J-A35035-15
                                  2016 PA Super 26

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
              v.                             :
                                             :
MARLIN KELLY,                                :
                                             :
                    Appellant                :           No. 367 WDA 2015

          Appeal from the Judgment of Sentence September 26, 2014
               in the Court of Common Pleas of Beaver County,
                Criminal Division, No. CP-04-CR-0000133-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                           FILED FEBRUARY 08, 2016

        Marlin Kelly (“Kelly”) appeals the judgment of sentence imposed

following his convictions of second-degree murder, second-degree murder of

an unborn child, and criminal conspiracy to commit robbery.1         We vacate

Kelly’s judgment of sentence and remand for a new trial.

        Kelly and Tyrone Fuller (“Fuller”) were involved in the sale of heroin in

Ambridge, Pennsylvania.         Kelly and Fuller believed that another Ambridge

heroin dealer, Stephen Murray (“Murray”), had stolen heroin from them.

Accordingly, on October 28, 2012, Kelly and Fuller went to Murray’s

apartment building, with a gun, intending to assault and rob him.          While

Kelly and Fuller were in the stairwell outside of the apartment, Kelly shot

Murray’s girlfriend, Conekia Finney (“Finney”), as she was exiting the

apartment. Finney was seven months pregnant with her daughter, Sekiah.

Both Finney and Sekiah died as a result of Finney’s injuries. Subsequently,

1
    See 18 Pa.C.S.A. §§ 2501(a), 2603(a), 903(a)(1).
J-A35035-15

Kelly and Fuller were arrested and charged with the murder of Finney and

her unborn child.   Fuller cooperated with the police, and led them to the

location of the murder weapon. Fuller also entered into a plea agreement

with the Commonwealth, and agreed to testify against Kelly.

      The matter was scheduled for trial on August 11, 2014. During voir

dire, Kelly’s counsel requested that certain jurors be excused for cause

based on their responses to questions bearing upon their ability to be fair

and impartial in their deliberations.   Specifically, Kelly’s counsel requested

that the trial court excuse the following jurors for cause:    Juror No. 1 (a

police officer, who had worked on prior cases with the two Commonwealth

attorneys prosecuting the case, and knew several of the police officers listed

as potential witnesses); Juror No. 14 (who had seen media coverage of the

case, and indicated that she was concerned that she might not be able to

render a verdict solely on the evidence presented due to the use of a firearm

and the death of an unborn child); and Juror No. 22 (who had read about

the case in the newspaper, and admitted that he had formed an opinion that

Kelly was at the crime scene to commit robbery and that he held a

preconceived presumption of Kelly’s guilt based on the allegations).       The

trial court refused to excuse these jurors for cause. As a result, Kelly was

required to exercise three of his peremptory challenges on these jurors.

Kelly exhausted all of his peremptory challenges prior to the empaneling of

the jury.



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      At the conclusion of the trial, the jury found Kelly guilty of the above-

mentioned crimes. The trial court sentenced Kelly to life in prison on each of

his murder convictions and to eight to twenty years in prison on the

conspiracy to commit robbery conviction, with all sentences to run

consecutively.   Kelly filed a timely post-sentence Motion, which the trial

court denied.    Kelly filed a timely Notice of Appeal and a court-ordered

Concise Statement of Errors complained of on appeal.

      On appeal, Kelly raises the following issues for our review:

      1. Whether the trial court[’s] refusal to excuse for cause
         potential jurors was a palpable abuse of discretion?

      2. Was the jury[’s] verdict of guilty against the weight of the
         evidence presented at trial?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

      In his first issue, Kelly contends that the trial court erred by refusing

to excuse for cause Juror Nos. 1, 14 and 22, who indicated an inability to be

fair and impartial.   Id. at 21.   Kelly asserts that, as a result of the trial

court’s refusal to excuse these jurors, he was required to exercise his

peremptory challenges to exclude them from the jury, and was thereby

deprived of those peremptory challenges. Id. at 21-22. Kelly argues that,

after his peremptory challenges were exhausted, he was forced to accept

other individuals as jurors.   Id. at 22.   Kelly asserts that the trial court’s

refusal to excuse for cause Juror Nos. 1, 14 and 22 deprived him of his




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fundamental right to a fair and impartial jury, entitling him to a new trial.

Id. at 23, 26, 28, 30.

        With regard to Juror No. 1, Kelly claims that, because Juror No. 1 was

still actively employed as a police officer in Beaver County, he had filed and

would continue to file cases handled by the Beaver County District Attorney’s

Office. Id. at 25. Kelly argues that Juror No. 1 had business and situational

relationships with the two Beaver County Assistant District Attorneys

prosecuting the case, and personally knew several potential law enforcement

witnesses. Id. at 26. Based on these relationships, Kelly contends that a

presumption of prejudice was evident. Id.

        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 to the United States Constitution.           See Commonwealth v.

Ingber, 531 A.2d 1101, 1102 (Pa. 1986).           The jury selection process is

crucial to the preservation of that right.          Id.    The sole purpose of

examination of jurors under voir dire is to secure a competent, fair, impartial

and unprejudiced jury. Commonwealth v. Ellison, 902 A.2d 419, 423 (Pa.

2006).    It is therefore appropriate to use such an examination to disclose

fixed    opinions    or   to   expose    other   reasons    for   disqualification.

Commonwealth v. Drew, 459 A.2d 318, 320 (Pa. 1983).

              There are two types of situations in which challenges for
        cause should be granted: (1) when the potential juror has such
        a close relationship, be it familial, financial or situational, with
        parties, counsel, victims, or witnesses, that the court will


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      presume the likelihood of prejudice; and (2) when the potential
      juror’s likelihood of prejudice is exhibited by his conduct and
      answers to questions at voir dire. In the former situation, the
      determination is practically one of law and as such is subject to
      ordinary review. In the latter situation, much depends upon the
      answers and demeanor of the potential juror as observed by the
      trial judge and therefore reversal is appropriate only in case of
      palpable error.

Commonwealth v. Colon, 209 A.2d 326, 327-28 (1972) (footnotes

omitted). Because Kelly asserts, with regard to Juror No. 1, that the trial

court should have presumed prejudice to assure fairness, our determination

is one of law and is subject to ordinary review, rather than the stricter

standard of palpable error. See id.

      The improper refusal of a challenge for cause is harmless error where

the juror is excluded by a peremptory challenge and the defendant does not

exhaust his peremptory challenges.        See Ingber, 531 A.2d at 1104.

However, when a defendant has exhausted his peremptory challenges, the

wrongful deprivation of one or more of the number of peremptory challenges

provided for by statute or rule of court constitutes reversible error. Id. at

1105. Thus, because Kelly exhausted his peremptory challenges prior to the

empaneling of the jury, we must determine whether the trial court’s refusal

to excuse Juror No. 1 for cause constitutes reversible error.

      Here, during voir dire, Juror No. 1 stated that he is a police officer,

employed part-time by the Chippewa Township and North Sewickley Police




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Departments,2 and that he knows several of the police officers listed as

potential witnesses in the case. N.T., 8/11/14, at 40-42, 47. Juror No. 1

stated that when, in his capacity as a police officer, he files criminal

complaints, they are prosecuted by the Beaver County District Attorney’s

Office, which is the same district attorney’s office that prosecuted the instant

case. Id. at 47. Juror No. 1 stated that he has worked on previous cases

with     the   two   Beaver   County   District   Attorneys   representing   the

Commonwealth in this case, and that they have handled cases that he has

filed. Id. at 40-41. During voir dire, Juror No. 1 was questioned further, as

follows:

        THE COURT: Is there any other reason – do you have any other
                 fixed opinion as to the guilt or innocence of [Kelly]
                 based upon some reason that you won’t listen to the
                 evidence and apply the law?

        JUROR NO. 1: Other than being a police officer for the past
                 twenty-six years, sir?

        THE COURT: Police officers are fair. The question is, can you be
                 fair?

        JUROR NO. 1: Uh, yes, sir.

                                     ***

        [DEFENSE COUNSEL]:       You’re still working in a part-time
                 capacity [for the] Chippewa [Police Department]? Is
                 that correct?

        JUROR NO. 1: Yes, and [for the] North Sewickley [Police
                 Department].


2
    Both of these townships are located in Beaver County, Pennsylvania.

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      [DEFENSE COUNSEL]: So if you were to file a criminal complaint,
                that criminal case would be prosecuted by [the
                Beaver County] District Attorney’s office? Is that
                correct?

      JUROR NO. 1: That’s correct.

      [DEFENSE COUNSEL]: And you have in the recent past filed
               criminal complaints that have been prosecuted by
               that office?

      JUROR NO. 1: Yes.

      [DEFENSE COUNSEL]: And if you were going forward, say, a
               week or a month to file criminal charges, again, it
               would come to the [Beaver County] District
               Attorney’s office? I don’t want to go as far as to say
               for representation, but you would be working in
               conjunction with that office in terms of the
               prosecution of your case?

      JUROR NO. 1: That’s correct.

Id. at 46-47 (some capitalization omitted).

      Following this exchange, Kelly’s counsel challenged Juror No. 1 for

cause, based on (1) his employment as an active police officer engaged in

an ongoing relationship with the Beaver County District Attorney’s Office

prosecuting the case; and (2) his indication that he knows several of the

police officers listed as potential witnesses. Id. at 49; see also id. (wherein

Kelly’s counsel argued that, if Juror No. 1 is “going to continue to work in

law enforcement in [Beaver] County, those cases [that he files] are going to

be prosecuted by the same office that is prosecuting this case” and

“notwithstanding his representation that …he thinks he can be fair[,] … it

creates a conflict of interest.”).    The trial court denied Kelly’s request to


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remove Juror No. 1 for cause. Id. at 50. Kelly thereafter exercised one of

his peremptory challenges to exclude Juror No. 1 from the jury. Id. at 51.

      A prospective juror’s status as a law enforcement officer in and of itself

is insufficient to require disqualification as a juror in a criminal case.

Commonwealth v. Jones, 383 A.2d 874, 876 (Pa. 1978) (plurality).3

Indeed, the likelihood of bias on the part of police officers, who have no

particular relationship to the case or to the police force involved, is not so

great that the court must remove the officer from the jury. Colon, 299 A.2d

at 328 (holding that “an enforcement officer is capable of professional

objectivity in considering the case of a defendant accused of a crime against




3
   Jones involved a first-degree murder case in which the defendant
requested that the prospective juror, currently employed as a police officer,
be struck for cause. After the trial court denied the request, the defendant
used a peremptory challenge to remove the officer from the final jury panel.
Six Justices took part in the decision. One Justice filed a concurring opinion,
in which another Justice joined. Another Justice concurred in the result,
without opinion. The lead opinion quoted with approval the Colon Court’s
holding that one’s status as a law enforcement officer in and of itself is
insufficient to require disqualification as a juror in a criminal case. The
plurality, nonetheless, reasoned that because the proposed juror in that case
was a member of the same police department which had officers testifying in
the case, and the credibility of the police was essential, that the trial court
erred in not disqualifying the juror for cause based on his “real relationship”
to the case. Id. at 877.

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society.”).4 Absent any “real relationship” to the case, the removal of a law

enforcement officer should depend on the sound exercise of discretion by the

trial judge. Id.; see also Jones, 383 A.2d at 877 (stating that if a police

officer does not have a “real relationship” to the case, “he must be viewed in

light of the traditional test for qualifications for jurors with the same scope of

appellate review.”).

      However, if a police officer has a “real relationship” to the case, he

must automatically be excluded from serving on a criminal jury. Jones, 383

A.2d at 876-77 (holding that sitting a juror with a “real relationship” to the

case would involve such a probability that prejudice would result that it must

be deemed inherently lacking in due process.).        A “real relationship” has

been found to exist between a proposed juror and the case where that juror

is a member of the same police force that has officers testifying in the case,

and the focus of the defense was on the alleged involuntary nature of the

confession, with respect to which the issue of credibility of testifying officers

was a critical factor.   Id. at 877; see also Commonwealth v. Fletcher,

4
  See e.g. Commonwealth v. Hale, 85 A.3d 570, 578 (Pa. Super. 2014)
(holding that the trial court did not err by denying the defendant’s motion to
strike for cause a prospective juror who was a school police officer, and
retired as a sergeant in the special investigations unit of the district
attorney’s office, where the juror did not indicate that he knew the
prosecutor, counsel, the court, or any witnesses involved, and was not a
member of the police force involved in the investigation); Commonwealth
v. Lee, 585 A.2d 1084, 1086 (Pa. Super. 1991) (holding that the trial court
did not err by denying the defendant’s motion to strike for cause a
prospective juror who was a retired police officer, where the police officer
had been retired for seventeen years, and the case did not hinge on the
credibility of police officers).

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369 A.2d 307, 309 (Pa. Super. 1976) (wherein this Court found reversible

error when the trial court failed to excuse a juror for cause in a criminal

case, involving forcible resistance during arrest and allegations of assault,

where the juror was a police officer who was a member of the same police

department as the police witnesses, knew three of those witnesses

personally, knew the prosecutor trying the matter, and had experienced

personal attacks in the performance of his duties).

        Here, Juror No. 1 indicated that he has an ongoing relationship with

the Beaver County District Attorney’s office, which prosecuted this case.

Specifically, Juror No. 1 testified that when he files criminal complaints, as

he has in the recent past and expects to do so in the near future, the cases

are prosecuted by the Beaver County District Attorney’s office.                N.T.,

8/11/14, at 47. Additionally, Juror No. 1 stated that he has worked on prior

cases    with   both   of   the   Beaver   County   Assistant   District   Attorneys

representing the Commonwealth in this case. Id. at 40. Thus, Juror No. 1

has worked closely with the Beaver County District Attorney’s Office in the

recent past, and expects to do so in the future.        Id. at 47.     Additionally,

Juror No. 1 stated that he knew several of the police officers listed as

potential law enforcement witnesses in the case. Id. at 42.

        Based on the foregoing, we conclude that Juror No. 1 had a “real

relationship” to the case. The ongoing relationship between Juror No. 1 and

the Beaver County District Attorney’s Office, as well as his relationship with



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the two Assistant District Attorneys prosecuting this case, is sufficiently close

so as to raise the presumption of prejudice. See Colon, 299 A.2d at 327

(stating that a challenge for cause should be granted when the potential

juror has such a close relationship with, inter alia, counsel that the court will

presume a likelihood of prejudice.); see also Fletcher, 369 A.2d at 308

(holding that the challenge for cause should have been granted because the

prospective juror’s situation was “entirely too close” to the case).

      Additionally, although Juror No. 1 is not a member of the same police

department as any of the law enforcement witnesses, the Commonwealth’s

case rested in part on the testimony of ten police officers, several of whom

were known to Juror No. 1.       See Colon, 299 A.2d at 327.           Even if this

circumstance alone were not sufficient to disqualify Juror No. 1 from sitting

on the jury, we conclude that, taken together with the ongoing relationship

between Juror No. 1 and the Beaver County District Attorneys prosecuting

this case, the likelihood of prejudice on the part of Juror No. 1 must be

presumed. See Fletcher, 369 A.2d at 309.

      As noted above, Kelly exhausted all of his peremptory challenges

before the entire jury was empaneled. See Trial Court Opinion, 4/21/15, at

20. On this record, therefore, we must conclude that the trial court’s failure

to sustain a challenge for cause as to Juror No. 1 constitutes reversible




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error, requiring a new trial.   See Jones, 383 A.2d at 877; Fletcher, 369

A.2d at 309.5

      Given our disposition of this issue, we need not address Kelly’s claims

regarding juror Nos. 14 and 22, or his second issue.6

      Judgment of sentence vacated.         Case remanded for a new trial.

Jurisdiction relinquished.

      Bender, P.J.E., joins the opinion.

      Shogan, J., files a dissenting opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2016




5
  Additionally, given the abundance of evidence regarding Kelly’s guilt, as
well as Juror No. 1’s relationship to the Commonwealth attorneys, we find it
difficult to understand why the Commonwealth did not acquiesce to Kelly’s
challenge for cause to Juror No. 1, thereby unnecessarily creating an
appealable issue. See N.T., 8/12/14, at 49-51.
6
  Although the erroneous deprivation of Kelly’s peremptory challenge to Juror
No. 1 is sufficient to warrant a new trial, we are also greatly troubled by the
trial court’s refusal to excuse Juror No. 14 for cause. See N.T., 8/12/14, at
215-18 (wherein Juror No. 14 stated that she had read about the case in the
newspaper and heard about it on television, and when asked whether she
could decide the case solely on the evidence, she replied “[h]opefully, yes.
I’ll try” and “I don’t know. I don’t know if I can do that [due to] [t]he death
of a baby and I hate guns.”).



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