J-S88007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

KHASHION GARLAND,

                          Appellant                 No. 3276 EDA 2015


          Appeal from the Judgment of Sentence of May 15, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003734-2013


BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                            Filed January 20, 2017

     Appellant, Khashion Garland, appeals from the judgment of sentence

entered on May 15, 2015 in the Court of Common Pleas of Philadelphia

County. We affirm.

     We quote the trial court’s recitation of the relevant procedural history.

     On January 21, 2015[,] a jury convicted [Appellant] of
     third-degree murder, aggravated assault, possession of an
     instrument of crime, carrying a firearm without a license in
     violation of [] the Uniform Firearms Act, conspiracy to commit
     third-degree murder, and conspiracy to commit aggravated
     assault. [Appellant] was sentenced to a mandatory term of life
     imprisonment without the possibility of parole for his
     third-degree murder conviction with a concurrent imprisonment
     term of [26 to 52] years for the remaining convictions.[] His
     post-sentence motion was denied by operation of law on
     September 29, 2015. [Appellant] filed a notice of appeal on
     October 26, 2015 and was ordered to file a statement of [errors]
     complained of on appeal on that same date. [Appellant] filed his
     statement on November 4, 2015.



*Retired Senior Judge assigned to the Superior Court.
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Trial Court Opinion, 5/27/16, at 1.

      Appellant raises a single question for our review.

      Did not the trial court err in denying a mistrial or taking
      sufficient precautionary steps when two jurors, dismissed
      because of fear for their safety, had communicated [their] fears
      and their biases to the remaining jurors?

Appellant’s Brief at 5.

      Appellant premises his claim on the following facts.         Following the

commencement of deliberations, two members of the jury reported to the

trial court that they each recognized individuals in the gallery who caused

them to be in fear.       One juror feared for her safety because someone on

Appellant’s side made eye contact with her. In light of the fear expressed by

the first juror, a second expressed concern about a woman on Appellant’s

side who was the mother of one of the juror’s former students. The jurors

communicated their fears to the remaining ten panel members who

deliberated in this case.

      Appellant points out that ten members of the original panel deliberated

on a verdict after learning of threats or apparent grounds to fear certain

associates of Appellant.        Although the trial court removed the two

complaining jurors, Appellant complains that the trial court erred or abused

its discretion in refusing a mistrial and failing to conduct a sufficient colloquy

or issuing a cautionary instruction. Appellant argues that he is entitled to a

presumption of prejudice based upon the improper communications with the

jurors.

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      The decision to grant a mistrial is committed to the sound discretion of

the trial court. Bruckshaw v. Frankford Hosp. of Philadelphia, 58 A.3d

102, 106 (Pa. 2012). A mistrial is required only where an incident is of such

a nature that the unavoidable effect is to deprive the defendant of a fair

trial. Commonwealth v. Tejada, 834 A.2d 619, 623 (Pa. Super. 2003).

      In this case, after the trial court dismissed the two jurors and

reconstituted the panel with two alternates, the court confirmed that the

alternates were not exposed to improper influences and issued instructions

to the entire jury.    Among other things, the court directed the jurors to

perform their duties in a fair and impartial manner and to reach a verdict

based exclusively upon the evidence and the law. The court also reminded

the jury to keep its deliberations free of bias, prejudice, and improper

influence.    After issuing these instructions, the court asked each juror

whether he or she would accept and apply the court’s directions. Each panel

member answered in the affirmative. The court assessed the demeanor of

each panel member and determined that the jury would deliberate in a fair

and impartial manner.      We discern no abuse of discretion in the court’s

actions.

      Given the thorough record generated before the trial court, we reject

Appellant’s contention that he is entitled to a presumption of prejudice based

upon our Supreme Court’s decision in Bruckshaw.           In Bruckshaw, our

Supreme      Court    observed   that,    where   courtroom   bystanders   have


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unauthorized contact with jurors, appellate courts may only defer to a trial

court’s finding of no prejudice where the court exercises its discretion on the

record, in open court, and with notice to the parties. Bruckshaw, 58 A.3d

at 114.   Here, the trial court, on the record and in the presence of both

parties, thoroughly examined concerns about alleged improper contacts and

the discharged jurors’ fears. The court also confirmed that the reconstituted

panel would abide by the court’s instructions and decide the case on the

evidence, free of bias and improper influences. Accordingly, the court found

no threat to Appellant’s right to a fair and impartial trial. Since the record

contains adequate support for the trial court’s findings, the presumption of

prejudice does not apply and Appellant is not entitled to relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2017




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