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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
LEON JOHNSON,                             :          No. 1355 EDA 2016
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence, December 16, 2015,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0012563-2013,
              CP-51-CR-0012702-2011, CP-51-CR-0012703-2011


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 11, 2019

        Leon Johnson appeals from the December 16, 2015 aggregate

judgment of sentence of 10 to 20 years’ imprisonment imposed after a jury

found him guilty of burglary, criminal trespass, and theft by unlawful taking

or disposition.1 After careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

              Kevin Slusarski is an independent contractor who
              lives with his wife [] in Philadelphia.         On
              September 19, 2013, his wife left their house at
              7:15am, and he left their house at 8:15 am.
              Slusarski locked the front door before he left the
              house. When he returned at 11:00 am, Slusarski
              opened his front door with a key and then went to
              the basement to obtain a few tools. He was in his
              home for 5 minutes and standing in the first floor
              dining room when he heard a large loud noise

1   18 Pa.C.S.A. §§ 3502(a), 3503(a)(1), and 3921(a), respectively.
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          coming from the second floor. Believing that the
          noise must have come from his neighbor’s house,
          Slusarski ignored the noise and went downstairs to
          the basement to get materials to paint his front
          porch. When he was in the basement, he heard loud
          footsteps on the first floor.

          Slusarski went upstairs to investigate. When he
          reached the first floor, Slusarski observed [appellant]
          walking into the kitchen. [Appellant] had two bags
          on his shoulders. [Appellant] turned around, looked
          at Slusarski and then immediately started walking as
          fast as he could toward the front door. Slusarski was
          eight to ten feet from [appellant] and was able to
          see his entire face. Slusarski noted that [appellant]
          walked with a limp. Slusarski repeatedly yelled at
          [appellant], “What are you doing here?”              In
          response, [appellant] walked out the front door.
          Slusarski called 911 and started to follow
          [appellant].   Slusarski stayed 15-20 feet behind
          [appellant] and followed him for two to three
          minutes.     About a block from Slusarski’s house,
          [appellant] dropped one of the two bags onto the
          street. [Appellant] kept walking and then went into
          the backyard of a row home. Slusarski did not follow
          [appellant] into the backyard. At trial, Slusarski
          identified [appellant] as the same person who was
          inside his house. He also used a photograph to
          identify the location at which [appellant] entered a
          backyard.

          Slusarski was on the phone with a 911 dispatcher
          during the entire time he followed [appellant]. After
          [appellant]    went      into   the    backyard,    the
          911 dispatcher told Slusarski to go back to his house
          to meet police. About one minute after he returned
          to his house, Slusarski met with a police officer. He
          told the police officer that [appellant] dropped a gym
          bag about one block from his house and that the
          gym bag was a bag that he kept in a closet on the
          third floor of his house. Slusarski left his house to
          recover the gym bag that [appellant] dropped on the
          street. Inside the bag were two laptop computers, a
          digital camera, a digital voice recorder, several


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             charging cords and a large amount of change.
             Slusarski immediately recognized all of the property
             as his property including the change, which he kept
             in a coffee can in his house.

             Slusarski returned to his house for a second time.
             He noticed that the window screen for the second
             floor bathroom was broken and laying on the
             bathroom floor. He also noticed that the third floor
             bedroom was ransacked. Slusarski then went to
             3783 Cresson Street where he identified [appellant]
             as the person who he observed inside his house. He
             also observed a police officer pull an iPod out of
             [appellant]’s front pants pocket; Slusarski identified
             the iPod as his property. Slusarski testified that he
             never gave [appellant] permission to enter his house
             or to remove any of his property.

Trial court opinion, 9/2/16 at 1-3 (citations to notes of testimony omitted).

        Appellant was subsequently arrested in connection with this incident

and charged with burglary, criminal trespass, theft by unlawful taking, and

receiving stolen property.2   On June 22, 2015, the trial court conducted a

voir dire of prospective jurors for appellant’s trial. In response to the trial

court’s inquiries, one of the prospective jurors, Ebonye Williams, indicated

that she knew the prosecutor in this case, Assistant District Attorney

Jennifer Friend-Kelly (“ADA Friend-Kelly”).    (Notes of testimony, 6/22/15

at 10.) After the trial court questioned Williams at length, appellant moved

to strike Williams for cause.   (Id. at 36-43.)    The trial court denied said

motion after confirming with ADA Friend-Kelly that she did not recognize

Williams from the jury pool until she was individually examined by the trial


2   18 Pa.C.S.A. § 3925(a).


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court. (Id. at 43-44.) Thereafter, appellant proceeded to a jury trial and

was ultimately found guilty of burglary, criminal trespass, and theft by

unlawful taking on June 24, 2015. As noted, appellant was sentenced to an

aggregate term of 10 to 20 years’ imprisonment on December 16, 2015. On

December    23,     2015,     appellant    filed     a     post-sentence    motion    for

reconsideration of his sentence, which was denied by operation of law on

April 22, 2016. See Pa.R.Crim.P. 720(B)(3)(a) (stating, “[i]f the judge fails

to decide the motion within 120 days, or to grant an extension as provided

in paragraph (B)(3)(b), the motion shall be deemed denied by operation of

law.”). This timely appeal followed on April 25, 2016.

     On April 27, 2016, the trial court directed appellant to file a concise

statement   of    errors    complained    of    on       appeal,   in   accordance   with

Pa.R.A.P. 1925(b).    On May 18 and July 13, 2016, appellant filed motions

requesting an extension of time to file his Rule 1925(b) statement upon

receipt of the notes of testimony from the June 22, 2015 voir dire. The trial

court did not rule on appellant’s motions and subsequently filed a

Rule 1925(a) opinion on September 2, 2016.                 Thereafter, on January 18,

2017, this court granted appellant’s petition to remand the case to the trial

court so that the voir dire notes of testimony could be transcribed, and

ordered him to file a Rule 1925(b) statement within 21 days of receipt.

(See per curiam order, 1/18/17.)           Appellant timely complied on June 5,

2018. The trial court filed a supplemental Rule 1925(a) opinion on August 2,



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2018, rejecting appellant’s argument that its failure to strike Williams from

the jury constituted an abuse of discretion. (See supplemental Rule 1925(a)

opinion, 8/2/18 at 4-5.)

      Appellant raises the following issue for our review:

            Did not the [trial] court abuse its discretion and
            violate appellant’s state and federal constitutional
            rights to a fair trial and due process of law when it
            failed to strike “for cause” a prospective juror whose
            answers during voir dire demonstrated that she
            would have difficulty being fair and impartial in a
            case involving the prosecuting attorney as she had
            previously worked with the prosecutor (in a
            non-legal setting) for three years?

Appellant’s brief at 3.

      Our standard of review in assessing whether a trial court erred in

declining to strike a prospective juror for cause is well settled:

            A trial court’s decision regarding whether to
            disqualify a juror for cause is within its sound
            discretion and will not be reversed in the absence of
            a palpable abuse of discretion. In determining if a
            motion to strike a prospective juror for cause was
            properly denied our Court is guided by the following
            precepts:

                   The test for determining whether a
                   prospective juror should be disqualified is
                   whether he 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. . . . It must be determined
                   whether any biases or prejudices can be
                   put aside on proper instruction of the
                   court. . . . A challenge for cause should
                   be granted when the prospective juror


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                   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 or
                   answers to questions.

Commonwealth v. Briggs, 12 A.3d 291, 332-333 (Pa. 2011) (citations

omitted), cert. denied, 565 U.S. 889 (2011).

      Instantly, our review of the record reveals that Williams’ relationship

with ADA Friend-Kelly was not of such a nature that a presumption of

prejudice was warranted, nor did her answers during voir dire indicate that

her ability to serve as a fair and impartial juror had been prejudiced. First, it

is evident Williams did not have a “close [] familial, financial, or situational”

relationship with ADA Friend-Kelly. Id. at 333; see also Commonwealth

v. Cox, 983 A.2d 666, 682 (Pa. 2009). On the contrary, Williams’ testimony

only revealed that she had previously worked with ADA Friend-Kelly before

she became an attorney, had not seen her in “years,” and was only familiar

with her through the online professional networking service, LinkedIn.

Specifically, Williams testified as follows:

            THE COURT: You indicated you know someone, who
            do you know?

            THE WITNESS: Ms. Friend-Kelly.

            THE COURT: How do you know Ms. Friend-Kelly?

            THE WITNESS:        We worked together for a couple
            years.



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           THE COURT: In what capacity?

           THE WITNESS: I was property manager. She was
           the intern at the housing authority.

           THE COURT: When was the last time you saw
           Ms. Friend-Kelly?

           THE WITNESS: Years.

           ....

           THE COURT: You also indicated that you or someone
           close to you works in law enforcement or as a police
           officer, who were you thinking of?

           THE WITNESS: My uncle is a police officer.

           THE COURT: Anyone else that you were thinking of?

           THE WITNESS: No.

           THE COURT:       When you were answering that
           question were you thinking of Ms. Friend-Kelly or
           was she so far out of your mind?

           THE WITNESS: No.

           THE COURT: Did you know she was a lawyer?

           THE WITNESS: I did, yes.

           THE COURT: Did you know where she worked?

           THE WITNESS:         Only   through   our    LinkedIn
           connection.

Notes of testimony, 6/22/15 at 36-37, 41-42.

     Moreover, at no point during the voir dire did Williams’ “conduct or

answers” indicate that she could not be impartial. See Briggs, 12 A.3d at

333; see also Cox, 983 A.2d at 682. Rather, Williams stated unequivocally


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that she was able to be fair and impartial and would not allow any

extraneous matters to influence her:

            THE COURT:        Anything about the fact that
            Ms. Friend-Kelly would be the prosecutor in this case
            that you think would impact your ability to be fair
            and impartial?

            THE WITNESS: No.

            ....

            THE COURT:       Ms. Williams, we all come from
            different backgrounds and life experiences, is there
            anything that we haven’t talked about today that you
            think would impact your ability to be fair and
            impartial?

            THE WITNESS: No.

Notes of testimony, 6/22/15 at 37, 42.

     Based on the foregoing, we discern no abuse of the trial court’s

discretion in denying appellant’s motion to strike Williams from the jury with

cause. Accordingly, we affirm appellant’s December 16, 2015 judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 2/11/19




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