J-A12010-20
2020 PA Super 136
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEFFREY ALAN ROSENTHAL :
:
Appellant : No. 1401 WDA 2018
Appeal from the Judgment of Sentence Entered April 9, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000418-2017
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED JUNE 8, 2020
Appellant, Jeffrey Alan Rosenthal, appeals from the judgment of
sentence following his jury trial conviction of theft by unlawful taking or
disposition, receiving stolen property, theft by deception, forgery, deceptive
or fraudulent business practices, and misapplication of entrusted property and
property of government or financial institutions.1 We affirm.
On December 16, 2016, Appellant, who had been the longstanding
president of the Taylor Allerdice High School Alumni Association and the 14th
Ward Baseball Association in Pittsburgh, was arrested in conjunction with a
scheme in which he misappropriated money from those organizations for his
personal use. On February 21, 2017, a criminal information was filed charging
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 3925(a), 3922(a)(1), 4101(a)(3), 4107(a)(6), and
4113(a), respectively.
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him with three counts of theft by unlawful taking or deception, three counts
of receiving stolen property, one count of theft by deception, eight counts of
forgery, one count of deceptive or fraudulent business practices, and three
counts of misapplication of entrusted property and property of government or
financial institutions.
Appellant proceeded to a jury trial in September 2017. On October 5,
2017, the jury found Appellant guilty on all charges. On April 9, 2018, the
trial court sentenced Appellant to an aggregate 21-year term of probation and
directed Appellant to pay restitution of $228,202.34. Appellant filed a timely
post-sentence motion in which he, inter alia, sought a new trial based upon
claims of ineffective assistance of trial counsel; Appellant later filed an
amended post-sentence motion, in which he asserted additional ineffective
assistance claims. Separately, Appellant filed a motion for a new trial based
upon a letter that Juror Number 5 at his trial had sent to the trial court shortly
after the verdict expressing concerns about jury deliberations. On September
5, 2018, the trial court entered orders denying the post-sentence motions.
Appellant filed a timely appeal.2
Appellant raises the following issues on appeal:
I. Whether Appellant is entitled to relief on his claim that a juror
was coerced by other jurors to render a guilty verdict where other
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2 Appellant filed a concise statement of errors complained of on appeal on
December 21, 2018, a supplemental statement on January 29, 2019, and a
second supplemental statement on July 18, 2019. The trial court filed its
opinion on October 2, 2019.
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jurors made statements indicating racial and national origin
animus?
II. Whether defense counsel was ineffective for failing to poll the
jury?
Appellant’s Brief at 1.
First, Appellant argues that the trial court erred by not holding a hearing
regarding the letter that Juror Number 5 sent to the trial court after verdict.
Appellant contends that this letter “show[ed] that the deliberations were
tainted by statements of racial bias” and that several of the other jurors did
not answer truthfully that they could fairly and impartially decide Appellant’s
case. Id. at 5, 8. Appellant argues that, pursuant to Pena-Rodriguez v.
Colorado, 137 S.Ct. 855 (2017), the juror bias shown in the letter provides
an exception to the rule that jury deliberation is not subject to impeachment.3
Pennsylvania Rule of Evidence 606(b) dictates that “[d]uring an inquiry
into the validity of a verdict, a juror may not testify about any statement made
or incident that occurred during the jury’s deliberations; the effect of anything
on that juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict.” Pa.R.E. 606(b)(1). The “no impeachment rule,” as
Rule 606(b) is known, prevents juror testimony regarding “what transpired in
the jury room[, which] would destroy the security of all verdicts and go far
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3 Appellant also argues that he was denied his right to a meaningful appeal
because the record certified by the trial court omitted Juror Number 5’s letter
and the affidavit he submitted in support his motion for a new trial. However,
subsequent to Appellant’s filing of his brief, Appellant moved the lower court
to supplemental record, and the trial court transmitted a supplemental record
containing the relevant documents to this Court.
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toward weakening the efficacy of trial by jury, so well grounded in our system
of jurisprudence.” Commonwealth v. Szakal, 50 A.3d 210, 223 (Pa. Super.
2012) (citation omitted).
Rule 606(b) allows a juror to testify about the deliberative process within
two limited exceptions:
(A) prejudicial information not of record and beyond common
knowledge and experience was improperly brought to the jury's
attention; or
(B) an outside influence was improperly brought to bear on any
juror.
Pa.R.E. 606(b)(2).
Under the exception[s] to the no impeachment rule, a juror may
testify only as to the existence of the outside influence, but not as
to the effect this outside influence may have had on deliberations.
Under no circumstances may jurors testify about their subjective
reasoning processes.
Szakal, 50 A.3d at 223 (citation omitted). “The procedure for the
development of [claims that the jury was exposed to extraneous information]
and their ultimate disposition remain vested, in the first instance, within the
sound discretion of the trial courts.” Pratt v. St. Christopher’s Hospital,
866 A.2d 313, 324 (Pa. 2005).
The no impeachment rule is followed, with some variation, in all 50
states and in the federal courts. Pena-Rodriguez, 137 S.Ct. at 865. In
Pena-Rodriguez, the United States Supreme Court recognized that, when
there is evidence of racial animus that motivates a jury’s finding of guilt, an
exception exists to the federal and state no impeachment rules pursuant to
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the Sixth Amendment right to a jury trial in criminal cases. Id. at 869.4 The
Court held that “where a juror makes a clear statement that indicates he or
she relied on racial stereotypes or animus to convict a criminal defendant, the
Sixth Amendment requires that the no-impeachment rule give way in order to
permit the trial court to consider the evidence of the juror’s statement and
any resulting denial of the jury trial guarantee.”
Id.
However, the Court in Pena-Rodriguez recognized that some
allegations of racial prejudice in the jury room do not necessitate an inquiry
into the validity of the verdict:
Not every offhand comment indicating racial bias or hostility will
justify setting aside the no-impeachment bar to allow further
judicial inquiry. For the inquiry to proceed, there must be a
showing that one or more jurors made statements exhibiting overt
racial bias that cast serious doubt on the fairness and impartiality
of the jury’s deliberations and resulting verdict. To qualify, the
statement must tend to show that racial animus was a significant
motivating factor in the juror’s vote to convict. Whether that
threshold showing has been satisfied is a matter committed to the
substantial discretion of the trial court in light of all the
circumstances, including the content and timing of the alleged
statements and the reliability of the proffered evidence.
Id.
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4 In Pena-Rodriguez, the United States Supreme Court abrogated the
Pennsylvania Supreme Court’s decision of Commonwealth v. Steele,
961
A.2d 786 (Pa. 2008), in which our Supreme Court held that the no
impeachment rule barred consideration of a juror’s declaration that several
other jurors expressed racial bias towards the defendant and appeared to vote
to convict based upon the defendant’s race.
Id. at 807-08; see also Pena-Rodriguez,
137 S.Ct. at 865 (citing Steele and noting that Pennsylvania was
one of only two states that had declined to find an exception to the no
impeachment rule for racial bias).
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In the letter, which was dated the same day as the date of the verdict,
Juror Number 5 wrote to the trial court that “there is a lot that troubles me
about the deliberation portion of this trial.” Supplemental Certified Record,
Docket Number 5. The juror continued:
In honesty, I do not agree with some of the charges that I voted
for conviction on; I consented because I was worn down from
arguing with the other members of the jury. I cannot shake the
reasonable doubt in the back of my head. However, a more
troubling issue arose during the time that I spent with the other
jurors.
During this trial, I’ve sat in on ethnic “jokes,” negative comments
about the city and people who live in it and my reservations are
part of a larger feeling that the deliberations are anything but fair
and [im]partial.
Id. Juror Number 5 related that one juror joked about “Italian men beating
their wives,” another said “she thought Italian men wanted sex all the time,”
and a third told a story about how her mother scolded her for dating an Irish
person based upon a “ridiculous stereotype.”
Id. Juror Number 5 then stated
that “[w]hile, I understand the defendant is not a part of either of these
groups, stereotypes may be influencing their votes as well.”
Id.
Juror Number 5 concluded the letter by questioning whether her fellow
jurors could have fairly and impartially rendered a verdict if “their minds were
made up before we opened one evidence binder.” Id.
If these jurors hold stereotypical views that impact their treatment
of others with regards to ethnicity, classes, and varying other
social factors, how are they to fairly assure an unbiased trial?
Guilt is the factor to which guilt should be assigned, not a name,
income, or other socioeconomic factor.
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Id.
While his motion for a new trial was pending, Appellant submitted to the
trial court an affidavit from a private investigator who interviewed Juror
Number 5. According to the affidavit, Juror Number 5 stated, in relevant part,
that she “was so pressured to find [Appellant] guilty, she would have found
her own mother to be guilty to get away from the unfair pressure the [other]
Jurors put on her.” Affidavit, 6/27/18. The juror identified two particular
jurors who pressured her, and stated that one of them told her that Appellant
“wanted to live high on the hog with those people in Squirrel Hill.” Id.
Appellant stated that, if she were polled by the trial court, she would have told
the judge that she was “forced” into voting to convict Appellant.
Id.
The trial court denied Appellant’s post-sentence motion for a new trial
without holding a hearing. In its opinion, the trial court distinguished Pena-
Rodriguez because in that case, a juror expressed an anti-Hispanic bias
directly relating to the Hispanic defendant and alibi witness. Opinion, 10/2/19,
at 6. The trial court stated that further inquiry regarding the jury’s
deliberation was not required in the instant case as Appellant’s ethnicity was
never established at trial and “[n]one of the boorish, ethnic remarks was
directed at or involved in finding [Appellant] guilty.” Id.
Upon review, we conclude that the trial court did not abuse its discretion
in denying Appellant’s motion for a new trial without holding a hearing. First,
Juror Number 5’s statements that she voted to convict Appellant because she
was worn down from arguing with the other jurors, that she felt forced into
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voting to convict, and that she had lingering doubts about Appellant’s guilt
relate to the jury’s subjective deliberative process; these matters are
expressly excluded from inquiry by the no impeachment rule. Pa.R.E.
606(b)(1); Szakal, 50 A.3d at 223. Appellant did not bring forward evidence
that the deliberations were tainted by extraneous or outside information, and
therefore the exceptions set forth in Rule of Evidence 606(b)(2) are not
applicable here.
Furthermore, the ethnic jokes and stereotypes5 that Juror Number 5
described in her letter do not “cast serious doubt on the fairness and
impartiality of the jury’s deliberations and resulting verdict” such that the
Sixth Amendment exception to the no impeachment rule is implicated. Pena-
Rodriguez, 137 S.Ct. at 869. In Pena-Rodriguez, the defendant, a Hispanic
man, was convicted in Colorado state court of several sexual offenses.
Id. at
861. After the verdict was issued, defense counsel spoke with two jurors who
stated that another juror, identified as H.C., expressed anti-Hispanic bias
during deliberations.
Id. at 861-62. The two jurors then submitted affidavits
to the trial court in which they detailed various statements by H.C., including
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5 We assume for the purposes of this decision that the negative comments
related to ethnicity and national origin Juror Number 5 described fall within
Pena-Rodriguez’s “racial bias” exception to the no impeachment rule. Cf.
Pena-Rodriguez,
137 S.Ct. at 863 (observing that the juror comments at
issue in that case related to the Hispanic identity of the defendant rather than
his racial group but that the Court has “used the language of race when
discussing the relevant constitutional principles in cases involving Hispanic
persons”).
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that he believed the defendant to be guilty because “Mexican men had a
bravado that caused them to believe they could do whatever they wanted with
women” and “nine times out of ten Mexican men were guilty of being
aggressive toward women and young girls.” Id. The two jurors also related
that H.C. stated that “he did not find [the defendant’s] alibi witness credible
because, among other things, the witness was ‘an illegal.’”
Id. The trial court
denied the motion for a new trial on the basis of the Colorado no impeachment
rule. The Supreme Court, however, reversed, holding that the trial court erred
in finding that the no impeachment rule barred inquiry into potential racial
bias, because “[n]ot only did juror H.C. deploy a dangerous racial stereotype
to conclude petitioner was guilty and his alibi witness should not be believed,
but he also encouraged other jurors to join him in convicting on that basis.”
Id. at 870-71.
In this matter, Juror Number 5 stated that several of the jurors told
jokes or stories during deliberations that cast individuals of Italian and Irish
ancestry in a negative light. Crucially, however, Juror Number 5 did not state
that these jokes and stories were directed towards Appellant or any other
participant in the trial or that the jurors relied on these stereotypes in
rendering their verdict. Furthermore, there is nothing of record to indicate
that Appellant, his attorney, or any of his witnesses at trial belonged to either
of these ethnic groups. While the comments Juror Number 5 overheard led
her to question whether the jury rendered a fair and impartial verdict, this
conclusion arose out of Juror Number 5’s speculation as to her fellow jurors’
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thought processes rather than on the content of the comments themselves.
Thus, the statements at issue here are the type of “offhand comment[s]”
evincing racial prejudice but not directly calling into question the integrity of
verdict that Pena-Rodriguez stated fall outside the Sixth Amendment
exception to the no impeachment rule. Id. at 869. Accordingly, the trial court
did not abuse its discretion in concluding that further inquiry into the jury’s
deliberations was not warranted because the comments identified by Juror
Number 5 do not “show that racial animus was a significant motivating factor
in the juror[s’] vote to convict.”
Id. Appellant’s first appellate issue merits
no relief.
In his second issue, Appellant argues that his trial counsel provided
ineffective assistance because he did not request that the trial court poll the
jury after the guilty verdict was rendered. Appellant notes that the jury twice
returned with questions for the trial court during its deliberations, the second
time stating that they were deadlocked as to four counts “with no end in sight.”
N.T., 10/5/17, at 557. Appellant contends if the jury were polled, it would
have revealed Juror Number 5’s misgivings regarding the deliberations and
led to a mistrial.
Appellant’s ineffective assistance of counsel claim is not cognizable on
direct appeal and must be deferred to collateral review under the Post
Conviction Review Act (PCRA).6 See Commonwealth v. Holmes, 79 A.3d
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6 42 Pa.C.S. §§ 9541-9546.
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562, 576 (Pa. 2013) (stating that, except in limited, identified circumstances,
“claims of ineffective assistance of counsel are to be deferred to PCRA
review”); Commonwealth v. Hopkins, ___ A.3d ___, 2020 PA Super 25,
*11 (filed February 7, 2020) (same). Three exceptions have been recognized
to the general rule that ineffective assistance claims may not be raised in a
direct appeal: (i) in “extraordinary circumstances where a discrete claim (or
claims) of trial counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration best serves the
interests of justice”; (ii) where the defendant asserts multiple ineffective
assistance claims, shows good cause for direct review of those claims, and
expressly waives his entitlement to PCRA review before the trial court; and
(iii) “where the defendant is statutorily precluded from obtaining subsequent
PCRA review.” Commonwealth v. Delgros,
183 A.3d 352, 360-61 (Pa.
2018); Holmes, 79 A.3d at 563-64.
None of these exceptions are present here. With respect to the first
exception, the trial court has discretion to review an ineffective assistance
claim on direct review when presented with an “extraordinary case” where the
claim “is both meritorious and apparent from the record.” Holmes, 79 A.3d
at 577. The trial court did not abuse its discretion in not finding that
Appellant’s claim of ineffective assistance was so clearly meritorious and
apparent from the record to overcome the heavy presumption that ineffective
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assistance claims are reserved for collateral review.7 Id. at 577 n.10;
Commonwealth v. Knox, 165 A.3d 925, 928 (Pa. Super. 2017). Appellant
is not entitled to immediate review of his ineffective assistance claim under
the second exception because, in his post-sentence motions, Appellant did not
allege that there was good cause for the trial court’s immediate review of his
ineffective assistance claim and he did not expressly waive his entitlement to
PCRA review. Delgros,
183 A.3d at 360; Holmes, 79 A.3d at 564, 578.
Finally, Appellant has not demonstrated that he would be precluded from
seeking PCRA review of his ineffective assistance claim. In Delgros, the Court
concluded that consideration of an ineffective assistance claim on direct review
was warranted because the defendant was ineligible for PCRA relief as he had
only been sentenced to pay a fine. 183 A.3d at 361 (citing 42 Pa.C.S. §
9543(a)(1)). Here, by contrast, Appellant was sentenced to a 21-year term
of probation, and therefore he is not precluded from bringing a claim under
the PCRA. 42 Pa.C.S. § 9543(a)(1)(i) (to be eligible for PCRA relief, the
petitioner must plead and prove that he “has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is granted . . . currently
serving a sentence of imprisonment, probation or parole for the crime”).
Consequently, we may not consider the ineffective assistance claim raised by
Appellant in this direct appeal.
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7 We observe in particular that Juror Number 5’s concerns about the jury
deliberations were not communicated to the trial court or Appellant’s counsel
until after the jury was dismissed.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2020
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