced on the separate convictions.

Similarly, in Commonwealth v. Young, 748 A.2d 166, 175 (Pa. 1999), the

Supreme Court held that there was no inconsistency in convicting a

defendant of both first and third-degree murder where there was one victim.

However, once again, it appears that the appellant in Young, while

convicted of multiple homicides, was sentenced on only one conviction.

      Here, Appellant was convicted and sentenced on all three murder

convictions. Thus, this case is similar to Commonwealth v. Monteil, 416

A.2d 1105 (Pa. Super. 1979), wherein the defendant was convicted and

sentenced, inter alia, for third-degree murder and involuntary manslaughter.

On review in Monteil, this Court concluded that involuntary manslaughter

merged with the murder conviction for purposes of sentencing. Id. at 1108.

Accordingly, we affirmed as to third-degree murder and vacated the

sentence on involuntary manslaughter. Id.

      The merger and double jeopardy implications of such sentences have

been addressed in other jurisdictions as well. A non-exhaustive list follows:

      Georgia: A defendant may be sentenced on only one murder count

involving the same victim. Stewart v. State, 791 S.E.2d 61, 66 (Ga. 2016)

(citing Malcolm v. State, 434 S.E.2d 479 (Ga. 1993)).

      Illinois:   If a defendant is convicted on multiple counts of murder

involving a single victim, only the conviction for the most serious murder


                                    - 10 -
J-S83022-16


offense charged will be upheld. The convictions on the less serious murder

charges must be vacated.        People v. Guest, 503 N.E.2d 255, 269 (Ill.

1986).

      Michigan:        The constitutional prohibition against double jeopardy

protects a defendant from multiple punishments for the same offense, and

multiple murder convictions arising from the death of a single victim violate

double jeopardy. People v. Clark, 622 N.W.2d 344, 347 (Mich.App. 2000)

(citations omitted).

      Indiana:    Where a defendant is convicted and sentenced on both

felony murder and first-degree murder when there was only one victim,

allowing both judgments to stand would amount to double punishment.

Thompkins v. State, 383 N.E.2d 347, 351-352 (Ind. 1978).

      Ohio:    Where a defendant is convicted of two aggravated murder

counts involving a single victim, the murder convictions merge.     State v.

Lawson, 595 N.E.2d 902, 913 (Ohio 1992); and see State v. Webb, 638

N.E.2d 1023, 1037 (Ohio 1994) (same).

      Contrarily, in People v. Leonti, 222 N.E.2d 591 (N.Y. 1966), the

Court of Appeals of New York upheld convictions for both second-degree

murder and felony murder on the theory that a single act may violate more

than one statute. Furthermore, because the sentences were ordered to run

concurrently, the court concluded there was no duplication on punishment.

Id. at 596.


                                      - 11 -
J-S83022-16


     After reviewing the standards for merger and double jeopardy in

Pennsylvania in conjunction with the aforementioned persuasive authority

from other states, we conclude that the three murder convictions in the

instant case merge for purposes of sentencing.        “A criminal homicide

constitutes murder of the second degree when it is committed while

defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” 18 Pa.C.S. § 2502(b). Thus, Appellant’s conviction for second-

degree murder (burglary) is elementally identical to second-degree murder

(robbery) because they are both homicides committed in the course of a

felony; neither crime includes an element that the other does not.

Furthermore, we conclude that third-degree murder merges with the

second-degree murder sentence because it is a lesser included offense with

respect to second-degree murder since third-degree murder, as opposed to

first or second-degree murder, is simply “[a]ll other kinds of murder[.]” 18

Pa.C.S. § 2502(c). Moreover, we point out that while third-degree murder

does require malice, Commonwealth v. Santos, 876 A.2d 360, 363 (Pa.

2005), the malice required for second-degree murder may be inferred by the

factfinder from the underlying felony.   Commonwealth v. Lambert, 795

A.2d 1010, 1023 (Pa. Super. 2002).          Thus, a second-degree murder

conviction consists of an unlawful killing with malice, i.e., third-degree

murders, with the added element of an underlying felony. Ultimately, in the

case at bar, whether in the course of committing a felony or due to any


                                   - 12 -
J-S83022-16


murder that is not classified as first or second-degree murder, the result is

the same: there was only one death.

      Therefore, we hold that the trial court imposed illegal sentences when

it imposed separate sentences for each of the three murder convictions. The

two   second-degree    murder   convictions   and   the   third-degree   murder

conviction must merge for purposes of sentencing.

      For the reasons set forth above, we conclude that there was no error

in the trial court’s denial of Appellant’s motion for a mistrial.     However,

because we find that the trial court imposed an illegal sentence, we vacate

Appellant’s judgment of sentence and remand for resentencing.            As the

resentencing has the potential to disrupt the trial court’s entire sentencing

scheme, we vacate all of Appellant’s sentences and remand for resentencing

at all counts. See Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa.

Super. 1990) (“[I]f a trial court errs in its sentence for one count in a multi-

count case, then all sentences for all counts will be vacated so that the court

can re-structure its entire sentencing scheme.”).

      Order denying mistrial affirmed. Judgment of sentence vacated. Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017

                                     - 13 -
