Com. v. Estep, J.

C
J-S04020-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANA                       IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellee

                    v.

JASON ALLEN ESTEP

                         Appellant                   No. 1215 MDA 2020


                Appeal from the PCRA Order August 19, 2020
                In the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0003628-2018

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                      FILED MARCH 8, 2021

      Appellant, Jason Allen Estep, who is serving a sentence of four to eight

years’ imprisonment for rape and related offenses, appeals from an order

denying his petition for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, without a hearing. Appellant argues that trial

counsel was ineffective for failing to move to strike the entire venire due to

an outburst by one of the venirepersons during jury selection. We affirm.

      The evidence adduced during trial is as follows. On April 12, 2018, the

Northern York County Regional Police Department responded to a call

regarding a rape in the marital home of Appellant and the victim, his estranged

wife, R.E. R.E. no longer lived in the marital home as she and Appellant were

going through divorce proceedings. On the day of the rape, she went to the

martial home to visit her son, J.E. Jr., and cut Appellant’s hair. While R.E.

was at the home, Appellant made sexual advances towards her; she pulled
J-S04020-21


away and indicated to Appellant that she was uncomfortable. At that point,

Appellant became angry and upset; he pulled her into the bedroom and

pushed her down on the bed. R.E. testified that she told him to let her up as

she pushed him away and told him no. She punched, kicked, and clawed at

Appellant, digging in her nails. Appellant then pulled out his penis, licked her

vagina, inserted his penis into her vagina, and ejaculated.      R.E. hurriedly

dressed and left the home; shaking, she drove to a nearby thrift shop parking

lot and contacted police.

      Officer Erika Eiker responded to the parking lot and met with R.E.

Officer Eiker testified that R.E. was visibly emotional and upset, crying as she

described what had happened.       R.E. went to York Hospital for a forensic

examination where she presented with abrasions on her right nipple that

ultimately left scabs as well as scraped areas around her navel.         Swabs

collected from R.E.’s genitalia and fingernails was sent for DNA processing.

R.E. testified that after leaving the house, she received a series of text

messages from Appellant. The messages read as follows:

      [R.E.], what are you doing? So you’re calling the cops on me?
      [R.E.], I’m sorry. I don’t know how to take your rejection. Just
      why I want to get therapy. I want to be a better person towards
      you and [J.E.]. I want to be able to learn how to accept your
      negativity towards me and try to make it positive. Could you
      please give me some suggestions to ask to help you so I’m able
      to handle you better without no repercussions on you. Please help
      me. I’m tired of hurting you.

N.T., 3/13/06, at 106-07.




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       Detective William Haller testified that he responded to the scene and

spoke with Appellant. Appellant indicated to the detective that R.E. had told

him no during the intercourse. Based on R.E.’s statement, the police obtained

a search warrant. Detective Haller testified that he went through the warrant

with Appellant, line by line. Appellant told the detective that R.E.’s statement

concerning the events were accurate. He agreed with her statements that she

tried to resist but that he pulled her into the bedroom and continued with

intercourse despite her protestations and requests that he stop. While at the

scene, Detective Haller took photographs of Appellant.        The photographs

showed claw marks on the upper portion of his body. When asked about the

marks, Appellant indicated to Detective Haller that he received the marks

while R.E. resisted his assault. Detective Haller collected a buccal swab from

Appellant for submission for DNA analysis. The Commonwealth and Appellant

stipulated at trial that the DNA profile obtained from the analysis of R.E.’s

fingernail and vaginal swabs matched Appellant.

       On March 13, 2019, the case proceeded to jury selection. During voir

dire, Juror 3421 told the court that another juror, Juror 389, had stated on the

elevator that she had been raped and did not wish to serve on the jury for this

case. N.T. Trial, 3/13/19, at 17. Juror 342 indicated it would have no effect



____________________________________________


1At this point in the proceedings, this individual and the others interviewed by
the trial court were technically venirepersons instead of jurors. For the sake
of convenience, we will refer to them as jurors.

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on her deliberations, but the court dismissed her because prior DUI convictions

made her ineligible to serve as a juror.

Id. at 17-18.

      The court had a sidebar discussion with counsel and the juror in

question, Juror 389. She indicated that she had been raped and found this

type of case to be very upsetting.

Id. at 18-19.

She stated that she had only

expressed her feelings to the tipstaff, though there were other jurors around

at the time.

Id. at 22.

She told the court that she could not be fair and

impartial, and the court excused her from the jury.

Id. at 21.

      The trial court held individual conversations with the eight other jurors

who had been in the elevator with Juror 389. Juror 145 stated that he heard

Juror 389 express concern regarding the nature of the case, but this would

not affect his ability to be fair and impartial.

Id. at 23-24.

Juror 222 stated

that Juror 389 became visibly upset when the tipstaff indicated this was a rape

case, but he stated it would not affect his ability to be fair and impartial. He

also indicated that he could follow the judge’s instructions.

Id. at 24-25.

Juror 329 indicated he was present when Juror 389 got upset.

Id. at 26.

He

first indicated that it might affect him, but he then stated he was sure he could

follow the judge’s instructions.

Id. at 27.

   Juror 189 indicated he “went

through the same thing” as Juror 389 and would “probably be biased.”

Id. The court struck

this juror for cause. Juror 420 said that Juror 389’s statement

would not prevent him from being fair and impartial.

Id. at 30.

Juror 132

stated that Juror 389’s remarks would not interfere with his ability to be fair


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and impartial.

Id. at 31.

Juror 191 stated that Juror 389’s comments would

not inhibit his ability to be fair and impartial.

Id. at 31-32.

Juror 84 stated

that Juror 389’s outburst would not interfere with his ability to remain fair and

impartial.

Id. at 32.

      Of the nine jurors who heard Juror 389’s statements to the tipstaff about

her prior assault and uneasiness about the case, Jurors 342 and 189 were

stricken by the court for cause

, id. at 54,

and only Jurors 329 and 132 were

seated on the jury.

Id. at 58.

      The jury found Appellant guilty of rape and related offenses, and the

trial court sentenced Appellant to the aforementioned term of imprisonment.

Appellant filed a timely post-sentence motion, which the court denied, and a

timely notice of direct appeal. Subsequently, Appellant withdrew his direct

appeal and filed a timely PCRA petition.     He later filed an amended PCRA

petition raising several claims of ineffective assistance. On July 27, 2020, the

PCRA court filed a notice of intent to dismiss the petition without a hearing.

On August 18, 2020, the court entered an order dismissing the petition.

Appellant filed a timely notice of appeal from the order of dismissal, and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

      Whether [Appellant] established by the preponderance of the
      evidence that, due to a prejudicial outburst during jury selection,
      trial counsel was ineffective in failing to request that the court
      strike the entire venire to ensure an impartial jury, or, if counsel
      requested this remedy, the court erred in denying the request.


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Appellant’s Brief at 4.

      To obtain relief on a claim of ineffective assistance of counsel, Appellant

must prove that: (1) the underlying claim has arguable merit; (2) counsel

lacked a reasonable basis for his actions or failure to act; and (3) the petitioner

was prejudiced by counsel’s deficient performance such that there is a

reasonable probability that the result of the proceeding would have been

different absent counsel’s error or omission. Commonwealth v. Pierce, 

527 A.2d 973

, 975 (Pa. 1987). Failure to satisfy any one of these prongs is fatal

to a claim of ineffective assistance.    Commonwealth v. Chmiel, 

30 A.3d 1111

, 1128 (Pa. 2011).       Counsel is presumed to have rendered effective

assistance. Commonwealth v. Sepulveda, 

55 A.3d 1108

, 1117 (Pa. 2012).

      When reviewing a PCRA order, we examine whether the record supports

the PCRA court’s factual findings and whether its legal conclusions are free

from error. Commonwealth v. Hannibal, 

156 A.3d 197

, 206 (Pa. 2016).

We view the PCRA court’s findings and evidence of record in the light most

favorable to the prevailing party. Commonwealth v. Koehler, 

36 A.3d 121

,

131 (Pa. 2012).     We review the PCRA court's legal conclusions de novo.

Commonwealth v. Roney, 

79 A.3d 595

, 603 (Pa. 2013). The petitioner has

the burden of persuading us that the PCRA court erred and that such error

requires relief. Commonwealth v. Wholaver, 

177 A.3d 136

, 144-45 (Pa.

2018).




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      We conclude that the PCRA court properly dismissed Appellant’s

amended PCRA petition without a hearing due to lack of arguable merit.

      “[T]he purpose of voir dire is to ensure the empaneling of a fair and

impartial jury capable of following the instructions of the trial court.”

Commonwealth v. Lesko, 

15 A.3d 345

, 412-13 (Pa. 2011). The standard

for determining whether to strike a juror for cause is “whether the jurors’

views would prevent or substantially impair the performance of his duties as

a juror in accordance with his instructions and his oath. . . . [It is not required]

that a juror’s bias be proved with unmistakable clarity.” Commonwealth v.

Buehl, 

508 A.2d 1167

, 1175-76 (Pa. 1986). Furthermore, “the decision to

disqualify prospective jurors is left to the discretion of the trial court, and that

decision will not be disturbed on appeal absent an abuse of that discretion.”

Commonwealth v. Ingber, 

531 A.2d 1101

, 1103 (Pa. 1987). “The law also

recognizes that prospective jurors were not cultivated in hermetically sealed

environments free of all beliefs, conceptions and views. The question relevant

to a determination of qualification is whether any biases or prejudices can be

put aside upon the proper instruction of the court.”

Id. Having carefully reviewed

the record, we can find no reason for the trial

court to have stricken the entire venire. Indeed, we find no error whatsoever

in the trial court’s decision.

      The trial court addressed Juror 389’s statements with the eight jurors

who heard them. The court struck two of these for cause. Four of the six


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remaining individuals did not make it onto the actual jury. As to these jurors,

Appellant has no basis to lodge any objection.

      We turn to the two jurors who served on the actual jury: Jurors 132 and

329. Juror 132 indicated he was present when Juror 389 became upset. The

court asked if that fact would “in any way interfere with [his] ability to be fair

and impartial in this case if chosen as a juror,” to which Juror 132 replied,

“No, sir.”   N.T. Trial, 3/13/19, at 31.     Neither attorney had a follow-up

question. Juror 329 indicated he was present when Juror 389 became upset.

Id. at 26.

When the court asked if that would affect his ability to be fair and

impartial, he stated “it might.”

Id. at 27.

The court asked if he could follow

the instructions of the court:

      The Court: If I were to instruct you – if you were chosen as a
      juror and I was to instruct you that you must base your decision
      upon what you’ve seen and heard in the courtroom and on what I
      instruct you the law is, would you be able to do that without that
      being affected by the comments made by this juror on the way
      up?

      Juror No. 329: Yes.

      The Court: Are you sure about that?

      Juror No. 329: Yes.

Id. Neither attorney had

a follow-up question.

      We see nothing in the record that casts doubt on the ability of Jurors

132 and 329 to serve fairly and impartially or to follow the court’s instructions.

To the contrary, both jurors stated their willingness to follow the court’s

instructions without being influenced by Juror 389’s outburst.        Their mere

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exposure to Juror 389’s comments did not render them incapable of serving

on the jury. The trial court acted within its discretion by permitting Jurors 132

and 329 to sit on the jury. Commonwealth v. Briggs, 

12 A.3d 291

, 333-34

(Pa. 2011) (juror was not subject to excusal for cause in capital murder

prosecution, arising out of the shooting deaths of two sheriff’s deputies, on

basis that she was caseworker for county child protection agency and had

worked as a correctional officer at county jail; juror had never met either of

the two slain deputies, juror had no close relationship with district attorney

and knew of him only by virtue of his position and the fact that he worked at

the courthouse, juror recalled only having spoken once to district attorney

regarding a case, and juror testified that she would follow the judge’s

instructions and had no opinion of defendant’s guilt).

      In short, Appellant’s claim of ineffective assistance lacks arguable merit

as to any of the eight jurors who heard Juror 389’s remarks. Thus, the PCRA

court properly denied Appellant’s claim that trial counsel was ineffective for

failing to strike the entire venire. Since Appellant’s failure to demonstrate

arguable merit is fatal to his claim of ineffective assistance, 

Chmiel, 30 A.3d at 1128

, we need not address whether Appellant satisfies the remaining two

prongs of the ineffective assistance test.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/08/2021




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