Commonwealth v. Colon, 299 A.2d 326

Commonwealth v. Colon

299 A.2d 326

Pa. Super. Ct.

1972

Check Treatment

*1 the lan that consent.2 Rather, withhold therefore, offi implies just strongly employed guage aid fur merely seeking to search and is cer intends the close Moreover, proximity intent. therance of that initial and the illegality subsequent in time between the connection strong continuing seizure evidence v. n. Commonwealth Rowe, supra, 7; between two. n. Commonwealth Bishop, supra, 348 F. 2d Cir. (3d ex rel. Maroney, Craig of this the state Under the circumstances 1965). taint. disproving has met its burden of would that the seizure evidence was hold, therefore, an of the initial seizure of exploitation illegal result of ex the evidence should have been person, cluded. sentence should be and a judgment reversed, trial

new granted. join dissenting this JJ., Cercone opinion. important determining An element in whether consent is volun

tary language seeking used such consent Unit Hendricks, (3d 1970). ed ex rel. Harris v. F. 2d States Cir. Appellant.

Commonwealth v. Colon, Appellant. Commonwealth v. Mitchell, *2 Before 11, 1972. September Submitted Weight, Spaulding, Hoffman, Cercone, Jacobs, Watkins, JJ. *3 V. Public Clayton McQuiddy, III, Assistant De- for fender, appellants. E.

Larry Jones, Assistant District Attorney, Commonwealth, appellee. by

Opinion 1972: December These the serious appeals present wheth- question aner enforcement official be to permitted serve a juror when criminal alleged conduct aimed at the police.1 problem claimed to be accentuated by presented appellants Other issues the have no merit. No judicial abuse of discretion was shown as to: the severance jointly defendants, 31, 1860, trials of indicted Act of March P. L. 427, §40, §785; sequestration prospective jurors, 19 P.S. Com Cephas, Superior monwealth 213 Pa. Ct. 247 A. 2d 662 sequestration witnesses, (1968); Kravitz, Commonwealth v. (1960), denied, A. 2d cert. U.S. appellants awas by that one circumstance Black Muslim. stemming charges on tried defendants were

Three robbery bar. nighttime Chester of West from the judge for cause During refused to dismiss voir dire the township, de- after of a local commissioner peremptory chal- all exercised fense counsel had by shooting lenges. evidence At trial there was shooting was clear whether but it was Many by were of the witnesses done the defendants. of bur- convicted officers. The defendants were robbery accomplice, glary, violation armed with receiving property, and stolen Uniform Firearms Act, charge acquitted conspiracy, of at- on the but tempts intent to kill. with guaranteed right impar- “an are

Defendants by jury” tial of the States Amendment United Sixth Pennsylvania §9 Article of the Constitution and Pennsylvania, nor statute neither rule, Constitution. provides any guidelines impar- toas what constitutes duty tiality, merely but indicates challenges for cause.2 Other states have consider stat- categories potential specifying utes for cause.3 removable analysis case

An law indicates are two there types challenges of situations which cause should granted: (1) has be when such relationship, or it financial situation- familial, close parties, counsel, victims, witnesses, al, *4 challenges peremptory prospective jurors, of more than 20 denial of defendants, legislatively irrespective number is of the of mandated. 427, §40, 31, 1860, §785. P. Act of March L. 19 P.S. 2 challenge assigned any for a cause shall he made in “When inquired proceeding, the truth of such cause shall be criminal 31, by 1860, Act the court.” of March P. L. and determined §813; §§1106, §39, Pa. R. Crim. 1107. 19 P.S. c/. (1961) (1970). E.g., and §40.07 §932.12 Fla. S.A. presume prejudice;4 will aud likelihood (2) juror’s potential prejudice when the likelihood by questions is exhibited conduct at and answers vow dwe.5 In former the determination situation, practically subject is one of law and as such is to ordi nary depends review. In the latter much situation, upon and demeanor of the answers by judge trial observed and therefore reversal appropriate only palpable in case error.6 question

The broad raised here is whether en- law occupational forcement rela- officials, because tionship automatically re- criminal be cases, they moved whether should be cause, removed only prejudice if their likelihood of is manifested their answers and demeanor on vow The cate- dwe. gories relationships automatically which call for re- moval should limited be because is desirable to it have jury persons composed variety awith of back- experiences. and We believe that an enforce- capable professional objectivity ment officer considering the case a defendant accused of a crime against society. any relationship Absent real to the of an. removal officer enforcement should de- Stewart, See Commonwealth v. A. inherently prejudicial (1972), in which a trial was held because jury associating panel, father of the victim a member days. and one-half two " 'The juror’s ability willing test of is the scruples ness to eliminate the influence of his and render a verdict according to the evidence and this is to determined judge, juror’s upon discretion of the trial based answers and Nothing palpable . demeanor. . . short of a abuse of discretion justifies passing challenge a reversal on for cause’: Com. v. Gelfi, 434, 437, Peronace, 282 Pa. A. 79.” Commonwealth v. 86, 92, (1937) (no dismissing 328 Pa. 195 A. error in not county detective, prose for cause relatives of who was the active ease, political attorney). cutor allies of the district 6 Supra, note

207 on the trial the sound exercise discretion pend In of the light questioning police judge. in and defense counsel’s failure commissioner this case, him deter- judge to could question further, properly mine not exhibited that commissioner had police which would his dismissal any prejudice require cause. to the like cases the view appear support

lihood of bias on the who have part police officers, no to the or to the particular case relationship police force is not so the court must re involved, great the officer in move from the a jury. “Membership police force no Cavness v. jury duty.” United 187 F. 2d States, 723 9th Cir. cert. 719, ( 1951), 341 In den., U.S. 951. the court held that a juror’s failure to reveal in a reserve membership police force was not for a In new trial. Mikus v. Unit ed F. States, 433 2d 719 not (2d Cir. it was held 1970), to be error for the court to refuse to remove (1) police officer who had left the service and wife (2) a state officer. Schartner, Commonwealth v. 214 Pa. Dauph. (1967), aff’d Ct. 748 Superior (1969), held that it was no error for to refuse to remove a at a guard installation.7 military

A narrower of the broad must be aspect question considered because the defendants accused of also, State, 798, (1968) See Cash v. 224 Ga. 164 S.E. 2d 558 (no dismissing justice peace error not constable despite them) exempting ; Reese, a statute State v. La. sheriff). (1967) (no dismissing deputy So. error appellant distinguishable The cases cited in that relationship being those cases there than was more the bare Langley, an enforcement officer. State v. 342 Mo. 2d S.W. (1938) (deputy sheriff, superior, sheriffs and the was a witness) ; Butts, (1942) State v. 349 Mo. 159 S.W. 2d 790 (police police chief, superior, officer and material was wit ness) ; State, (1900) (deputy 155 Ind. 58 N.E. 74 sheriff Gaff employee case). of the sheriff with financial interest in the kill. This intent officers with at shooting be- commissioner meant that inno- the defendants’ guilt decide ing required Identifica- officers. to a against police cence as crime has been recognized victim tion with position *6 States, for In Sims v. United as removal. grounds all held that 2d 1381 Cir. the (D.C. F. 1968), taxicab drivers to, are related who who are, persons in from on re-trial a case jury excluded the In the murder of a cab the driver.8 involving felony to the involved risks case the crime tried being instant the risks are similar lives officers which face. There- and his associates must juror the potential from relationship the prejudice likelihood fore, juror’s and the nature between occupation caused the court below to remove have charge should jury. from the police commissioner trial not for a new necessarily A error does call error and its rea- underlying trial. nature must be examined from the of its standpoint pos- son harm. have concluded that the error was sible We on the that based factor one of the involved charges juror’s Other cases have held that a failure rele to reveal background challenge vant which would have been for a or, provoked challenge, peremptory required cause for would have juror and a trial when been on reversal new should have the information was called for. See Jackson v. United notice States, 1968) involving (D.O. (in Cir. 395 F. 2d 615 murder case triangle, juror triangle had been member love and lover love murdered) ; McCorkle, ex De v. United States rel. Vita F. 2d 1957) robbery (victim (3rd under Cir. circumstances similar Cavell, trial); United States ex rel. Fletcher 287 F. to case on 1961) action, county (habeas corpus (3rd Cir. son-in-law prosecutor principal the case who was in and who testi detective trial). Cf., Cavell, rel. Fletcher ex fied at (1959), A. 2d which court held that juror challenge already too made late since had cause was been sworn. juror ques- officers as victims. However, found, jurors, as all

tion, well the other guilty charge. defendants were not of that The defend- only guilty ants were found crimes which did policemen. constitute criminal conduct aimed at error of the court be- below, was harmless therefore, prejudice, cause the likelihood of which would have applicable only called automatic removal, was respect charge upon to the which the defendants were acquitted.9

Judgment of sentence affirmed.

Hoffman, concurs in the result. Dissenting Opinion J.: Spaulding, respectfully I dissent. agree majority cannot with the the error of

allowing officer to sit as a was cured merely appellants because the instant case ac- *7 quitted charge attempts of kill with intent to arresting holding the officers. Their assumes that the police only upon officer’s bias could have had an effect charge. ignores possibility that dispute It the a that jurors among charge may the over that have been com- promised by reaching guilt of verdicts on the other charges. disregards policeman’s It also the effect a presence jury may jurors’ on the have had on the other possibility deliberations. there a real Moreover, that police the bias of attempts the commissioner on the charge, majority the existence of which the concedes, influenced charges. the consideration of the other police questions commissioner’s answers to posed concerning ability on voir objectively dire his 9 occurring may “Errors in connection with the trial be dis regarded appellate or treated as harmless if they upon verdict demonstrates had no effect the final re Pennsylvania Practice, (1962). sult.” 9 §215 Siandard

210 testimony uncer- of officers were

evaluate objectivity some leaves failure to assert tain.1 This juror’s prosecutorial concerning of bias lack this doubt testimony of six to the fact that added which when clearly to be indicates evaluated, officers2 was prejudice. majority categories agree relationships calling for automatic purpose of limited for the laudable should be juries variety comprised persons having from a broad backgrounds. purpose however, This should not, endanger process minimal due exalted as to so panel impartial guarantee of a fair trial Dowd, Irvin v. indifferent to the result of the case. See (1961); v. 449 U.S. 717 Stewart, 366 majority (1972). holds A. 2d 303 50, part officers that the likelihood bias on the from, great an officer must be not so removed jury. opinion points cases from other out, As jurisdictions support A.L.R. Anno., this view. See therein. there are a number listed But, cases contrary. e.g., Jackson, of cases to v. State See, (1967); People, Minn. N.W. v. 2d 689 Tate 462, 147 (1952); 125 Colo. 247 P. 2d 665 State v. Rowe, (1947); Langley, Iowa 26 N.W. State (1938); 342 Mo. 116 S.W. 2d 38 and Wallis supra majority at n. 2. As the all indicates, State, except distinguishable involv- these cases, Wallis, worthy E.g., policeman when asked whether a is more depends layman, that “it on the individual.” belief than he stated State, App. 359, (1955), Wallis v. Ala. 84 So. 2d See *8 occupational officer, alone, of a enforcement bias law was where challenge. for “In to be a sufficient basis Court stated: held solely case, the based on the the instant state’s evidence was testi- mony being true, officers. This think of two law enforcement we layman deputy that a sheriff would stand less indifferent than a professional at from influence.” 84 So. 2d 790. free as the status occupational of more than the fact ing recog- do cases But disqualification. for bias and prosecutorial credibility nize the problems jurors.3 serve as officers police when presented at very judicial recog- been least, There has then, bias present nition of the problem prosecutorial Be- in criminal cases. jurors serve as when policemen likely the officer is view of expertise, cause are feel that his functions with administra- performed there- the arrest of a suspect regularity tive and contrary fore indicates his His predisposition guilt. Jus- innocence. See J. Skolnick, to the presumption of tice 240-41 .192-96, (1966). Without at Trial, held in

Our recently Court Supreme for Stewart, that where the preju- supra, will be presumed dice is actual prejudice present, Amend- fairness. Given the Sixth the sake insured and Stewart’s ment’s of an jury guarantee impartial rather than clear indication that potentialities, be should jury selection actualities, prejudice officers serv- approve police focused cannot upon, in criminal here, as a sub- ing cases, where, stantial the Commonwealth’s evidence is part police if the exists and testimony. possibility prejudice officer is less than certain police challenged juror. “A officer no ease as a ... It serve justice incompatible that a seems defendant who has been apprehended police, against whom officers testify jury going up should be tried made offi Butts, 213, 220, (1942). Mo. cers.” State 159 S.W. 2d officials, including- sheriff, other law enforcement “Where in the material witnesses this question.” People, (a deputy) even debatable Tate v. may justifiable assumption supra, “It at 2d at 671. deputy po more former sheriff would be inclined to that a believe past he had worked in the officers with whom than lice witnesses Jackson, supra, State v. at accused.” at 2d N.W. *9 objectivity, proper course is to dis- his assertion juror. qualify disqualify failure Mm as requires challenged in the instant case reversal despite acquittal charge. attempts judgments sentence would reverse the and grant appellants a new trial. Company, Appellant.

Weiner v. White Motor 1972. Before Argued September Wright, Watkins, Jacobs, Hoffman, Spaulding, Cercone, JJ. McKinley,

William J. Camp- with him Jr., Swartz, appellant. bell & Detweiler, for Beasley, Jeffrey E. James him M. Stopford, Beasley, Casey, ap- Hewson, & Cotter am,, Kraft pellee.