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Commonwealth v. Marrero

Superior Court of Pennsylvania

August 21, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
LUIS ENRIQUE MARRERO Appellant

          Appeal from the Judgment of Sentence Entered July 25, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005376-2017

          BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS [*], P.J.E.

          OPINION

          STEVENS, P.J.E.

         Appellant, Luis Enrique Marrero, appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County after a jury found him guilty of driving under the influence of a controlled substance, [1] third offense, and driving while under the influence of alcohol and a drug or combination of drugs that impaired his ability to drive safely, third offense.[2]Sentenced to an aggregate term of twelve to forty-eight months' incarceration followed by a twelve-month probationary tail, Appellant now challenges the trial court's failure to discharge a juror alleged to have made remarks during trial indicating racial bias and prejudice. We affirm.

         The trial court discusses the pertinent factual history, as follows:

The Affidavit of Probable Cause attached to the Criminal Complaint . . . filed on May 2, 2017, alleges that Appellant was found unconscious in a Chevy Monte Carlo that was in drive and running. The front end of the vehicle was up against a fence located on a residential property. Responding officers woke Appellant after several attempts and Narcan was administered. An open container of beer and a partially smoked cigarette that appeared to have been dipped in a controlled substance were in the vehicle.
On the second morning of trial, after the Commonwealth had presented its final witness, the trial court was advised by the Court Crier that Juror #14 reported that he believed that Juror #6 had made a disparaging statement on the prior day. See N.T. 6/27/18, at 9-10. Specifically, Juror #14 reported that in the course of a conversation amongst the jurors regarding the concept of facing trial before "a jury of your peers," Juror #6 said, "oh well, none of us are [sic] his peers." N.T. at 4. Juror #14 took this comment as possibly referring to Appellant's Latino heritage. Id.
With trial counsel and the prosecutor present, the trial court questioned Juror #6 regarding this statement. She admitted having made it and stated further that she was referring to the fact that she is older than the Appellant:
THE COURT: A question has arisen. One of the jurors thought he heard you say something about- you were discussing-when I say [']you['], the jury was discussing jury by peers and so forth-and you may have said something along the lines-
JUROR #6: Right.
THE COURT: -[']well, the [Appellant] certainly is not one of our peers['] or something like that.
JUROR #6: Right.
THE COURT: Is that-
JUROR #6: Just that I'm a lot older than he is.
THE COURT: Okay.
JUROR #6: That's all I meant by that.
THE COURT: Okay. I just wanted to make sure that there was no-any kind of bias or anything-
JUROR #6: Oh, no.
THE COURT: -that would prevent you from reaching a fair and impartial ...

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