J-A10017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD KRISTA,

Appellant No. 174 WDA 2015

Appeal from the Judgment of Sentence July 29, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007547-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 09, 2016

Appellant, Richard Krista, appeals from the judgment of sentence of 

two consecutive terms of life imprisonment without the possibility of parole 

(LWOP), imposed following his conviction for two counts of first-degree 

murder. Herein, Appellant argues that the Commonwealth’s attorney 

engaged in prosecutorial misconduct, adversely referencing Appellant’s 

decision not to testify at trial, which was not alleviated by the trial court’s 

subsequent jury instruction. Appellant also complains that the trial court 

erred when it did not allow defense counsel to pursue a specific line of 

questioning during the voir dire of potential jurors, and by dismissing a juror 

without creating an adequate record for the removal justification. After 

careful review, we vacate the judgment of sentence and remand for a new 

trial. 
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Appellant’s current conviction was the product of his third jury trial for 

the deaths of victims Cody Ruder and Joseph Sherrill. Appellant’s previous 

two trials resulted in hung juries. An unorthodox summary of the facts 

leading to Appellant’s conviction was provided by the trial court as follows:

The Factual Dynamics: The Obvious

On May 11, 2012, Ruder and ... Sherrill were shot to death 

behind Building 20 in the Mon View Heights public housing 

complex in West Mifflin, Pennsylvania. Sherrill received 3 

gunshots to the body: one to the back of the head and two to 

the right side of the neck. All three were from close range. 

Ruder was hit 4 times with bullets. One entered his body around 

his left shoulder and eventually fractured his spinal cord. This 

shot was from close range based upon the "stippling" found near 

the entrance wound. A second wound was near his jawline not 

far from his left ear. The 3rd bullet entered around his chin. The 

muzzle of the gun was maybe an inch away [from that wound]. 

A 4th bullet hit the left che[e]k area of his face. A bottle of 

Hennessey liquor remained grasped by Ruder as he laid [sic] 

there.

The Night Before

Ruder and Sherrill were killed on May 11, 2012. The 

evening before, [Appellant] was at Building 20. He was inside a 

residence with girlfriend, Lauren, and two others, Sheniya Smith 

and Alexis Burch. [Appellant] and Lauren were arguing. The 

topic - Ruder flirting with Lauren. Lauren did not like that 

attention from Ruder. She told [Appellant] that she wanted 

Ruder "handled" and "dealt with[."] [Appellant] said that "he'll 

take care of it" and the "next time I see him, it's over[."] A gun 

was observed inside a coat that [Appellant] was wearing. It was 

also revealed that [Appellant] said "if I have to use a gun, I 

will[."]

The Prelude

Not far from Building 20 is Whitaker Street. Marie Grayson 

lives there. She allowed Ruder to stay there and call her home 

his home. Around 4 p.m. on May 11th, people started to gather 

at the Grayson house. It was Marie's birthday. The front porch 
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was the epicenter of fun. Ruder and Sherrill were there talking 

and laughing and otherwise enjoying the moment. Alcoholic 

beverages were consumed. After dark, sometime between 9 and 

10 p.m., Ruder and Sherrill left the Grayson residence. Ruder 

[was] carrying a bottle of Hennessey liquor. Maybe 5 minutes 

later, flashes of gun fire are seen.

[Appellant] Returns

The evening of the murders, [Appellant] was back at 

Building 20. Inside 20-E[] was Alexis Burch, her sister and 

Lauren, [Appellant]'s girlfriend. They were not the only one's 

[sic] there. [Appellant] was there along with his little cousin. 

They left out the back door and a few minutes later – maybe 1 

to 3 minutes - shots r[a]ng out.

The Babysitter & Screen Door

May 11th was Josh Smithwick's birthday. Not any birthday, 

but his 21st birthday. His plans included celebrating with family 

and friends. He got to Jennifer Payne's home at 20-D Mon View 

Heights between 7-8 o’clock that evening. He came with his 

fiancé – Ashley Fey. The group's exit to their party destination 

was delayed. They were waiting on a cousin to come babysit 

Payne's children. The wait got interrupted by the sound of 

gunfire. The gunshots came from behind Jennifer Payne's place. 

Ms. Payne's 15 year old son had left her home a little bit 

before the shots were heard. Sensing danger[,] she bolted out 

the front door. Josh [was] right there with her. She [was] 

standing on the front stoop. The screen door did not work right. 

The spring/air pump that allows the door to close gently was 

broken. Instead, the door slam[med] shut. The noise caused 

two light skinned black males to stop running and look where the 

noise came from. In doing so, they look[ed] in Ms. Payne's 

direction. They [were] face to face. One has a white shirt on 

with something in his hand. Josh sa[id] the thing in his hand is 

a gun. The other had darker clothing on. 

Identification

Joshua Smithwick was about 5 years out of high school 

when he testified. He played football at West Mifflin High 

School. So[] did [Appellant]. They were teammates. After 

police arrived at the scene on May 11th, they spoke with 

Smithwick. He gave them the name of [Appellant]. A photo 
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array was later conducted. [Appellant] was picked out as the 

man who had the gun in his hand.

Trial Court Opinion (TCO), 8/31/15, at 5-7. 

Appellant was charged with two counts of criminal homicide, and his 

first trial commenced on October 2, 2013. That trial ended on October 10, 

2013, when the jury failed to reach a verdict, prompting the trial court to 

declare a mistrial. Appellant’s second trial began on January 13, 2014. That 

jury was also unable to reach a verdict, causing the trial court to declare a 

mistrial on January 23, 2014. Appellant’s third trial, the focus of the instant 

appeal, began on May 28, 2014. On June 5, 2014, the jury found Appellant 

guilty of two counts of first-degree murder. 

On July 29, 2014, the trial court sentenced Appellant to consecutive 

terms of LWOP, and ordered restitution in the amount of $10,345.00. 

Appellant timely filed post-sentence motions on August 4, 2014. 

Subsequently, Appellant retained current counsel to handle his appeal. On 

November 3, 2014, current counsel filed amended post-sentence motions. 

Appellant’s post-sentence motions were denied by operation of law on 

January 13, 2015. 

Appellant filed a timely notice of appeal on January 27, 2015. 

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on 

March 10, 2015. The trial court filed its initial Rule 1925(a) opinion on 

August 31, 2015, and an amended Rule 1925(a) opinion on September 8, 

2015. Appellant now presents the following questions for our review:
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I. Whether the trial court’s instruction to the jury that it 

should disregard the prosecutor’s statement, “If Mr. Krista 

wants to take the stand and explain what happened, he 

can,” cured the constitutional error created by the 

comment on [Appellant]’s right to remain silent?

II. Whether the trial court erred by refusing to permit 

adequate voir dire where trial counsel sought to question 

prospective jurors regarding bias if [Appellant] chose not 

to testify in his own behalf?

III. Whether the trial court erred in dismissing a juror during 

trial, lacking a sufficient record of cause to justify the 

removal?

Appellant’s Brief, at 3. 

Appellant’s first claim concerns prosecutorial misconduct that violated 

Appellant’s absolute right not to testify at his own trial. The contested 

statement occurred during Appellant’s re-cross-examination of Detective 

Patrick Kinavey. Appellant’s trial strategy focused, inter alia, on the dearth 

of physical evidence tying him to the murders of Ruder and Sherrill. 

Detective Kinavey essentially testified that one cause of the lack of physical 

evidence was the fact that Appellant was not apprehended in the immediate 

aftermath of the crime(s). Consequently, the recovery of certain physical 

evidence was practically impossible, such as the potential discovery of gun 

residue, or the victim’s DNA, on the shooter’s body. The delay also provided 

ample opportunity for the destroying or secreting of physical evidence. 

With the assistance of defense counsel, Appellant had surrendered to 

police six days after the murders. However, at trial, defense counsel tried to 

elicit from Detective Kinavey that he (defense counsel) had begun 

negotiating Appellant’s surrender several days earlier, by the third or fourth 
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day following the murders upon discovery of the warrant for Appellant’s 

arrest. Counsel was pursuing that line of questioning to counteract any 

implication that Appellant had been actively evading police during those six 

days. It is in this context that the following exchange occurred during 

defense counsel’s re-cross-examination of the detective:

Q. Detective Kinavey, this [the murders] happened on May 11, 

2012; correct?

A. That is correct.

Q. And that was a Friday night; correct?

A. Yes.

Q. So one day later was Saturday. Sunday, two days. Monday, 

three days. Correct?

A. That is correct.

Q. You said it was six days. That's when you recall me having 

contacted Detective Foley and turned [Appellant] in upon 

learning that there was a warrant for him? You recall that; don't 

you?

[Prosecutor]: Objection, Your Honor. Mr. Wymard is 

testifying.

[Defense Counsel]: I'm asking.

[Prosecutor]: If Mr. Krista wants to take the stand and 

explain what happened, he can.

[Trial Court]: Gentlemen, approach.

[Whereupon, discussion at side bar as follows:]

[Defense Counsel]: With permission, I am objecting to his 

remark. I am objecting and moving for a mistrial.

[Trial Court]: Mr. Schupansky, that was an inappropriate remark 

to make. I don’t know why you would broach the subject. You 

know that he has no burden.
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I am granting a mistrial.

N.T., 5/28/14-6/5/14 (Vol. I), at 312-13 (emphasis added, emphasis in 

original omitted). 

Immediately following this incident, which occurred very early in the 

afternoon, the jury was dismissed for the day. Subsequently, the trial court 

reconsidered its decision to grant a mistrial after extensive argument. Id. at 

314-366. Instead, and over Appellant’s objections, id. at 361, the trial court 

issued a lengthy curative instruction to the jury when it returned the 

following day, id. at 366-369. 

Appellant contends that the prosecutor’s comment directly referenced 

his silence at trial, thereby prejudicing him to a degree which no curative 

instruction could remedy. 

“It is well settled that the Fifth Amendment, made 

applicable to the states through the Fourteenth Amendment, 

forbids either comment by the prosecution on the accused's 

silence at trial or instructions by the court that such is evidence 

of guilt.” Commonwealth v. Davis, 452 Pa. 171, 174, 305 

A.2d 715, 717 (1973) (citations omitted). See: Griffin v. 

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 

(1965). See also: Commonwealth v. Henderson, 456 Pa. 

234, 317 A.2d 288 (1974); Commonwealth v. Reichard, 211 

Pa. Super. 55, 233 A.2d 603 (1967). “This Court has long 

recognized the principle ‘that the prosecutor's remarks to the 

jury should not contain any adverse reference to the failure of 

[an accused] to offer himself as a witness in the event that he 

does not testify on his own behalf.’” Commonwealth v. 

Torres, 329 Pa. Super. 58, 64, 477 A.2d 1350, 1353 (1984), 

quoting Commonwealth v. Myers, 131 Pa.Super. 258, 265, 

200 A. 143, 146 (1938). This is so because “‘allowing the 

prosecution to comment on the accused's failure to testify [is], in 

effect, allowing the failure to take the witness stand to be used 

as evidence against him, which in the minds of the jurors would 

be indicative of guilt.’” Commonwealth v. Torres, supra 329 
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Pa.Super. at 65, 477 A.2d at 1353, quoting Commonwealth v. 

Henderson, supra 456 Pa. at 238, 317 A.2d at 291. However, 

“[s]uch comments are improper [only] if they unequivocally call 

attention to the defendant's failure to testify.” Commonwealth 

v. Kloch, 230 Pa. Super. 563, 589, 327 A.2d 375, 389 (1974). 

Therefore, “while it is improper for a prosecuting attorney to 

refer to a defendant's failure to testify, it is not improper for the 

prosecutor to identify for the jury items of evidence which have 

been uncontradicted.” Commonwealth v. LaMassa, 367 Pa. 

Super. 54, 57, 532 A.2d 450, 451 (1987). See also: 

Commonwealth v. Jones, 242 Pa. Super. 471, 476–477, 364 

A.2d 368, 370–371 (1976); Commonwealth v. Kloch, supra

230 Pa.Super. at 588–590, 327 A.2d at 389–390. “‘To 

constitute error, the remark must go further, indicating a duty of 

the defendant to testify, and permitting an unfavorable inference 

to be drawn from his failure to do so.’” Commonwealth v. 

Kloiber, 378 Pa. 412, 419, 106 A.2d 820, 824 (1954), cert. 

denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), 

quoting Commonwealth v. Thomas, 275 Pa. 137, 141, 118 A. 

667, 668 (1922). “‘Reference to the failure of a defendant to 

testify on his own behalf, to constitute reversible error, must call 

the jury's attention to the fact that the defendant has not 

testified and must reasonably lead to an inference that he would 

have taken the stand if not guilty.’” Commonwealth v. 

Kloiber, supra 378 Pa. at 420–421, 106 A.2d at 825, quoting 

Commonwealth v. Holley, 358 Pa. 296, 300–301, 56 A.2d 

546, 548 (1948). 

Even in situations where the prosecuting attorney has 

made improper reference to a defendant's failure to testify, the 

Supreme Court has held that the trial court's jury instructions 

may, in some instances, be sufficient to cure the error. See: 

Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 

(1976). See also: Commonwealth v. Ross, 403 Pa. 358, 371–

372, 169 A.2d 780, 787 (1961), cert. denied, 368 U.S. 904, 82 

S.Ct. 182, 7 L.Ed.2d 98 (1961); Commonwealth v. Loar, 264 

Pa. Super. 398, 404–405, 399 A.2d 1110, 1113–1114 (1979). 

In this regard, the Supreme Court has stated: 

Initially, whether the harm can be removed by curative 

instructions will be within the sound discretion of the trial 

judge and his determination will be subject to appellate 

review. In making this decision, the following will be 

important considerations but not necessarily exclusive: (1) 
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the nature of the reference, particularly, whether it was a 

specific comment on the accused's silence at trial or at the 

time of arrest or whether it was, as in Commonwealth v. 

Ross, supra, merely a reference to the fact that 

incriminating evidence of the Commonwealth was 

undenied or uncontradicted; and (2) whether the accused's 

silence was exploited by the district attorney. 

Commonwealth v. Maloney, supra 469 Pa. at 349, 365 A.2d 

at 1241. See also: Commonwealth v. Ashmore, 266 Pa. 

Super. 181, 189, 403 A.2d 603, 607 (1979).

Commonwealth v. Ulen, 607 A.2d 779, 790-91 (Pa. Super. 1992).

Initially, we note that the Commonwealth does not devote any portion 

of its argument to whether the prosecutor, in fact, commented on 

Appellant’s silence at trial. The Commonwealth does dispute the intent 

behind the remark by arguing that the prosecutor did not mean to 

encourage the jury to draw an adverse inference from Appellant’s failure to 

testify. Instead, the Commonwealth contends that the prosecutor misspoke 

in response to the “improper actions” of defense counsel during the 

questioning of Detective Kinavey. For this reason, and because of the trial 

court’s curative instruction, the Commonwealth argues that the prosecutor’s 

statement on Appellant’s silence at trial was harmless error. 

Thus, it is effectively conceded that the prosecutor improperly 

referenced Appellant’s silence at trial. This dovetails with the trial court’s 

conclusion that “the comment by the prosecutor was inappropriate and had 

the potential for prejudice.” TCO, at 20. Indeed, the language used by the 

prosecutor is unambiguous in this regard. In a single sentence, the 

prosecutor spoke directly to Appellant’s decision to testify and the potential 
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of such testimony to resolve the timeline of events leading to Appellant’s 

surrender to authorities. Thus, the comment “unequivocally call[ed] 

attention to the [Appellant]'s failure to testify[.]” Kloch, 327 A.2d at 389. 

To further limit the scope of our inquiry, we note that Appellant does 

not challenge the content of the trial court’s curative instruction, but rather 

its efficacy in curing the prejudicial effect resulting from the 

Commonwealth’s constitutionally impermissible remark. Put simply, 

Appellant contends that no instruction was capable of curing or substantially 

diminishing the prejudicial effect of the prosecutor’s comment. 

Thus, our inquiry is limited to whether the prejudice resulting from the 

prosecutor’s comment on Appellant’s silence at trial was so grave as to 

require a new trial despite a curative instruction, or whether it was harmless 

beyond a reasonable doubt. As our Supreme Court advised in Maloney, this 

requires consideration of: 1) the nature of the comment itself, and 2) 

whether the Appellant’s silence was exploited by the Commonwealth. This 

Court elaborated further in Commonwealth v. Marsh, 566 A.2d 296 (Pa. 

Super. 1989), establishing the following four-factor test:

The courts of this Commonwealth use a four-factor test to 

determine whether cautionary instructions can cure [otherwise 

reversible] error: “1) the nature of the reference to the 

defendant's silence; 2) how it was elicited; 3) whether the 

district attorney exploited it; and 4) the promptness and 

adequacy of the cautionary instruction.” 

Id. at 300 (quoting Commonwealth v. Gbur, 474 A.2d 1151, 1154 (Pa. 

Super. 1984)).
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In Ross, the prosecutor made a statement to the effect that there had 

been a “failure to deny the [defendant’s] confession.” Ross, 169 A.2d at 

787. Upon objection by the defense, the trial court in Ross quickly advised 

the jury that it could not draw any adverse inferences from the defendant’s 

failure to testify. Nevertheless, the Ross court noted that the statement 

was not grave error, or perhaps not error at all, because “the district 

attorney could properly say that the evidence of the Commonwealth was 

uncontradicted and undenied[.]” Id. (quoting from Commonwealth v. 

Bolish, 113 A.2d 464, (Pa. 1955)).

In Commonwealth v. Anderjack, 413 A.2d 693 (Pa. Super. 1979), a 

police officer who had interviewed the defendant immediately following his 

arrest was asked by defense counsel if he told “[the defendant] any 

information relating to the nature of the incident?” Id. at 697. The officer 

responded as follows: “Yes, we did. We explained what we had on the case 

to him and advised him of his rights and gave him a waiver of rights which 

he refused to sign.” Id. The defendant moved for a mistrial on the basis 

that the officer had referenced his silence by referring to the defendant’s 

failure to sign the waiver. The trial court denied the motion for mistrial and 

promptly issued a curative instruction. 

In assessing “the degree of prejudice,” the Anderjack court found the 

reference to the defendant’s silence was “an implicit rather than explicit 

statement[,]” and that “the jury had previously heard testimony that [the] 

appellant was not always silent.” Id. at 699. Furthermore, the reference to 
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the defendant’s silence was not made or solicited by the prosecutor. As the 

Anderjack court noted:

From a defendant's point of view, the prejudice may be the 

same no matter how it is provoked, whether intentionally by the 

district attorney or as in this case, recklessly by defense counsel. 

Nevertheless, how the reference to the defendant's silence is 

elicited may be an important fact in a close case, for if elicited by 

the district attorney, this court may reverse not only because of 

the prejudice but also in order to express our disapproval of the 

district attorney's misconduct. Indeed, in Commonwealth v. 

Singletary, [387 A.2d 656 (Pa. 1978)], the reference to the 

defendant's silence was by the district attorney, who should 

have known better than to make such a statement. Here, 

however, there is no evidence of misconduct, either on the part 

of the district attorney, or on the part of the witness, who made 

only a single statement, added as an afterthought to complete 

the more responsive portion of his answer.

Id. (citation and footnote omitted). 

Given the nature of the statement, the fact that it was not elicited by 

the prosecutor, and because a prompt and adequate jury instruction was 

given, the Anderjack Court denied the defendant’s claim that he was 

entitled to a new trial based on the reference to his pre-trial silence.1 See 

also Gbur, 474 A.2d at 1151 (holding mistrial not required where the 

reference to the defendant’s silence was in a non-responsive statement by a 

witness, not purposefully elicited by the prosecutor, and addressed by the 

court with an immediate curative instruction). 

____________________________________________

1 The Court also noted that the prosecutor did not attempt to exploit the 

comment on the defendant’s silence with any further questioning or during 

closing arguments. 
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In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), the 

prosecutor told a jury during closing arguments that the defendant was one 

of the two “best witnesses” in the courtroom who “didn’t testify in person.” 

Id. at 141. While clearly a direct comment on the defendant’s silence at 

trial, our Supreme Court found the violation of his Fifth Amendment right to 

be harmless error under the following circumstances. First, the evidence of 

guilt was great, such that the “trial was a river of evidence, and its flow was 

unaffected by this reference.” Id. at 144. Indeed, the trial court in Wright

had characterized the overwhelming nature of the evidence as 

“unprecedented,” such that the defendant’s guilt was proven “with absolute 

certainty.” Id. For instance, the primary witness for the Commonwealth, 

the defendant’s former paramour, directly observed the defendant shooting 

her husband in their home. The police arrived at the scene just as the 

defendant was leaving, and followed his vehicle in a low-speed chase. When 

the defendant arrived at another residence, he was in a standoff with police 

for 30 minutes. During negotiations with the police, the defendant said that 

he had just “‘toasted a guy’ and did not want to go to jail.” Id. at 129. 

When the defendant ultimately surrendered, police discovered the stillloaded murder weapon on his person. 

Second, the trial court immediately issued a curative instruction to the 

jury following the prosecutor’s improper remark, and then later, “[d]uring 

jury instructions, the court charged the jury at length regarding [the 

defendant’s] right to remain silent and specifically warned the jury against 
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drawing any adverse inferences from the prosecutor's comments. The court 

elicited responses from the jurors to ensure their acknowledgment and 

understanding[.]” Id. at 144. Because of these combined circumstances, 

the Wright court found no abuse of discretion in the trial court’s refusal to 

grant a mistrial. 

However, in the following line of cases, our appellate courts found the 

Commonwealth’s claims of harmless error unavailing in response to 

references to defendants’ silence. In Commonwealth v. Clark, 802 A.2d 

658 (Pa. Super. 2002), the prosecutor was permitted, over persistent 

objections, to engage in multiple lines of questioning with the 

Commonwealth’s witnesses concerning the defendant’s pre-trial silence in 

response to Miranda2 warnings given by the arresting police officers. The 

trial court was not oblivious to the defendant’s Fifth Amendment rights; 

rather, the questioning was permitted under the auspices of allowing the 

Commonwealth to show that the defendant’s silence was evidence of his 

concealing drugs in his mouth when arrested. However, the Clark court 

found that there were alternative means to demonstrate that alleged fact. 

Furthermore, there were multiple references to the defendant’s silence, the 

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966) (holding that statements 

obtained from defendants during interrogation in police-dominated 

atmosphere, made without full warning of applicable constitutional rights, 

were inadmissible as having been obtained in violation of Fifth Amendment 

privilege against self-incrimination). 
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references were direct (the prosecutor deliberately discussed both Miranda

and the right to remain silent with one witness), and the Clark court found 

that “credibility was paramount to a finding of guilt and it is impossible to 

measure the degree to which [the defendant]'s post-arrest silence might 

have impacted upon the jury's assessment in that regard.” Clark, 802 A.2d 

at 662. Accordingly, the Clark court found that the impermissible 

statements on the defendant’s pre-trial silence could not be deemed 

harmless. 

In Henderson, the prosecutor stated during closing arguments: “You 

know this defendant is a vicious man. He sits here before you and he looks 

quite humble and looks quite harmless as defendants often do in a 

courtroom, because he is sitting here and hasn't said a word and is quiet[,]” 

prompting an immediate objection by the defense. Henderson, 317 A.2d at 

290. The trial court then issued a comprehensive curative jury instruction. 

Nevertheless, our Supreme Court rejected the Commonwealth’s harmless 

error claim, reasoning:

Instantly, although the jury could have viewed the prosecutor's 

comment as merely reflecting on [the] appellant's conduct, it is 

more likely the statement was interpreted as an adverse 

comment on his failure to take the witness stand and testify in 

his own behalf. Moreover, viewed in the context of the entire 

statement, the jury could have interpreted the statement as 

imposing a duty on [the] appellant to testify. Likewise, although 

there was a great deal of evidence presented against the 

accused, ... this evidence was rebutted to a certain extent. Mrs. 

Bighum was called by the appellant as an alibi witness, and she 

testified [the] appellant was at her home, in bed, watching 

television at the time of the robbery. Considering the adverse 
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statement in light of the alibi defense the jury could have 

reasonably concluded that had the alibi been true, the appellant 

would have taken the witness stand to fortify the testimony of 

his witness. Given the fact [the] appellant did not testify, the 

jury could have believed that not only was the alibi testimony 

untrue, but that [the] appellant was admitting his guilt by not 

testifying. Thus, it was reasonably possible that in light of the 

comment, the jury could have surmised [the] appellant's failure 

to testify was an admission of guilt. Thus, the exercise of a 

constitutional right could have been damaging evidence against 

the appellant. ... Lastly, the Commonwealth argues the judge's 

charge to the jury cured any harmful effect of the district 

attorney's comment. Although, we recognize the trial judge may 

have done all he could under the circumstances, his corrective 

charge only would have vindicated the adverse effect of the 

summation with respect to [the] appellant's duty to take the 

stand. The judge's charge did not cure the adverse inference 

the jury could have drawn on the issue of guilt or admission of 

guilt.

Id. at 292.

Finally, in Commonwealth v. Reichard, 233 A.2d 603 (Pa. Super. 

1967), the prosecutor questioned the jury, in closing, as follows: “I ask you 

one thing, did you hear one word of denial?” Id. at 604. The Reichard

court held that this error was not rendered harmless by the subsequently 

issued curative instruction. Reichard was convicted of burglary and related 

offenses. Although the court’s summary of the evidence was not particularly 

detailed, it did note the stolen goods were never discovered in the 

possession of Reichard or his co-defendant. Reichard offered two alibi 

witnesses in his defense. The Reichard court concluded: “In this particular 

case, it is clear that the prosecutor's statement could have contributed to 

the jury's ultimate determination of guilt. The error, therefore, was not 

curable and a reversal is required.” Id. at 606.
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Considering the first two Marsh factors and the above case law, the 

prosecutor’s impermissible statement in this case bears little resemblance to 

those that made merely indirect references to a defendant’s silence. Here, 

the prosecutor essentially challenged Appellant to take the stand to explain 

why he was not apprehended promptly after the murder, or why he took so 

long to turn himself in. This directly implicated the issue of Appellant’s flight 

from justice, and “while evidence of flight alone is not sufficient to convict 

one of a crime, such evidence is relevant and admissible to establish an 

inference of guilt.” Commonwealth v. Gorby, 588 A.2d 902, 909 (Pa. 

1991). Thus, the prosecutor’s statement may have suggested to the jury 

that Appellant shouldered a burden to explain why the Commonwealth 

lacked physical evidence that was only discoverable in the immediate 

aftermath of these murders. The prosecutor’s comment does not at all 

resemble the statement at issue in Ross. There, the defendant had 

previously confessed and, as such, the comment that the confession had not 

been denied—while a vague reference to the defendant’s in-court silence—

was more directly highlighting the Commonwealth’s permissibly admitted 

evidence of guilt. 

Moreover, the prosecutor’s statement in this matter regarded 

Appellant’s in-court silence, rather than pre-trial silence, such as in 

Anderjack or Clark. The Fifth Amendment protection against selfincrimination is most potent with respect to silence at trial, and is effectively 

less potent with respect to a defendant’s silence at earlier stages of the 
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criminal process. See generally, Commonwealth v. Molina, 33 A.3d 51, 

56-67 (Pa. Super. 2011) (en banc) (discussing the permissible uses of a 

defendant’s silence at various pre-trial stages as affirmative evidence of guilt 

or for impeachment purposes); compare Commonwealth v. Cox, 983 

A.2d 666, 688 (Pa. 2009) (noting only one exception to the prohibition on a 

prosecutor’s referencing of a defendant’s failure to testify at trial, that “an 

otherwise inappropriate remark does not run afoul of Griffin if it constitutes 

fair response to arguments raised by the defense”). 

The prosecutor’s statement in this case bears greatest resemblance to 

the prosecutor’s impermissible statement in Reichard, although it is noted 

that that case involved a prosecutor’s statement during closing arguments, 

whereas the statement in this case arose mid-trial during a debate over an 

objection, but still within earshot of the jury. Moreover, in the instant 

matter, the prosecutor himself made the impermissible reference, unlike in 

Anderjack and Gbur, where the statement was an unsolicited response 

from a witness. Thus, we find that the first two Marsh factors weigh 

strongly against a finding of harmless error in this case. 

The next Marsh factor concerns whether the prosecutor “exploited” 

Appellant’s failure to testify. The fact that this was a direct reference to 

Appellant’s silence at trial—effectively a challenge to have Appellant explain 

the timeline of events following the murders and leading up to his surrender 

to authorities—does suggest that the prosecutor exploited Appellant’s 

silence. Moreover, this was Appellant’s third trial, and in both previous 
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instances, Appellant declined to take the stand in his own defense. Indeed, 

as is addressed later in this decision, defense counsel even sought to ask 

potential jurors specific questions regarding Appellant’s decision not to 

testify at trial during voir dire. Thus, it is virtually beyond any question that 

the Commonwealth knew that Appellant did not intend to take the stand at 

this trial, and that the defense had made exceptional efforts to limit any 

prejudice and/or bias resulting from that decision. Such circumstances can 

be read to suggest that the prosecutor’s comment was particularly 

exploitative of his prior knowledge that Appellant would not testify. 

Moreover, the statement was not “fair response” to any misconduct on 

defense counsel’s part. There was no reason to bring up Appellant’s decision 

not to testify merely because defense counsel’s question(s) were 

objectionable. 

On the other hand, this was a singular incident; there were no 

subsequent attempts by the prosecutor to exploit Appellant’s silence. 

Furthermore, the comment did arise in a discussion with the judge and 

opposing counsel, not during a direct address to the jury, such as during 

opening or closing arguments. Nevertheless, we conclude that the third 

Marsh factor also weighs slightly against finding harmless error in this case, 

primarily because the prosecutor knew, or clearly should have known, that 

Appellant had no intention of testifying.

The final Marsh factor concerns the promptness and adequacy of the 

cautionary instruction. Appellant contends that no instruction was adequate 
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to cure the resulting prejudice from the prosecutor’s comment. The trial 

court’s instruction was certainly comprehensive. The jury was informed of 

Appellant’s absolute right not to testify, his right to remain silent, and that 

the jury was not permitted to draw any adverse inference from his failure to 

testify or his failure to offer a defense. N.T., 5/28/14-6/5/14 (Vol. I), at 

366. The court reminded the jury of its duty to follow the court’s 

instructions, and went further to garner the jury’s acknowledgment and 

understanding of those instructions. Id. at 367. In this regard, the trial 

court asked the jurors to “raise [their] right hand[s] to show [their] 

acknowledgment that [they] heard, understand, and will follow the 

instruction that [Appellant] need not make any defense in this trial should he 

choose[.]” Id. Each of the jurors, and the alternate jurors, complied. Id.

at 367-68. 

The trial court then instructed the jurors as follows:

What I want further, I want you to disregard the following. 

The following statement by [the prosecutor] that [Appellant] was 

on the run. Disregard that. And, secondly, the statement that 

[Appellant] could take the stand to explain. That’s what I am 

having you swear to, that he doesn’t have any duty to do that. 

Further, there was a statement by [defense counsel] that 

he had made arrangements to turn his client in during the sixday window between the night of the shooting and the time of 

the arrest. I want you to disregard those three statements, the 

two by [the prosecutor] and the statement by [defense counsel]. 

I want to go back as though they had never occurred and we will 

start over again. Okay? I know it’s kind of an odd challenge but 

can you do that? If you can do that, please raise your right 

hand.

[Whereupon, jury complies]
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Id. at 368. 

However, while comprehensive in content, the instruction was not 

promptly given. Following the prosecutor’s comment, the trial court 

dismissed the jury at 12:39 p.m. Id. at 313. The jury instruction began at 

10:54 a.m. the following day. Id. at 366. This substantial delay must 

weigh strongly in our assessment of the adequacy of the instruction. 

Whether the instruction was adequate to cure the prejudice is naturally 

a product of all of the aforementioned Marsh factors. Certainly, a 

comprehensive and prompt instruction in response to a Ross-like reference 

to a defendant’s silence is adequate to cure such prejudice. However, not 

even the best possible instruction was adequate to cure the prejudice 

resulting from the statement in Henderson. Here, we have a statement 

that went well beyond the borderline-permissible statement at-issue in 

Ross, yet it also does not appear to be as calculated to affect the jury as 

was the statement in Henderson. Nevertheless, this was not a case of 

overwhelming evidence. While the circumstantial evidence in this case was 

not trivial, there were no eyewitnesses to the shooting itself, and no physical 

evidence tying Appellant to the crime. Moreover, this was Appellant’s third 

trial for the same offense, with both previous trials resulting in hung juries. 

In such circumstances, it is more probable that the prosecutor’s comment 

had a significant impact on the jury than if the evidence had been 

overwhelming, and even more probable given that the curative instruction 

was not promptly given. Indeed, the prosecutor’s comment was so facially 
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improper that the instruction itself may have added to the resulting 

prejudice by bringing it to the attention of jurors who may have not heard it 

when uttered. Thus, we cannot say with any confidence, as our Supreme 

Court did in Wright, that the “trial was a river of evidence, and its flow was 

unaffected by this reference.” Wright, 961 A.2d at 144. Here, due to the 

prosecutor’s constitutionally impermissible comment, a case based solely on 

circumstantial evidence, which had twice previously resulted in hung juries, 

came to a grinding halt for nearly 24 hours as the trial court struggled with 

how to preserve the fairness of Appellant’s trial. 

The Commonwealth contends that the prosecutor’s statement was “not 

so much directed at [A]ppellant’s failure to take the stand as it was an 

attempt to stop defense counsel’s improper actions.” Commonwealth’s Brief, 

at 22. Indeed, the court ultimately instructed the jury to disregard defense 

counsel’s comment regarding an arrangement with police to have Appellant 

surrender. N.T., 5/28/14-6/5/14 (Vol. I), at 368. The Commonwealth likens 

this situation to that which occurred in Commonwealth v. Wesley, 753 

A.2d 204 (Pa. 2000). 

In that case, the defendant was found guilty of raping, sodomizing, 

and killing the victim, and his guilt was supported by DNA evidence. 

Moreover, security videos showed the defendant using the victim’s debit 

card to withdraw funds from the victim’s bank account on fifteen different 

occasions in the 24 hours following the crime, and the defendant’s 
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fingerprints were found on a bank deposit envelop and one of the ATM 

machines. 

At the close of the defense’s case, wherein he had chosen not to take 

the stand, the defendant attempted to address the court and the jury, 

ostensibly because he was “frustrated with his counsel for failing to call 

certain witnesses[.]” Id. at 209. In response, the prosecutor said: “I would 

like the jury shown out. I will not have him speak if he is not going to 

testify.” Id. After a “brief recess, the trial court instructed the jury that the 

Commonwealth's statements were not evidence and they could not consider 

them in reaching their verdict. Defense counsel did not object to the 

instruction.” Id. Wesley appealed on the basis that “the cautionary 

instruction was inadequate and could not cure the prejudice caused by the 

allegedly improper comments.” Id. 

The Wesley court held: 

Assuming that Wesley has not waived this issue because his 

counsel failed to preserve it with a timely objection, there 

remains no constitutional violation. Clearly, it was not the 

intention of the Commonwealth to remark on Wesley's decision 

whether to testify. Taken in context of the entire dialogue, it is 

more likely than not that the assistant district attorney was 

reacting to Wesley's impromptu interjection in an attempt to 

gain control over the courtroom to give his closing argument. 

Furthermore, we are not convinced that the comments in 

question were so significant as to have any measurable influence 

on the jury's deliberation. As we have noted earlier, the jury 

had sufficient evidence to find Wesley guilty beyond a reasonable 

doubt of first-degree murder. Even if the comments had some 

prejudicial effect, the cautionary instruction supplied by the trial 

court cured any potential harm to Wesley.
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Id. at 209-10 (citation omitted).

Here, the prosecutor had already objected to defense counsel’s 

question, and set forth the basis for his objection, before he made the 

impermissible comment. N.T., 5/28/14-6/5/14 (Vol. I), at 312. It was also 

immediately apparent to the trial court that the content of the statement 

was, on its face, an unambiguously impermissible comment on Appellant’s 

absolute right not to testify, not something that was directly related to 

defense counsel’s impermissible questioning. In Wesley, the prosecutor’s 

comment was an immediate response to the defendant’s impermissible 

statement. Here, the disputed comment followed the prosecutor’s proper 

objection, and was therefore not a spontaneous reaction to defense 

counsel’s actions. 

Wesley is, therefore, clearly inapposite. Indeed, in that case, the 

prosecutor did not ‘challenge’ the defendant to testify. Rather, he stated, 

accurately, that the defendant should not be addressing the jury because he 

elected not to take the stand. And while there is some superficial similarity 

to the instant case, in the sense that the prosecutor in Wesley was reacting 

to the defendant’s impromptu and impermissible outburst, while here the 

prosecutor was reacting to defense counsel’s improper questioning (albeit 

with added delay), the statements uttered are not remotely comparable. 

Furthermore, the evidence in Wesley was clearly more compelling 

than the evidence here. Moreover, the trial court in Wesley issued a 

curative instruction after a brief recess, whereas here, the jury was left to 
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ponder the prosecutor’s comment for almost 24 hours before being advised 

to ignore it. 

We also find the Commonwealth’s comparison to Commonwealth v. 

Ogrod, 839 A.2d 294 (Pa. 2003), unconvincing. In that case, the 

prosecutor commented that there had been no denial by the defendant of 

the crimes charged, in circumstances where Ogrod had previously confessed 

to police. Relying on Ross, the Ogrod court stated that it was “reluctant to 

conclude that comments of this type constitute reversible error[,]” especially 

where the trial court had promptly issued a curative instruction after a short 

recess. Ogrod, 839 A.2d at 325. Defense counsel in Ogrod never 

requested a mistrial, because he had made a tactical decision, with the 

defendant’s consent, “that it was in [Ogrod]'s interests to have the present 

jury adjudicate his guilt or innocence.” Id. Thus, the Supreme Court 

concluded that, because Ogrod received “an appropriate curative instruction, 

no relief [was] due outside of an ineffective assistance of counsel claim.” 

Id. 

Here, Appellant made no prior confession, and the content of the 

impermissible statement is simply not comparable to the one made in 

Ogrod for the same reasons we find the contested statement in Ross is not 

comparable. The Ogrod statement could be fairly read to reference the 

defendant’s confession, not his choice to refrain from testifying at trial. 

Moreover, the defense in Ogrod chose not to ask for a mistrial for tactical 
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reasons. Here, the defense has vigorously contested the fairness of the trial 

based on the prosecutor’s improper statement. 

We conclude, based on the above analysis, that the prosecutor 

impermissibly commented on Appellant’s decision not to testify, in violation 

of Appellant’s Fifth Amendment rights, and that this misconduct was not 

rendered harmless by the circumstances under which it was made, or by the 

trial court’s delayed curative instruction. Accordingly, we are compelled to 

vacate Appellant’s judgment of sentence and remand this matter for a new 

trial. 

Next, Appellant complains that the trial court abused its discretion by 

refusing to allow a specific question during voir dire regarding Appellant’s 

decision not to testify. Appellant wished to ask potential jurors: “If the 

Court should instruct you that a defendant need not testify at trial, and that 

no inference of guilt can be drawn from the choice of the [d]efendant not to 

testify, can you follow that instruction and not hold it against the 

[d]efendant if he does not testify?” TCO, at 9. The Commonwealth and the 

trial court maintain that Appellant’s proposed question was unwarranted 

because it was substantially similar to a question asked of the jurors on the 

standard juror questionnaire. TCO, at 10; Commonwealth’s Brief, at 31-33. 

The singular purpose of voir dire examination is to secure a 

competent, fair, impartial and unprejudiced jury. In pursuit of 

that objective, the right of a litigant to inquire into bias or any 

other subject which bear on the impartiality of a prospective 

juror has been generally recognized. Nevertheless, the scope of 

voir dire examination rests in the sound discretion of the trial 
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judge and his decisions will not be reversed unless there is an 

abuse of that discretion.

Commonwealth v. Futch, 366 A.2d 246, 248 (Pa. 1976) (italics added). 

The instruction contained in the standard questionnaire that was given 

to the potential jurors read as follows: “Would you have any problem 

following the court's instruction that the defendant in a criminal case does 

not have to take the stand or present evidence, and it cannot be held 

against the defendant if he or she elects to remain silent or present no 

evidence?” Pa.R.Crim.P. 632(H) (question 11). 

We agree with the trial court and the Commonwealth that the 

proposed question is nearly indistinguishable from the one given to the 

potential jurors. Appellant argues, however, that “unlike the standard 

question, trial counsel sought to place a fine point on the potential prejudice 

by asking whether ‘no inference of guilt [would] be drawn from the choice of 

[Appellant] not to testify.’” Appellant’s Brief, at 43. Appellant asserts this 

claim by relying on the general, axiomatic proposition that counsel is entitled 

to some level of participation in voir dire in order to investigate possible 

biases in the potential juror, a proposition which appears undisputed. 

Appellant also cites Commonwealth v. Glaspy, 616 A.2d 1359 (Pa. 1992), 

and Commonwealth v. Davis, 422 A.2d 671 (Pa. Super. 1981), but 

provides very little comparative analysis. 

In Glaspy, 

[d]uring the empanelling of the jury, defense counsel moved for 

individual voir dire to be conducted for all the jurors to explore 

any racial prejudices that the jurors may harbor. Defense 
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counsel characterized this case as a “racially sensitive” case 

requiring heightened scrutiny of the jurors. The trial court 

denied the initial request for individual voir dire. During the 

questioning by the court, one prospective juror stated that he 

would not be able to render a fair verdict because of the race of 

the defendants. Defense counsel renewed the motion for 

individual voir dire and the trial judge again denied defense 

counsel's motion for individual voir dire.

Glaspy, 616 A.2d at 1360. 

Our Supreme Court reversed, reasoning:

In Commonwealth v. Richardson, 504 Pa. 358, 473 

A.2d 1361 (1984), this Court reversed the Superior Court's order 

granting a new trial to a black defendant accused of raping a 

white victim and who was not allowed to question the jurors on 

potential racial bias. The majority of this Court stated that “[b]y 

posing such questions, however, the trial court would have 

risked creating racial issues in a case where such issues would 

not otherwise have existed.” Id. at 364, 473 A.2d at 1364. In 

this case, a prospective juror admitted during group voir dire

that he could not render a fair verdict due to racial 

considerations. At that point the racial issue existed, and it was 

necessary for the trial court to allow counsel to examine the 

remaining jurors individually to ascertain whether any juror 

harbored any racial prejudices or biases that would affect that 

juror's ability to render a fair verdict.

Id. at 1362. 

In Davis, the defendant requested a voir dire question regarding 

whether the potential jurors (or their immediate family members) had ever 

been the victim of a crime. The trial court refused to pose the question and, 

as in Glaspy, no comparable question had been asked during voir dire. The 

Davis Court reversed, concluding that “the proposed void dire question ... 

was sufficient to alert the court to an important area of potential prejudice. 

Since the court refused to pose the question as drafted or to mold it into an 
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acceptably limited form, [the] appellant must receive a new trial.” Davis, 

422 A.2d at 674. The Court had already recognized the potential for 

prejudice arising from victims serving on juries in Commonwealth v. 

Fulton, 413 A.2d 742 (Pa. 1979). 

In both Glaspy and Davis, the topics of the proposed questions for 

voir dire were not similar to other questions asked during voir dire, as was 

the case here, where the issue of Appellant’s silence was specifically 

addressed through the standard questionnaire. Furthermore, Glaspy is 

distinguishable in that the issue of racial bias arose due to the statement of 

a potential juror, whereas here, there were no statements by potential jurors 

regarding Appellant’s silence at trial. Neither Glaspy nor Davis address the 

issue at hand, which concerns whether the proposed question was 

significantly better than the standard question so as to render the trial 

court’s refusal to allow it an abuse of discretion. 

Because we find that the proposed voir dire was substantially the same 

as that provided in the standard questionnaire, such that that potential 

jurors were adequately screened for prejudice concerning Appellant’s silence 

at trial, we conclude that the trial court did not abuse its discretion in 

rejecting the proposed question. 

Finally, Appellant claims the trial court erred when it dismissed a juror 

without a sufficient record of cause to justify the removal. The juror in 

question apparently dozed off during the testimony of the Commonwealth’s 

firearms expert. N.T., 5/28/14-6/5/14 (Vol. II), at 654. Appellant argues 
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that there was insufficient cause to remove the juror because the juror only 

drifted off for a few moments during uncontested testimony, citing 

Pa.R.Crim.P. 645, Bruckshaw v. Frankford Hosp. of City of 

Philadelphia, 58 A.3d 102 (Pa. 2012), and Commonwealth v. Saxton, 

353 A.2d 434 (Pa. 1976).

“The discharge of a juror is within the sound discretion of the trial 

court. Absent a palpable abuse of that discretion, the court's determination 

will not be reversed.” Commonwealth v. Jacobs, 639 A.2d 786, 790 (Pa. 

1994). Rule 645 governs the “[s]eating and [r]etention of [a]lternate 

[j]urors.” Pa.R.Crim.P. 645. “Alternate jurors, in the order in which they 

are called, shall replace principal jurors who become unable or disqualified to 

perform their duties.” Pa.R.Crim.P. 645(A). 

In Saxton, our Supreme Court held that: “While the decision to 

remove a juror because of inability to perform the usual functions of a juror 

is within the sound discretion of the trial judge, the exercise of this judgment 

must be based upon a sufficient record of competent evidence to sustain 

removal.” Saxton, 353 A.2d at 436; see also Bruckshaw, 58 A.3d at 106 

(recognizing “established precedent that once a principal juror is seated and 

sworn, that juror cannot be removed without good cause on the record”). 

Appellant argues that Saxton is controlling and compels reversal. In 

that case, the trial court, acting sua sponte, called a conference in chambers 

with a juror. The court asked the juror if he was ill, noting: “I notice you 

have a great deal of trouble in keeping awake. You keep dozing off.” 
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Saxton, 353 A.2d at 435. The juror responded that he was in pain from an 

accident. The juror denied falling asleep, and indicated that he was paying 

attention. The Court asked the juror if he was using “[a]ny pills or 

narcotics?” Id. The juror answered, “[n]o.” Id. Nevertheless, the court 

excused the juror. 

Subsequently:

The judge then advanced his personal observations that 

Juror No. 6 was ‘yawning,’ ‘slouching down in her seat,’ and 

‘shielding her eyes from the light,’ and at times ‘appeared to be 

dozing.’ In addition, the trial judge stated that he had asked a 

Dr. Polivoy to sit in the courtroom and observe Juror No. 6 and 

report to the court. Dr. Polivoy at no time was made available to 

defense counsel or the district attorney for cross-examination 

either on his credentials or what in fact he observed, or on his 

opinion given to the trial judge that Juror No. 6 should be 

removed. The final ‘evidence’ to support the removal of the 

juror was the trial judge's own opinion that after spending one 

week a month for eighteen months in ‘Drug Court,’ Juror No. 6 

‘displayed every indicia of being an addict’.

Id. at 435-36. 

Our Supreme Court reversed, reasoning: 

Having reviewed this record, we are of the opinion that the 

trial judge abused his discretion in discharging Juror No. 6. 

There is no competent evidence in the record to support the 

conclusion that Juror No. 6 was unable to perform as a juror 

because of drug use. Juror No. 6 answered ‘no’ to all 

questions concerning possible drug abuse. All the other 

‘evidence’ was conjecture concerning drugs. The conclusions 

attributed to Dr. Polivoy were not based upon any medical tests 

or examinations to determine drug use, but were based solely on 

the doctor's in-court observations conveyed privately to the trial 

judge. 

While the decision to remove a juror because of inability to 

perform the usual functions of a juror is within the sound 
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discretion of the trial judge, the exercise of this judgment must 

be based upon a sufficient record of competent evidence to 

sustain removal. We find nothing in this record to support 

removal of Juror No. 6.

Id. at 436 (emphasis added, footnote omitted). 

We disagree with Appellant that Saxton compels reversal here. While 

Appellant claims the “the court had made more extensive observations to 

justify its dismissal of the juror” in Saxton, Appellant is comparing apples to 

oranges. In Saxton, the issue ostensibly justifying the removal of the juror 

was not the juror’s falling asleep, but the suspicion that the juror was 

suffering from the effects of drug use/abuse. Thus, Saxton cannot 

reasonably be read to speak to whether a record is sufficient to justify 

removal of a juror for falling asleep. We also agree with the Commonwealth 

that the record is not insufficient here merely because the trial court did not 

ask the juror if he had fallen asleep. See Commonwealth’s Brief, at 39 

(opining that “a trial judge is certainly in the position to determine, without 

further inquiry, whether a particular juror has fallen asleep in his courtroom, 

and, therefore, despite [A]ppellant’s contention to the contrary, no greater 

record [is necessary] than the one developed here.”). 

We emphasize that Appellant has not raised the claim of whether 

falling asleep for a brief period of time is sufficient cause for the removal of a 

juror (although he suggests it in his brief). Appellant’s objections to 

removing the juror at trial were regarding: the fact that falling asleep was 

understandable in the circumstances, see N.T., 5/28/14-6/5/14 (Vol. II), at 

672; that the juror was initially given a warning which had not subsequently 
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been violated, id. at 672-74; that whatever testimony the juror slept 

through was not pivotal, id. at 673; and the removal of the juror would have 

a chilling effect on the jury, id. at 674-75. To the extent that Appellant now 

attempts to claim that a juror’s falling asleep during testimony does not 

constitute sufficient cause to remove that juror, we conclude any such claim 

has been waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”).

To the extent that Appellant argues that whatever testimony was 

missed by the juror was uncontested and not pivotal, we adamantly 

disagree. The testimony in question concerned physical evidence that the 

victim had been shot from close range.3 Such evidence was relevant to the 

circumstances of the shooting itself, including permissible inferences 

regarding Appellant’s degree of guilt. 

Based on the above, we conclude that the record was adequate to 

justify the court’s removal of the juror for falling asleep during the testimony 

of a witness for the Commonwealth. In any event, because we are already 

granting Appellant a new trial on his first claim, Appellant cannot obtain any 

greater relief. 

____________________________________________

3 This was evidenced by “smoke, soot, and vaporous lead that is expelled 

from the firearm” and found on the victim’s clothing, which typically only 

occurs when someone is shot from close range. See N.T., 5/28/14-6/5/14 

(Vol. II), at 651. 
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Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2016