J-S16007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BOYD OKEE ANDRUS                         :
                                          :
                    Appellant             :   No. 970 MDA 2018

           Appeal from the Judgment of Sentence March 29, 2018
             In the Court of Common Pleas of Bradford County
            Criminal Division at No(s): CP-08-CR-0000694-2016


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

MEMORANDUM BY OTT, J.:                                 FILED JUNE 28, 2019

      Boyd Okee Andrus appeals from the judgment of sentence imposed on

March 29, 2018, in the Court of Common Pleas of Bradford County, following

his conviction by jury on charges of Endangering the Welfare of a Child (2

counts), Simple Assault (one count), and Recklessly Endangering Another

Person (2 counts). Boyd received an aggregate sentence of six years and four

months to 19 years’ incarceration. In this timely appeal, Boyd claims he was

denied an impartial jury after a venire person made derogatory comments

about him to another potential juror and that he is entitled to a new trial

because of an inconsistent verdict. After a thorough review of the submissions

by the parties, relevant law, and the certified record, we affirm.

      We glean the underlying facts of this matter from the trial court’s

October 18, 2018, Pa.R.A.P. 1925(a) opinion.
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     [Andrus] left home that morning [August 27, 2016] in a pair of
     jeans and a white t-shirt. He had the two children with him. Child
     M, 23 months, was wearing a diaper and Child J, 7 years, was
     wearing pajama pants. There were no injuries to either child at
     the time of their departure, between 7:00 - 7:30 a.m. Child J
     testified that [Andrus] put him out of the car along the side of a
     road and drove away. Child J attempted to find someone to help
     him by knocking on a few doors to homes until the final home
     when someone answered, Rachel Winward. Child J told Winward
     that his father had put him out on the side of [the] road and he
     was worried about his little brother, who remained in the car,
     being left on the side of [the] road also.

     Later, Ms. Winward’s Father-in-law [John Williams] found the car
     parked on the side of the road with a dog inside. Lorraine Andrus,
     who had started looking for her husband and children, came
     across Williams. She identified the vehicles as her husband’s.
     Wiliams advised her Child J was at Winward’s house. They
     traveled back to Winward’s home. State Troopers arrived at the
     home and Williams took them to where the car had been located.

     While at the location of the vehicle, [Andrus] was seen walking
     from a wooded area through a field of hay, naked, carrying Child
     M, also naked, over his shoulders “like a sack of potatoes” (one
     hand grasping ankle and other hand grasping wrist). Child M
     appeared unconscious and had a bruise on his face and eye
     swollen shut. [Andrus] was walking toward troopers aggressively
     yelling “shoot” or “fire.” Troopers, who had their weapons drawn
     and demanded several times for him to put the child down.
     [Andrus] continued his aggressive approach. A trooper then fired
     a tazer which struck [Andrus] in the stomach and thigh. He then
     fell to his knees and then the ground. Child M had begun to slide
     off his back and a trooper ran to get him. [Andrus] did not fall
     onto Child M. [Andrus] was taken into custody.

     Troopers then took Child M to meet an ambulance. Upon meeting
     the ambulance, an emergency medical technician recognized Child
     M had a skull fracture and called ahead to have the air transport
     prepared to take [Child M] to Geisinger Clinic in Danville, Pa.

     Child M suffered bruising over the right side of forehead and under
     and around right eye, bruising on his back and bruising behind his
     left ear a fair amount of contusion, large areas of hemorrhage
     underneath the scalp over the left parietal area, right eye swollen

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       shut, contusion or hemorrhaging within the orbit of the right eye,
       three skull fractures (1) over the right brow (2) left parietal bone
       and (3) on left side of occipital bone, altered neurological state –
       severe concussion, having arrived at Geisinger “basically in a
       comatose state.” Child required a breathing tube upon initial
       arrival as breathing was not normal.

       Child M’s doctor opined that these types of injuries would occur in
       accidents involving great force, i.e. motor vehicle accidents, falling
       out second story windows, being beaten, child thrown against a
       wall or floor – a violent act. He further opined these injuries are
       not the typical injuries a child can cause to self by falling or
       walking into something. Child was in danger of death.

Trial Court Opinion, 10/18/ 2018 at 4-5 (citations to record omitted).1

       Andrus’ first claim is he was denied a fair trial due to improper comments

made by a venire person during the voir dire process. Initially, we note,

       [a] criminal defendant's right to an impartial jury is explicitly
       granted by Article 1, Section 9 of the Pennsylvania Constitution,
       and the Sixth Amendment of the United States Constitution. The
       jury selection process is crucial to the preservation of that right.
       Commonwealth v. Ingber, 516 Pa. 2, 6, 531 A.2d 1101, 1102
       (1986). The purpose of voir dire is to provide an opportunity to
       counsel to assess the qualifications of the prospective jurors to
       serve. It is therefore appropriate to use such an examination to
       disclose fixed opinions or to expose other reasons for
       disqualification. Commonwealth v. Drew, 500 Pa. 585, 588, 459
       A.2d 318, 320 (1983) (citing Commonwealth v. Johnson, 452
       Pa. 130, 305 A.2d 5 (1973)). See also Commonwealth v.
       Lopinson, 427 Pa. 284, 234 A.2d 552 (1967) and
       Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953).
       It is well settled that the sole purpose of examination of jurors
       under voir dire is to secure a competent, fair, impartial and
       unprejudiced jury. While considerable latitude should be permitted
       on voir dire, the inquiry should be strictly confined to disclosing
       qualifications of a juror and whether the juror has formed a fixed
       opinion or may be otherwise subject to disqualification for cause.
____________________________________________


1The trial court opinion addresses issues that were not pursued before our
Court.

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       Drew, 500 Pa. at 589, 459 A.2d at 320 (citing McGrew, 75 Pa.
       at 524, 100 A.2d at 470).
Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006).

       Further,

       It is well established that the scope of voir dire rests in the sound
       discretion of the trial court, whose decision will not be reversed
       on appeal absent palpable error.

Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013) (citation

omitted).

       Instantly, there is no question that one of the potential jurors, a prior-

coworker of Andrus, made several derogatory comments about Andrus to

another potential juror.2 These comments were overheard by another juror

who reported them to a court officer who informed the court. In an abundance

of caution, every juror from the row in which the prejudiced juror sat, as well

as all jurors from the two rows in front of and two rows behind that row were

questioned.     All jurors who heard the comments were dismissed from the

panel. The majority of jurors informed the court and counsel that they had

not heard the comments; some may have been aware that jurors were talking,

but they never heard the substance of the conversation. After the potential

jurors had been questioned, this exchange took place:

       THE COURT: I’m inclined to grant those challenges for cause just
       because of the types of comments that were made. So I’m going
____________________________________________


2  We recognize that labeling the comments as “derogatory” is a mild
classification. Among other comments, the juror stated, “If he got selected
he wouldn’t leave the court until he [Andrus] was behind bars” and Andrus
was “lower than the filth of the earth.” N.T. 1/22/2018, at 89.

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     to strike 14 and 15. I’m not going to strike 16 and 17, I think we
     have to have some faith in the - in the jurors and their answers
     and those individual jurors were probably just minding their own
     business. And number 20 I will strike.

     [DEFENSE COUNSEL] WILSON: Mr. Ondrey is correct, your Honor,
     number 22 is the other one.

     THE COURT: Yes, I was just going to say number 22.

     [ADA] ONDREY: So that is –

     MR. WILSON: Oh, and - forgive me, the - juror who was – who
     initiated the comments at first was what number 21?

     MR. ONDREY: Twenty-one, yeah.

     MR. WILSON: So 22 it the one that was seated next to him?

     MR. ONDREY: Correct.

     MR. WILSON: So that – that’s satisfactory, your Honor. That
     would be all of them.

     THE COURT: And unfortunately the - the juror that reported it…

     MR. WILSON: Correct.

N.T. Voir Dire, 1/22/2018 at 100-101 (emphasis added).

     This quote demonstrates the trial court addressed the problem raised.

The trial judge questioned the jurors who were sitting within immediate

hearing distance of the offensive comments, and promptly dismissed ALL the

jurors who had heard those offensive comments. After the potential jurors

who had heard the comments had been dismissed, defense counsel informed

the court that those actions were satisfactory. Defense counsel then took part

in post-colloquy selection of the jury panel without expressing any further



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reservations regarding the possible tainting of the jurors.       Accordingly, no

outstanding objection remained and the issue was not preserved for appellate

review.

        Andrus’ second claim is he is entitled to a new trial because of the

inconsistent verdict delivered by the jury. Despite the severe injuries suffered

by Child M, the jury acquitted Andrus of the most serious charge of aggravated

assault,3 convicting him of simple assault. Here, the trial court appropriately

noted, “There is a long line of cases from both the Supreme Court of

Pennsylvania and the United States Supreme Court which unequivocally

permit inconsistent verdicts and prohibit drawing inferences from a jury’s

verdict of acquittal.” Trial Court Opinion, 10/18/2018, at 6-7.

        Specifically,   we    quote     the    Pennsylvania   Supreme   Court,   in

Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014) (cited in the Trial Court

Opinion at 7), which states:

        Federal and Pennsylvania courts alike have long recognized that
        jury acquittals may not be interpreted as specific factual findings
        with regard to the evidence, as an acquittal does not definitively
        establish that the jury was not convinced of a defendant's guilt.
        Rather, it has been the understanding of federal courts as well as
        the courts of this Commonwealth that an acquittal may merely
        show lenity on the jury's behalf, or that “the verdict may have
        been the result of compromise, or of a mistake on the part of the
        jury.” United States v. Dunn, 284 U.S. 390, 394, 52 S.Ct. 189,
        79 L.Ed. 356 (1932); see also [Commonwealth v.] Carter, 282
        A.2d [375] at 376 [(Pa. 1971)]. Accordingly, the United States
        Supreme Court has instructed that courts may not make factual
        findings regarding jury acquittals and, thus, cannot “upset”
____________________________________________


3   18 Pa.C.S. § 2702(a)(8).

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      verdicts by “speculation or inquiry into such matters.” Dunn, 284
      U.S. at 394, 52 S.Ct. 189.

Commonwealth v. Moore, 103 A.3d at 1246.

      The jury’s acquittal on the charge of aggravated assault along with the

conviction of simple assault does not render the verdict infirm. Andrus is not

entitled to relief on this issue.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/28/2019




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