Com. v. McNear, R. (memorandum)
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J-S32026-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT MCNEAR Appellant No. 2058 EDA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. J-S32026-17 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 -2- J-S32026-17 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). -3- J-S32026-17 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. ____________________________________________ 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). -4- J-S32026-17 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. trial court acted prematurely in giving a Appellant argues the 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. affirm the order based on the PCRA court’s opinion. We therefore In particular, we observe that the trial court’s supplemental instruction was in accord with -5- J-S32026-17 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 -6- Circulated 07/31/2017 04:10 PM
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