Com. v. Kornegay, D.

• Court: Superior Court of Pennsylvania
• Decided: December 20, 2024
• Docket: 1332 EDA 2023
• Status: Unpublished

Opinion

J-S28003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DION KORNEGAY : : Appellant : No. 1332 EDA 2023

Appeal from the PCRA Order Entered May 1, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0001939-2017

BEFORE: STABILE, J., MURRAY, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 20, 2024

Appellant, Dion Kornegay, seeks review of an order of the Court of

Common Pleas of Philadelphia County (PCRA court) dismissing his petition for

postconviction relief.1 In 2017, following a jury trial, Appellant was found

guilty of conspiracy to commit criminal trespass; criminal trespass; and

conspiracy to commit aggravated assault. He was sentenced to an aggregate

prison term of 10 to 20 years. He timely appealed, and the convictions were

upheld. See Commonwealth v. Kornegay, No. 1188 EDA 2018 (Pa. Super.

filed September 10, 2019) (unpublished memorandum). A petition for

postconviction relief filed in 2022 was denied without a hearing. Finding that

the PCRA court did not err in summarily dismissing Appellant’s claims, we

affirm the order on review. ____________________________________________

1 All of Appellant’s claims were asserted pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. J-S28003-24

This case began on the night of January 24, 2017, at a house party

attended by Appellant; his brother (“Beano”); his girlfriend (Lateefah Perry);

and others. On that evening, Beano struck the victim, Malika Adamson, during

an altercation. Appellant and Perry managed to break up the fight, but

Adamson sustained several injuries on her face.

Over the two few days, Adamson conveyed to Appellant that she

intended to press charges against his brother. As Beano was serving

probation at the time, Appellant adamantly sought to persuade her to settle

the dispute without involving the police.

Two days after the physical altercation, on January 26, 2017, Adamson

told Appellant during a telephone call that she was going to have his brother

“locked up.” In response, Appellant, Perry, and two others drove to

Adamson’s home, and attempted to force their way inside. Adamson managed

to secure the front door before any of the would-be intruders could enter the

residence.

Appellant and his accomplices then walked back to their vehicle, which

was parked about a block away from Adamson’s home. As they were about

to drive off, Adamson stepped outside her front door and yelled to Appellant

that the police were en route. Appellant then drew a handgun from his pocket

and opened fire several times in Adamson’s direction.

Adamson was not injured by the gunfire, but police collected Appellant’s

electronic communications with her, as well as cartridge casings from the

weapon he had used. Appellant and Perry were both charged with numerous

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criminal offenses as a result of that incident, and they were tried together as

co-defendants.

At the trial, once the jury was empaneled and deliberations had begun,

the Commonwealth sought to replace a member of the venire (juror number

6) with an alternate (juror number 13). The record reflects that juror number

6 had insisted on being replaced because she was frustrated that the trial had

not yet concluded, and she was upset at missing a presentation she was

scheduled to give at school. See N.T. Trial, 12/7/2017, at 8–19. Court staff

observed that juror number 6 was crying as she explained her predicament to

them. The trial court granted the juror’s request to be excused over the

objection of Appellant’s trial counsel. See id., at 19-21.

Before seating the alternate, juror number 13, the trial court conducted

a colloquy with her as to whether she had been exposed to any improper

influences. The alternate juror answered that she had asked another potential

juror about the trial, but she explained that it was a brief conversation, and

that no material information had been conveyed. Juror number 13 assured

the trial court that the conversation had in no way influenced her outlook on

the case, or her ability to deliberate impartially. See N.T. Trial, 12/7/2017,

at 29.

The trial court found juror number 13 to be credible, and she was sworn

in as a member of the panel. The jury was then instructed that all prior

deliberations had to be disregarded so that they could begin deliberating

anew. See N.T. Trial, 12/7/2017, at 30. Significantly, Appellant’s trial counsel

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had conferred with him about the substitution and relayed to the trial court

that he had no objection to the alternate juror being seated: “I spoke with my

client a second ago about it, he indicated that he’s ok with Juror Number 13

sitting as opposed to 6.” See N.T. Trial, 12/7/2017, at 28-29.

The jury deliberations resumed, and Appellant was found guilty of the

offenses enumerated above. He was initially sentenced to a term of 10 to 20

years as to the offense of conspiracy to commit aggravated assault; he also

received a consecutive term of two to four years for conspiracy to commit

criminal trespass, and a concurrent term of two to four years as to the offense

of criminal trespass. On direct appeal, this Court vacated the sentence in its

entirety because the two conspiracy counts should have been merged for

sentencing purposes. See v. Kornegay, No. 1188 EDA 2018, at 14-15.

Appellant’s new sentence on remand mirrored the original, except that no

further penalty was imposed as to the offense of conspiracy to commit criminal

trespass, thereby curing the earlier defect.2

In 2020, Appellant, with the aid of counsel timely filed a PCRA petition

in which he claimed that trial counsel and appellate counsel on direct appeal

were ineffective in failing to challenge the substitution of juror number 13.

The PCRA court entered a Rule 907 notice of intent to dismiss the petition

____________________________________________

2 Appellant’s initial direct appeal was discontinued before the issues he raised

were resolved on the merits, but he filed a PCRA petition seeking reinstatement of his appellate rights, nunc pro tunc, and that petition was granted.

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without a hearing, to which Appellant filed a response. The PCRA court then

dismissed the petition in 2023.

Appellant timely appealed, and both he and the PCRA court complied

with Pa.R.A.P. 1925. In his brief, Appellant now raises three issues:

I. Whether the PCRA court erred in not granting relief on the PCRA petition alleging Trial Counsel was ineffective for failing to object to the seating of juror No. 13 and the removal of juror No. 6.

II. Whether the PCRA court erred in not granting relief on the PCRA petition alleging Appellate Counsel was ineffective for failing to raise the issue of the seating of Juror No. 13 and the removal of juror No. 6.

III. Whether the PCRA court erred in not granting an evidentiary hearing.

Appellant’s Brief, at 7.

Appellant’s first claim, essentially,3 is that his trial counsel performed

ineffectively by failing to inform him that he had the option to move for a

mistrial rather than accept the substitution of juror number 6 for juror number

13. See Appellant’s Brief, at 15-16. According to Appellant, a mistrial would

have been warranted because juror number 13 had been unduly influenced

by conversations about the case with another potential juror. See id.

On review of an order dismissing a petition for postconviction relief, this

Court “is limited to examining whether the PCRA court's determination is

3 Although Appellant summarizes this claim in his statement of the questions

involved as concerning trial counsel’s failure to object, his argument is instead focused on the purported lack of explanation Appellant was given about his ability to move for a mistrial. See Appellant’s Brief, at 15-16.

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supported by the evidence of record and whether it is free of legal error.”

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019).

Consistent with that standard, this Court is bound by the PCRA court’s

credibility determinations as long as they are supported by the record. See

id. However, the PCRA court’s legal conclusions are subject to a de novo

standard of review. See id.

At the postconviction stage, counsel is presumed to have been effective.

See Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012).

Counsel cannot be found ineffective for failing to raise a claim that is meritless.

See id. Moreover, a PCRA petitioner has the burden of proving by a

preponderance of the evidence all three prongs of an ineffectiveness claim:

(1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.

Id., at 1033 (quoting Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.

Super. 2007)). A claim has arguable merit for the purposes of the PCRA

“where the factual averments, if accurate, could establish cause for relief.”

Id. (quoting Commonwealth v. Stewart, 85 A.3d 701, 707 (Pa. Super.

2013)).

In the present case, Appellant’s claim fails because it lacks underlying

merit. “The decision to discharge a juror is within the sound discretion of the

trial court and will not be disturbed absent an abuse of that discretion.”

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Commonwealth v. Rush, 162 A.3d 530, 537 (Pa. Super. 2017). Whether a

juror can remain impartial is an issue of demeanor and credibility. See id.

A trial court may replace a juror during deliberations if it is found that

the individual is “unable to perform his duties,” and substituting the juror with

an alternate does not harm the “jury function[.]” Pa.R.Crim.P. 645(C). A

presumption of prejudice to a defendant arises “where the trial court has

substituted an alternate juror after deliberations have begun.”

Commonwealth v. Saunders, 686 A.2d 25, 28 (Pa. Super. 1996). However,

this presumption may be “rebutted by evidence which establishes that

sufficient protective measures were taken to ensure the integrity of the jury

function.” Id.

The record facts in this case support the trial court’s credibility

determinations regarding the alternate juror. Juror number 6 insisted that

she would not continue deliberations because she had to give a presentation

at school. Trial counsel objected to a substitution of jurors, and that objection

was overruled. Moments later, the trial court questioned juror number 13

about whether she could sit on the jury impartially. Appellant was present in

the courtroom for that colloquy, making him privy to all of the relevant facts.

Juror number 13 was candid in admitting that she briefly spoke with

another alternate juror about the case, but she stated that no information was

exchanged in the conversation. Significantly, juror number 13 testified during

her colloquy that she had not been influenced at all by her brief conversation

with another juror, and the trial court found her credible. Nothing in the record

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undermines the credibility of juror number 13 in that regard. This is

undoubtedly why Appellant himself conveyed through trial counsel that he

accepted the substitution of the jurors.

On these facts, the trial court acted within its discretion. Juror number

13 was found credible and capable of being impartial. Juror number 6 was

found credible in her assertion that she was no longer able to perform her

duties. Since the record supports the trial court’s credibility determinations,

they are binding on this Court. Further, Appellant himself expressed that he

was confident in the ability of juror number 13 to deliberate. Thus, the PCRA

court did not err in dismissing this ineffectiveness claim because it lacks

underlying merit; the factual basis of the claim is also refuted by the record.

In his second issue, Appellant asserts that his counsel on direct appeal

performed ineffectively by not raising the above-discussed issue concerning

voir dire, based on the initial objection of trial counsel to the substitution of

the jurors.

A claim of ineffectiveness on the part of appellate counsel may be

cognizable under the PCRA as long as the claim has not been previously

waived or fully litigated. See Commonwealth v. McGill, 832 A.2d 1014,

1022-23 (Pa. 2003); Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.

2011). The elements of ineffectiveness for appellate counsel are the same as

those for trial counsel. See McGill, 832 A.2d at 1022-23. Appellate counsel

cannot be found ineffective for failing to raise a claim that was waived by trial

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counsel, as such issues will not be considered by an appellate court. See

Commonwealth v. Spotz, 18 A.3d 244, 278 (Pa. 2011).

We find that Appellant’s claim of ineffective appellate counsel has no

merit for the reasons already outlined above. It is true that trial counsel had

initially objected to juror number 6 being excused from the jury. But following

the trial court’s colloquy with juror number 13, Appellant accepted the jurors’

substitution. The result of that acceptance was a waiver of the right to

challenge the substitution on direct appeal, as the issue was not preserved for

review. Appellant’s counsel at the direct appeal stage appeal therefore could

not have been ineffective for failure to raise a waived claim that was

procedurally barred. See id. Thus, the PCRA court did not err in dismissing

this claim of appellate counsel’s ineffectiveness.

Appellant’s final issue on appeal is that the PCRA court erred in

dismissing the above two claims without an evidentiary hearing.

The right to an evidentiary hearing is not absolute; a PCRA court must

hold such a hearing when the facts alleged in the postconviction petition, if

proven, would entitle the petitioner to relief. See Commonwealth v.

Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019). A PCRA petitioner who

challenges the dismissal of his claims without a hearing must therefore show

that “he raised a genuine issue of fact, which, if resolved in his favor, would

have entitled him to relief, or that the court otherwise abused its discretion in

denying a hearing.” Id.

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In the case at hand, we find that Appellant did not establish that there

were any issues of material fact that could have possibly been resolved in his

favor. There was no dispute as to what juror number 6 and juror number 13

stated on the record regarding their ability to sit on the jury. The trial court’s

credibility determinations as to each juror are supported by the record.

Appellant has not specified any remaining issues of fact, or how a hearing

could have meaningfully enabled him to develop the factual basis of his claims.

Thus, the PCRA court did not abuse its discretion in dismissing Appellant’s

petition without a hearing, and the dismissal of his petition must stand.

Order affirmed.

Date: 12/20/2024

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