from the Judgment of Sentence January 28, 2016 In the Court
of Common Pleas of Mercer County Criminal Division at No(s):
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,
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.
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.
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 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.
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.
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.
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.
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.
appeal, Appellant presents the following issue for this
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).
review Appellant's claim of error bearing in mind the
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)
Commonwealth v. Tharp, 830 A.2d 519, 532-533 (Pa.
2003). Additionally, the burden is on the party
claiming prejudice. Commonwealth v. Sneed, 45 A.3d
1096, 1115 (Pa. 2012).
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 ...