Commonwealth v. Kelly

134 A.3d 59, 2016 Pa. Super. 26, 2016 Pa. Super. LEXIS 76, 2016 WL 638716
CourtSuperior Court of Pennsylvania
DecidedFebruary 8, 2016
Docket367 WDA 2015
StatusPublished
Cited by21 cases

This text of 134 A.3d 59 (Commonwealth v. Kelly) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kelly, 134 A.3d 59, 2016 Pa. Super. 26, 2016 Pa. Super. LEXIS 76, 2016 WL 638716 (Pa. Ct. App. 2016).

Opinions

OPINION BY

MUSMANNO, J.:

Marlin.Kelly (“Kelly”) appeals the judgment of sentence imposed following his convictions of second-degree murder, second-degree murder of an unborn child, and criminal conspiracy to commit robbery.1 We vacate Kelly’s judgment of sentence and remand for a new trial.

Kelly and Tyrone Fuller (“Fuller”) were involved in the sale of heroin in Ambridge, Pennsylvania. Kelly and Fuller believed that another Ambridge heroin dealer, Stephen Murray (“Murray”), had stolen heroin from them. Accordingly, on October 28, 2012, Kelly and Fuller went to Murray’s apartment building, with a gun, intending to assault and rob him. While Kelly and Fuller were in the stairwell outside of the apartment, Kelly shot Murray’s girlfriend, Conekia Finney (“Finney”), as she was exiting the apartment. Finney was seven months pregnant with her daughter, Sekiah. Both Finney and SeM-ah died as a result of Finney’s injuries. Subsequently, Kelly and Fuller were arrested and charged with the murder of Finney and her unborn child. Fuller cooperated with the police, and led them to the location of the murder weapon. Fuller also entered into a plea agreement with the Commonwealth, and agreed to testify against Kelly.

The matter was scheduled for trial on August 11, 2014. During voir dire, Kelly’s counsel requested that certain jurors be excused for cause based on their responses to questions bearing upon their ability to be fair and impartial in their deliberations. Specifically, Kelly’s counsel requested that the trial court excuse the following jurors for cause: Juror No. 1 (a police officer, who had worked on prior cases with the two Commonwealth attorneys prosecuting the case, and knew several of the police officers listed as potential witnesses); Juror No. 14 (who had seen media coverage of the case, and indicated that she was concerned that she might not be able to render a verdict solely on the evidence presented due to the use of a firearm and [61]*61the death of an unborn child); and Juror No. 22 (who had read about the case in the newspaper, and admitted that he had formed an opinion that Kelly was at the crime scene to commit robbery and that he held a preconceived presumption of Kelly’s guilt based on the allegations). The trial court refused to excuse these jurors for cause. As a result, Kelly was required to exercise three of his peremptpry challenges on these jurors. Kelly exhausted all of his peremptory challenges prior to the empaneling of the jury.

At the conclusion of the trial, the jury found Kelly guilty of the above-mentioned crimes. The trial court sentenced Kelly to life in prison on each of his murder convictions and to eight to twenty years.in prison on the conspiracy to commit robbery conviction, with all sentences to run consecutively. Kelly filed a timely post-sentence Motion, which the trial court denied. Kelly filed a timely Notice of Appeal and a court-ordered Concise Statement of Errors complained of on appeal.

On appeal, Kelly raises the following issues for our review:

1. Whether the trial eourt[’s]refusal to excuse for cause potential jurors was a palpable abuse of discretion?
2. Was the jury[’s] vercjict of guilty against the weight of'thé evidence presented at trial?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

In his first issue, Kelly contends that the trial court erred by'refusing to excuse for cause Juror Nos. 1,14 and 22, .who indicated an inability to be fair and impartial. Id. at 21. Kelly -asserts that,’ as a result of the trial court’s refusal to excuse these jurors, he was required to exercise his peremptoiy challenges to exclude them from the jury, and was thereby deprived of those peremptory challenges. Id. at 21-22. Kelly argues that, after his perempto-iy. challenges were exhausted, he was forced to accept other individuals as jurors. Id. .at 22. Kelly• asserts that the trial court’s refusal to excuse for cause Juror Nos. 1, 14 and 22 deprived him of his fundamental right to a fair and impartial jury, entitling him to a new trial. Id. at 23, 26, 28, 30.

With regard to Juror No. 1, Kelly claims that, because Juror No. 1 was still actively employed as a police officer in Beaver County, he had filed and would continue to file cases handled by the Beaver County District Attorney’s Office. Id. at 25. Kelly argues that Juror No. 1 had business and situational relationships with the two Beaver County Assistant District Attorneys prosecuting the case, and personally knew several potential law enforcement witnesses. Id. at '26. Based on these relationships, Kelly contends that a presumption of prejudice was evident. Id.

A criminal defendant’s right to an impartial jury is explicitly granted by Article 1, Section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution. See Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d 1101, 1102 (1986). The jury selection process is crucial to the preservation of that right. Id. The sole purpose of examination of jurors, under voir dire is to secure a competent, fair, impartial and unprejudiced jury. Commonwealth v. Ellison, 588 Pa. 1, 902 A.2d 419, 423 (2006). It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318, 320 (1983).

There are two types of situations in which challenges for cause should be granted: (1) when the potential juror has such a close relationship, be it familial, financial or situational, with parties, [62]*62counsel, victims, or witnesses, that the court will presume the likelihood of prejudice; and (2) when the potential juror’s likelihood of prejudice is exhibited by his conduct and answers to questions at voir dire. In the former situation, the determination is practically one of law and as such is subject to ordinary review. In the latter situation, much depends upon the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in case of palpable error.

Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326, 327-28 (1972) (footnotes omitted). Because Kelly asserts, with regard to Juror No. 1, that the trial court should have presumed prejudice to assure fairness, our determination is one of law and is subject to ordinary review, rather than the stricter standard of palpable error. See id.

The improper refusal of a challenge for cause is harmless error where the juror is excluded by a peremptory challenge and the defendant does not exhaust his peremptory challenges. See Ingber, 531 A.2d at 1104. However, when a defendant has exhausted his peremptory challenges, the wrongful deprivation of one or more of the number of peremptory challenges provided for by' statute or rule of court constitutes reversible error. Id. at 1105. Thus, because Kelly exhausted his peremptory challenges prior to the empaneling of the jury, we must determine whether the trial court’s refusal to excuse Juror No.

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Commonwealth v. Kelly
134 A.3d 59 (Superior Court of Pennsylvania, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
134 A.3d 59, 2016 Pa. Super. 26, 2016 Pa. Super. LEXIS 76, 2016 WL 638716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kelly-pasuperct-2016.