273 A.3d 1228
Pa. Super. Ct.2022Background
- On March 23, 2019 troopers observed a vehicle driving with high beams and partially in their lane; after a brief high-speed pursuit they stopped the vehicle and arrested Charles Davis. A breath test at the barracks showed BAC 0.134%.
- Davis was tried by jury in Pike County on DUI (high-rate, 4th or subsequent) and related offenses; trial occurred November 2020 during the COVID-19 pandemic.
- The trial court implemented COVID protocols following AOPC recommendations: jurors could wear masks, jurors were seated in a cordoned-off gallery area (socially distanced), and deliberations were planned in the larger courtroom.
- Defense objected before voir dire and during voir dire, arguing masked jurors and gallery seating prevented counsel from observing jurors’ faces/body language, impaired voir dire and trial advocacy, and that excusing jurors for COVID concerns disproportionately removed the only two African-American prospective jurors.
- The court excused prospective jurors who said they could not serve because of COVID concerns, denied defense requests for clear-face-shield mandates and to seat jurors in the jury box, denied a requested jury instruction concerning the 20-minute breath-test observation rule (67 Pa. Code § 77.24(a)), and Davis was convicted and sentenced; he appealed.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Whether permitting prospective jurors to wear opaque face masks during voir dire violated Davis’s right to a fair voir dire | Court followed AOPC guidance and balanced safety; mask allowance was reasonable in pandemic | Masks obscured jurors’ faces so counsel and Davis could not assess demeanor/facial expressions, impairing jury selection | Trial court did not abuse discretion; following AOPC, masking did not defeat voir dire’s purpose and no prejudice shown |
| Whether seating the jury in the gallery (distanced ~30+ feet) deprived Davis of a fair, impartial jury | Seating layout implemented social‑distancing per AOPC; courtroom had large monitors and audio; layout was practical | Gallery seating placed jurors too far to observe witnesses/credibility and limited defense advocacy | No abuse of discretion; court reasonably implemented distancing and Davis showed no resulting prejudice |
| Whether the court erred in excusing for-cause jurors who expressed COVID concerns without more follow-up questioning | Excusing jurors unwilling to serve preserves empaneling of impartial jurors; decision accords with AOPC and is within trial court’s discretion | Court should have probed further and offered accommodations rather than automatically excusing; excusals removed African‑American jurors and harmed representativeness | No abuse of discretion; trial court observed demeanor, applied Wilson standard, and excusing those unwilling to be fair was proper; Batson-type representativeness claim not preserved/raised below |
| Whether the court erred in refusing Davis’s requested jury instruction on the 20‑minute observation for breath tests and in answering the jury’s question about Breathalyzer attempts | Instruction on regulation was improper because admissibility/gatekeeping and was not required jury law; court’s supplemental response was appropriate | Jury needed instruction on 67 Pa. Code § 77.24(a) to evaluate chemical test validity; omission affected verdict (jury later asked about analyzer attempts) | Issue waived: Davis submitted the proposed point but made no specific contemporaneous objection/exception to the charge or to the court’s refusal; supplemental answer was likewise unobjected and thus not preserved |
Key Cases Cited
- Le, 652 Pa. 425, 208 A.3d 960 (Pa. 2019) (Sixth and Fourteenth Amendment right to an impartial jury; voir dire’s critical function)
- Delmonico, 251 A.3d 829 (Pa. Super. 2021) (masking and social‑distancing protocols during voir dire do not necessarily violate right to impartial jury)
- Wilson, 543 Pa. 429, 672 A.2d 293 (Pa. 1996) (standard for disqualifying prospective juror: willingness/ability to set aside biases and follow instructions)
- Sanchez, 623 Pa. 253, 82 A.3d 943 (Pa. 2013) (preservation rule: specific objection/exception required to preserve jury‑instruction claims)
- Pressley, 584 Pa. 624, 887 A.2d 220 (Pa. 2005) (criminal procedural rules require specific objections to preserve charge challenges)
- Hitcho, 633 Pa. 51, 123 A.3d 731 (Pa. 2015) (failure to take specific exception to jury charge waives appellate review)
- Knight, 241 A.3d 620 (Pa. 2020) (purpose of voir dire is empaneling competent, impartial jury and not to probe trial strategy)
- Impellizzeri, 661 A.2d 422 (Pa. Super. 1995) (deference to trial judge on empaneling of a jury)
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (prohibition on race‑based juror exclusion)