Com. v. Alexander, T.

J-A28013-22

2023 PA Super 74

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE S. ALEXANDER :
:
Appellant : No. 2260 EDA 2021

Appeal from the PCRA Order Entered October 5, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014428-2013

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

OPINION BY PANELLA, P.J.: FILED MAY 2, 2023

Tyrone Alexander appeals from the order dismissing his first petition for

relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A.

§§ 9541-9546. Alexander argues the PCRA court erred in finding his claims of

counsel’s ineffectiveness to be meritless and in denying him a nunc pro tunc

appeal to this Court. Following our review of the record and the PCRA court’s

decision, we affirm.

Following his first trial, resulting in a hung jury, Alexander’s case was

reassigned, and a new jury was selected. At jury selection on November 15,

2016, counsel raised two Batson1 challenges on the basis that the prosecutor

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1 Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (allowing criminal defendants
to raise claims that peremptory challenges were used by the prosecution for
purposeful discrimination in selecting jurors at the defendant’s trial).
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used his peremptory strikes to eliminate young, Black jurors.2 The trial court

accepted the prosecutor’s race-neutral reasons for using his strikes and the

case proceeded to trial.

After hearing the evidence, the jury retired for deliberations. On the

second morning of deliberations, the jury reached an impasse which required

the foreperson to alert the judge that one juror, Juror Number 3, was refusing

to vote due to their faith. The judge questioned the foreperson, Juror Number

3, and a randomly selected third juror and they all attested to the fact that

the juror would not vote based on their faith. The trial court concluded that

Juror Number 3 should be dismissed and an alternate juror seated for

deliberations. Court staff was instructed to call Juror Number 13, who did not

answer the phone. Court staff was then instructed to call Juror Number 14,

who also did not answer immediately.

After two hours, Juror Number 13 had not called back. Juror Number 14

did respond and reported back to court. The reconstituted jury was then

instructed that Juror Number 3 had been removed and it was to restart

deliberations. The jury returned later that day with a verdict of not guilty of

first-degree murder and guilty of second-degree murder, robbery and related

firearms charges.

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2 In discussing the Batson issue, Appellant’s Brief uses the term “African
American” to discuss the jurors he believes were unfairly stricken. We will use
the word “Black” when describing these jurors as that is the word they chose
when identifying their race on the Juror Information Questionnaires provided
by the trial court.

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Alexander filed a post-sentence motion challenging the weight and

sufficiency of the evidence which was denied by operation of law. He appealed

to this Court, raising a weight and a sentencing issue; we vacated the sentence

for robbery and affirmed in all other respects. See Commonwealth v.

Alexander, 1190 EDA 2017 (Pa. Super. filed Feb. 11, 2019) (unpublished

memorandum).

Alexander filed the instant PCRA petition pro se on February 3, 2020.

The PCRA court ultimately entered an order dismissing the petition and this

appeal followed. When we review a PCRA court’s decision, we defer to that

court’s findings of fact and credibility determinations as supported by the

record, but we review any legal conclusions de novo. See Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015). Further, we are

limited to reviewing the findings of the PCRA court and the evidence on the

record in the light most favorable to the prevailing party. See id.

For ease of analysis, we will group Alexander’s issues on appeal into

ineffective assistance of trial counsel complaints and claims that the PCRA

court should have allowed him to file a nunc pro tunc direct appeal to raise his

underlying issues. We will address the ineffectiveness claims first.

Counsel is presumed effective and the person claiming ineffectiveness

must prove otherwise. See Commonwealth v. Koehler, 36 A.3d 121, 178

(Pa. 2012). To succeed on a claim of ineffective assistance of counsel, a

petitioner must plead and prove three things: “(1) that the underlying issue

has arguable merit; (2) counsel’s actions lacked an objective reasonable

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basis; and (3) actual prejudice resulted from counsel’s act or failure to act.”

Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super. 2015) (citation

omitted). If the petitioner fails to meet any one of these prongs, their claim

fails. See id.

Alexander’s first claim of ineffective assistance of counsel is that

“counsel was ineffective for failing to object to the trial court’s denial of

Appellant’s Batson challenge and waived the issue for direct appellate

review.” Appellant’s Brief at 20. Alexander explains that counsel raised a

Batson challenge twice on the basis that the prosecutor was using his

peremptory strikes in a discriminatory manner to strike young, Black jurors.

The jury ultimately included six Black jurors. The trial court conducted a

hearing on the challenge and accepted the prosecutor’s race-neutral

explanations for his strikes. Counsel did not object to the denial of his

challenge and did not object to the empaneling of the jury. See id. at 33.

These failures, Alexander argues, resulted in waiver for direct review and

constituted ineffectiveness. See id. at 34.

Batson established that it is unconstitutional to use peremptory strikes

in a purposefully discriminatory manner. See 476 U.S. 79, 100 (U.S. 1986).

A defendant initiating a Batson challenge must make a prima facie showing

that the prosecutor struck a juror or jurors on the basis of race. See

Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018). If the

defendant makes a prima facie showing, the burden shifts to the prosecutor

to provide a race-neutral explanation for their strikes. See id. At that point,

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the court must determine whether the defendant has proven purposeful

discrimination. See id.

Alexander argues counsel failed to preserve the Batson issue for direct

appeal because he did not specifically utter the word “objection” when the trial

court ruled against him on his Batson challenge at jury selection. However,

there is no specific requirement under Pennsylvania law that counsel utter the

word “objection” to preserve an issue for appeal. Rather, to preserve a Batson

claim, counsel must only raise the claim during voir dire and make an

adequate record of the facts underlying counsel’s claim. See Commonwealth

v. Jones, 951 A.2d 294, 299 (Pa. 2008). Here, Alexander’s counsel repeatedly

objected to the prosecutor’s use of peremptory strikes during voir dire. See

N.T., 11/15/16, at 72-73 (“I’m making a Batson challenge at this point. So

far the Commonwealth has struck four people, everyone is an African-

American[.]”); id., at 82 (“Judge, I’m going to Batson challenge here.”)

We agree with the PCRA court and the Commonwealth that there is no

arguable merit to this claim because it is factually incorrect and trial counsel

did in fact preserve the Batson issue for direct review.

Alexander next claims trial counsel was ineffective by failing to preserve

an objection to the prosecutor’s use of peremptory strikes against “young”

jurors in violation of his right to have a jury selected from a fair cross-section

of the community. See Appellant’s Brief at 39. During the Batson challenge,

the prosecutor offered “[l]ife experience, young … the Commonwealth is

looking for people that have life experiences” as his reason for striking two

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jurors peremptorily. N.T., 11/15/16, at 86-87. Defense counsel objected to

the striking of young people, arguing that it was a violation of Alexander’s

constitutional rights and due process and that he would not get a jury of his

peers. See id. at 88.

Once again, we note that this objection was sufficient to preserve

Alexander’s Batson challenge based on the age of the jurors struck.

Alexander has therefore not established arguable merit for his claim that trial

counsel was ineffective in raising his age-related Batson challenge before the

trial court.

Next, Alexander claims trial counsel was ineffective for failing to

preserve an objection to a violation of Pennsylvania Rule of Criminal Procedure

645. See Appellant’s Brief at 44. This time, Alexander essentially claims that

counsel did not clearly object to seating Juror Number 14 over Juror Number

13 after the trial court discharged Juror Number 3.

During deliberations, the jury foreperson sent the court a note that there

was an issue with Juror Number 3. After the trial court examined the

foreperson, Juror Number 3, and Juror Number 10 (as a random juror

suggested by defense counsel), it presented defense counsel a choice:

THE COURT: Your option is to go forward with what you have
or to bring in 13 or 14.

[Counsel:] No, I want to bring in 13.

THE COURT: So 13 is not answering, we’ve moved onto 14
who is also not answering. So whoever calls back first is the one
up.

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[Counsel:] Got you.

N.T., 11/22/16, at 16-17. While counsel initially requested Juror Number 13

over Juror Number 14, he was not aware of the circumstances at that time.

Once the trial court explained the circumstances, counsel did not object to the

trial court’s decision to choose the alternate juror based on who responded

first. We therefore agree with Alexander that trial counsel failed to preserve

any challenge to seating Juror Number 14.

That does not end our analysis of the arguable merit prong of

Alexander’s ineffectiveness claim. We must determine whether any such

challenge to seating Juror Number 14 had arguable merit: “[T]rial counsel can

never be found ineffective for failing to raise a meritless claim.”

Commonwealth v. Fetter, 770 A.2d 762, 770 (Pa. Super. 2001) (citation

omitted). Alexander claims trial counsel should have objected to seating Juror

Number 14 based on Pa.R.Crim.P. 645(A). That rule states that “[a]lternate

jurors, in the order in which they are called, shall replace principal jurors who

become unable or disqualified to perform their duties[.]” Alexander is

therefore requesting that we determine whether Rule 645(A) allows for

alternate jurors to be seated out of order under these circumstances.

“The proper interpretation of a rule of criminal procedure is a question

of law, for which the standard of review is de novo and the scope of review is

plenary.” Commonwealth v. Lopez, 280 A.3d 887, 894 (Pa. 2022). We

construe the rules of criminal procedure through the application of the rules

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of statutory construction. See id. at 896. We therefore seek to determine and

achieve the intent of the Supreme Court of Pennsylvania when it promulgated

the rule. See id. While the plain language of the rule is the best evidence of

the Supreme Court’s intent, we must read the language in context, not in

isolation. See id.

Here, the key word to our analysis is “shall.” The legal import of the

word “shall” is usually, but not always, consonant with “must:”

Although some contexts may leave the precise meaning of the
word “shall” in doubt, see B. Garner, Dictionary of Modern Legal
Usage 939 (2d. ed. 1995) (“Courts in virtually every English
speaking jurisdiction have held—by necessity—that shall means
may in some contexts, and vice versa”), this Court has repeatedly
recognized the unambiguous meaning of the word in most
contexts. See e.g., Oberneder, supra; see also Zane v.
Friends Hospital, 836 A.2d 25, 32 (Pa.2003) (“the verbiage that
the documents ‘shall be kept confidential’ is plainly not
discretionary but mandatory in this context”); Cranberry Park
Associates v. Cranberry Township Zoning Hearing Board,
561 Pa. 456, 751 A.2d 165, 167 (2000) (“Here, the word ‘shall’
denotes a mandatory, not permissive instruction.”); Coretsky v.
Board of Commissioners of Butler Township, 520 Pa. 513,
555 A.2d 72, 74 (1989) (“By definition, ‘shall’ is mandatory.”). Cf.
Francis v. Corleto, 418 Pa. 417, 211 A.2d 503, 509 (1965) (the
word “shall [is] usually considered to be mandatory, but it is the
intention of the legislature which governs, and this intent is to be
ascertained from a consideration of the entire act, its nature, its
object and the consequences that would result from construing it
one way or the other.”).

In re Canvass of Absentee Ballots of November 4, 2003 Gen. Election,

843 A.2d 1223, 1231–32 (Pa. 2004).

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With this in mind, we conclude that Rule 645(A) is mandatory, not

discretionary, in nature. A trial court has no discretion to choose a different

alternate juror to seat once a principal juror has been discharged. The court

must seat the next alternate juror according to juror number.

However, the fact that the court has no authority to choose the order in

which to seat alternate jurors does not mean trial courts should be precluded

from recognizing practical circumstances. Where, as here, the trial court has

retained, but not sequestered, the alternate jurors after the principal jurors

have begun deliberations, there will always be a practical issue of contacting

and recalling the alternates.3 A trial court is not required to delay deliberations

indefinitely when the next alternate juror cannot be contacted or timely

recalled. Instead, the court has reasonable leeway under the rule to address

such circumstances.

Even under such circumstances, though, the court does not have

unfettered discretion. As always, the court must exercise its discretion in a

manner that does not indicate partiality, bias, or ill-will, or in a manner that

is totally devoid of reason.

Here, the record reveals that immediately after concluding Juror Number

3 was to be discharged, but before questioning Juror Number 10, the trial

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3 Rule 645(A) “does not require that all retained alternate jurors be
sequestered.” Pa.R.Crim.P. 645(A), Comment. Instead, the trial court has
discretion to determine what restrictions to place on alternates to ensure their
availability and eligibility for substitution should the need arise. See id.

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court intended to replace her with Juror Number 13. See N.T., 11/22/16, at

11. An attempt was made to call Juror Number 13, but she did not answer the

call. See id. at 14. The court then instructed a staff member to call Juror

Number 14. See id. After questioning Juror Number 10, the court indicated

that Juror Number 14 had also not answered his phone. See id. at 16.

The court then stated that “whoever calls back first is the one” the court

would seat to replace Juror Number 3. Id. As such, it is clear the trial court

did not “choose” to seat Juror Number 14 over Juror Number 13. Rather, the

court followed the dictates of Rule 645(A) and first tried to seat Juror Number

13. When Juror Number 13 did not answer the call, the court was presented

with a choice between possibly delaying the jury’s deliberations indefinitely by

waiting for Juror Number 13 to respond or attempting to promptly return the

jury to deliberating by contacting Juror Number 14. We cannot conclude that

the trial court abused its discretion by contacting Juror Number 14 under these

circumstances. Nor can we conclude it was an abuse of discretion to leave the

ultimate decision of which juror to seat to the facially-neutral circumstance of

which one was the first to return to the courtroom under these circumstances.

As such, Alexander’s fifth issue merits no relief.

Next, Alexander claims trial counsel was ineffective for failing to request

a mistrial or a poll of the remaining jurors regarding their impartiality. See

Appellant’s Brief at 51. Alexander argues trial counsel should have requested

the trial court to question each juror regarding the discharged juror to

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determine whether any jurors were tainted and, if they were, to request a

mistrial. See id. at 51-52. The trial court questioned the discharged juror, the

foreperson and one other randomly selected juror regarding the reasons for

the juror’s discharge. See N.T. 11/22/2016 at 5-16. All three jurors made it

clear that Juror Number 3 purported to be unable to vote due to her faith. See

id. Further, the trial court’s questioning of Juror Number 3 indicated she was

unaware that the nature of serving on a jury would require her to stand in

judgment. See id. at 6-10.

Alexander contends the trial court was required to question each juror

individually to determine if the discharged juror had improperly influenced

them. However, the court was not required to individually poll every juror.

Instead, the court was required to determine that the functioning of the jury

would not be harmed by: (1) interviewing the alternate juror on the record to

ensure he had not been improperly influenced; (2) instructing the

reconstituted jury that the juror was not replaced due to her view of the

evidence; and (3) instructing the reconstituted jury to disregard all prior

deliberations and begin deliberations again. See Pa.R.Crim.P. 645(C).

Alexander does not allege, nor does the record reflect, that the trial court

failed to comply with Rule 645(C). As such, Alexander has failed to establish

arguable merit for his ineffectiveness claim. Further, since the court complied

with Rule 645(C), there were no grounds for a mistrial. Accordingly,

Alexander’s final allegation of trial counsel ineffectiveness merits no relief.

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We therefore turn to Alexander’s claims that the PCRA court erred by

denying his request for certification for a nunc pro tunc appeal. Alexander

argues that the PCRA court should have granted his request for a nunc pro

tunc appeal to raise his issues regarding the Batson challenge, the

constitutional violation of striking all young venirepersons, and the alleged

violation of Pa.R.Crim.P. 645(A). See Appellant’s Brief at 7-8. While each of

these claims is distinct, they all share a common reliance on Commonwealth

v. Little, 246 A.3d 312 (Pa. Super. 2021).

In Little, the defendant was charged with murder. As part of his

defense, Little presented the testimony of Khaliaf Alston, who admitted to

shooting and killing the victim. The Commonwealth was permitted to impeach

Alston’s testimony with the fact that he was serving two life sentences and

therefore “he had nothing to lose[.]” Little’s trial counsel sought to “refute the

Commonwealth’s false inference [by pointing] out that [Alston] did have

something to lose” since Alston could face the death penalty if he were

charged and convicted of the murder he was confessing to. Id. at 323

(emphasis in original). The trial court in Little concluded that, in the absence

of evidence that the Commonwealth intended to charge Alston with the

murder, his belief that he could be charged was irrelevant. It therefore

precluded Little’s counsel from questioning Alston about the possibility of the

death penalty. See id. at 320.

On direct appeal, a panel of this Court found that Little had waived the

issue of whether Alston could be questioned about the death penalty by failing

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to preserve it in the trial court. See id. at 320-21. Little subsequently filed a

PCRA petition claiming, in relevant part, that trial counsel had been ineffective

for failing to preserve the death penalty issue. See id. at 322. The PCRA court

denied Little relief on that claim.

On appeal from that denial, a panel of this Court reversed the PCRA

court on the issue of questioning Alston on the possibility of the death penalty.

The panel concluded that Little was entitled to a nunc pro tunc direct appeal

on the issue of whether the trial court had erred in precluding counsel from

questioning Alston on the possibility of the death penalty. See id. at 331-332.

Little is easily distinguished from the circumstances here. The Little

panel concluded that Little’s counsel had failed to preserve a claim of trial

court error that had arguable merit. In contrast, we have found that

Alexander’s claims of Batson violations were properly preserved for review

on direct appeal by trial counsel. Further, we have concluded Alexander failed

to establish arguable merit for the claim underlying his assertion counsel was

ineffective for failing to preserve the issue of seating alternate Juror Number

14. Under these circumstances, a nunc pro tunc direct appeal would offer

Alexander no relief. As Alexander has failed to convince us that the reasoning

in Little applies here, his final three arguments on appeal merit no relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/2/2023

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