J-S54006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JOSHUA MICHAEL LUKACH                    :
                                          :
                   Appellant              :   No. 634 MDA 2019

       Appeal from the Judgment of Sentence Entered March 27, 2019
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0001710-2015


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 25, 2019

     Joshua Michael Lukach appeals from the judgment of sentence of life

imprisonment imposed following his conviction of second-degree murder,

burglary, criminal trespass, and access device fraud. We affirm.

     The trial court provided a thorough summary of the facts underlying this

appeal:

            [Appellant] was charged by the Pottsville Bureau of Police
     with the murder of John Brock whom a neighbor had found lying
     on a street in the City of Pottsville, Schuylkill County [,
     Pennsylvania] shortly before 4:00 a.m. on August 6, 2015. Mr.
     Brock – having suffered from multiple wounds including a severe
     laceration to his throat and stab or slicing wounds to his chest,
     stomach, abdomen, back, legs and arms – died as a result of the
     injuries. Police were dispatched at 3:50 a.m. that day and arrived
     within minutes at the scene as did emergency medical personnel.
     Police saw and followed a trail of blood which led from Mr. Brock’s
     body into his nearby home and to a second floor bedroom. Police
     found a bloody, disheveled bedroom, a broken knife and box
     cutter on the second floor and bloody smudges and/or glove
     imprints leading from the second floor to the first floor kitchen and
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     then to the basement of the home, with the bloody marks
     continuing to the outside rear of the home and to a fence. Behind
     the Brock home police found a set of wet bloody gloves. Forensic
     testing later established that the bloody gloves contained the DNA
     of both Mr. Brock and [Appellant].

           Police recovered photographic and video evidence of
     [Appellant] being depicted by a Pottsville Susquehanna Bank ATM
     camera utilizing a bank card of Mr. Brock between 5:09 a.m. and
     5:12 a.m. on August 6, 2015, a little over one hour after the
     discovery of Mr. Brock’s body.          After finalizing a $63.00
     transaction, [Appellant] was shown on the video depiction wiping
     the bank machine with his shirt in an apparent attempt to remove
     fingerprints. Thereafter, [Appellant] and Shavinskin Thomas, who
     was also charged with the murder of Mr. Brock, were depicted
     entering the A-Plus mini-market in Pottsville at 5:14 a.m., eating
     at a counter in the store and leaving the store at 5:51 a.m. Police
     not only saw a person running away from the area of Mr. Brock’s
     house in the direction of the homes of [Appellant] and Thomas
     prior to being dispatched to the scene but they encountered
     [Appellant] and Thomas walking the streets of Pottsville prior to 6
     a.m. and then about 11:15 a.m. near the scene where Mr. Brock
     had been discovered.

            Thomas, who had entered a guilty plea to, [inter alia],
     third[-]degree murder and been sentenced pursuant to a plea
     agreement with the Commonwealth, testified that prior to the
     murder he and [Appellant] had planned to rob Mr. Brock, had gone
     to and entered the Brock home to do so the early morning of
     August 6, 2015, had held Mr. Brock down on his bed demanding
     that he tell them where his money was and that he provide to
     them the PIN of his credit card. When Mr. Brock did not promptly
     tell the assailants the information they sought, Thomas stabbed
     or sliced Mr. Brock’s body repeatedly. Upon receiving the PIN
     information, [Appellant] used Mr. Brock’s cellphone (which
     belonged to his employer) to receive confirmation of the accuracy
     of the information. Telephone records presented into evidence
     indicated that calls to Wells Fargo and the Money Network had
     been made from the victim’s phone at 3:27 a.m., 3:28 a.m., and
     3:30 a.m. on August 6, 2015.

           Thomas testified that during the assault he cut Mr. Brock
     numerous times before he slit Mr. Brock’s throat at [Appellant’s]
     urging. Because Mr. Brock put up a struggle and the knife Thomas

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      was using was ineffectual in hurting Mr. Brock further, [Appellant]
      gave Thomas another knife which Thomas then used to stab Mr.
      Brock in the stomach and abdomen. After Mr. Brock stopped
      struggling and the assailants believed he was dying they took his
      credit card and cellphone, ran to and out of the basement of the
      home, jumped a fence and ran to an alleyway where Thomas said
      [Appellant] tossed the cellphone and the gloves the latter had
      been wearing. The men ran to their homes, washed and changed
      their clothes, threw away their bloody clothes, went to the bank
      to use Mr. Brock’s credit card and then went to eat at A-Plus.
      Thomas also testified that he had discarded the gloves he had
      been wearing during the criminal incident and buried a knife he
      had used. Police found the gloves which contained Mr. Brock’s
      DNA but never located the knife although the broken box cutter
      and a bent knife had been found at Mr. Brock’s home. When Mr.
      Brock’s body had been removed from the body bag in advance of
      the autopsy the broken blade of a box cutter fell from the bottom
      of the bag. [Appellant] offered no evidence at trial.2


      2 Prior to trial the court had suppressed the Commonwealth’s use
      of [Appellant’s] confession, items found in a storm drain in the
      street located by police as a result of information revealed in the
      confession, and sneakers [Appellant] had been wearing when
      being interrogated while in police custody. The Commonwealth
      appealed the court’s ruling which was subsequently affirmed by
      the Superior Court on April 11, 2017. [Commonwealth v.
      Lukach, 163 A.3d 1003 (Pa.Super. 2017)]. The Pennsylvania
      Supreme Court, which granted the Commonwealth’s petition for
      allowance of appeal, affirmed the Superior Court on October 17,
      2018. [Commonwealth v. Lukach, 195 A.3d 176 (Pa. 2018)].

Trial Court Opinion, 7/21/19, at 2-6.

      Appellant was tried by a jury and convicted of the aforementioned

offenses. He was sentenced to life imprisonment for second-degree murder.

He filed a timely notice of appeal, and both Appellant and the trial court

complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises one issue for our review:



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      1.    Whether the [t]rial [c]ourt committed reversible error when
            it permitted Juror No. 9 to remain on the jury, when the
            juror indicated that she was troubled by the Appellant not
            following the Court’s instruction that he was not to
            communicate with anyone concerning his case and ignored
            that instruction by communicating with the juror’s husband,
            who is an employee of the Schuylkill County Prison, where
            Appellant was being held during trial.

Appellant’s brief at 5.

      Appellant argues that the trial court erred when it failed to remove Juror

Number Nine. “The decision to discharge a juror is within the sound discretion

of the trial court and will not be disturbed absent an abuse of that discretion.”

Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994). Our Supreme Court

has set forth the standard for prospective juror disqualification as follows:

      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 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, 333 (Pa. 2011). We employ the

same analysis whether a question arises about a juror’s impartiality before or

during trial.   Commonwealth v. Pander, 100 A.3d 626, 632 (Pa.Super.

2014) (en banc).     Also, we note that “a finding regarding a venireman’s

impartiality ‘is based upon determinations of demeanor and credibility that are


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peculiarly within a trial [court]’s province. . . [Its] predominant function in

determining juror bias involves credibility findings whose basis cannot be

easily discerned from an appellate record.’” Commonwealth v. Smith, 540

A.2d 246, 256 (Pa. 1988) (quoting Wainwright v. Witt, 469 U.S. 412, 428-

29 (1985)).

      Jury selection was held on March 4, 2019. The following day, the trial

court was notified by court administration of an issue regarding Juror Number

Nine. N.T. Jury Trial, 3/5/19, at 4. A county prison employee contacted the

deputy court administrator to inform him that Appellant had yelled out to him

that he knew that the employee’s wife, Juror Number Nine, had been selected

for his jury. Id. at 4-5. Juror Number Nine also separately informed the trial

court of the contact Appellant had initiated with her husband. Id. at 6.

      Counsel and the trial court extensively questioned Juror Number Nine

about the interaction and any concerns that may have arisen from it, which

may have affected her ability to be an impartial juror. Id. at 7-20. Juror

Number Nine stated that the conduct raised questions as to whether Appellant

was trying to communicate with her indirectly.            Also, she expressed

uncertainty whether Appellant had disregarded a court instruction not to

contact spouses of jurors, or if the interaction was a result of a simple lack of

understanding on Appellant’s part. During a break in the questioning, defense

counsel requested that the juror be dismissed from the jury. Id. at 14.




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      The Commonwealth objected and Juror Number Nine was brought back

into the courtroom for further questioning. Juror Number Nine stated that she

could “put aside” the fact that Appellant had contacted her husband and still

be “fair and objective.” Id. at 19. She assured the court that she would not

engage in any discussion with her husband about this case or inform other

jurors about what had happened. At the conclusion of her testimony, the trial

court denied defense counsel’s request to dismiss the juror. Id. at 20.

      On appeal, Appellant argues that the trial court erred when it did not

remove Juror Number Nine, because she “expressed bias and prejudice

against the Appellant.”   Appellant’s brief at 11.   The trial court found that

“absolutely nothing about [Juror Number Nine’s] demeanor or responses

indicated that she would not serve impartially or properly fulfill her sworn duty

as a juror.” Trial Court Opinion, 6/21/19, at 6. Further, it “firmly believed

and continues to believe, based upon the words expressed, tone of voice,

facial expressions and overall demeanor exhibited during the examination of

this forthright woman, that no cause existed to find she would not follow her

oath and be fair and impartial.” Id. at 7-8. We have no basis to disturb that

finding.

      Appellant has not met his burden to show that Juror Number Nine was

biased. Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014) (finding

that it is the appellant’s burden to show that the jury was not impartial). The

trial court engaged in a detailed colloquy of Juror Number Nine, and found


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that she could be impartial.   Appellant has offered nothing more than his

unsupported opinion that this finding was incorrect.       We do not lightly

reconsider the trial court’s decision.   Since the juror stated that she could

remain fair and impartial and was questioned by trial counsel and the court,

we conclude that the trial court properly exercised its discretion in denying

Appellant’s request to remove. Accordingly, relief is denied.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2019




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