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Commonwealth v. McCamey

Superior Court of Pennsylvania

January 13, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
PATRICK SHAWN MCCAMEY, Appellant

         Appeal from the Judgment of Sentence January 28, 2016 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001529-2014

          BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER, [*] JJ.

          OPINION

          SHOGAN, J.

         Appellant, Patrick Shawn McCamey, appeals from the judgment of sentence entered on January 28, 2016, in the Mercer County Court of Common Pleas following the trial court's denial of a motion for a mistrial. We affirm the order denying Appellant's motion for a mistrial; however, after reviewing the legality of the sentence imposed, we are constrained to vacate Appellant's judgment of sentence and remand for resentencing.

         The record reflects that on the afternoon of September 28, 2014, Pennsylvania State Police Trooper Timothy Callahan responded to a report of a suspicious death. N.T., 11/12/15, at 58. The report led him to a mobile home near the intersection of Route 58 and Irishtown Road in Mercer County. Id. When Trooper Callahan arrived, there were other police officers and ambulance personnel at the scene. Id. at 59. Trooper Callahan approached Trooper James Mason and Corporal James Powell of the Pennsylvania State Police, and at this point he saw the deceased. Id. The deceased individual was identified as Michael Johns, and his death was a result of asphyxiation caused by dual components of strangulation and smothering. Id. at 37, 75, 99.

         The investigation into Mr. Johns's death led the state police to Appellant. N.T., 11/16/15, at 25. When Trooper Chris Birckbichler questioned Appellant, he informed Appellant of his Miranda[1] rights, and Appellant signed a form acknowledging that he understood them. Id. at 28. Appellant provided Trooper Birckbichler inconsistent versions of the events of the day that Mr. Johns was killed. Id. at 37. However, Appellant did inform Trooper Birckbichler that he was at Mr. Johns's home, and he wanted to buy drugs from the victim. Id. There was a struggle between the two men, and Appellant bled on the floor of the home after the victim stabbed him during the struggle. N.T., 11/12/15, at 115. Appellant obtained Comet cleanser and poured it on the blood so that his DNA could not be discovered. N.T., 11/16/15, at 37.

         The Commonwealth charged Appellant with murder, alleging that Appellant and his cohort, Ryan Bowers, killed Mr. Johns while engaged in both robbing Mr. Johns and burglarizing his home. Criminal Information, 12/8/14, at unnumbered 1. Specifically, the Commonwealth charged Appellant with second-degree murder (robbery), second-degree murder (burglary), third-degree murder, robbery, conspiracy (robbery), burglary, and conspiracy (burglary). Id. at unnumbered 1-4.

         A jury trial began on November 12, 2015. On the third day of the trial, Monday, November 16, 2015, Juror Number Three returned from the lunch break and informed the trial court's tipstaff that an unknown individual made a comment to her in the hallway. N.T., 11/16/15, at 45. Juror Number Three also mentioned this extraneous comment to the other jurors. Id. at 46. The trial judge questioned the jurors individually about the statement made to Juror Number Three and inquired whether the jurors could remain impartial. Id. at 45-68. Satisfied that the jurors were not tainted and remained capable of reaching a true verdict, the trial court denied Appellant's motion for a mistrial. Id. at 71.

         Appellant was found guilty of all charges on November 17, 2015. On January 28, 2016, the trial court sentenced Appellant as follows: life imprisonment for second-degree murder (robbery); life imprisonment for second-degree murder (burglary); ten to twenty years of imprisonment for third-degree murder; and five to twenty years of imprisonment for conspiracy (robbery). The conspiracy (burglary) merged with conspiracy (robbery), and robbery and burglary merged with the second-degree murder convictions. All sentences were ordered to run concurrently.

         On February 26, 2016, Appellant filed a timely notice of appeal to this Court. Appellant and the trial court have complied with Pa.R.A.P. 1925.

         On appeal, Appellant presents the following issue for this Court's consideration:

1. Whether the Trial Court abused its discretion in denying the Appellant's motion for a mistrial relating to misconduct that occurred to the jury panel during trial?

Appellant's Brief at 4 (verbatim).

         We review Appellant's claim of error bearing in mind the following principles:

A defendant has the right to have his or her case heard by a fair, impartial, and unbiased jury and ex parte contact between jurors and witnesses is viewed with disfavor. Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 972 (2001). There is, however, no per se rule in this Commonwealth requiring a mistrial anytime there is improper or inadvertent contact between a juror and a witness. See Commonwealth v. Mosley, 535 Pa. 549, 637 A.2d 246, 249 (1993) (declining to adopt per se rule which would require disqualification of juror anytime there is ex parte contact between that juror and witness). Whether such contact warrants a mistrial is a matter addressed primarily to the discretion of the trial court. Brown, 786 A.2d at 972 (citation omitted). A trial court need only grant a mistrial where the alleged prejudicial event may reasonably be said to have deprived the moving party of a fair and impartial trial. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 282 (2000) (citation omitted).

Commonwealth v. Tharp, 830 A.2d 519, 532-533 (Pa. 2003).[2] Additionally, the burden is on the party claiming prejudice. Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012).

         The trial court addressed this issue as follows:

Appellant contends that a juror was approached by individuals outside of the Mercer County District Attorney's Office (which shares a common hallway with access to the jury room) who requested that the juror find Appellant guilty. Further, Appellant contends that the juror in question reported this conduct to a tipstaff in the presence of the entire jury panel, which allegedly tainted the panel.
Juror No. 3 was identified by tipstaffs as reporting to them a brief encounter from three men outside the District Attorney's Office as she passed them in the hallway, and one of the men suggested she remember to find McCamey guilty. See Trial Transcript, Vol. II, Page 45. The Court had the following colloquy with Juror No. 3:
THE COURT: Your name, please?
JUROR NO. 3: [Juror No. 3].
THE COURT: [Juror No. 3], you apparently reported to a tipstaff that somebody said something to you. So ...

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