stated that she recalled that "jury selection was not completed by the end of the first day and that a certain amount of time was devoted on January 10, 1995 to complete the selection of a jury. Neither Mr. Pelullo, Mr. Eggleston nor anyone else connected with the defense team requested that I order the transcript of January 10, 1995 concerning jury selection that day, and I did not order it." Id.
B. FINDINGS OF FACT
Based on all of the material submitted to this Court, the arguments made by both parties, and the testimony presented by both parties, this Court makes the following Findings of Fact:
1. The voir dire in this matter began on January 9, 1995. 01/09/95 N.T. at 41. The questioning of the jury panel concluded on January 9, 1995, and the only matter remaining for January 10, 1995 was for counsel to exercise their peremptory challenges. 01/09/95 N.T. at 161.
2. During the voir dire, Juror 229 disclosed that her sister had been murdered in 1990. 01/09/95 N.T. at 56-57. The Juror indicated that neither this, nor anything else would affect her ability to be a fair and impartial juror. Id. at 56-57, 74-75. Follow-up questioning of Juror 229 was not requested by either party.
3. On January 10, 1995, Juror 229 was seated as an alternate juror. On January 11, 1995, Juror 229 was seated as a petit juror. 01/11/95 at 2-16.
4. On January 18, 1995, this Court disclosed in open court that it learned that Juror 229 was the sister of Donna Willard, the victim of a locally well-known murder.
01/18/95 N.T. at 2-3. This Court held a conference with the parties. Id. Neither party objected to her continuing to serve as a juror, nor did either party request that she be questioned about this matter. Id.
5. Defendant was convicted on January 27, 1995. 01/27/95 N.T.
6. Defendant filed the instant Motion on March 28, 1995. Defendant's Motion failed to inform the Court as to how or when Defendant or his attorneys became aware of the allegations pertaining to the Juror. Moreover, the Motion failed to identify the source of the information. Therefore, by Order dated April 11, 1995, this Court ordered Defendant to file further evidence in support of his allegation that the information pertaining to Juror 229 was discovered after the trial. Between March 30, 1995 and April 21, 1995, Mr. Phillips filed four affidavits. Each affidavit was vague and revealed little information to aid this Court in reaching a decision on this matter.
7. By Order dated May 12, 1995, this Court found Defendant's Motion and supporting material insufficient to establish that the information concerning the Juror was newly discovered. Therefore, this Court scheduled a hearing wherein Defendant would be given the opportunity to show the Court that this was newly discovered evidence.
8. This Court heard testimony on this Motion on June 5, 6, and 15, 1995.
1. The Meeting With "Squiggles"
9. James Grimes testified at the hearing. 06/05/95 N.T. at 219. Mr. Grimes is the proprietor of Squiggles' Deli, which is located in southwest Philadelphia. 06/05/95 N.T. at 219-220. Squiggles' Deli is located in the same neighborhood in which Juror 229 lives. Id. at 219-220, 223. Mr. Grimes testified that he went to Montco Cash and Carry several times per week to purchase groceries for his deli. Id. at 219, 241. Mr. Grimes is the individual that Ms. Mitchell knew as "Squiggles", and from whom she claims to have learned that Juror 229 was on Defendant's jury. 06/05/95 N.T. at 160; Defendant's Testimony at PP 1, 2. ("Deft's Test.).
10. Mr. Grimes testified that in mid-January, 1995, he was shopping at Montco Cash and Carry and was approached by Defendant's father, Peter Pelullo, Sr.. 06/05/95 N.T. at 219-221. Peter Pelullo, Sr. asked Mr. Grimes if the two of them could walk around the store to talk, and Mr. Grimes agreed. Id. at 221-222. During this conversation, Peter Pelullo, Sr. stated the Juror's name and asked Mr. Grimes if he knew this individual. Id. at 223. Mr. Grimes testified that he informed Peter Pelullo, Sr. that he did not know this person that he named. Id. at 222-224; Contra Deft's Test at P
14. According to Mr. Grimes, Peter Pelullo, Sr. then informed him that this person was the sister of Donna Willard. 06/05/95 N.T. at 223-224; 06/06/95 N.T. at 18-19, Contra Deft's Test at P 14. Only when the relationship with Donna Willard was disclosed did Mr. Grimes recognize that the individual about whom Peter Pelullo, Sr. was speaking was a customer of his store. 06/05/95 N.T. at 223-224, 06/06/95 N.T. at 18-19; Contra Deft's Test at P 14.
11. Mr. Grimes further testified that Peter Pelullo, Sr. revealed that the Juror was on Defendant's jury. 06/05/95 N.T. at 224-226; Contra Deft's Test at P 14, 2. Mr. Grimes testified that he never told Peter Pelullo, Sr. that the Juror "should not have been on that jury" or that the Juror was a "heavy-duty drug user". 06/05/95 N.T. at 224-226, 252; Contra Deft's Test at P 14. According to Mr. Grimes, Peter Pelullo, Sr. provided him with the information that the Juror had a brother, George, and a brother-in-law, James Cattalo. 06/05/95 N.T. at 225-227; Contra Deft's Test at P 15. In fact, Mr. Grimes testified that Peter Pelullo, Sr. asked him if he knew anything about the Juror, her brother George or James Cattalo, such as whether they did drugs. 06/05/95 N.T. at 225-227, 06/06/95 N.T. at 21; Contra Deft's Test at P 15. Mr. Grimes responded to these inquiries by informing Peter Pelullo, Sr. that what these people did was "none of my business." 06/05/95 N.T. at 227-228; Contra Deft's Test at PP 14, 15.
12. Mr. Grimes testified that his best recollection is that this conversation with Peter Pelullo, Sr. occurred two to four weeks prior to the February 4, 1995 snowstorm, not the end of February as Peter Pelullo, Sr. testified. 06/05/95 N.T. at 221-222; Contra Deft's Test at P 14. During cross-examination, Mr. Grimes maintained that the conversation definitely occurred prior to the snowstorm of February 4th. 06/05/95 N.T. at 250-251; 06/06/95 N.T. at 31-32; Contra Deft's Test at P 14.
13. During his testimony, Mr. Grimes insisted that he did not have a conversation with a check-out clerk at Montco Cash and Carry concerning a juror on Defendant's jury. 06/05/95 N.T. at 229-231, 06/06/95 N.T. at 16; Contra Deft's Test at P 2. This contradicts Ms. Mitchell's testimony as to the manner in which she learned of the Juror's service on Defendant's jury. Deft's Test. at P 2. Mr. Grimes vehemently insisted that he did not approach anyone at Montco Cash and Carry concerning the Juror. 06/06/95 N.T. at 15-17; Contra Deft's Test at P 2. In fact, Mr. Grimes testified that he feels that he should not even be involved in this matter, but that "they (the people at Montco) involved me in this." 06/06/95 N.T. at 16-17.
14. This Court credits the testimony of Mr. Grimes and finds: that the conversation with Peter Pelullo, Sr. occurred in mid-January, during Defendant's trial; that Mr. Grimes did not know the Juror until Peter Pelullo, Sr. revealed that she was the sister of Donna Willard; that Peter Pelullo, Sr. knew during his conversation with Mr. Grimes of the relationship between the Juror and James Cattalo, and that it was Peter Pelullo, Sr. who revealed the existence of this relationship to Mr. Grimes; that Peter Pelullo, Sr. quizzed Mr. Grimes about his knowledge of the Juror, the Juror's brother George and James Cattalo; that Mr. Grimes refused to provide any information to Peter Pelullo, Sr. concerning these individuals; that Mr. Grimes never had a conversation with the checkout clerks at Montco Cash and Carry concerning the Juror; and that Ms. Mitchell did not learn of the Juror's service on Defendant's jury by overhearing a conversation between Mr. Grimes and a checkout clerk at Montco Cash and Carry.
2. The Note
15. Lorraine D'Angelo also testified at the hearing. 06/15/95 N.T. at 2. Ms. D'Angelo is a friend of both Ms. Mitchell and the Juror. Id. at 3. Ms. D'Angelo testified that in the middle of January, 1995, she received a phone call from Ms. Mitchell. Id. at 3-4. Prior to this phone call, Ms. D'Angelo had not heard from Ms. Mitchell for at least two years. Id. at 4. During the course of the conversation, Ms. Mitchell stated that she had seen Juror 229 on Woodland Avenue about one week earlier, and that Ms. Mitchell had beeped and waived to the Juror, but the Juror did not appear to recognize her. Id. at 5-6. Ms. Mitchell also asked Ms. D'Angelo whether the Juror still smokes marijuana. Id. at 6.
16. Ms. D'Angelo consistently testified that this phone call came "about two, two and a half weeks" after the first of the year. Id. at 4, 16, 20 In fact, on cross-examination, Ms. D'Angelo testified that she was "absolutely certain" that this first call occurred in January 1995. Id. at 16.
17. Approximately one week to ten days after the first call, Ms. D'Angelo received another call from Ms. Mitchell, this time at her place of employment. Id. at 6-7. Ms. D'Angelo works as a waitress and bartender on the week-ends and testified that this second call occurred on a Friday night. Id. at 13. Ms. D'Angelo testified that she rarely receives personal calls at work because she is so busy, and was quite annoyed that Ms. Mitchell had called her at work. Id. at 7, 20-21. This very brief conversation consisted of Ms. Mitchell's asking Ms. D'Angelo if the Juror "still lived at the same place." Id. at 7-8, 20-21. Ms. D'Angelo responded "Yeah, the house on Upland Street", and while she did not know the address, Ms. D'Angelo described the Juror's house to Ms. Mitchell. Id.
18. This Court finds that this second phone call was made for the sole purpose of verifying where Juror 229 lived. Id. at 8. This Court also finds that this second call occurred in the month of January. Ms. D'Angelo testified that this second call occurred one week to 10 days after the first call. Id. at 6-7. On cross examination, Ms. D'Angelo testified as follows concerning the second phone call:
Q. Is it possible that it took place in February?
A. Anything's possible.