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

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK M. GESUALSO

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1441 EDA 2017 Appeal from the Judgment of Sentence Entered December 16, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0001217

- 2015, CP

- 51

- CR

- 0001228

- 2015

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J. *
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 2 1 , 2020
Appellant, Frank M. Gesualso, appeals from the judgment of sentence
of an aggregate term of two to four years’ incarceration, followed by two years’
probation, imposed after he was convicted , in two separate cases, of various
offenses, including robbery and conspiracy. On appeal, Appellant challenges,

inter alia , the trial court’s refusal to strike a juror for cause (hereinafter, “Juror
#2”), who he claims did not have an adequate u nderstanding of the English
language. After careful review, we agree with Appellant that the court erred
and, thus, we vacate his judgment of sentence and remand for a new trial.

The trial court summarized the facts adduced at Appellant’s jury trial,

as follows: On August 17, 2014, at approximately 1:15 p.m., Philadelphia Police Officer Chanta Ung responded to a report of a

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* Retired Senior Judge assigned to the Superior Court.J

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robbery in progress at the Radio Shack at 330 Oregon Avenue. A white male with blue eyes and blond hair wearing a black Nirvana shi rt and black shorts, later identified as Matthew Velykis, had entered the store with a black handled knife and began stuffing expensive merchandise into his pants. During this time, Radio Shack employee Willie Jordan also witnessed Velykis using the knife to cut certain items. Jordan called the police. Velykis then walked up to the register with two inexpensive items, pointed the knife at Jordan, and threw a $20 bill on the counter. Velykis then ran outside to a maroon Plymouth Grand Voyager minivan. As Velykis left the store, Cassidy Hopper, another employee, told him that she would not call the police if he left the merchandise. Hopper also stated that she had the license plate of the minivan. Velykis responded that it did[] [not] matter because it was stolen. Velykis then entered the minivan and veered it in Hopper’ s direction, causing her to back into the store. Velykis backed up and pulled away. Hopper observed a white male with light hair in a white shirt (later identified as

... Appellant ) sea ted in the passenger seat. At about 2:30 p.m., Peter Hager, an Asset Protection Specialist at the Home Depot located at 1651 South Christopher Columbus Boulevard, observed Velykis putting expensive, “high

t heft” merchandise into several tool and tote bags. He followed Velykis as he walked past the register with the bags in a cart and attempted to stop him. When confronted, Velykis ran into the parking lot and began shouting. The maroon Plymouth minivan pulled up and Velykis yelled at the driver to open t he hatchback. The driver replied[,] “I can’t, it won’ t open, it’ s broken.” Whenever Hager approached the minivan, Velykis raised his fists into a fighting position. When Velykis took one of the tote bags from the cart and entered the passenger side of th e minivan, Hager retrieved the rest of the stolen merchandise. Hager then saw a short

- haired white male in a white shirt drive out of the parking lot onto Columbus Boulevard. While speaking on the phone with the police, Hager ran to the shopping center intersection to further observe the minivan. As Hager got closer to the intersection, Velykis [was now outside the van, but he was] approach[ing] the passenger door [to get back into] the minivan. Velykis then charged at Hager with his fists up. After Velykis struck Hager several times in the head and arms, Hager fell, injuring his arm. When Hager got up, his cell phone was missing. ... [M] ean while , the minivan left the location.J

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- At about 3:00 p.m., Police Officers Melissa Kromchad and Joseph McDonnell investigated the robbery at the Home Depot. While en route, they saw a maroon Plymouth Voyager matching the description of the getaway minivan going northbound on Columbus Boulevard. The officers stopped the minivan, and as Kromchad approached the vehicle , she observed two occupants. Officer Kromchad identified

... Appellant as the driver, and Velykis as the passenger. As the officers got closer,

... Appellant drove of f. The officers then pursued the vehicle through South Philadelphia. When attempting to t urn onto Washington Avenue from Water Street,

... Appellant sideswiped a gold 1998 Chevy Venture and continued westbound. [After f] ollowing the minivan [for] several blocks, the officers discontinued their pursuit because children were in the area.
At about 5:00 p.m., Officers Tyhara Burnett and Christian Hatcher stopped a Plymouth Voyager matching the description of the minivan on Essington Avenue. As Burnett approached the minivan, the driver fled [, driving erratically at a high rate of speed

. The office rs were directed by dispatch to terminate the pursuit due to safety concerns in the residential neighborhood.] Officers Kromchad and McDonnell later joined a multiple vehicle pursuit at 16 th and Porter Street [s]

. The officers pursued the minivan east on Porter, then north on 1 3 th Street. The driver attempted to turn eastbound on Daly Street, but the minivan hit the curb and blew a tire. Both men jumped out and ran eastbound on Daly Street before splitting up and running opposite directions down 12 th Str eet. Officer Donnell continued the pursuit in his patrol vehicle and arrested

... Appellant at 12 th and Wolf Streets. After arresting

... Appellant, the police recovered a black iPhone from his front pants pocket. This phone belonged to Peter Hager. Police l ater recovered stolen merchandise from Radio Shack and Home Depot from the back of the minivan

. When the police later transported Cassidy Hopper to Methodist Hospital, she identified Matthew Velykis as one of the perpetrators. She later identified

... Appe llant at 12 th and Wolf Street [s]

. Trial Court Opinion (TCO), 4/12/18, at 3

- 6 (footnotes and citations to the
record omitted).J

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Appellant was ultimately charged in two separate cases, one pertaining
to the Radio Shack robbery and the other to the robbery of Home Depot. The

cases were consolidated , and Appellant’s trial commenced in August of 2016.
At the close thereof, the jury convicted Appellant of two counts of robbery and
conspiracy to commit robbery, as well as single counts of fleeing or attempting
to elude police, possessing an instrument of crime (PIC), and recklessly
endangering another person (REAP). On December 16, 2016, Appellant was

se ntenced to an aggregate term of two to four years’ incarceration, followed
by two years’ probation. He filed a timely post

- sentence motion, which was
denied by operation of law on May 3, 2017. That same day, Appellant filed a
timely notice of appeal. 1 H e also complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
trial court filed its opinion on April 12, 2018.
Herein, Appellant states three issues for our review, which we have

reorder ed for ease of disposition: [1] . Was not the evidence insufficient as a matter of law to find [A] ppellant guilty beyond a reasonable doubt of robbery on Docket No. CP

- 51

- CR

- 0001228

- 2015 (the Radio Shack incident) where [A] ppellant did nothing more than sit in a vehicle outside the

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1 Appellant filed a single notice of appeal listing both docket numbers of his two underlying ca ses. We recognize that our Supreme Court has held that “the proper practice under [Pa.R.A.P.] 341(a) is to file separate appeals from an order that resolves issues arising on more than one docket. The failure to do so requires the appellate court to quas h the appeal.” Commonwealth v. Walker , 185 A.3d 969, 977 (Pa. 2018). The Court tempered its holding, however, by making it prospective only. The Walker opinion was filed on June 1, 2018; hence, Walker is not applicable in the instant matter, as Appellant filed his notice of appeal on May 3, 2017

.J

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location of the robbery, wh ere there was no evidence that [A] ppellant had prior knowledge of the robbery being planned, and where no proceeds of that robbery were recovered from [A] ppellant? [2] . Did not the trial court err as a m atter of law, undermine the judicial function and violate [A]ppellant’ s constitutional rights to equal protection and a fair trial when it refused to dismiss for cause a prospective juror who both the prosecution and defense agreed had such difficulty comp rehending English that she could not fulfill the functions of a juror and then forced the defense to use a strike and where all the defense strikes were exhausted prior to the end of the trial[?] [3] . Did not the trial court err as a matter of law, undermi ne the judicial function and violate [A]ppellant’ s constitutional rights to equal protection and a fair trial when it denied or ignored defense challenges pursuant to Batson v. Kentucky , 476 U.S. 79 (1986), where the defense made a prima facie showing that the Commonwealth made several peremptory challenges on the basis of race, and the Commonwealth failed to offer sufficient race

neutral bases for striking the venire persons in question? Appellant’s Brief at 4

- 5.
Appellant first challenges the sufficiency of the evidence to sustain his
conviction of robbery premised on the Radio Shack incide nt. According to
Appellant, he was merely “seated in the passenger side of a van that was
parked outside the Radio Shack when another person robbed that store’s

person nel, left, and drove off in the van.” Id. at 48. He insists that his

presence at the scene of the robbery was insufficient to prove that he “knew
of the plan to rob the Radio Shack, or [that he] could observe what transpired

in the store.” Id. at 49.
Appellant’s argument is unconvincing. Initially, we note that, [t]he standard we apply in reviewing the sufficiency of the evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is suffici entJ

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evidence to enable the fact[

- ]finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for that of the fact

- finder. In addition, we note that the fact s and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact

- finder unless the evidence is so weak and inconclusive that as a matter of law no pr obability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact [,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evide nce.
Commonwealth v. Lambert , 795 A.2d 1010, 1014 (Pa. Super. 2002)
(citations and quotation marks omitted).
In this case, the jury could reasonably infer that Appellant was acting

as a co - conspirator and/or accomplice in the Radio Shack robbery based on the circumstances of the second robbery at Home Depot

. Specifically , 45
minutes after Velykis robbed the Radio Shack, he entered the Home Depot
while Appellant remained outside in the van. W hen Velykis exited the Home
Depot, Appellant drove him away from the scene, and then fled when the
police attempted to stop the vehicle. Once Appellant was apprehended, he
was discovered to be in possession of Hager’s phone , which Hager had lost
during his confrontation with Velykis

. Moreover, items from both the Radio
Shack and Home Depot stores were found in the van that Appellant had been
driving.J

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Clearly, the evidence was sufficient to demonstrate that Appellant acted

as a co - conspirator/accomplice in the robbery of the Home Depot. Because
that robbery occurred so soon after the Radio Shack robbery, and mirrored
the Radio Shack robbery in that Velykis entered while Appellant remained
outside, it was reasonable for the jury to infer that Appellant conspired with
and/or aided Velykis i n committing the Radio Shack robbery. While Appellant
did not drive the van away from the Radio Shack, we agree with the

Commonwealth that his actions during the subsequent Home Depot robbery

were sufficient to establish that he knew Velykis was robbing t he Radio Shack,
and that he assisted Velykis in doing so by acting as a ‘ lookout ’ outside

. We also agree with the Commonwealth that the facts before us are
distinguishable from the ‘mere presence’ cases on which Appellant relies

. For
instance, in Common wealth v. Keblitis , 456 A.2d 149 (Pa. 1983), our
Supreme Court held that the evidence was insufficient to support Keblitis’s
conviction of manufacturing marijuana , where marijuana plants were
recovered from a garden in which she was “performing general gar dening
duties, but not amongst the mari[j]uana

. ” Id. at 151. In Commonwealth

v. Garrett , 222 A.2d 902, 904

- 05 (Pa. 1966) , our Supreme Court conclud ed

that th e evidence failed to sustain Garrett’s robbery conviction , where the

victim only testified that f our men were in the area when he was knocked
unconscious and robbed, and aside from Garrett’s admission that he was
among the group, no other evidence established his participation in the
robbery. Finally, in Commonwealth v. Finley , 383 A.2d 1259, 1260 (P a.J

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1978) , the Court determined that the evidence failed to prove that Finley acted
as a lookout during a robbery and murder, where there was no evidence that
Finley had been waiting for his co

- defendant to come out of the victim’s home,

or that he was outs ide the home for any length of time.
In this case, if we were examining the evidence regarding the Radio
Shack robbery alone, the cases on which Appellant relies would be more persuasive. H owever, the Commonwealth’s evidence establishing Appellant’s

par ticipation in the nearly

- identical robbery of the Home Depot shortly after
the robbery at the Radio Shack distinguishes his case from Keblitis , Garrett , and Finley

. Accordingly, Appellant’s challenge to the sufficiency of the

evidence is meritless.
Next, Appellant contends that the trial court erred by refusing to strike
Juror #2, who he claims had difficulty understanding English. Appellant
explains that,

[o] n the first day of voir dire , August 17, 2016, both the defense and the prosecution e xpressed con cern about Juror #2’ s ability to understand English and the defense made a challenge for cause [.] (N.T. [,] 8/17/16, 29

- 39). When the judge questioned the prospective juror, her answers revealed that she lacked understanding of the questions. She answere d “yes” more than once to questions which would call for a “ no[ , ” for example:] THE COURT: All right. And is there anything about the allegations or the charges [...] that would prevent you from evaluating the evidence in a way that’ s fair to both sides?

A. Yes. THE COURT: Is there anything about the allegations and the charges that I told you about that would prevent you from evaluating the evidence in a fair way to both sides?J

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- A. Yes.

N.T. [,] 8/17/16, 3[0]

... . [ 2 ] When asked the section of the city in which sh e lived and told not to give a specific address, she proceeded to give her specific address. [ Id. at 29.] When questioned about her partially blank questionnaire, she said she was sleeping. [ 3 ] [ Id. at 32.] When asked if English was her first language, she did not answer yes or no, but [stated] what was apparently the name of the [Filipino] language she spoke. [ Id. at 33.] When asked where else in the city she had lived, she answered “ Pangasinan [,”] obviously a non responsive answer, referring to a [location] in the Phillipines. [ Id. at 34.] E ventually, she corrected her original statement that she came to the United States and joined the army, by saying that in fact, she did not pass the [interview portion of the] test .... [ Id. at 35.] It was clea r that her command of the nuances of the language was sorely lacking. ... Even after the assistant district attorney joined defense counsel to argue that she should not be seated due to her language deficit, [ id. at 38,] the court refused to allow the chall enge for cause and told counsel that,
THE COURT: Okay. Yeah, I probably am not going to strike her. I wish it could be a perfect situation when we have, you know, the jurors, but the standard is whether or not the person can be fair and impartial. She d id mention that she was sleeping, I think in the other room, but I further asked her and drilled her about at what point she was sleeping, and I didn’ t get the impression that she answered this questionnaire

-- wasn’ t honest when she answered the questionn aire. But, you know, certainly if either of you want to strike her, I have no issue with that at all. [ Id. at] 38

- 39.

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2 The court followed these questions by asking Juror #2, “Do you believe you could be a fair and impartial juror?” N.T., 8/17/16, at 31. Juror #2 replied, “Yes.” Id.

3 We discuss Juror #2’s explanation for only partially filling out the written questionnaire infra

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Because it was the defense [’s] turn, counsel used a peremptory challenge. When the court [then] attempted to [again] explain its position [for not striking the juror] , it said,
THE COURT: She’ s been in this country for 24 years, she’ s served in the Army, I mean

- [Defense Counsel]: Maybe. [Asst. District Attorney]: She said she didn’ t pass the test.
THE COURT: What? [Defense Counsel]: She didn’ t pass the test, so she actually didn’ t ever serve. THE COURT: Okay. She did say that, yeah. But either way, yo u’ ve struck her. [ Id. at] 39.... Appellant’s Brief at 18

- 20 (emphasis and footnote omitted).
Appellant contends that this record makes clear that Juror #2 could not
sufficiently understand English to qualify for jury service and, therefore, the
trial court erred by not striking her for cause. Notably, the Commonwealth

concedes that Juror #2 should have been stricken

. See Commonwealth’s Brief

at 9

- 13. In support, it relies on the questionable responses by Juror #2 during

the voir dire , as well as the fact that the juror failed to complete the written
questionnaire , which “suggested that she had a limited grasp of English.” Id.

at 11. Additionally, b oth Appellant and the Commonwealth agree that
Appellant was prejudiced by the court’s error in not striking this juror, as
Appellant exhausted his remaining peremptory challen ges. See id. at 12;
Appellant’s Brief at 22 (citing, inter alia , Commonwealth v. Johnson , 445
A.2d 509, 514 (Pa. Super. 1982) (“Where, as here, a defendant is forced to
use one of his peremptory challenges to excuse a prospective juror who shouldJ

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have bee n excused for cause, and then exhausts his peremptories before the
jury is seated, a new trial will be granted.”) (citations omitted)).
We agree with Appellant and the Commonwealth. While the trial court

conclude s that “the prospective juror was able to understand and answer all

follow

- up questions[,]” TCO at 23, our review of the record belies this claim.

The voir dire of Juror #2 supports Appellant’s insistence that she “had a
tenuous grasp on the English language[,]” which was especially problematic

in this case , as “it was essential that the jurors be able to follow the ...
testimony and the complicated instructions on conspiracy and vicarious
liability

- the core issues for [A]ppellant....” Appellant’s Brief at 21. Moreover,

Juror #2’s failure to comp lete the written questionnaire further demonstrated
her incomprehension. When asked to explain her partially

- filled out
questionnaire, she responded:

[Defense Counsel:] Good afternoon, ma’am. I’m sorry. We have your sheets, but mine is not all filled ou t. [Juror #2:] Yea h , because I’m sleeping.

... THE COURT: Sleeping where? [Juror #2 : ] In the lobby. THE COURT: Okay.

... [B]ut you had the opportunity to look at this form, right? [Juror #2:] Yes.J

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- THE COURT: And you didn’t put any checkmarks in any of the “yes ” boxes. You were able to read all the questions and understand them? [Juror #2:] Yes. THE COURT: And this is a fair and accurate description of what your answers are? [Juror #2:] Yes. THE COURT: All right. So it was your intent not to put any checkmarks in the “yes” box, right? [Juror #2:] No. THE COURT: All right. But this is an honest and fair reflection of what your answers are? [Juror #2:] Yes. THE COURT: All right. N.T., 8/17/16, at 31

- 33 (emphasis added)

. It is apparent that Juror #2 either did not understand the questions on
the written form, or did not comprehend the questions being asked of her at

the oral voir dire . Either inability would constitute cause to strike her, as a
citizen may not serve as a juror if they are “unable to read, write, speak and
understand the English language[.]” 42 Pa.C.S. § 4502(a)(1). The trial
court’s focus on the fact that the juror “believed she could be fair and
impartial” is not sufficient to overcome the juror’s disqu alification based on
her language impediment. TCO at 24. Thus, the court erred by not striking

Juror #2 for cause. That error prejudiced Appellant because he was forced to
use a peremptory challenge to strike Juror #2, and he exhausted hisJ

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remaining per emptory challenges. Accordingly , a new trial is required. See
Johnson, supra

. 4
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/21/20

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4 Given this disposition, we need not address Appellant’s third issue.