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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MCNEAR
Appellant No. 2058 EDA 2016
Appeal from the PCRA Order Entered May 31, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0000987-2011
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 30, 2017
Appellant, Robert McNear, appeals from the May 31, 2016 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court’s opinion sets forth the pertinent facts and procedural
history:
On January 24, 2011, Appellant was arrested and charged
with robbery, aggravated assault, simple assault, theft by
unlawful taking, possession of a controlled substance, and
possession of drug paraphernalia.
During the jury deliberation period of Appellant’s trial, the
jury asked this Court clarifying questions. The first question
asked, through its foreperson and in writing, sought clarification
regarding ‘… the difference between serious bodily injury and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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bodily injury.’ After answering the question in a manner each
counselor found satisfactory, this Court asked the jury to confer
amongst each other to ensure the answer was satisfactory
before continuing deliberations.
Following the aforementioned question, the jury issued a
second question, in writing, through the foreperson, resulting in
the following exchange documented in the record:
THE COURT: Mrs. Miller, I have a note. Let me
make sure I understand the question. And I have
reviewed this with counsel. The question is: what would
happen if we were able to make a unanimous decision on
one charge, but could not on the other? Is that your
question?
THE FOREPERSON: Yes.
THE COURT: Well, you have been deliberating for a
couple of hours now, and I am not really sure if that is
long enough. So I am going to send you back out and
continue deliberating, and at 4:30 I will probably send you
home and you can come back tomorrow morning at about
8:30 and you will continue deliberating throughout the day
until you reach a verdict or until I get further questions
from you in that regard, but I don’t think, you spent nearly
enough time in [sic] deliberating.
But let me—I think the lawyers probably agree, but
let me just go over a couple of things with you and maybe
this will help you. It’s obvious you are having some
difficulty resolving one of the issues in this case. On one
hand, that difficulty is, of course, an indication of your
sincerity and objectivity with which you have approached
your duties as jurors.
On the other hand, there might be some confusion in
your minds on the instructions that I gave you and the
application and the facts of this case. If you think that
further instructions would clarify something, please let me
know. Otherwise, I want to make sure that you
understand the importance of a verdict, not just to the
Commonwealth, but to the defendant in this case, and in
light of the time and expenses involved should a retrial be
required. And you need to understand that lots has been
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put into this case and it is important to both sides, equally
important to both sides.
You will realize, of course, that any verdict you
return must be unanimous. You have a duty to consult
with one another and to deliberate with a view toward
reaching an agreement if it can be done without violence
to your individual judgment. Each juror must decide the
case for himself or herself, but only after an impartial
consideration of the evidence with fellow jurors. A juror
should not hesitate to re-examine his or her own views to
change his opinion or her opinion if he or she thinks it’s
erroneous, and no juror should surrender his or her honest
convictions as to the weight and effect of the evidence
because of the opinion of his fellow jurors or for the mere
purpose of returning a verdict.
Keeping these instructions in mind, I am going to
send you back to deliberate and give further consideration
to the evidence and the charge of the court and see if you
can arrive at a verdict. If I can be of any further
assistance to you, provide any clarification of the
instructions that I gave you, please let me know.
JUROR: I have a question.
THE COURT: You can’t ask questions.
JUROR: Based on what you said. Sorry.
THE COURT: The only way I can receive questions is
through the foreperson.
THE JUROR: Excuse me.
PCRA Court Opinion, 9/15/16, at 1-3 (record citations and footnotes
omitted).
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The jury found Appellant guilty of robbery1 on April 27, 2011. On June
16, 2011, the trial court sentenced Appellant to life in prison without parole
in accord with 42 Pa.C.S.A. § 9714(a)(2). The trial court denied Appellant’s
timely post-sentence motion on August 25, 2011. On July 31, 2012, the
PCRA court entered an order reinstating Appellant’s direct appeal rights.
This Court affirmed the judgment of sentence on April 2, 2013. Appellant
filed this timely PCRA petition on September 9, 2013.2 Appointed counsel
filed an amended petition on January 28, 2016. The PCRA court conducted a
hearing on March 29, 2016. On May 31, 2016, the PCRA court entered an
order denying relief. This timely appeal followed.
Appellant raises two issues for our review:
1. Was trial counsel ineffective when he failed to object to
the trial court’s supplemental jury instruction when it
was unresponsive to the jury’s question, it failed to
inform the jury that it need not reach a consensus on
both charges, and suggested that factors unrelated to
the evidence and relevant law be considered?
2. Was trial counsel ineffective when he failed to object to
the trial court’s refusal to answer an individual juror’s
question regarding the supplemental instruction without
providing the juror an opportunity to present the
question through the foreperson?
Appellant’s Brief at 4.
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1
18 Pa.C.S.A. § 3701.
2
Appellant filed the petition within one year of the finality of his judgment
of sentence, in accord with 42 Pa.C.S.A. § 9545(b)(1).
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We must determine whether the PCRA court’s findings are supported
by the record and free of legal error. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). To prevail on a claim of ineffective assistance of
counsel, a petitioner must plead and prove by a preponderance of evidence
that his underlying claim is of arguable merit; that counsel had no
reasonable strategic basis for his or her action or inaction; and that counsel’s
error prejudiced the petitioner. Commonwealth v. Koehler, 36 A.3d 121,
132 (Pa. 2012).
First, Appellant argues his counsel was ineffective for failing to object
to the trial court’s response to the jury’s question about the consequences of
failing to reach a unanimous verdict on all charges. Appellant argues the
trial court acted prematurely in giving a charge pursuant to
Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971). Spencer governs
charges given to deadlocked juries. Appellant also argues, without citation
to any binding authority, that the trial court erred in referencing the costs
associated with a trial and potential retrial, inasmuch as that statement
could have coerced the jury into reaching a verdict. In his second argument,
Appellant claims the trial court improperly precluded a question from a juror.
After careful review, we conclude that the PCRA court’s September 15,
2016 opinion accurately addresses Appellant’s arguments. We therefore
affirm the order based on the PCRA court’s opinion. In particular, we
observe that the trial court’s supplemental instruction was in accord with
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established precedent. A trial court does not err when it gives an instruction
“to impress upon the jurors the magnitude of their undertaking.”
Commonwealth v. Montgomery, 687 A.2d 1131, 1136 (Pa. Super. 1996).
We also observe that the trial court did not prevent a juror from asking a
question. The court appropriately instructed the juror to submit a written
question through the foreperson.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2017
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Circulated 07/31/2017 04:10 PM