J-S32026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT MCNEAR

                            Appellant                  No. 2058 EDA 2016


               Appeal from the PCRA Order Entered May 31, 2016
                 In the Court of Common Pleas of Bucks County
                Criminal Division at No: CP-09-CR-0000987-2011


BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 30, 2017

        Appellant, Robert McNear, appeals from the May 31, 2016 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm.

        The PCRA court’s opinion sets forth the pertinent facts and procedural

history:

             On January 24, 2011, Appellant was arrested and charged
        with robbery, aggravated assault, simple assault, theft by
        unlawful taking, possession of a controlled substance, and
        possession of drug paraphernalia.

              During the jury deliberation period of Appellant’s trial, the
        jury asked this Court clarifying questions. The first question
        asked, through its foreperson and in writing, sought clarification
        regarding ‘… the difference between serious bodily injury and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     bodily injury.’ After answering the question in a manner each
     counselor found satisfactory, this Court asked the jury to confer
     amongst each other to ensure the answer was satisfactory
     before continuing deliberations.

           Following the aforementioned question, the jury issued a
     second question, in writing, through the foreperson, resulting in
     the following exchange documented in the record:

             THE COURT: Mrs. Miller, I have a note. Let me
       make sure I understand the question.        And I have
       reviewed this with counsel. The question is: what would
       happen if we were able to make a unanimous decision on
       one charge, but could not on the other? Is that your
       question?

              THE FOREPERSON: Yes.

             THE COURT: Well, you have been deliberating for a
       couple of hours now, and I am not really sure if that is
       long enough. So I am going to send you back out and
       continue deliberating, and at 4:30 I will probably send you
       home and you can come back tomorrow morning at about
       8:30 and you will continue deliberating throughout the day
       until you reach a verdict or until I get further questions
       from you in that regard, but I don’t think, you spent nearly
       enough time in [sic] deliberating.

              But let me—I think the lawyers probably agree, but
       let me just go over a couple of things with you and maybe
       this will help you. It’s obvious you are having some
       difficulty resolving one of the issues in this case. On one
       hand, that difficulty is, of course, an indication of your
       sincerity and objectivity with which you have approached
       your duties as jurors.

              On the other hand, there might be some confusion in
       your minds on the instructions that I gave you and the
       application and the facts of this case. If you think that
       further instructions would clarify something, please let me
       know.      Otherwise, I want to make sure that you
       understand the importance of a verdict, not just to the
       Commonwealth, but to the defendant in this case, and in
       light of the time and expenses involved should a retrial be
       required. And you need to understand that lots has been

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        put into this case and it is important to both sides, equally
        important to both sides.

              You will realize, of course, that any verdict you
        return must be unanimous. You have a duty to consult
        with one another and to deliberate with a view toward
        reaching an agreement if it can be done without violence
        to your individual judgment. Each juror must decide the
        case for himself or herself, but only after an impartial
        consideration of the evidence with fellow jurors. A juror
        should not hesitate to re-examine his or her own views to
        change his opinion or her opinion if he or she thinks it’s
        erroneous, and no juror should surrender his or her honest
        convictions as to the weight and effect of the evidence
        because of the opinion of his fellow jurors or for the mere
        purpose of returning a verdict.

              Keeping these instructions in mind, I am going to
        send you back to deliberate and give further consideration
        to the evidence and the charge of the court and see if you
        can arrive at a verdict.      If I can be of any further
        assistance to you, provide any clarification of the
        instructions that I gave you, please let me know.

              JUROR: I have a question.

              THE COURT: You can’t ask questions.

              JUROR: Based on what you said. Sorry.

              THE COURT: The only way I can receive questions is
        through the foreperson.

              THE JUROR: Excuse me.

PCRA Court Opinion, 9/15/16, at 1-3 (record citations and footnotes

omitted).




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       The jury found Appellant guilty of robbery1 on April 27, 2011. On June

16, 2011, the trial court sentenced Appellant to life in prison without parole

in accord with 42 Pa.C.S.A. § 9714(a)(2). The trial court denied Appellant’s

timely post-sentence motion on August 25, 2011.         On July 31, 2012, the

PCRA court entered an order reinstating Appellant’s direct appeal rights.

This Court affirmed the judgment of sentence on April 2, 2013. Appellant

filed this timely PCRA petition on September 9, 2013.2       Appointed counsel

filed an amended petition on January 28, 2016. The PCRA court conducted a

hearing on March 29, 2016. On May 31, 2016, the PCRA court entered an

order denying relief. This timely appeal followed.

       Appellant raises two issues for our review:

              1. Was trial counsel ineffective when he failed to object to
                 the trial court’s supplemental jury instruction when it
                 was unresponsive to the jury’s question, it failed to
                 inform the jury that it need not reach a consensus on
                 both charges, and suggested that factors unrelated to
                 the evidence and relevant law be considered?

              2. Was trial counsel ineffective when he failed to object to
                 the trial court’s refusal to answer an individual juror’s
                 question regarding the supplemental instruction without
                 providing the juror an opportunity to present the
                 question through the foreperson?

Appellant’s Brief at 4.

____________________________________________


1
    18 Pa.C.S.A. § 3701.
2
   Appellant filed the petition within one year of the finality of his judgment
of sentence, in accord with 42 Pa.C.S.A. § 9545(b)(1).



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        We must determine whether the PCRA court’s findings are supported

by the record and free of legal error. Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).       To prevail on a claim of ineffective assistance of

counsel, a petitioner must plead and prove by a preponderance of evidence

that his underlying claim is of arguable merit; that counsel had no

reasonable strategic basis for his or her action or inaction; and that counsel’s

error prejudiced the petitioner. Commonwealth v. Koehler, 36 A.3d 121,

132 (Pa. 2012).

        First, Appellant argues his counsel was ineffective for failing to object

to the trial court’s response to the jury’s question about the consequences of

failing to reach a unanimous verdict on all charges.       Appellant argues the

trial   court   acted   prematurely     in   giving   a   charge   pursuant    to

Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971). Spencer governs

charges given to deadlocked juries. Appellant also argues, without citation

to any binding authority, that the trial court erred in referencing the costs

associated with a trial and potential retrial, inasmuch as that statement

could have coerced the jury into reaching a verdict. In his second argument,

Appellant claims the trial court improperly precluded a question from a juror.

        After careful review, we conclude that the PCRA court’s September 15,

2016 opinion accurately addresses Appellant’s arguments.           We therefore

affirm the order based on the PCRA court’s opinion.           In particular, we

observe that the trial court’s supplemental instruction was in accord with


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established precedent. A trial court does not err when it gives an instruction

“to   impress   upon    the   jurors   the   magnitude   of   their   undertaking.”

Commonwealth v. Montgomery, 687 A.2d 1131, 1136 (Pa. Super. 1996).

We also observe that the trial court did not prevent a juror from asking a

question.   The court appropriately instructed the juror to submit a written

question through the foreperson.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2017




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