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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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.
J-S88007-16
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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