J-A17016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERNEST WILLIAMS                          :
                                          :
                    Appellant             :   No. 1569 WDA 2016

            Appeal from the Judgment of Sentence July 5, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0016085-2013


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

MEMORANDUM BY OTT, J.:                            FILED JANUARY 31, 2019

      Ernest Williams appeals from the judgment of sentence imposed on July

5, 2016, in the Court of Common Pleas of Allegheny County, following his

conviction of first-degree murder and carrying a firearm without a license.

Williams received the mandatory term of life imprisonment. In this timely

appeal, Williams claims the suppression court erred in failing to suppress all

evidence obtained against him resulting from his warrantless arrest. As a part

of this claim, Williams also argues the suppression court erred in failing to

view a surveillance video of the crime to determine the reliability of a police

officer’s identification of the car therein as his automobile. Finally, Williams

claims the trial court erred in failing to dismiss a juror who saw Williams

walking down a courthouse hallway accompanied by a uniformed officer. After

a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.
J-A17016-18



      The facts underlying this matter are related from the August 9, 2017,

joint trial court opinion of Judges Randall B. Todd and Philip A. Ignelzi.

      On May 19, 2014, the Suppression Court heard testimony from
      Commonwealth witnesses regarding [Williams’] Omnibus Pretrial
      Motions, specifically, the Motion to Suppress Physical Evidence
      and Statements. The Suppression Hearing was continued on July
      9, 2014.

      At the May 19, 2014 hearing, Officer James Caterino testified he
      was working as a patrolman for West Homestead on November 4,
      2013. He has been employed as a detective for the Borough of
      Munhall for eight years and a patrolman for the Borough of West
      Homestead for two and a half years. On November 4, 2013, at
      approximately 3:30 a.m., Homestead dispatch put out a call for
      shots fired in the area of 19th and McClure Street, which Officer
      Caterino categorized as a high crime area.

      Officer Caterino and Lt. Steele responded to the area and, as they
      were proceeding southbound on McClure coming off the 11 th
      Avenue extension, they encountered a dark colored vehicle driving
      westbound on 11th Avenue. Since it was obvious to Officer
      Caterino that this vehicle was travelling at a high rate of speed,
      he performed a U-turn at the intersection of McClure and 12th to
      get behind the vehicle. The vehicle further failed to stop at a stop
      sign at McClure and 11th Avenue. Officer Caterino initiated a traffic
      stop, the vehicle continued to make a right turn onto Ann Street,
      where it was ultimately stopped. The vehicle was a black Ford
      Five Hundred and [Williams] was the sole occupant. When Officer
      Caterino approached [Williams], he [Williams] was sweating
      profusely, fidgeting in his seat and wearing a red sweatshirt and
      gray pants.

      [Williams] was asked to step out of the vehicle, he gave consent
      to search his person and vehicle, and no evidence was recovered.
      He was not in custody at this time and freely answered any
      questions posed to him. Lt. Steele asked [Williams] where he was
      coming from and he indicated the Trapper’s Club in Homewood.
      Officer Caterino became suspicious when he heard [Williams] tell
      Lt. Steele he was coming home from the Trapper’s Club to his
      place on 13th Street. According to Officer Caterino, the East 11 th


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       Avenue Extension is not accessible if [Williams] was traveling
       across the Rankin Bridge to his home on 13th Street.

       Officer Caterino is familiar with the East 11th Avenue Extension,
       noted that the area [Williams] had just passed was known as
       Cow’s Hill, and, based on his experience as a police officer, Cow’s
       Hill is an area known for discarding guns. [Williams] was released
       and the officers proceeded to 19th and McClure Street, where the
       call said shots were fired.       Upon arriving, Officer Caterino
       observed that there were video cameras at the business of
       Hruska’s Plumbing, located at the very intersection of the
       shooting. Officer Caterino and County Detectives viewed the
       surveillance video at Hruska Plumbing and, Officer Caterino
       indicated to county detectives that he and Lt. Steele had just
       stopped [Williams] in a vehicle that looked exactly like the vehicle
       in the video. Officer Caterino recalled the vehicle had a grayish
       stripe or molding going across horizontally and a ragtop roof.

       Further, the video depicted the actual shooting and showed the
       passenger (victim) get out and proceed to the rear of the car, then
       stop and go back to the passenger side, opening the door as if
       looking for something on the side of the seat, then get out again.
       The victim again walks to the rear of the vehicle, at which time
       the driver got out of the car and fires multiple shots at him. When
       the victim attempts to run, the driver fires more shots at the
       victim.

       The second angle of the video was a side view of the business and
       showed the vehicle making a right hand turn and heading in the
       direction of the 11th Avenue Extension and Cow’s Hill.

       The Commonwealth next called Detective Mayer to testify.
       Detective Mayer has been a detective with the Allegheny County
       Police for twelve years. Detective Mayer was called out to
       investigate the shooting of Jeremy Fields on November 4, 2013.
       Upon arrival at the intersection of 19th and McClure Street,
       Detective [sic] Caterino[1] was already on the scene. Shortly after
       his arrival, Detective Caterino indicated there were several video
____________________________________________


1 James Caterino is a full-time detective with the Borough of Munhall Police
Department and a part-time police officer with the Borough of West
Homestead Police Department. He was on duty as a police officer regarding
this matter. Accordingly, we will refer to him as Officer Caterino.

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      cameras on the exterior of the building. The owner of the building
      was there to take the detectives to an office where there was a
      small television for the surveillance system.

      After viewing the video and Officer Cat[e]rino’s observations, a Be
      On the Lookout, or “BOLO”, was issued for the vehicle [Williams]
      was driving. Later that morning Detective Mayer, who had
      recently viewed the video, encountered a black Ford 500 sedan
      with a landau cloth roof traveling across the Rankin Bridge. The
      car was being driven by a black male, the sole occupant. The
      Detective got behind the vehicle and determined it was the same
      vehicle stopped earlier that morning by Officer Caterino.

      Once marked cars arrived, a traffic stop was initiated and
      [Williams] stopped his car in the middle of the street; [Williams]
      was removed from the vehicle and placed in handcuffs; and was
      then transported to the County Headquarters and placed in a
      locked interview room.

Trial Court Opinion, 8/9/2017, at 8-11.

      The video from Hruska Plumbing was not shown at the May 19, 2014

suppression hearing. The defense had been provided a copy of the video, but

due to technical problems, had not viewed the video. It appears that the

Commonwealth also was unable to view the video. The May 19, 2014 hearing

was continued to July 9, 2014, at which time Lt. Rodney Steel testified

regarding the traffic stop when Williams was arrested. The video was also not

shown during the July 9, 2014 hearing.

      After the two hearings, the suppression court found there was sufficient

probable cause, based upon the testimony of Officer Caterino and Detective

Mayer, to stop and arrest Williams. Specifically, Williams had been stopped in

the general area of the crime shortly after the shooting, his was the only car

in the area at that time, Williams was acting nervously, and Officer Caterino


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recognized Williams’ car as the car in the video. At some time subsequent to

the suppression court’s ruling, the video became viewable. After reviewing

the video, Williams believed the video did not support Officer Caterino’s

assertion that he had stopped that car only moments before arriving at the

scene of the crime.

      Williams then sought reconsideration of the order denying suppression,

asserting that the video contradicted Officer Caterino’s testimony, thereby

rendering the suppression court’s determination unsupportable. Specifically,

he contends that without the identification of the car in the video as his car,

there was insufficient probable cause to support the warrantless arrest. The

suppression court denied Williams’ motion without a hearing.       See Order,

11/20/2014.

      Williams then filed a motion for recusal, asserting that the suppression

judge had unfairly denied him the opportunity to be heard regarding all of the

relevant evidence.    Williams also claimed this failure demonstrated an

improper prejudice against him, making the suppression court’s further

participation in the case untenable. The suppression court granted Williams’

motion for recusal. The case was thereafter transferred to Judge Ignelzi.

      By letter, Williams renewed his motion for reconsideration of the denial

of his motion to suppress evidence. Judge Ignelzi instructed the parties to file

briefs on the issue of the “Law of the Case Doctrine,” also known more formally

as the Coordinate Jurisdiction Rule.   This rule states:



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      “[J]udges of coordinate jurisdiction sitting in the same case should
      not overrule each other[’]s decisions. This rule, known as the
      coordinate jurisdiction rule, is a rule of sound jurisprudence based
      on a policy of fostering the finality of pre-trial applications in an
      effort  to    maintain     judicial    economy     and    efficiency.”
      Commonwealth v. Starr, 541 Pa. 564, 664 A2d, 1326, 1331
      (1995) (citations and internal quotation marks omitted).

         Departure from either the coordinate jurisdiction rule or
         the law of the case doctrine is allowed only in exceptional
         circumstances such as where there has been an
         intervening change in the controlling law, a substantial
         change in the facts or evidence giving rise to the dispute
         in the matter, or where the prior holding was clearly
         erroneous and would create a manifest injustice if followed.


      [Commonwealth v.] Rolan, [964 A.2d 398] at 405, (Pa. Super.
      2008) (citing Starr, supra at 1332).

Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. Super. 2012).

      Williams asserted the video was new evidence, unavailable at the time

of the initial hearing, and therefore, Judge Ignelzi was allowed to reopen the

record and consider the new evidence and issue a new order.            The entire

reason for opening the record and submitting new evidence was to re-litigate

the issue. Specifically, Williams asked the court “to open the record of the

suppression hearing, admit the video and after viewing the video reconsider

the issue of whether the police had probable cause to arrest the defendant

without a warrant, search and then seize his personal property and his vehicle

on November 4, 2013.” Williams’ Memorandum of Law Supporting his Motion

to Open the Record, 6/26/2015, at 14-15.

      Subsequently, Judge Ignelzi granted Williams’ motion and did exactly

what Williams requested be done. Judge Ignelzi viewed the video several


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times in camera. He offered to view the tape in the presence of the parties;

however, the offer was declined. After viewing the video and reviewing the

notes of testimony from the previous suppression hearings, Judge Ignelzi

concluded Williams was incorrect and the video did not contradict Officer

Caterino’s testimony. Accordingly, he found no grounds upon which he could

overrule the prior suppression order, and denied Williams’ motion. Williams

was tried by jury, and found guilty of first-degree murder. At trial, evidence

obtained after Williams’ arrest was admitted, including: other video

surveillance from clubs and bars Williams and the victim had visited together

that night as well as video of the victim and Williams travelling in the car that

was ultimately viewed in the Hruska Plumbing video, gunshot residue found

on Williams’ hand and clothing, and the victim’s blood on the rear of Williams’

car.

         Williams now claims the initial suppression court erred in finding

probable cause existed supporting the warrantless arrest and that the initial

suppression court erred in failing to open the record to view the video and

reconsider the denial of the motion to suppress. Both of these claims rest

upon the assertion that the video fails to support Officer Caterino’s testimony.

However, Williams has not challenged Judge Ignelzi’s ruling that the video

does not contradict Officer Caterino’s testimony, thereby proving no grounds

to overrule the denial of suppression. We will address Williams’ second issue

first.



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      Williams argues:

      The lynchpin underlying the suppression court’s erroneous
      conclusion that probable cause supported Mr. Williams’s arrest
      was Officer Caterino’s testimony concerning his observations of a
      video. The video itself, however, 1) wasn’t offered into evidence
      at the suppression hearing and 2) in fact contradicts Officer
      Caterino’s testimony. Did the suppression court err in refusing to
      grant Mr. Williams’s request to re-open the record so that it could
      receive and view the video?

Williams’ Brief at 6.

      This issue is easily disposed of: Williams sought and obtained relief from

the denial of his motion for reconsideration and the court’s failure to view the

video when he sought recusal of the original suppression judge and obtained

relief from Judge Ignelzi who opened the record and admitted and viewed the

video.   In essence, this claim is seeking relief from Judge Ignelzi’s order,

without actually challenging Judge Ignelzi’s order.       The entire purpose of

Williams’ petitions to Judge Ignelzi was to obtain relief from the prior ruling

denying his motion for reconsideration. If Williams believed he was aggrieved

by the results of the reconsideration he obtained from Judge Ignelzi, he was

obliged to challenge Judge Ignelzi’s order.      He did not.   Williams has not

claimed Judge Ignelzi’s determination that the video did not contradict Officer

Caterino’s testimony was an abuse of discretion or an error as a matter of law.

Accordingly, Williams is not entitled relief on this claim.

      Next, Williams argues the suppression court erred in determining there

existed probable cause to arrest him without a warrant.

      When considering the instant claim, we are mindful of the following:


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           Our standard of review ... is whether the record supports
           the trial court's factual findings and whether the legal
           conclusions drawn therefrom are free from error. Our
           scope of review is limited; we may consider only the
           evidence of the prosecution and so much of the evidence
           for the defense as remains uncontradicted when read in
           the context of the record as a whole. Where the record
           supports the findings of the suppression court, we are
           bound by those facts and may reverse only if the court
           erred in reaching its legal conclusions based upon the facts.
        Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super.
        2011) (en banc) (citation omitted), appeal denied, 615 Pa. 753,
        40 A.3d 120 (2012). Additionally, “[a]ppellate courts are limited
        to reviewing only the evidence presented at the suppression
        hearing when examining a ruling on a pretrial motion to suppress.”
        Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super.
        2017)(citation omitted), appeal denied, 176 A.3d 855. “It is within
        the suppression court's sole province as factfinder to pass on the
        credibility of witnesses and the weight to be given their
        testimony.” Id. at 1282 (citation omitted).

Commonwealth v. Koonce, 190 A.3d 1204, 1211-12 (Pa. Super. 2018).

        Additionally,

           Probable cause to arrest exists when the facts and
           circumstances within the police officer's knowledge and of
           which the officer has reasonably trustworthy information
           are sufficient in themselves to warrant a person of
           reasonable caution in the belief that an offense has been
           committed by the person to be arrested. Probable cause
           justifying a warrantless arrest is determined by the totality
           of the circumstances.

        Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super.
        2008)(internal citations and quotation marks omitted).
        Furthermore, as succinctly explained by then Judge, now
        President Judge, Correale Stevens:[2] “[p]robable cause does not
        involve certainties, but rather ‘the factual and practical
        considerations of everyday life on which reasonable and prudent
____________________________________________


2   Now President Judge Emeritus, Correale Stevens.

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J-A17016-18



      men act.’ ” Commonwealth v. Dommel, 885 A.2d 998, 1002
      (Pa. Super. 2005) (quoting Commonwealth v. Wright, 867 A.2d
      1265, 1268 (Pa. Super. 2005)). It is the facts and circumstances
      within the personal knowledge of the police officer that frames the
      determination of the existence of probable cause. See, e.g.,
      Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.3d 391, 394
      (1973)(“Probable cause exists if the facts and circumstances
      known to the officer warrant a prudent man in believing that [an]
      offense has been committed.”).

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011).

      As in the first issue, Williams believes and contends that the video

evidence contradicted Officer Caterino’s testimony that he recognized the car

in the video as being Williams’ car which Officer Caterino had stopped

moments earlier. As noted above, Williams sought and obtained a judicial

ruling regarding the video, but Judge Ignelzi, after viewing the video, did not

agree with Williams’ contention regarding the video as it related to Officer

Caterino’s testimony. Because Williams did not challenge that Order, we must

reject his instant argument regarding the video.

      We quote from the trial court opinion, jointly authored by Judges Todd

and Ignelzi.

      In this case, the determination of whether reasonable suspicion
      and/or probable cause to arrest exists would be based upon the
      totality of the circumstances as known by Detective Mayer at the
      time [Williams] was taken into custody.       This includes the
      information provided to Detective Mayer by Officer Caterino and
      Lt. Steele.

            Officer Caterino and Lt. Steele received a call for shots fired
      at approximately 3:30 a.m. on November 4, 2013, in a primarily
      residential and high crime area. They responded to the area and
      observed [Williams’] dark colored vehicle going westbound on 11th
      Avenue at a high rate of speed, then failing to stop at a stop sign
      at McClure and 11th Avenues.

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             Thereafter, Officer Caterino initiated a traffic stop and when
      he approached [Williams], he observed him to be sweating
      profusely and squirming in his seat. Officer Caterino further
      observed [Williams] to be wearing a red sweatshirt and gray
      sweatpants.      Upon questioning from the officer. [Williams]
      indicated he was coming from the Trapper’s Club in Homewood
      and proceeding to his home on 13th Street. Officer Caterino
      became suspicious due to the fact that the East 11 th Avenue
      Extension is not accessible if [Williams] was truly traveling across
      the Rankin Bridge to 13th Street; the most direct route. In
      addition, Officer Caterino, who is familiar with the East 11th
      Avenue Extension, was aware based on his experience as a police
      officer, that the area is called “Cow’s Hill” and is known as a place
      for discarding firearms.

             After [Williams] consented to a search of his person and
      vehicle, which yielded no evidence, he was released. Officer
      Caterino and Lt. Steele continued onto the area where shots were
      fired; 19th and McClure Street. Video surveillance of the shooting
      was obtained from Hruska Plumbing, near the crime scene and
      Officer Caterino and Detective Mayer watched it. Officer Caterino
      immediately told Detective Mayer the he and Lt. Steele had just
      recently stopped [Williams] in a vehicle that looked just like the
      car in the video and he described what took place at the initial
      traffic stop.

            Officer Caterino further informed the detective that the
      vehicle had a distinctive grayish stripe going horizontally across
      the car and it had a ragtop roof. Additionally, he noted that when
      the vehicle in the vehicle left the scene, it made a right and headed
      in the direction of Cow’s Hill and the 11th Avenue extension.

Trial Court Opinion, at 23-25 (citations to the record omitted).

      Our review of the certified record leads us to agree there was sufficient

evidence of record to provide probable cause to arrest Williams. We find no

error of law in the determination Officer Caterino had probable cause to

believe Williams was the perpetrator. Accordingly, Williams is not entitled to

relief on this issue.


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      Williams’ final claim is the trial court erred in failing to dismiss a juror

who saw him in the courthouse hall accompanied by several people, including

a uniformed officer.

      Our standard of review when evaluating a claim of abuse of
      discretion by the trial court in refusing to strike a juror due to
      alleged bias is as follows:

         The test for determining whether a prospective juror
         should be disqualified is whether he or she is willing and
         able to eliminate the influence of any scruples and render
         a verdict according to the evidence, and this is to be
         determined on the basis of answers to questions and
         demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307
         A.2d 255 (1973). It must be determined whether any
         biases or prejudices can be put aside on proper instruction
         of the court, Commonwealth v. Drew, 500 Pa. 585, 459
         A.2d 318 (1983). A challenge for cause should be granted
         when the prospective juror has such a close relationship,
         familial, financial, or situational, with the parties, counsel,
         victims, or witnesses that the court will presume a
         likelihood of prejudice or demonstrates a likelihood of
         prejudice by his or her conduct and answers to questions.
         Commonwealth v. Colon, 233 [223] Pa.Super. 202, 229
         [299] A.2d 326 (1972). The decision on whether to
         disqualify is within the sound discretion of the trial court
         and will not be reversed in the absence of a palpable abuse
         of discretion, Commonwealth v. Black, 474 Pa. 47, 376
         A.2d 627 (1977).
      Commonwealth v. Akers, 392 Pa.Super. 170, 192-93, 572 A.2d
      746, 757 (1990).

Commonwealth v. Michuck, 686 A.2d 403, 407 (Pa. Super. 1996).

      Further, our Supreme Court has held:

      The thrust of appellant’s argument is that it is inherently
      prejudicial for jurors to see a defendant in shackles; that this is so
      (it is said) because his appearance in shackles or handcuffs
      ‘brands him as convicted in the state’s eyes’, Commonwealth v.
      Keeler, 216 Pa.Super. 193, 195, 264 A.2d 407, 409 (1970), thus

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        destroying the presumption of innocence which every defendant
        enjoys, and that the only way in which this inherent prejudice can
        be avoided is to declare a mistrial. The majority of the courts
        which have considered this issue have concluded to the contrary.
        In United States v. Chrzanowski, 502 F.2d 573 (3d Cir. 1974)
        the Third Circuit Court of Appeals held that ‘(t)he fact that jurors
        may briefly see a defendant in handcuffs is not so inherently
        prejudicial as to require a mistrial. United States v. Rickus, 351
        F.Supp. 1386 (E.D.Pa. 1972), aff’d, 480 F.2d 919 (3d Cir. 1973);
        United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir.
        1972); United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971);
        United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert.
        denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).’ Our
        own Superior Court recently addressed this issue in the case of
        Commonwealth v. McGonigle, 228 Pa.Super. 345, 323 A.2d
        733 (1974). There a unanimous court stated:

           ‘It is settled law that a mere accidental observation of a
           defendant in handcuffs outside a courtroom by a juror does
           not, without more, require the granting of a mistrial,
           although a cautionary instruction by the trial court on the
           event will be appropriate. Commonwealth v. DeMarco,
           225 Pa.Super. 130, 31 A.2d 341 (1973).’

Commonwealth v. Evans, 348 A.2d 92, 93-94 (Pa. 1975).

        Here, Juror Number 3 reported to court officers he needed to speak with

the trial judge. Williams had already reported to the court that he had passed

a juror in the hallway, the night before, while he was in handcuffs and was

accompanied by law enforcement.                The juror was called into court for

individual voir dire. The juror reported he asked to see the trial judge because

he had seen Williams outside the courtroom. The juror was subjected to an

extensive colloquy3 regarding the incident.           The juror testified he passed

Williams the night before, and only realized it was Williams after they had

____________________________________________


3   See N.T. Trial, 4/5/2016, at 655-673.

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passed, and because of the distinctive yellow shirt Williams had been wearing

in court that day. The juror did not notice anything else about Williams. The

juror did recognize that Williams appeared to be accompanied by several

people, including a uniformed officer. Specifically, the juror testified:

      Juror[]: I really wasn’t looking. I was trying to get to the elevator.
      No, I don’t think – there may have been some of the people that
      were in the courtroom, but I wasn’t – I’m not keeping an eye on
      them.

      The Court: When you say “some of the people in the courtroom,”
      can you give me an idea? Do you mean like people who were in
      the back or anybody –

      Juror[]: People in the back, I guess. I mean, there were people.
      I assume they came from someplace, and they were in this room
      because he was coming out of this room. There was also a bailiff
      or what the right term is, a guard or whatever with him.

      The Court: Well, let me ask you this. You see how that gentleman
      over there is a sheriff?

      Juror[]: Sheriff, thank you.

      The Court: Do you recall seeing a sheriff with him?

      Juror[]: I saw someone in a uniform.

      The Court: You can’t say what the uniform was?

      Juror[]: No. It’s not too familiar.

      The Court: All right.

      Juror[]: It didn’t even initially register that it was the defendant
      until I realized that yellow shirt, and that’s when I started to turn
      around and I realized, oh, we just passed in the hall.

      The Court: And the fact you saw him with a sheriff, did that make
      you think of anything or give you any concern or anything?

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      Juror[]: No, not really.

      [ADA]: I have nothing.

      [Defense Counsel]: I have nothing.

N.T. Trial, 4/5/2016, at 662-63.

      Although Williams objected to the juror remaining on the panel,

following this inquiry, the trial court instructed the juror not to mention the

incident or details of the voir dire to any of the other jurors. The trial court

also instructed the juror to inform the court immediately if he remembered

anything else, no matter how trivial. The juror understood the instruction and

agreed. The juror made no further mention of the incident to the trial court.

      The certified record demonstrates that the juror in question merely saw

Williams in the hallway as they both left the court for the night. The juror saw

Williams in the company of a sheriff, but drew no conclusions from that. He

did not see Williams handcuffed.      He was instructed not to mention the

incident or the questioning to any of the other jurors and there is no indication

he disobeyed that instruction. Finally, he was told to inform the court if he

remembered anything else about his encounter with Williams, and he never

again contacted the trial court.

      Accordingly, the certified record shows the juror’s contact with Williams

was transient and incidental, at most. Commonwealth v. Evans, supra,

instructs us that such contact, even where the juror sees the defendant in




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handcuffs, which did NOT occur instantly, is insufficient to support the grant

of a new trial. Williams is not entitled to relief on this issue.

      In light of the foregoing, we affirm.

      Judgment of sentence affirmed.

      Judge Musmanno joins this memorandum.             Judge Kunselman files a

concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2019




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