J-S14036-19

                                2019 PA Super 173

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
               v.                           :
                                            :
                                            :
 DANTE T. JORDAN,                           :
                                            :
                    Appellant               :   No. 545 EDA 2017

          Appeal from the Judgment of Sentence January 13, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008738-2015,
                         CP-51-CR-0008739-2015


BEFORE:    LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

OPINION BY PELLEGRINI, J.:                              FILED MAY 29, 2019

      Dante T. Jordan (Jordan) appeals from the aggregate judgment of

sentence imposed by the Court of Common Pleas of the First Judicial District

(trial court) of 37½ to 100 years’ incarceration following his convictions for

Conspiracy, Attempted Homicide and other related crimes.           He raises a

number of challenges to his convictions contending that he is entitled to both

discharge and a new trial.       While we find that Jordan is not entitled to

discharge, we hold that his right to a public trial was violated when the trial

court excluded his family members from voir dire. We, therefore, remand for

a new trial.

                                       I.

                                       A.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14036-19


       On June 11, 2015, Tia Hughes was driving her co-worker Troy Green

home after their shifts ended, which she did every day on the same route. At

approximately 5:15 p.m., while stopped at a stop sign on 5200 Akron Street,

at the intersection of Akron and Pratt Street, Hughes heard gunfire.1          She

froze, leading Green to step on the gas. Hughes heard more shots and saw

her back window shatter. She did not see the shooter but thought the bullets

came from the passenger’s side.           After driving the vehicle to a safe spot,

Hughes realized that she and Green had both been shot and went to the

hospital.   Green, who did not testify, received treatment for his wounds.

Hughes received pain medication and was discharged.

       Five witnesses saw parts of the incident: Milagros Rivera, April Negron,

Yanielle Negron, Terrence Hailey and Elizabeth Green (no relation).             All

witnesses except Rivera saw the shooting and all identified Brian King as the

gunman. However, a number of these witnesses testified to seeing Jordan

with King near the scene of the crime. Rivera, who lived on Akron Street and

knew Jordan as he lived on Akron, testified that she got home from work

around 4:20 p.m.        As she parked her car, she observed Jordan and King

together. About an hour later, she was on her porch and heard shots but did




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1Eyewitness Milagros Rivera called police immediately after the shooting.
Detective George Sullivan testified that the call came in at 5:20 p.m.


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not see the shooter. Almost immediately afterwards, she saw Jordan run past

her house holding a gun, wrapped in a shirt. She then called the police.

      Both Yanielle Negron and Hailey and saw Jordan with King about twenty

minutes before the shooting. Elizabeth Green testified that she was on the

corner smoking a cigarette when she saw “guys on the corner on the opposite

side.” After five to ten minutes, she saw King cross the street and shoot. She

saw Jordan “before the shooting sitting at the corner” of Akron and Pratt and

estimated that he was there five to ten minutes before the shooting. None of

the witnesses overheard any kind of conversation between King and Jordan.

      Officer Christopher Sharamatew, a member of the SWAT unit,

responded to Jordan’s home at 5211 Akron Street. Officer Sharamatew and

his partners issued commands for the occupants to exit the residence. Two

black males, approximately forty to fifty years old, exited. Jordan followed a

few minutes later. Detective Robert Hagy executed a search warrant on the

property the next day. In the basement, he removed the furnace door and

recovered two handguns: a .40 caliber and .22 caliber; the former weapon

had two live rounds. The furnace contained additional rounds of ammunition

for both weapons.    The Commonwealth also established that twelve fired

cartridge casings were recovered from Akron street plus a bullet fragment

from Hughes’s vehicle.    Officer Robert Stott compared the fired cartridge

casings and recovered fragments to test firings from the .40 caliber pistol




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recovered from the furnace, and opined that all specimens were fired from

that gun.2

       The Commonwealth also established that Jordan had a possible motive

for the shooting. Rivera testified that in the spring of 2015, she saw a heated

dispute between two groups.           One of the groups included Jordan and his

brother while the other included Green. Rivera was cross-examined with her

prior testimony, wherein she stated that Green “was screaming at [Jordan’s

brother] to come out of the house, that you disrespected me, you'll see what

I can do to you and your house and your crew, I'll just come back and shoot

everything up, and he was very loud about it.” N.T., 10/14/16, at 42.

                                               B.

       The Commonwealth charged Jordan at two separate dockets. 3 At case

number     2015-8738, the        Commonwealth charged      Aggravated Assault,

Attempted Homicide, Conspiracy, Carrying a Concealed Firearm, Carrying a

Firearm in Philadelphia, Possessing an Instrument of Crime, and Tampering.

The first three crimes named Green as the victim. At case number 2015-

8739, the Commonwealth charged Aggravated Assault and Attempted

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2 The additional .40 caliber ammunition recovered from the furnace was not
the same brand and make as the casings recovered from the crime scene.
N.T., 10/17/16, at 97.

3Jordan and King were scheduled for joint trial but King accepted a negotiated
guilty plea immediately prior to trial. He did not testify against Jordan.




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Homicide, with Hughes listed as the victim. After a jury trial, where the jury

was charged that he could be found guilty if he was found to have entered

into a conspiracy or was an accomplice, Jordan was convicted of all charges

and received an aggregate sentence of 37½ to 100 years’ incarceration.4

Jordan then timey filed the instant appeal.

                                               II.

       While Jordan raises a number of issues on appeal, we will first address

his challenges to the sufficiency of the evidence as success on that basis will

result in discharge instead of retrial. See Commonwealth v. Coleman, 130

A.3d 38, 41 (Pa. Super. 2015).            Jordan’s sufficiency claims relate to the

convictions for both counts of Aggravated Assault, Attempted Murder,

Conspiracy and Possession of a Concealed Firearm.5             He claims that the

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4 The Commonwealth concedes that the sentence is illegal. Additionally, we
note that the parties do not discuss the applicability of 18 Pa.C.S. § 906 (“A
person may not be convicted of more than one of the inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the same crime.”).
Because we hold that Jordan is entitled to a new trial, these sentencing issues
are moot.

5The standard of review for these claims is set forth by Commonwealth v.
Sunealitis, 153 A.3d 414, 419 (Pa. Super. 2016) as follows:

       Our standard of review is well-settled.

         In reviewing the sufficiency of the evidence, we must
         determine whether the evidence admitted at trial, and all
         reasonable inferences drawn from that evidence, when
         viewed in the light most favorable to the Commonwealth as



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Commonwealth did not establish beyond a reasonable doubt that Jordan and

King had agreed to enter into a criminal conspiracy with the shared intent to

kill Green or that he was an accomplice to the attempted homicide crimes.

Because there is no dispute that King fired the gun and Jordan was charged

as if he pulled the trigger, the question is whether the circumstantial evidence

established accomplice liability and/or conspiratorial agreements beyond a

reasonable doubt. To better discuss Jordan’s challenges, we briefly examine

those matters.

                                               A.

       Accomplice liability is statutorily defined as follows:

       Accomplice defined.--A person is an accomplice of another
       person in the commission of an offense if:

              (1) with the intent of promoting or facilitating the
              commission of the offense, he:

                     (i) solicits such other person to commit it;
                     or


____________________________________________


         verdict winner, was sufficient to enable the fact finder to
         conclude that the Commonwealth established all of the
         elements of the offense beyond a reasonable doubt. The
         Commonwealth may sustain its burden by means of wholly
         circumstantial evidence. Further, the trier of fact is free to
         believe all, part, or none of the evidence.

       Commonwealth v. Woodard, 129 A.3d 480, 489–90 (Pa. 2015)
       (citations omitted). “Whether sufficient evidence exists to support
       the verdict is a question of law; our standard of review is de novo
       and our scope of review is plenary.” Commonwealth v. Tejada,
       107 A.3d 788, 722 (Pa. Super. 2015).


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                     (ii) aids or agrees or attempts to aid such
                     other person in planning or committing it;
                     ....

18 Pa.C.S. § 306(c). To be guilty as an accomplice for first-degree murder,

the Commonwealth is required to establish a specific intent to kill.          “[A]

defendant cannot be convicted of first-degree murder under a vicarious

liability theory, such as accomplice or conspiratorial liability, unless the fact-

finder determines, upon proof beyond a reasonable doubt, that the defendant

personally harbored a specific intent to kill.” Commonwealth v. Smyrnes,

154 A.3d 741, 746 (Pa. 2017) (citations omitted). See also Commonwealth

v. Barnett, 121 A.3d 534, 544 (Pa. Super. 2015) (“A person is only

responsible as an accomplice for first-degree murder if he possesses the

requisite specific intent to kill.”). Since aggravated assault is also a specific

intent crime, the same analysis applies.6

       Accomplice liability requires only aid, not an agreement.              See

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (“The essence

of a criminal conspiracy, which is what distinguishes this crime from

accomplice liability, is the agreement made between the co-conspirators.”).

Conspiratorial liability is “a theory in which one conspirator is criminally liable


____________________________________________


6  The aggravated assault statute is disjunctive and encompasses both
attempts to inflict serious bodily injury and actual infliction of serious bodily
injury. The Commonwealth now concedes that Hughes and Green did not
suffer serious bodily injury making the attempted aggravated assault crimes
lesser-included offenses of the attempted homicides.


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for the substantive offenses committed by other members of the conspiracy

that are undertaken in furtherance of the conspiracy.” Commonwealth v.

Chambers, 188 A.3d 400, 408 (Pa. 2018).               Accomplice liability can be

established by circumstantial evidence.             In meeting its burden, the

Commonwealth may rely wholly upon circumstantial evidence.                   See

Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983).

       The Commonwealth alleges that the evidence, although circumstantial,

establishes beyond a reasonable doubt that Jordan is liable for the attempted

murder convictions under both accomplice and conspiratorial liability.         It

contends that Jordan specifically intended for Green to die as he had a motive

and Jordan aided King by supplying him with the gun and/or solicited King to

commit the crime on Jordan’s behalf.7

                                               B.

       The substantive crime of Conspiracy overlaps to a significant if not

complete degree with conspiratorial liability since an agreement is a necessary

component of both. “The criminal union being prosecuted cannot be based


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7 Jordan does not separately address the conviction for crimes against Hughes
from the convictions for crimes against Green. However, once the crime of
Conspiracy is established, he was liable for crimes committed by King under
the conspiratorial liability scheme. Furthermore, we note that the doctrine of
transferred intent, 18 Pa.C.S. § 303, may or may not apply under an
accomplice theory notwithstanding the lack of specific intent against Hughes,
because King risked her death when attempting to achieve the conspiratorial
objective of murdering Green. See e.g. Commonwealth v. Thompson, 739
A.2d 1023 (Pa. 1999) (transferred intent applies to inchoate crimes).


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J-S14036-19


upon an agreement to complete a broad, undefined objective at some

unknown point. Rather, the agreement must rest upon the mutual specific

intent to carry out a particular criminal objective.” Chambers, 188 A.3d at

410. That crime is defined as follows:

      (a) Definition of conspiracy.--A person is guilty of conspiracy
      with another person or persons to commit a crime if with the intent
      of promoting or facilitating its commission he:

            (1) agrees with such other person or persons that they
            or one or more of them will engage in conduct which
            constitutes such crime or an attempt or solicitation to
            commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an attempt
            or solicitation to commit such crime.

18 Pa.C.S. § 903. “Simplified, this requires proof of three elements: 1) an

agreement, 2) shared criminal intent, and 3) an overt act.” Commonwealth

v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018).

      In Chambers, our Supreme Court recently described the elements of a

conspiratorial agreement and the difficulties in proving them:

      At “the heart of every conspiracy” lies the “common understanding
      or agreement” between the actors.              Commonwealth v.
      Kennedy, 499 Pa. 389, 453 A.2d 927, 929 (1982) (citations
      omitted). “Implicit in any conspiracy is proof ... that an accused
      agrees to participate in the alleged criminal activity.”
      Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208, 210
      (1983). The criminal union being prosecuted cannot be based
      upon an agreement to complete a broad, undefined objective at
      some unknown point. Rather, the agreement must rest upon the
      mutual specific intent to carry out a particular criminal objective.
      “The sine qua non of a conspiracy is the shared criminal intent.”
      Weston, 749 A.2d at 463 (citing Commonwealth v. Wayne,
      553 Pa. 614, 720 A.2d 456, 464 (1998), quoting Commonwealth

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      v. Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983) ). “Without
      this common purpose, a conspiracy cannot be maintained.” Derr,
      462 A.2d at 209.

      Proving the existence of such an agreement is not always easy,
      and is rarely proven with direct evidence. Commonwealth v.
      Spotz, 552 Pa. 499, 716 A.2d 580, 592 (1998). “An explicit or
      formal agreement to commit crimes can seldom, if ever, be proved
      and it need not be, for proof of a criminal partnership is almost
      invariably extracted from the circumstances that attend its
      activities.” Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75,
      80 (1937). Indeed, “[a] conspiracy may be proven inferentially
      by showing the relation, conduct, or circumstances of the parties,
      and the overt acts of alleged co-conspirators are competent as
      proof that a criminal confederation has in fact been formed.”
      Kennedy, 453 A.2d at 930.

                                     ***

      Each case must be evaluated on its own set of facts. Despite the
      variable circumstances under which a conspiracy can form,
      particularly in assault cases, it is axiomatic and well-established
      that “persons do not commit the offense of conspiracy when they
      join into an affray spontaneously, rather than pursuant to a
      common plan, agreement, or understanding.” [Id.]

Id. at 410-11.

      As conspiracy by its nature is often difficult to prove due to an absence

of direct evidence, cases examining the sufficiency of the evidence often look

to the “conduct of the parties and the circumstances surrounding their conduct

[which] may create ‘a web of evidence’ linking the accused to the alleged

conspiracy beyond a reasonable doubt.” Commonwealth v. Lambert, 795

A.2d 1010 (Pa. Super. 2002).

      Among the circumstances which are relevant, but not sufficient by
      themselves, to prove a corrupt confederation are:         (1) an
      association between alleged conspirators; (2) knowledge of the
      commission of the crime; (3) presence at the scene of the crime;

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     and (4) in some situations, participation in the object of the
     conspiracy. The presence of such circumstances may furnish a
     web of evidence linking an accused to an alleged conspiracy
     beyond a reasonable doubt when viewed in conjunction with each
     other and in the context in which they occurred.

Id. Other circumstances which are relevant include post-crime conduct, such

as flight, because it tends to establish consciousness of guilt. When combined

with other direct or circumstantial evidence, that conduct may provide

sufficient evidence to establish a conspiracy. See Commonwealth v. Knox,

50 A.3d 749, 755-56 (Pa. Super. 2012).

                                     III.

                                     A.

     Jordan maintains that the Commonwealth failed to establish beyond a

reasonable doubt that he was either an accomplice or conspired with King to

murder Green. Prior to the shooting, all the Commonwealth established was

his presence at the scene of the crime. As to his actions after the shooting,

Jordan argues that those acts cannot be related back to support the notion he

must have conspired with King to commit the crimes. He contends that, at

most, the evidence showed that he gained possession of a gun at some point

and then hid it which only established that he may have aided and abetted

King after the shooting occurred.

     Moreover, he argues that his receipt and concealment of the firearm is

best characterized as giving aid after-the-fact which does not make one an




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accomplice.8 See Commonwealth v. Spence, 627 A.2d 1176, 1183 (Pa.

1993) (“An accessory after the fact is not an accomplice.           Since all of

Rosenblum’s actions occurred after the crime, she could not have facilitated

the commission of the crime and therefore was not an accomplice[.]”).

       We agree that Jordan’s mere presence and/or his taking and concealing

the firearm cannot, in isolation, be used to prove a conspiracy. But that is not

to say his presence and post-crime conduct are irrelevant when reviewing the

sufficiency of the evidence.        Here, the “web of evidence” establishes that

Jordan was not “merely present” as he fled the scene with the firearm used in

the shooting which he obtained from the actual gunman.9 To the contrary,




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8“Accessory after the fact” is now codified at 18 Pa.C.S. § 5105 as Hindering
Apprehension or Prosecution.

9  In support, Jordan discusses a number of cases presenting factual
circumstances that he alleges are sufficiently analogous to this case, such as
Commonwealth v. Cunningham, 447 A.2d 615 (Pa. Super. 1982) (fact that
defendant identified victim as a burglar to the murderer was insufficient to
establish that he was an accomplice in the murder); Commonwealth v.
Flowers, 387 A.2d 1268 (Pa. 1978) (defendant, who introduced undercover
agent to drug seller only after agent requested drugs, and who did not actively
participate in the actual subsequent transaction, was not an accessory before
the fact for sale of marijuana); Commonwealth v. Prado, 393 A.2d 8 (Pa.
1978) (No prima facie case for murder when all that was shown was that
defendant came from an alley after the shooting and where no witnesses to
the shooting testified); Commonwealth v. Swerdlow, 636 A.2d 1173,
1178–79 (Pa. 1994) (evidence that alleged co-conspirator used crawl space
located in front bedroom of home in which defendant resided with his mother
in order to break into and steal property from two neighboring homes was
insufficient to support conspiracy conviction.). These cases all apply the well-
settled principles regarding mere presence to their particular facts.

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that evidence establishes that Jordan and King were engaged in a conspiracy

and that Jordan was an accomplice.

      While no one could pinpoint Jordan’s whereabouts during the shooting

itself, it is obvious that Jordan did not stray far: Milagros Rivera testified that

she saw Jordan running towards his house while holding a firearm

immediately after the shots rang out. (“Q: How long was [sic] before you

saw this man running with the gun, as best as you can remember, after the

gunshots ended?” “A: Immediately.”). N.T., 10/14/14, at 19-20. Moreover,

multiple witnesses placed Jordan on the scene for some time both leading up

to the shooting and shortly before the shooting itself.

      The testimony also established that Jordan rejoined King immediately

after the shooting and assisted King in concealing the gun by hiding it in the

furnace of his home, all of which indicates that he conspired with and abetted

King in the attempted murder. This conduct here is analogous to that of a

getaway driver, and cases examining conspiracies in those situations often

emphasize post-crime conduct as illustrative of intent. See Commonwealth

v. Brown, 505 A.2d 295, 297 (Pa. Super. 1986) (“A jury could find that

appellant’s presence outside the Johnson home, where he had no cause to be,

sitting behind the wheel of a car, which he then used to transport the stolen

Johnson television set and the thief away from the scene of the crime, was

not merely fortuitous.”); Commonwealth v. Azim, 459 A.2d 1244 (Pa.

Super. 1983) (per curiam) (“Conspiracy to commit burglary has been found


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where the defendant drove codefendants to the scene of a crime and then

later picked them up.”) (citation omitted); Commonwealth v. Esposito, 344

A.2d 655, 656 (Pa. Super. 1975) (“She was the driver and custodian of the

getaway car, on whose person the police found some remnants of the day’s

booty.    While it is true that there was no direct evidence of an unlawful

agreement, such an agreement can readily be inferred from appellant’s

conduct.”).

       In this case, the evidence showed that Jordan and King were seen

together for some time both leading up to the shooting and shortly before the

shooting, and that Jordan took the gun after the shooting and hid it.10

Additionally, Jordan had previous associations with King, a motive to kill,

knowledge that Green took the same route home every day, and additional

.40 caliber ammunition was found in the gun’s hiding place, leading to an

inference that Jordan supplied the gun to King.           From this “web of

circumstances” the jury could thus reasonably determine beyond a reasonable

doubt that Jordan and King entered into a criminal agreement to kill Green,


____________________________________________


10Jordan maintains that King’s actions were a total surprise. “What surely
occurred is that King saw Green in the car and saw it as an opportunity to
shoot him.” (Jordan’s Brief at 30). The jury was entitled to accept that
explanation. Similarly, the jury was permitted to reject that version of events
and find that when Jordan failed to immediately distance himself from an
apparently random shooting, but instead met the gunman and took the gun,
that the shooting was anything but random.




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that Jordan aided King in his attempt to kill Green, and that Jordan shared

King’s specific intent with respect to every aspect of their criminal

undertaking. Jordan is, therefore, not entitled to discharge.11

                                               IV.

        We now address Jordan’s allegation that his Sixth Amendment right to

a public trial was violated when the court closed the courtroom during voir

dire.   Specifically, he argues the court erred in excluding his mother and

stepfather from the proceedings. We hold that the trial court was justified in

excluding general members of the public from voir dire due to intimidation

concerns.     However, the court erred by refusing to consider the proffered

reasonable alternative of permitting entry to Jordan’s family members. We,

therefore, reverse and remand for a new trial.12

                                               A.

        The events that precipitated the trial court’s ruling are not entirely clear.

The Commonwealth states that this claim is “arguably waived” because the


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11 We summarily dispose of Jordan’s contention that the firearm was not
completely concealed when he ran from the shooting. He concedes that Rivera
observed the firearm “partially covered” by Jordan’s shirt.                  In
Commonwealth v. Montgomery, 192 A.3d 1198 (Pa. Super. 2018), appeal
granted, 2019 WL 1123191 (Pa. 2019), we held that “any concealment, even
partial, is sufficient to satisfy the concealment element of the crime.” Id. at
1201 (emphasis in original). The concession that the firearm was partially
covered ends the inquiry under Montgomery, which is not cited by Jordan.

12Since we have granted a new trial on these grounds, we need not address
Jordan’s remaining points of error.


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certified record does not contain the transcript from the proceedings on

October 11, 2016.       Jordan states that he “objected to the closing of the

courtroom during jury selection thereby preserving the issue for appellate

review.” (Jordan’s Brief at 52).

         It is not clear what, if anything, happened on October 11, 2016. The

record includes a transcript for October 12, 2016, which is captioned

“Plea/Jury Trial Day 1.”    At the beginning of this transcript, the trial court

remarks:

         THE COURT: When the trial does start, I understand that you
         spoke to the group we had yesterday. They'll be limited in terms
         of how many people can be in this room. I haven't decided a
         number yet. Anyone that does come, must produce identification
         before they are seated, because I'm not going to have any
         difficulties. That will start tomorrow. My best hope is that we
         select our jury today, and we'll see how that goes.

N.T., 10/12/16, at 4. No reference is made to closing the courtroom for voir

dire nor to any kind of incident occurring the previous day. Jury selection

proceeded, with eight jurors picked by the end of day. (THE COURT: “Juror

eight.    Okay.   That’s the end of our panel for today.”).   Id. at 122.   The

transcript for October 13, 2016, begins with this exchange:

         MR. O'HANLON: I believe Tuesday [October 11], when I wasn’t
         here, there was an issue with witnesses. However, my client’s
         family was here yesterday and excluded from jury selection and
         they feel excluded again. I would note my objection to that.
         They didn’t cause any problems and it’s part of the trial.
         It’s supposed to be an open court.

         THE COURT: So what occurred in your absence, sir, was a group
         of approximately 30 people barreled the[ir] way into my
         courtroom in an intimidating manner. I don’t know who belonged

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      to who, but they were here with respect to Mr. King and Mr.
      Jordan.   It was so intimidating that the affect upon the
      complainants and witnesses that were present, they voiced their
      concern about their safety, even physically, being within the
      building.

      So while I understand the[ir] desire to observe, it is because of
      that reason for jury selection particularly and particularly in view
      of the other debacle that I had.

      The case before this I had similar occurrences resulting in jurors
      feeling like they were intimidated. I’m not going to have that
      here. So in an ounce of caution, based upon the behavior I saw
      among the folks present, which unfortunately you were not here
      for, it was quite concerning. So I'm not going to have it.

      MR. O'HANLON: But --

      THE COURT: Excuse me, sir. If I may, I note your objection. But
      for jury selection, particularly when I’m interviewing jurors for
      their concerns of privacy and the Court’s concern with respect to
      this matter, that’s how we’re going to handle it. So once we’re
      finished jury selection, folks can come in in limited numbers, and
      folks must provide identification before they enter. I made that
      plainly clear on the record from the beginning of this case.

      MR. O'HANLON: Your Honor, just with regard to my client’s
      mother, she's in her mid-50s and his step father is in his mid-60s.
      They were here on Tuesday. They didn’t cause any trouble.
      So based upon that, I would request they be allowed to stay
      in the room.

      THE COURT: Once jury selection is completed, they’re welcome
      to come in, but my ruling stands.

      MR. O'HANLON: Thank you, Your Honor.

N.T., 10/13/16, at 4-6 (emphases added). The parties then completed jury

selection. The trial court’s opinion explains its decision to close the courtroom

during voir dire:




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       This Court properly protected the safety of all persons within the
       courtroom due to the threatening behavior of that throng of
       persons that had stormed into the courtroom as if they were
       attending an outdoor brawl.       Concern for the intimidated
       witnesses was particularly important because most of them still
       lived in the same two block radius of the defendant and their
       family members and friends.

       This Court was particularly concerned about the potential chilling
       and privacy of the potential jurors. Potential jurors faced with
       such immediate pressure would tend to refuse to serve for fear of
       retribution. Others potentially could impute the same ill will that
       they had observed within the group that had acted so poorly to
       each of defendants who were facing trial. This could have caused
       potential jurors to ignore the presumption of innocence
       instruction.

Trial Court Opinion, 8/29/18, at 12.

       The trial court, therefore, agrees that the facts supporting its ruling were

conveyed at the time Jordan levied his objection / requested an exception for

his mother and stepfather. While it is debatable whether Jordan could have

raised his claim earlier, i.e., on day one of jury selection, the fact remains that

the court refused his request to permit entry on day two.13

                                               B.

       A defendant has a Sixth Amendment right to a trial that is open to

members of the public. See Waller v. Georgia, 467 U.S. 39, 46 (1984).


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13The waiver analysis becomes relevant if the court granted Jordan’s request
to permit entry on day two of jury selection. In such a case, we would be
required to address whether (1) counsel could have raised the claim on day
one, and (2) if the ability to observe day two of jury selection was sufficient.
Because there is no dispute that the family members were excluded for the
entirety of voir dire, we find that the issue was properly preserved.


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That right is for the benefit of the accused and ensures “that the public may

see he is fairly dealt with and not unjustly condemned, and that the presence

of interested spectators may keep his triers keenly alive to a sense of their

responsibility and to the importance of their functions....”       Id. (citations

omitted). “Confidence in our system of jurisprudence is enhanced by such

openness.” Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985).

Thus, the accused has the right to have the public attend voir dire.

      In Waller, the United States Supreme Court discussed when and to

what extents a courtroom could be closed.        In that case, the prosecution

requested that the trial court close a suppression hearing involving wiretaps

because some of the material on the recorded conversations involved

unnamed persons who were not yet indicted. The State further argued that

the evidence would be tainted if disclosed in public. The trial court agreed

and closed the courtroom. Waller was then convicted after a jury trial. The

Supreme Court reversed, holding that while an accused has the right to a

public trial, the right is not absolute. Closing a courtroom is permissible if the

following requirements are met: (1) there is “an overriding interest that is

likely to be prejudiced,” (2) the closure is “no broader than necessary to

protect that interest,” (3) the trial court considers “reasonable alternatives”

to closure, and (4) the trial court makes “findings adequate to support the

closure.” 467 U.S. at 48.




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     While Waller dealt with the closing of a courtroom for reasons other

than order in the courtroom, witness intimidation or jury intimidation, in

Berrigan, our Supreme Court addressed the standards that are to be used

when those considerations were at issue. In that case, multiple defendants

were charged with various offenses for trespassing into a General Electric

plant, destroying missile components with hammers, pouring human blood on

the premises and causing some $28,000.00 in property damage. That trial

court excluded members of the general public from the courtroom during the

voir dire proceeding for events our Supreme Court described as follows:

     The [defendants] . . . brought to the attention of the trial judge
     that a multitude of demonstrators or people had gathered on the
     steps outside the courthouse. [They] feared that this scene could
     be extremely intimidating upon prospective jurors who had to
     pass through these lines to gain entrance into the courthouse.

     Extremely disturbing incidents were occurring in front of the
     courthouse among police, demonstrators, and visitors. The police
     were having a difficult time controlling the people. On one
     occasion some fifteen (15) persons were arrested on charges of
     disorderly conduct. It was reported to the trial judge that a press
     person had been violently handled and his camera seized and
     thrown to the floor of a car.

     And the [defendants], understandably agitated from the events
     that were swirling about them, were having difficulty comporting
     themselves in the quiet, dignified, and measured manner which is
     essential to the conduct of a fair and impartial trial in our courts.
     They often allowed themselves to become disorderly and
     tumultuous.     They repeatedly disrupted the proceedings by
     walkouts, demonstrations, singing, refusal to acknowledge the
     court, physical acts of defiance, persistent disregard of court
     rulings and verbal attacks upon prospective jurors.            When
     spectators were in the courtroom, they, too, joined in the
     tumultuous and anarchistic behavior of the [defendants].


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501 A.2d at 231.

       Our Supreme Court held that “[w]here trial courts perceive a threat to

the orderly administration of justice in their courtrooms by an unmanageable

public, they may always place reasonable restrictions on access to the

courtroom, so long as the basic guarantees of fairness are preserved[․]” Id.

at 234. We have further explained that is the responsibility of the court to

maintain not only the control but also the security of the courtroom,

Commonwealth v. Pantano, 836 A.2d 948 (Pa. Super. 2003), and that the

right to a public trial “serves two purposes: (1) it prevents the accused from

being subject to a Star Chamber proceeding; and (2) assures the public that

the standards of fairness are being observed.” Commonwealth v. Constant,

925 A.2d 810, 817 (Pa. Super. 2007).

       Moreover, in Presley v. Georgia, 558 U.S. 209 (2010) (per curiam),

the United States Supreme Court commented that there are “no doubt

circumstances where a judge could conclude that threats of improper

communications with jurors or safety concerns are concrete enough to warrant

closing voir dire.” 558 U.S. at 215.14

____________________________________________


14 In Presley, the trial judge noticed a man observing the jury selection
process. The judge informed him that he could not be present and had to
leave the courtroom. Upon questioning, the judge learned that the man was
the defendant’s uncle. The judge stated there was “no need for the uncle to
be present during jury selection,” and expressed concern that there would not
be enough room for the potential jurors if the public was welcome. The judge
also feared that the uncle could “intermingle with the jurors” and potentially



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       However, even when “overriding interests” warrant closure, if the

parties or the press petition the trial court to admit certain individuals, the

trial court must consider that request and place on the record the reasons for

denying the request. That requirement enables reviewing courts to examine

whether exclusion was justified. Here, the question was whether exclusion of

Jordan’s family members was warranted in light of the overriding interest of

controlling the courtroom and protecting the safety of potential jurors and the

eyewitnesses.

                                               C.

       In examining whether the triggering event in this case was so serious

as to qualify as an overriding interest, we accept the judge’s description as

set forth in the transcript and opinion.            Additionally, we defer to the trial

court’s description of the effect that disturbance had on the potential jurors.

We, therefore, find that the event described by the trial judge qualifies as

concrete enough to warrant closing voir dire to the general public as an

overriding interest.

       However, we agree with Jordan that the trial court’s failure to consider

Jordan’s request that his mother and stepfather be admitted to jury selection

was an abuse of discretion, especially when it was alleged that they were not


____________________________________________


cause jurors to overhear inadvertent comments. Id. at 211. The man was
ejected and Presley held that he was entitled to a new trial because that was
an insufficient reason to remove the defendant’s uncle from jury selection.


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part of the disturbance that caused jury selection to be closed.          This is

especially so since Presley cited In re Oliver, 333 U.S. 257, 271-72 (1948),

where the United States Supreme Court remarked: “And without exception

all courts have held an accused is at the very least entitled to have his friends,

relatives and counsel present, no matter with what offense he may be

charged.” Therefore, an exclusion of the general public does not necessarily

warrant the same treatment as to other discrete groups such as members of

the press or family members. See Weaver v. Massachusetts, 137 S.Ct.

1899, 1909 (2017) (“[V]arious constituencies of the public—the family of the

accused, the family of the victim, members of the press, and other persons—

all have their own interests in observing the selection of jurors.). Indeed, in

Berrigan, the exclusion order was not total, as “All members of the press,

without limitation as to numbers, were freely admitted.” 501 A.2d at 231.

       That said, the trial judge could exclude Jordan’s mother and stepfather

had they participated in the disturbance, presuming that appropriate findings

supporting that conclusion were made. Here, the trial court did not challenge

Jordan’s representation that his mother and stepfather, the only people Jordan

sought to admit, were not part of the disturbance.15             The trial court

____________________________________________


15We note that the trial court’s opinion justifies the ruling by explaining, in
part, that it was permitted to exclude “[Jordan]’s intimidating family
members.” Trial Court Opinion, 8/29/18, at 11. We agree. However, we
cannot accept this passing reference as including his mother and stepfather,
and the opinion does not suggest that the mother and stepfather were part of



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unreasonably failed to consider that reasonable alternative to total closure

which cannot be upheld under Waller and Presley.

                                               D.

       All that is left is the remedy. The violation of the right to a public trial

constitutes a structural defect, a specific type of constitutional error

warranting     a   new     trial   without     any   showing   of   prejudice.   See

Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013)

(“Structural defects defy analysis by harmless-error standards because they

affect the framework within which the trial proceeds, and are not simply an

error in the trial process itself.”) (quotation marks and citation omitted).

Violation of the right to a public trial constitutes structural error. See Neder

v. United States, 527 U.S. 1, 8 (1999) (citing Waller). Structural errors

“will always invalidate the conviction.” Sullivan v. Louisiana, 508 U.S. 275,

279 (1993) (citations omitted). In this case, Jordan’s family members were

excluded from jury selection after a request was made that they be allowed


____________________________________________


the group.      Notably, the trial court did not disagree with Jordan’s
representation that those two were not part of the disturbance. Moreover,
the trial court said, “I don't know who belonged to who, but they were here
with respect to Mr. King and Mr. Jordan.” N.T., 10/13/16, at 4.

Again, we accept that the trial court was permitted to exclude the public at
large based on the large scale disruption. And we do not suggest that the trial
court was obligated to personally examine each person among the large group
before ejecting them. The court was, however, obligated to explain why
Jordan’s mother and stepfather, who are not “regular” members of the public
vis-à-vis Jordan, were properly excluded when presented with that reasonable
alternative to total closure.

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to attend and no reason was given by trial court for their exclusion. That is a

structural error warranting a new trial without any finding of prejudice. See

Presley; Weaver.

      Judgment of sentence vacated.          Case remanded for new trial.

Jurisdiction relinquished.

      Judge Lazarus joins the opinion.

      Judge Nichols files a concurring opinion in which Judge Lazarus joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




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