J-A22008-22
2023 PA Super 97
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHELDON DEVONT JETER :
:
Appellant : No. 1523 WDA 2021
Appeal from the Judgment of Sentence Entered July 21, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000825-2020
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
OPINION BY OLSON, J.: FILED: JUNE 7, 2023
Appellant, Sheldon Devont Jeter, appeals from the judgment of sentence
entered on July 21, 2021, as made final by the denial of Appellant’s
post-sentence motion on November 22, 2021. We vacate the trial court’s
order of November 22, 2021 denying Appellant’s post-sentence motion and
we remand for an evidentiary hearing.
The trial court ably summarized the evidence presented during
Appellant’s jury trial:
[On the evening of May 15, 2020, Appellant, Tyric Pugh
(hereinafter “the Victim”), Appellant’s] grandfather Emanuel
Moreland, and [Appellant’s] uncle Michael Moreland got ice
cream at Bruster's. . . . Surveillance footage showed the
group leaving the parking lot in a Chevrolet Traverse at 9:16
p.m. They returned to [Appellant’s] residence, 127 Orchard
Street, at 9:45 p.m., as shown by the motion-activated
camera system across the street. [Appellant] and the Victim
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* Retired Senior Judge assigned to the Superior Court.
J-A22008-22
got back in the Traverse at 10:10 p.m., and [Appellant] drove
to Carlesha Williams's house at 121 Jones Street, in the Plan
6 area of Aliquippa, to deliver a gout pill for Ms. Williams's
stepfather. At 10:34 p.m., [Appellant] and the Victim
returned to 127 Orchard Street.
At 11:10 p.m., [Appellant] and the Victim again got into the
Traverse, which [Appellant] again drove towards Ms.
Williams's house to deliver another gout pill. Surveillance
footage showed the Traverse traveling towards Ms. Williams's
house at 11:18 and 11:19 p.m., and again turning from
Cochran Street (the extension of Kiehl Street) onto Franklin
Avenue in the direction of 127 Orchard Street at 11:35-11:36
p.m. At 11:39 p.m., [Appellant] returned to 127 Orchard
Street alone.
At 11:39 p.m., the Beaver County 911 Center received a call
from Joseph Richardson, who reported that there was an
unresponsive male on the ground who was bleeding from his
head and ears. The 911 Center used the location of Mr.
Richardson's phone to get his location, which was the sharp
bend on Kiehl Street in Aliquippa. Aliquippa police were
dispatched at 11:41 p.m. and arrived at 11:42 p.m. At 11:50
p.m., Aliquippa police requested the assistance of
Pennsylvania State Police, who then arrived at the scene.
The Victim had multiple gunshot wounds [to] his head,
including in the ear and the forehead between the eyes. The
Victim's body was lying faceup in a pool of blood in the road.
Several of the Victim's belongings were on and around his
body, including a wallet, cash, a credit card, a receipt from
Bruster's, a package of cigarillos, and a cell phone and
charger. Also around the Victim's body were seven
[discharged cartridge cases]: four Federal and three
Winchester. A subsequent autopsy of the Victim found six
bullet wounds from different angles: penetrating wounds in
his left lateral chest, left cheek, left ear, left temporal-parietal
scalp, left frontal scalp, and the center of his forehead, and a
grazing wound in his left wrist. The Beaver County Coroner's
Office concluded that the Victim died as a result of the
gunshot wounds to his head and chest.
Police identified the Victim based on a Pennsylvania
identification card found in his wallet, which had an address
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of 127 Orchard Street. Based on the address on the
identification card, Trooper Boughter, Corporal Miller,
Trooper Werner, and Trooper McGeary went to 127 Orchard
Street to formally notify the Victim's family of his death.
Emanuel Moreland and [Appellant] were at the residence.
[Appellant] spoke with the officers in the living room of the
residence shortly after 3:00 a.m. on May 16, 2020, with his
grandfather present. He said that Emanuel Moreland,
Michael Moreland, the Victim, and he had gone to Bruster's;
that they had returned to the residence; and that the Victim
had left on foot after watching television. After Corporal
Miller said that the Traverse was seen near Two Cousins
Market (on the way to Ms. Williams's house), [Appellant]
changed his narrative to [say that he gave] the Victim a ride
up the hill. While [Appellant relayed his version of events] to
the police, and before the police said that the Victim had died,
[Appellant] called Michael Moreland and said that [the Victim]
had been shot.
At 4:00 a.m., the police conducted a recorded interview of
[Appellant] in the front seat of an unmarked police car on
Orchard Street. [Appellant] again stated that the Victim []
left from the residence on foot. [Appellant] said that he had
not left since returning to the residence. He agreed to have
his hands swabbed for the police to perform a gunshot
residue test. After initially denying that he had been around
any firearms, [Appellant] stated that he [] touched [a firearm
belonging to his brother, Deonte Smith,] two days prior.
[Appellant] consented to the police taking and processing the
Traverse, as did the Traverse's registered owners. The police
obtained a search warrant for the Traverse. Testing revealed
gunshot residue on samples collected from the interior
driver's side door, the center of the steering wheel, and the
upper right quadrant of the steering wheel. The remaining
samples tested for gunshot residue, including from
[Appellant’s] hands, were not characteristic but were
indicative, which means that they had particles containing
two out of the three elements of barium, lead, and antimony.
[Appellant] was interviewed at the Pennsylvania State Police
Beaver Barracks. Again, he said that the Victim left from his
house. He said that he went to Ms. Williams's house twice.
When he was told of the surveillance videos showing him and
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the Victim leaving the house together, he said that "we left
the house the first time and the second time." Later in the
interview, [Appellant] said that when he drove to Ms.
Williams's house, the Victim stayed in the passenger seat
while he dropped off the gout pill, and the car got foggy. He
clarified that he meant the second trip, and that the Victim
left on foot from Ms. Williams's house. He told the police
which route he took to go home.
The police obtained a search warrant for the residence at 127
Orchard Street, which was executed at the same time that
[Appellant] was [] interviewed at the barracks. Pursuant to
the warrant, the police seized items from [Appellant’s]
bedroom, including a Glock G42 .380 pistol, a six-round
magazine containing six Federal .380 rounds, a PMC box
containing 46 PMC [rounds] and [one] Federal .380 round[],
and two boxes of Federal .380 ammunition. The Glock and
magazine had the capacity to hold seven rounds. The PMC
ammunition box had 50 slots, three of which were empty.
One Federal ammunition box was sealed and contained 20
rounds. The other Federal ammunition box was opened and
[contained ten] rounds, with space for [ten] more.
The police officers executing the warrant advised the
barracks that they [recovered] the gun in [Appellant’s]
bedroom. At this point, [Appellant] admitted that he had a
gun, which he described as a 9-millimeter “baby Glock.” He
stated that he [saw] it the day before (which was May 15,
2020) and that he never [loaned] or gave the gun to anyone.
Pennsylvania State Police Sergeant Richard Podbielski, a
firearm and tool mark examiner, concluded first that the
Glock was functional and capable of discharging .380
[caliber] ammunition. He next concluded that the seven
[discharged cartridge cases] that were recovered from the
scene had been discharged from the Glock that was
recovered from [Appellant’s] bedroom. In a subsequent test,
he analyzed 16 bullets, bullet fragments, bullet jacket
fragments, and lead fragments that were recovered from the
Victim. He concluded that five of them were discharged from
the Glock, two were inconclusive, and the remaining nine
were not suitable for identification purposes.
Trial Court Opinion, 1/31/22, at 3-7 (citations and footnotes omitted).
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On June 23, 2021, the jury found Appellant guilty of first-degree
murder1 and, on July 21, 2021, the trial court sentenced Appellant to serve
the mandatory term of life imprisonment. N.T. Sentencing, 7/21/21, at 51.
Appellant filed a timely post-sentence motion2 and, within this motion,
Appellant claimed that he was entitled to an evidentiary hearing to determine
whether “prejudicial information not of record and beyond common knowledge
and experience was improperly brought to the jury’s attention” or whether “an
outside influence was improperly brought to bear on any juror.” See
Appellant’s Post-Sentence Motion, 8/20/21, at 3-10; see also Pa.R.E.
606(b)(2).
Within Appellant’s post-sentence motion, Appellant noted that he “had
previously been widely publicly reported as a person of interest in the
extremely high-profile investigation of the 2018 homicide of Rachel DelTondo,
one of the most infamous crimes in Beaver County’s history, and, in fact,
reports regarding [the case at bar] referenced [Appellant’s] status in that
regard.” Appellant’s Post-Sentence Motion, 8/20/21, at 3. According to
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1 18 Pa.C.S.A. § 2502(a).
2 On August 2, 2021, the trial court granted Appellant an extension of time to
file his post-sentence motion and allowed Appellant to file his “post-sentence
motion no later than 30 days after sentencing.” Trial Court Order, 8/2/21, at
1; see Commonwealth v. Moore, 978 A.2d 988, 991 (Pa. Super. 2009)
(holding: “[t]he trial court clearly [has] the authority to grant or deny [an
a]ppellant an extension of time in which to file his post-sentence motion”).
Appellant filed his motion on August 20, 2021, which was within the allotted
time. Appellant’s Post-Sentence Motion, 8/20/21, at 1.
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Appellant, after his trial concluded, he learned that “Juror Number 3 and her
now-estranged husband [] lived with her parents next door to the [DelTondo]
crime scene and were actually present when” Rachel DelTondo was murdered.
Id. at 4 (emphasis omitted). Appellant further learned that, “at the time of
the DelTondo homicide, Juror Number 3’s husband viewed DelTondo’s corpse,
which contributed to his development of post-traumatic stress disorder, which
in turn contributed to Juror Number 3’s and [her husband’s] estrangement
and divorce.” Id.
With this backdrop, Appellant claimed that, after the jury was
discharged, he learned of two instances where potentially extraneous
information might have been communicated to the jurors or where an outside
influence might have been improperly brought to bear upon a juror. See id.
at 3-10. First, Appellant attached an affidavit from a local attorney and trial
spectator named Jodi Gill (hereinafter “Attorney Gill”), where she averred:
during [a sidebar at Appellant’s trial,] there were two women
spectators who . . . were talking very loudly about . . . the
Rachel DelTondo case . . . [and] were speaking so loudly that
the [court reporter transcribing witness testimony at
Appellant’s trial] . . . had to tell them to stop talking in front
of the jurors.
Affidavit of Attorney Gill, 7/19/21, at 1-3.3
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3 Attorney Gill’s affidavit more fully stated:
2. I attended some of [Appellant’s] trial.
...
(Footnote Continued Next Page)
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Second, Appellant attached an affidavit from his attorney, Alexis Cobb
(hereinafter “Attorney Cobb”), where she averred that she spoke with the
former father-in-law of Juror Number 3. As Attorney Cobb averred, Juror
Number 3’s former father-in-law told her that he spoke with Juror Number 3’s
father (hereinafter “Juror Number 3’s Father”). According to the former
father-in-law, he learned from Juror Number 3’s Father that Juror Number 3
and Juror Number 3’s Father “talked about the case during the jury
____________________________________________
4. While I attended the trial, I noticed that there were a number
of sidebars where the judge, the attorneys for both the
prosecution and the defense, and a court reporter would leave the
courtroom.
...
10. [On June 17, 2021, during a sidebar,] there were two women
spectators, who were sitting near the yellow tape right beside the
jurors; these spectators were talking very loudly about . . . the
Rachel DelTondo case. They were counting the jurors out trying
to determine who were the alternates. I have to emphasize that
they were talking very loudly amongst each other and that their
voices were carrying.
...
12. The two women spectators were speaking so loudly that the
[court reporter transcribing witness testimony at Appellant’s trial]
. . . had to tell them to stop talking in front of the jurors.
Specifically, I remember [the reporter] reprimanding the two
female spectators. He informed them that they were not allowed
to be discussing the jurors and the case in this manner and that
their behavior “could get them in big trouble” and could “cause a
mistrial.”
Affidavit of Attorney Gill, 7/19/21, at 1-3.
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deliberations and that [Juror Number 3] was having a hard time deciding what
to do and that [Juror Number 3] and [Juror Number 3’s Father] ‘prayed on it’
and after they prayed, [Juror Number 3] made her decision.” Affidavit of
Attorney Cobb, 7/19/21, at 1-2.4
Appellant requested that the trial court hold an evidentiary hearing,
where it could receive juror testimony and determine whether any of the
jurors received extraneous information or were subjected to outside influence
and, if so, determine whether Appellant is entitled to a new trial. See
Appellant’s Post-Sentence Motion, 8/20/21, at 10.
The trial court heard oral argument on Appellant’s post-sentence
motion. On November 22, 2021, however, the trial court denied Appellant’s
post-sentence motion in total, including Appellant’s request for an evidentiary
hearing. Trial Court Order, 11/22/21, at 1. Appellant filed a timely notice of
appeal, raising a single claim to this Court:
Did the trial court err in refusing to grant an evidentiary
hearing on external juror influence where [Appellant]
provided sufficient information to raise a judicial question as
to whether the jury was exposed to external influence tying
him to a separate murder and/or whether one juror listened
to her father’s advice as to whether to convict?
Appellant’s Brief at 4.
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4According to Attorney Cobb’s affidavit, Juror Number 3’s former father-in-law
“was not comfortable with executing an affidavit . . . because as an African
American male, he does not trust the judicial system.” Affidavit of Attorney
Cobb, 7/19/21, at 2.
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Appellant claims that the trial court erred when it denied his request to
hold an evidentiary hearing, so that the trial court could determine whether
any of the jurors received extraneous information or were subjected to outside
influence. We review the trial court’s denial of Appellant’s request for an
evidentiary hearing under an abuse of discretion standard. See Pratt v. St.
Christopher’s Hosp., 866 A.2d 313, 324 (Pa. 2005) (holding: “[t]he
procedure for development of [post-verdict claims alleging] . . . extraneous
information and/or outside influence affecting jury deliberations . . . and their
ultimate disposition remain vested, in the first instance, within the sound
discretion of the trial courts. Here, we sustain the Superior Court’s holding
that the trial court abused its discretion in the failure to afford a requested
evidentiary hearing” on the issue of whether extraneous information or outside
influence affected jury deliberations). “When the facts surrounding the
possible [juror] misconduct are in dispute, the trial judge should examine the
various witnesses on the question, and [the judge’s] findings of fact will be
sustained unless there is an abuse of discretion.” Commonwealth v. Pope,
14 A.3d 139, 145 (Pa. Super. 2011) (quotation marks and citations omitted).
“Discretion is abused when the course pursued represents not merely
an error of judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.” Commonwealth v.
Baumhammers, 960 A.2d 59, 86 (Pa. 2008) (quotation marks and citation
omitted). “A finding by an appellate court that it would have reached a
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different result than the trial court does not constitute a finding of an abuse
of discretion. Where the record adequately supports the trial court's reasons
and factual basis, the court did not abuse its discretion.” Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2000) (quotation marks and
citations omitted).
Pennsylvania Rule of Evidence 606 is entitled “juror’s competency as a
witness” and offers guidance concerning the examination of a juror when the
trial court initiates an inquiry into the circumstances that surround juror
deliberations. Rule 606(b) declares:
(b) During an Inquiry into the Validity of a Verdict
(1) Prohibited Testimony or Other Evidence. During 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. The court may not receive a juror's
affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(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).
Rule 606(b)(1) sets forth the general “no-impeachment rule” that
governs the admissibility of post-verdict testimony by jurors. It declares that,
during an inquiry into the validity of the verdict, a juror may not testify about:
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1) “any statement made or incident that occurred during the jury's
deliberations;” 2) “the effect of anything on that juror's or another juror's
vote;” or 3) “any juror's mental processes concerning the verdict.” Pa.R.E.
606(b)(1). The rule further provides that a trial court may not receive “a
juror’s affidavit or evidence of a juror’s statement” concerning the
above-stated, prohibited matters. Id. Rule 606(b)(2) then provides two
exceptions to the general rule, declaring that jurors are competent to testify
about whether: 1) “prejudicial information not of record and beyond common
knowledge and experience was improperly brought to the jury's attention” and
2) “an outside influence was improperly brought to bear on any juror.” Pa.R.E.
606(b)(2); see also Commonwealth v. Messersmith,
860 A.2d 1078, 1085
(Pa. Super. 2004) (“[u]nder the exception[s] to the no impeachment rule, a
juror may testify only as to the existence of the [extraneous information or]
outside influence, but not as to the effect this [] may have had on
deliberations. Under no circumstances may jurors testify about their
subjective reasoning processes”) (quotation marks and citations omitted).
As our Supreme Court has explained, Rule 606(b) “reflects a policy
decision balancing the aim to ensure fair and impartial decision-making, with
the interests in confidentiality of jury deliberations and finality of duly
rendered verdicts.” Pratt, 866 A.2d at 320 (footnotes omitted). Further, as
the United States Supreme Court explained when it interpreted Rule 606(b)’s
federal counterpart, the rule “promotes full and vigorous discussion by
providing jurors with considerable assurance that after being discharged they
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will not be summoned to recount their deliberations, and they will not
otherwise be harassed or annoyed by litigants seeking to challenge the
verdict. The rule gives stability and finality to verdicts.” Peña-Rodriguez v.
Colorado, 580 U.S. 206, 218 (2017);5 see also Pratt, 866 A.2d at 320 n.8;
27 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE
EVIDENCE § 6072 (2d ed. 2022) (“[Federal Rule of Evidence] 606(b) has two
policy goals. First, the privacy of the jury's thought process is protected in
order to insulate jury value judgments from judicial scrutiny. Second, finality
and certainty of judgment are promoted in order to conserve resources.
Neither goal is an absolute. Privacy is abandoned when jury value judgments
are not in jeopardy or embrace values that are simply beyond the pale, such
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5 In Pratt, the Pennsylvania Supreme Court noted that Pennsylvania Rule of
Evidence 606(b)’s general “‘no impeachment rule,’ as well as the prevailing
exceptions relating to ‘prejudicial facts not of record, and beyond common
knowledge and experience’ and ‘outside influences’” are “substantially
identical” to those found in its federal counterpart, Federal Rule of Evidence
606(b). Pratt, 866 A.2d at 319 and 319 n.6; compare Pa.R.E. 606(b) with
F.R.E. 606(b); see also Pa.R.E. 606 cmt. The Pratt Court further noted that,
on these issues, Pennsylvania’s main deviation from the federal rule was in
utilizing the phrase “prejudicial facts not of record, and beyond common
knowledge and experience,” in place of the federal rule’s language
“extraneous prejudicial information was improperly brought to the jury's
attention.” Pratt, 866 A.2d at 319 n.6; compare Pa.R.E. 606(b)(2)(A) with
F.R.E.(b)(2)(A). However, as the Pratt Court explained, this particular
deviation between the two rules “was intended merely for the sake of
clarification as opposed to substantive departure.” Pratt, 866 A.2d at 319
n.6.
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as racial discrimination.[6] Finality and certainty give way when jury
misconduct raises serious issues of fairness and accuracy”).
In Pratt, the Pennsylvania Supreme Court interpreted Rule 606(b) and
provided some guidance regarding the threshold at which further judicial
inquiry must be made in those instances where a party seeks to inquire into
the validity of a verdict. Pratt was a civil, medical malpractice case, where
the plaintiffs (hereinafter “the Plaintiffs”) sued a hospital and various doctors
(hereinafter “the Medical Defendants”) on allegations that the Medical
Defendants failed to diagnose an infection in a timely manner. Pratt, 866
A.2d at 314. Essentially, the Plaintiffs claimed that the Medical Defendants
“were negligent in failing to timely order a CAT scan.” See id. at 317 and
321. Following trial, the jury found in favor of the Medical Defendants, “with
polling confirming that ten of the twelve jurors supported the verdict.” Id. at
314.
“Approximately two weeks later, the trial court received a letter from
one of the jurors (Juror 10) indicating that, during deliberations, she had
learned from several other jurors that they had discussed the case with
outside medical professionals, who were friends, relatives and/or personal
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6 See, e.g., Peña-Rodriguez, 580 U.S. at 225 (holding: “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”).
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physicians.” Id. at 314-315. “In the letter, Juror 10 also expressed her belief
that such improper contacts had influenced the verdict.” Id. at 315. In
relevant part, Juror 10’s letter read:
I want to stress that I believe that my fellow jurors worked
hard to reach what they believed was a proper verdict, but I
think that they relied inappropriately on information they
gathered from sources outside the courtroom to reach that
verdict. Beginning during the trial and continuing through
deliberations, some of the jurors reported that they had
spoken to various people such as relatives and friends
involved in the medical profession and their own personal
physicians to get their opinions regarding whether a CAT scan
should have been performed earlier, whether a meningitis
test and CAT scan should have been performed at the same
time and whether this was the standard of care in 1989. Two
of the jurors reported conversations with multiple medical
professionals that occurred on the first evening of
deliberations. I believe that the opinions these jurors
obtained from the outside sources influenced the verdict
because the jurors discussed these outside opinions during
deliberations and stated that their conversations with the
medical professionals either confirmed the jurors' own
opinions or changed the jurors' minds.
Id. at 315 n.2.
After the trial court provided the parties with copies of the letter, the
Plaintiffs filed a post-trial motion nunc pro tunc. Within the motion, the
Plaintiffs requested an evidentiary hearing on the issue of whether the jury’s
verdict was tainted, as “prejudicial information not of record and beyond
common knowledge and experience was improperly brought to the jury's
attention.” See id. at 315; see also Pa.R.E. 606(b)(2)(A). The trial court
denied the Plaintiffs’ motion without holding a hearing. Pratt, 866 A.2d at
315.
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Within the trial court’s opinion, the court initially declared that, under
Rule 606(b), “Juror 10 was not necessarily incompetent to testify concerning
the contents of her letter,” as Juror 10 alleged that “prejudicial information
not of record and beyond common knowledge and experience was improperly
brought to the jury's attention” – and, thus, her allegations fell under an
exception to Rule 606(b)’s general, no-impeachment rule. Pratt, 866 A.2d at
315-316. However, the trial court “determined that the letter did not contain
a sufficient indication of prejudice to warrant a hearing” on the issue. Id.
On appeal to the Superior Court, we determined that the trial court
abused its discretion when it failed to hold an evidentiary hearing on the
Plaintiffs’ post-trial motion. Thus, we reversed and remanded the case “solely
for an evidentiary hearing on the juror misconduct claim.” Pratt v. St.
Christopher’s Hosp., 824 A.2d 299, 305 (Pa. Super. 2003). The Medical
Defendants then appealed to the Pennsylvania Supreme Court and the
Supreme Court affirmed this Court’s ruling.
Initially, the Supreme Court agreed with the rulings issued by this Court
and the trial court, declaring that, under Rule 606(b), the jurors were
competent to testify regarding the contents of Juror 10’s letter. Pratt, 866
A.2d at 321. Specifically, the Supreme Court held, “the circumstances of the
[] case squarely implicate [Rule 606(b)’s] extraneous-information exception,
since [the Plaintiffs] alleged [that some jurors had] inappropriate contact with
outside medical professionals.” Id. Therefore, the Supreme Court held that,
under Rule 606(b), the jurors were competent to testify on the issues of:
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“whether or not the alleged communications occurred, regarding their range
and content, and as to whether they were in fact injected into the jury
deliberations.” Id.; see also Messersmith, 860 A.2d at 1085 (“[u]nder the
exception 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 . . . [and] a trial judge may
not consider evidence regarding the subjective impact of an extraneous
influence on any juror”) (quotation marks and citations omitted).
Next, the Pratt Court held, to measure the prejudicial impact of any
extraneous information or outside influence, a court must apply an “objective
test for prejudice as well as the associated guidelines that [were] set forth in
the lead opinion in” Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010,
1016-1017 (Pa. 1992) (plurality). Pratt, 866 A.2d at 324. In Carter, the
Supreme Court declared:
Once the existence of a potentially prejudicial extraneous
influence has been established by competent testimony, the
trial judge must assess the prejudicial effect of such
influence. Because a trial judge is precluded from considering
evidence concerning the subjective impact of an extraneous
influence on any juror, it has been widely recognized that the
test for determining the prejudicial effect of an extraneous
influence is an objective one. In order to determine whether
an extraneous influence is prejudicial, a trial judge must
determine how an objective, typical juror would be affected
by such an influence. In addition, cases from other
jurisdictions which have considered the prejudicial effect of
an extraneous influence, make clear that prejudice is to be
determined in light of the facts and circumstances in each
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case. Where the precise extraneous matter is known but
direct evidence as to its effect on the deliberations is not
permitted, a sound balance is struck by a rule which looks to
the probability of prejudice from the face of the extraneous
matter in relation to the circumstances of the particular case.
...
We begin our consideration of the proper standard of
prejudice by examining the analogous situation involving an
ex parte communication between a judge and jury, a
situation which, like an extraneous influence, implicates the
impartiality and integrity of the jury. In Commonwealth v.
Bradley, 459 A.2d 733 (Pa. 1983), [the Pennsylvania
Supreme] Court adopted a rule to be applied in both civil
and criminal cases where a party seeks to have the verdict
set aside on the basis of an ex parte communication between
a judge and jury. A new trial will be granted in such cases
only where there is a reasonable likelihood of prejudice.
Given the similar concerns inherent in ex parte
communications and extraneous influences, such a standard
is appropriate whenever the existence of an extraneous
influence has been established by competent evidence, and
we now adopt this standard for all such cases, with the
understanding that the burden of proof is upon the moving
party. In determining the reasonable likelihood of prejudice,
the trial judge should consider 1) whether the extraneous
influence relates to a central issue in the case or merely
involves a collateral issue; 2) whether the extraneous
influence provided the jury with information they did not have
before them at trial; and 3) whether the extraneous influence
was emotional or inflammatory in nature.
Carter, 604 A.2d at 1016-1017 (quotation marks, corrections, footnotes, and
some citations omitted) (emphasis added).7
____________________________________________
7 The Carter Court emphasized that “the three considerations listed [above]
are not intended as a ‘three-part-test’ or a ‘rule.’ The considerations are
intended as guidance for trial courts in determining whether, under the facts
and circumstances of the case, extraneous information is reasonably likely to
have prejudiced the jury.” Carter, 604 A.2d at 422 n.7.
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The Pratt Court next held that the trial court abused its discretion when
it denied the Plaintiffs an evidentiary hearing to develop their juror misconduct
claim. On this issue, the Pratt Court observed that Juror 10’s letter claimed
certain, wayward jurors sought out and received extraneous information from
trusted, outside medical professionals. Pratt, 866 A.2d at 315, 321, and 323
n.13. This extraneous information “pertained to a central, disputed issue in
the case, namely the applicable medical standard of care and, more
specifically, whether a CAT scan was implicated at an early stage of the
medical evaluation.” Id. at 321; see also Pratt v. St. Christopher’s Hosp.,
824 A.2d 299, 305 (Pa. Super. 2003) (declaring: “[t]he jurors, by seeking an
opinion from an outside source, sought an opinion from someone whom they
found to be personally credible, on the core issue in the case. In essence, the
jurors at issue sought out a third party's opinion on which testimony presented
at trial to accept. . . . In this case, the two jurors in essence sought out their
own expert testimony, which necessarily served to support one of the two
sides at trial”). The Pratt Court further noted that, although Juror 10’s letter
did not specifically declare that the extra-record information “was received by
majority or minority jurors,” “the tenor of the letter certainly raises the
implication that unfavorable information was received by majority jurors.”
Pratt, 866 A.2d at 323. Thus, the Pratt Court held, the Plaintiffs satisfied
their threshold showing of potential prejudice, which was necessary to warrant
an evidentiary hearing on the issue. See id. at 323; Carter, 604 A.2d at
1016 (“[o]nce the existence of a potentially prejudicial extraneous influence
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has been established by competent testimony, the trial judge must assess the
prejudicial effect of such influence”).
The Pratt Court did, however, note that “Juror 10’s affidavit lacks
specificity in material respects, and therefore, even if believed, would not, in
and of itself, establish the quantum of prejudice necessary to disturb the
verdict.” Pratt, 866 A.2d at 322-323. For example, the Pratt Court noted:
“Juror 10's letter is not specific in terms of whether the extra-record
information allegedly communicated to jurors was favorable or unfavorable
to” the Plaintiffs and, as stated above, the letter in this civil case did not
specifically declare whether the extra-record information “was received by
majority or minority jurors.” Id. at 323. Moreover, as the Pratt dissent
observed, Juror 10’s letter was not sworn and the allegations within the letter
were based upon hearsay. Pratt, 866 A.2d at 325 and 328 (Newman, J.,
dissenting).
Notwithstanding the ambiguities and deficiencies in Juror 10’s letter, the
Pratt Court held that the Plaintiffs were entitled to an evidentiary hearing to
develop their juror misconduct claim. Weighing in favor of an evidentiary
hearing, the Supreme Court deemed significant the fact that, in its prior
opinions, the Supreme Court “has discouraged pointed, post-verdict
discussions between disappointed litigants and discharged jurors that are
specifically directed toward collecting evidence with which to impeach the
verdict.” Pratt, 866 A.2d at 323, quoting Commonwealth v. Patrick, 206
A.2d 295, 297 (Pa. 1965) (“[t]he practice of interviewing jurors after a verdict
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and obtaining from them ex parte, unsworn statements in answer to
undisclosed questions and representations by the interviewers is highly
unethical and improper and was long ago condemned by [the Pennsylvania
Supreme Court.] . . . It is forbidden by public policy”) (quotation marks,
citations, and emphasis omitted). “Given such constraints,” the Pratt Court
held, “the Superior Court did not err in determining that Juror 10's affidavit
was sufficient to implicate further investigation by the trial court via an
evidentiary hearing.” Pratt, 866 A.2d at 323.
Finally, the Supreme Court rejected the Plaintiffs’ request to simply
order a new trial in the case. Among other reasons for denying the Plaintiffs’
request for a new trial and limiting the relief to an evidentiary hearing on the
Plaintiffs’ post-trial motion, the Supreme Court declared: “[i]n the
post-verdict setting, . . . the interest in finality weighs substantially in favor
of evidentiary development and factual determination, with the burden of
proof allocated to the party contesting the verdict.” Id. Put differently, in
such cases, a new trial is warranted only where the party contesting the
verdict is able to prove a reasonable likelihood of prejudice, not simply a
threshold showing of potential prejudice, which merely necessitates an
evidentiary hearing. See id.
In the case at bar, Appellant contends that the trial court abused its
discretion when it refused to hold an evidentiary hearing to investigate his
claims that the jurors received extraneous information or were subjected to
an outside influence. Appellant’s Brief at 4. As noted above, Appellant’s
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claims of extraneous information and outside influence are: 1) Attorney Gill’s
averment that, “during [a sidebar at Appellant’s trial,] there were two women
spectators who . . . were talking very loudly about . . . the Rachel DelTondo
case . . . [and] were speaking so loudly that the reporter . . . had to tell them
to stop talking in front of the jurors” and 2) Attorney Cobb’s averment that
Juror Number 3 and Juror Number 3’s Father “talked about the case during
the jury deliberations and that [Juror Number 3] was having a hard time
deciding what to do and that [Juror Number 3] and [Juror Number 3’s Father]
‘prayed on it’ and after they prayed, [Juror Number 3] made her decision.”
Id. at 11-32; Affidavit of Attorney Gill, 7/19/21, at 1-3; Affidavit of Attorney
Cobb, 7/19/21, at 1-2.
We conclude that Appellant is not entitled to relief on his first claim,
which alleged juror exposure to extraneous information through courtroom
discussion between two trial spectators. With respect to Appellant’s second
issue, however, we conclude that the trial court abused its discretion when it
refused to hold an evidentiary hearing to examine the substance and
surrounding circumstances of the discussion between Juror Number 3 and
Juror Number 3’s Father, when they “talked about the case during the jury
deliberations.” See Affidavit of Attorney Cobb, 7/19/21, at 2. Therefore, we
vacate the trial court’s order denying Appellant’s post-sentence motion and
remand solely for an evidentiary hearing on this issue.
We start with Appellant’s claim that, during a sidebar at his trial, the
jurors received extraneous information when two trial spectators talked “very
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loudly about . . . the Rachel DelTondo case.” Appellant’s Brief at 17; Affidavit
of Attorney Gill, 7/19/21, at 1-3. Appellant claims that these facts, as attested
to by Attorney Gill, are sufficient to warrant an evidentiary hearing to
investigate “whether the jurors were subjected to external influence tying
[Appellant] to the Rachel DelTondo murder.” Appellant’s Brief at 17.
Specifically, Appellant argues, “[a]lthough it is unclear whether the
[spectators’] conversation did, in fact, tie [Appellant] to the murder, given
that it occurred at [Appellant’s] trial, there is at least an implication that it
did.” Id. Appellant’s claim fails.
Here, Attorney Gill averred that she heard the loud conversation
between the two trial spectators – and Attorney Gill never stated that the
conversation “tied” Appellant to Rachel DelTondo’s murder. Instead, Attorney
Gill merely stated that the two trial spectators were “talking about” “the Rachel
DelTondo case.” Affidavit of Attorney Gill, 7/19/21, at 2-3. However, as
Appellant concedes, Rachel DelTondo’s murder was “high-profile” and
“highly-publicized” in the county. See Appellant’s Brief at 6-7.
The discussion of a “high-profile,” “highly-publicized,” and newsworthy
case between trial spectators is not unusual. Further, although Attorney Gill
heard the spectators’ discussion, she did not state that the trial spectators
mentioned Appellant, much less connected him to Rachel DelTondo’s murder.
Finally, the trial court considered the claim and concluded that neither the
discussion nor the subject of the discussion raised any implication that the
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spectators made any connection between Appellant and Rachel DelTondo’s
murder. See Trial Court Opinion, 1/31/22, at 29.
Thus, Appellant’s claim that the conversation might have “tied”
Appellant to Rachel DelTondo’s murder goes beyond mere speculation – it is
simply not supported by the first-hand account of Attorney Gill. Moreover,
since the relevant facts surrounding this claim of extraneous information are
not in dispute and did not raise the potential for prejudice, the trial court did
not abuse its discretion when it denied Appellant’s request for an evidentiary
hearing on the issue. See, e.g., Pope, 14 A.3d at 145 (“[w]hen the facts
surrounding the possible [jury] misconduct are in dispute, the trial judge
should examine the various witnesses on the question”); see also Carter,
604 A.2d at 1016-1017.
Next, Appellant claims that the trial court abused its discretion when it
refused to hold an evidentiary hearing to investigate his claim that Juror
Number 3 received extraneous information or was subjected to an outside
influence, when Juror Number 3 “talked [to her father] about [Appellant’s]
case.” See Appellant’s Brief at 18-19. These factual allegations were raised
in Attorney Cobb’s affidavit and based upon layered hearsay. Specifically,
Attorney Cobb averred that: she spoke with the former father-in-law of Juror
Number 3; Juror Number 3’s former father-in-law told Attorney Cobb that he
spoke with Juror Number 3’s Father; and, according to the former father-in-
law, Juror Number 3 and Juror Number 3’s Father “talked about the case
during the jury deliberations and that [Juror Number 3] was having a hard
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time deciding what to do and that [Juror Number 3] and [Juror Number 3’s
Father] ‘prayed on it’ and after they prayed, [Juror Number 3] made her
decision.” Affidavit of Attorney Cobb, 7/19/21, at 1-2.
According to Appellant, he is entitled to an evidentiary hearing to
determine whether Juror Number 3 received extraneous information or was
subjected to an outside influence because Attorney Cobb’s affidavit alleges
that:
[Juror Number 3 and Juror Number 3’s Father] “talked about
how she was a juror and what was happening during the trial”
and “about the case” before they “prayed on it” and “she
made her decision.” The clear import of the affidavit in this
regard is that Juror Number 3 and her father had a
conversation about the trial . . . [and] the “central issue in
the case”: whether to convict.
Appellant’s Brief at 30-31 (citations and emphasis omitted).
We agree with Appellant and conclude that the trial court abused its
discretion when it refused to hold an evidentiary hearing to examine the
circumstances surrounding, and substance of, the discussion between Juror
Number 3 and Juror Number 3’s Father, when they “talked about the case
during the jury deliberations.” See Affidavit of Attorney Cobb, 7/19/21, at 2.
“The impartiality and integrity of the jury are critical to the proper
functioning of our judicial system.” Commonwealth v. Winstead, 547 A.2d
788 (Pa. Super. 1988); see also Dietz v. Bouldin,
579 U.S. 40, 48 (2016)
(“the guarantee of an impartial jury [] is vital to the fair administration of
justice”). To ensure the impartiality and integrity of the jury, “[j]urors are
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customarily instructed not to discuss the case with anyone and to avoid
contact with media covering the case.” Bruckshaw v. Frankford Hosp., 58
A.3d 102, 110 (Pa. 2012); see also Pa.R.Crim.P. 626(C) (“[a]t a minimum,
the persons reporting for jury service shall be instructed that until their service
as prospective or selected jurors is concluded, they shall not: (1) discuss any
case in which they have been chosen as prospective jurors or selected jurors
with others, including other jurors, except as instructed by the court”);
Pa.S.S.J.I. (Crim.) § 2.06 (“You cannot even discuss the case with members
of your family, close friends, court personnel, or other members of the jury”).8
Indeed, in the federal context, the United States Supreme Court has held:
In a criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a trial
about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial, if not made in
pursuance of known rules of the court and the instructions
and directions of the court made during the trial, with full
knowledge of the parties.
Remmer v. United States, 347 U.S. 227, 229 (1954); but see Pratt, 866
A.2d at 324 (“in instances of post-verdict allegations of extraneous
information and/or outside influence affecting jury deliberations, we adopt the
objective test for prejudice as well as the associated guidelines that are set
forth in the lead opinion in Carter, 604 A.2d at 1016-1017”); Carter, 604
A.2d at 1016-1017 (declaring that the objective test for prejudice and the
____________________________________________
8In the case at bar, the trial court thoroughly and ably instructed the jurors
on their duty to avoid outside influence and to refrain from discussing the case
with anyone. See N.T. Trial, 6/10/21, at 34-36.
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associated guidelines derive from criminal law and apply to “all” cases); Pope,
14 A.3d at 145-147 (applying the objective test for prejudice and the Carter
guidelines in the criminal context, where the defendant claimed that a juror
made an unauthorized visit to the scene of the crime and was exposed to
prejudicial, extraneous information); see also Shoop v. Cunningham,
143
S.Ct. 37, 42 and 42 n.5 (2022) (Thomas, J., dissenting) (noting: “it is not []
clear that Remmer established any constitutional rule. Words like
‘constitutional’ and ‘due process’ are nowhere to be found in the [Remmer]
Court's laconic opinion. One could just as naturally – perhaps more naturally
– read Remmer as a case about new-trial motion practice under the Federal
Rules of Criminal Procedure than as one about the requirements of
constitutional due process. . . . [Further,] Smith v. Phillips,
455 U.S. 209
(1982), did not hold that Remmer was binding on state courts as a matter of
constitutional due process; rather, it held only that a state court did not
violate due process by responding to an allegation of juror impartiality with
a hearing that would have satisfied Remmer had it occurred in the federal
system”) (emphasis in original).9
____________________________________________
9 In Pratt, the Pennsylvania Supreme Court observed:
In the criminal law arena, a few decisions of the United States
Supreme Court suggest that a presumption of prejudice may be
warranted in some scenarios involving jury tampering and/or
misconduct, see, e.g., [Remmer, 347 U.S. at 229–30], although
more recent decisions militate to the contrary. See United
(Footnote Continued Next Page)
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Appellant alleged that, during jury deliberations, Juror Number 3 “was
having a hard time deciding what to do” and “talked about the case” with her
father. He further alleged that, after this discussion (and prayer), “[Juror
Number 3] made her decision.” See Affidavit of Attorney Cobb, 7/19/21, at
2.
We initially note that Juror Number 3 is competent to testify about what
she and her father discussed, when they “talked about the case during the
jury deliberations.” To be sure, Juror Number 3’s discussion of the case with
an outside individual squarely implicates either or both of the extraneous
information or outside influence exceptions to the no-impeachment rule. See
Pa.R.E. 606(b).
Further, we conclude that, under Pratt, the trial court abused its
discretion when it denied Appellant’s request for an evidentiary hearing on
this issue, as Appellant’s factual allegations satisfy the threshold showing of
potential prejudice.
Here, Attorney Cobb’s affidavit unequivocally alleges that Juror Number
3 “talked about the case” with her father. Affidavit of Attorney Cobb, 7/19/21,
at 2. Further, the allegations in the affidavit imply: that Juror Number 3
____________________________________________
States v. Olano, 507 U.S. 725 (1993); [Smith v. Phillips,
455
U.S. 209, 214–217 (1982)].
Pratt, 866 A.2d at 322 n.11. The Pratt Court further noted that “some
adjustment of the relevant test and/or burden may be warranted if the
extraneous information or outside influence was brought to bear upon the
jurors via misconduct on the part of the prevailing party.” Id.
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discussed the case with her father because she was “having a hard time
deciding” how to vote; that the two discussed the specific facts of Appellant’s
case; that the discussion revolved around the “central issue in the case” (i.e.
Appellant’s guilt or innocence); and that, after discussing the case with her
father, Juror Number 3 decided to vote guilty. See, e.g., Commonwealth
v. Jackson, 324 A.2d 350, (Pa. 1974) (“[a] criminal defendant who is tried
before a jury can only be convicted by unanimous verdict”); see also Pratt,
866 A.2d at 323 (looking to the “implication[s]” of Juror 10’s allegations to
determine whether a hearing was warranted); Carter, 604 A.2d at 1016-1017
(“[i]n determining the reasonable likelihood of prejudice, the trial judge should
consider . . . whether the extraneous influence relates to a central issue in the
case or merely involves a collateral issue”). These circumstances satisfy the
threshold showing of potential prejudice and warrant further investigation to
determine whether Juror Number 3’s Father provided Juror Number 3 with
“prejudicial information not of record and beyond common knowledge and
experience” or improperly brought to bear an outside influence upon her. See
Pa.R.E. 606(b)(2). Thus, we conclude that the trial court abused its discretion
when it denied Appellant’s request for an evidentiary hearing on this issue.
It is true that Attorney Cobb’s affidavit does not reveal the substance of
Juror Number 3’s discussion with her father and it does not allege that Juror
Number 3’s Father supplied Juror Number 3 with prejudicial information or
subjected Juror Number 3 to outside influence. Further, Attorney Cobb’s
affidavit is based upon layers of hearsay. Nevertheless, in Pratt, the Supreme
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Court concluded that the trial court abused its discretion when it refused to
hold an evidentiary hearing on its juror misconduct claim, despite similar
deficiencies. Indeed, in Pratt, the allegations of juror misconduct were
contained in an unsworn letter and based upon hearsay. Further, in Pratt,
the allegations of juror misconduct were “not specific in terms of whether the
extra-record information allegedly communicated to jurors was favorable or
unfavorable to” the movants and the letter did not specifically declare whether
the extra-record information in the civil case “was received by majority or
minority jurors.” See Pratt, 866 A.2d at 322-323. Finally (and echoing
Pratt), given the confidential and protected nature of the jury deliberation
process, it does not strike us as unusual that claims involving the introduction
of extraneous information or outside influence begin as generalized
declarations passed between and among jurors, family members, courtroom
participants, and onlookers. See id. at 323 (noting that the Supreme Court
“has discouraged pointed, post-verdict discussions between disappointed
litigants and discharged jurors that are specifically directed toward collecting
evidence with which to impeach the verdict”). Thus, in following Pratt, we
conclude that the deficiencies in Attorney Cobb’s affidavit do not preclude an
evidentiary hearing in this case.
In conclusion, we must vacate the trial court’s order of November 22,
2021 denying Appellant’s post-sentence motion and remand the case, to
enable the trial court to conduct an evidentiary hearing and determine:
whether or not Juror Number 3 and her father “talked about the case during
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the jury deliberations;” the circumstances surrounding the alleged
communications; the substance of what Juror Number 3 and Juror Number 3’s
Father discussed, when they “talked about the case during the jury
deliberations;” and, the prejudicial impact of any such extraneous information
or outside influence by applying the “objective test for prejudice as well as the
associated guidelines that [were] set forth in the lead opinion in Carter, 604
A.2d at 1016-1017.”10 Pratt, 866 A.2d at 324; see also Pope, 14 A.3d at
145-147.
____________________________________________
10 We note that, under Rule 606(b), Juror Number 3 would not be competent
to testify as to the contents of her personal, individual prayers, as those
prayers would implicate her personal, mental processes in reaching the
verdict. See Pa.R.E. 606(b)(1) (“[d]uring an inquiry into the validity of a
verdict, a juror may not testify about . . . any juror's mental processes
concerning the verdict”); see also State v. DeMille,
756 P.2d 81, 84 (Utah
1988) (“[p]rayer is almost certainly a part of the personal decision-making
process of many people, a process that is employed when serving on a jury.
. . . [U]nder [Utah Rule of Evidence] 606(b), prayer and supposed responses
to prayer are not included within the meaning of the words ‘outside
influence’”); c.f. United States v. Brown,
996 F.3d 1171, 1190 (11th Cir.
2021) (en banc) (“[j]urors may pray for and believe they have received divine
guidance as they determine another person's innocence or guilt, a profound
civic duty but a daunting task to say the least. Prayer is a part of the personal
decision-making process of many people, a process that is employed when
serving on a jury. To ask that jurors become fundamentally different people
when they enter the jury room is at odds with the idea that the jury be drawn
from a fair cross section of the community”) (quotation marks and citations
omitted).
In the case at bar, the issue of competency is muddied by the presence of
Juror Number 3’s Father and the extent of his involvement in Juror Number
3’s prayer. At this stage of the proceedings, there are no facts to establish
the circumstances surrounding the prayer and whether Juror Number 3’s
Father subjected Juror Number 3 to extraneous information or outside
(Footnote Continued Next Page)
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Order of November 22, 2021 denying the post-sentence motion vacated.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
____________________________________________
influence during the prayer. These are subjects that may properly be fleshed
out during the evidentiary hearing.
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