Commonwealth v. Culmer

270 A.3d 1117 (Table)

COMMONWEALTH of Pennsylvania

v.Daniel CULMER, Appellant

Commonwealth of Pennsylvania

v.Daniel Culmer, Appellant

Commonwealth of Pennsylvania

v.Daniel Culmer, Jr., Appellant

No. 483 WDA 2021

No. 484 WDA 2021

No. 485 WDA 2021

Superior Court of Pennsylvania.

Filed: December 3, 2021

MEMORANDUM BY MURRAY, J.:

Daniel Culmer, Jr. (Appellant) appeals from the judgment of sentence imposed after he was convicted of two counts of recklessly endangering another person, and one count each of discharging a firearm into an occupied structure, flight to avoid apprehension, person not to possess firearms, and driving while operating privilege is suspended or revoked.¹ We affirm.

On April 25, 2018, Appellant was involved in a domestic dispute with Brayanna Lightfoot (Victim) at the Victim's home. Appellant left the residence, but returned a few hours later, firing a handgun into the residence while the Victim and six-year-old child were inside. Appellant fled the scene and was not arrested until a few months later. As a result, the Commonwealth charged Appellant at three separate dockets: 1010-2018, 1011-2018, and 1071-2018. The trial court summarized:

The cases filed at 1010-2018 and 1011-2018 were consolidated on November 7, 2018. Those cases were further consolidated for the purposes of trial with the case filed at 1071-2018 on April 3, 2019. A jury trial was subsequently held on May 20, 2019 and May 21, 2019. The jury found Appellant guilty of Count 2: Discharge of a Firearm into an Occupied Structure, Count 3: Recklessly Endangering Another Person ([Victim]), Count 4: Recklessly Endangering Another Person (L.C., a female juvenile) on the case filed at 1011-2018, and Count 1: Flight to Avoid Apprehension, Trial or Punishment on the case filed at 1071-2018. The jury found the Appellant not guilty of Count 1: Simple Assault on the case filed at 1010-2018.

The Appellant was also found guilty, through the non-jury phase of the trial, of the following: on the case filed at 1010-2018, Count 3, Driving while Operating Privilege is Suspended or Revoked, and on the case filed at 1011-2018, Count 1, Person not to Possess, Use, Manufacture, Control, Sell [or] Transfer Firearms.

Trial Court Opinion, 1/21/20, at 1-2.

On July 23, 2019, the trial court sentenced Appellant to an aggregate 5 to 10 years of incarceration. Appellant timely appealed.² Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents four issues for review:

1. Whether the [t]rial [c]ourt erred in not finding that the Commonwealth exercised its peremptory challenges in a racially discriminatory manner?

2. Whether the [t]rial [c]ourt erred in not finding that the Commonwealth committed prosecutorial misconduct in exercising its peremptory challenges during jury selection?

3. Whether the [t]rial [c]ourt erred in admitting the telephone conversations between the Appellant and the Appellant's sister, Sabrina Culmer?

4. Whether the [t]rial [c]ourt erred in admitting Detective Amanda Fox's characterization of a mentioned individual, Tyrone Smith, as a known narcotics trafficker?

Appellant's Brief at 5.

Appellant first argues that pursuant to Batson v. Kentucky , 476 U.S. 79 (1986), the trial court "erred in not finding that the Commonwealth exercised its peremptory challenges in a racially discriminatory manner during [jury] selection, when the lone African-American juror was struck from the jury pool." Appellant's Brief at 10. Appellant asserts the Commonwealth "failed to provide a sufficient answer or explanation as to the reason the lone African-American juror was struck from the [j]ury [p]anel." Id. at 11.

We have explained:

A Batson claim presents mixed questions of law and fact. Therefore, our standard of review is whether the trial court's legal conclusions are correct and whether its factual findings are clearly erroneous. The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.

Commonwealth v. Murray , 248 A.3d 557, 567 (Pa. Super. 2021) (some citations omitted). In Batson ,

... the United States Supreme Court held that a prosecutor's challenge to potential jurors solely on the basis of race violates the Equal Protection Clause of the United States Constitution. ... When a defendant makes a Batson challenge during jury selection:

First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination.

Commonwealth v. Thompson , 106 A.3d 742, 751 (Pa. Super. 2014).

The trial court should consider the totality of the circumstances when determining whether the prosecutor acted with discriminatory intent. This Court must give great deference to the trial court's determination that peremptory challenges were free of discriminatory intent, and we will not overturn the determination unless it was clearly erroneous. Such great deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire , is not as well positioned as the trial court is to make credibility determinations. Moreover, there will seldom be much evidence on the decisive question of whether the race-neutral explanation of a peremptory challenge should be believed; the best evidence often will be the demeanor of the prosecutor who exercises the challenge. ...

Within the prima facie case wherein a defendant must establish on the record the circumstances demonstrating purposeful discrimination, Pennsylvania law also requires that a defendant must make a record specifically identifying (1) the race or gender of all venirepersons in the jury pools, (2) the race or gender of all venirepersons remaining after challenges for cause, (3) the race or gender of those removed by the prosecutor, and (4) the race or gender of the jurors who served and the race or gender or jurors acceptable to the Commonwealth who were stricken by the defense. ...

In the second-step Batson analysis, we determine whether the Commonwealth gave a race-neutral explanation for its challenge. This inquiry does not demand an explanation that is persuasive, or even plausible. Instead, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.

Murray , 248 A.3d at 567-68 (some citations omitted).

Here, during jury selection, the Commonwealth moved to strike Juror No. 139. N.T., 4/4/19, at 79. Defense counsel objected, arguing that nothing "of record would allow us to understand on what basis the Commonwealth had moved to strike this juror absent the color of her skin." Id. at 80. The Commonwealth responded, "It did not have anything to do with her race." Id. The Commonwealth stated it struck Juror No. 139 because the juror "had not answered a question posed to the group truthfully." Id. at 81.

The trial court explained:

The Appellant in these cases is an African American man. During jury selection, the Commonwealth struck an African American juror from the jury panel. The following series of exchanges occurred at jury selection between the [court, the Commonwealth, and defense counsel:]

[DEFENSE COUNSEL]: May we approach?

[THE COURT]: [Defense counsel], what is your objection?

[DEFENSE COUNSEL]: Your Honor, the only juror of color in the panel has been stricken. This was a juror that hasn't responded in any traditional way that we would –

[THE COURT]: What juror is that?

[DEFENSE COUNSEL]: Juror 139. And there isn't anything of record that would allow us to understand on what basis the Commonwealth had moved to strike the juror absent the color of her skin.

[COMMONWEALTH]: Your Honor, I am familiar with the case of Batson v. Kentucky . I am trying not to take any personal offense from the challenge.

[DEFENSE COUNSEL]: None is meant.

[COMMONWEALTH]: I understand it is [defense counsel's] job. The question she answered about people not committing any crimes or a person close to her being charged with a crime, she did not answer that question when it was posed to the entire voir dire . She indicates an affirmative to that in her questionnaire.

[THE COURT]: Where at?

[COMMONWEALTH]: Question number three, have you or anyone close to you ever been charged with or arrested for a crime other than a traffic citation? She answered yes in her questionnaire but when you posed that to the group, she did not answer.

[THE COURT]: Was that the basis for your strike?

[COMMONWEALTH]: That is the basis for me striking her. It did not have anything to do with her race.

[THE COURT]: Let me look and see how she answered the other questions here. Any other questions similarly where she answered one way but didn't answer here?

[COMMONWEALTH]: No, Your Honor. In terms of the reason that I chose to strike her, she was on the panel and she had not – she was within the first twelve and she had not answered a question posed to the group truthfully.

[THE COURT]: [Defense counsel], what is your response to that?

[DEFENSE COUNSEL]: It occurs to me that while if you give me a few minutes, I can go through the list, we had other jurors similarly situated who did not respond affirmatively to the spoken questions.

[THE COURT]: Can you give me some examples of that?

[DEFENSE COUNSEL]: I can give you the one, that's the gentleman No. 66. I actually asked to call him down here because of the fact that he had not responded verbally to a question that he had answered.

[THE COURT]: He has explained that.

[DEFENSE COUNSEL]: That's true, but you asked me to give you an example. That's one.

[THE COURT]: I am going to deny your motion.

Transcript of Jury Selection, 4/4/1

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