*1 104A.3d 1156 SMITH, Petitioner Richard A. v. OF COUNTY COURT
PHILADELPHIA PLEAS, Respondent. COMMON EM 2014. No. 158 Pennsylvania. Supreme Court of Nov. 2014.
ORDER PER CURIAM. NOW, November, the Applica- 21st day
AND this and the Petition Original Leave to File Process tion for of common The court of Mandamus are GRANTED. Writ filing adjudicate pending Petitioner’s is DIRECTED pleas of this order. days within 90
104A.3d 1156 Pennsylvania, Appellee COMMONWEALTH of NOEL, Jr., Appellant. Harold Winston Pennsylvania. Supreme Court of Argued Sept. 21, 2014.
Decided Nov. *4 Noel, Farrell, Esq., for Harold Winston Jr. Michael J. III, Foley Esq., Foley Thomas Foley, Esq., Michael J. J. Justice, Scranton, Firm, Association for Pennsylvania Law Amicus Curiae. Travassos, Jr., Priya M. Esq., Philadelphia, Burns
Hugh J. Office, for Attorney’s District Common- Esq., Philadelphia Pennsylvania. wealth of SAYLOR, EAKIN, BAER, TODD,
CASTILLE, C.J., STEVENS, McCAFFERY, JJ. THE ANNOUNCING JUDGMENT
OPINION THE OF COURT Justice STEVENS. Noel, Jr., Harold has been convicted of
Appellant, Winston offenses, aggregate related and sentenced to an robbery and crimes. In this discre- years’ imprisonment 29 to 58 for these sufficiency he does not tionary appeal, convictions, that the evidence to sustain his but instead insists compliance failure to conduct dire in strict trial court’s voir Rule 631 of the Rules of Criminal Proce- Pennsylvania with entitles him to a new trial. We have studied the asserted dure caused, error, it and find prejudice alleged and the is have by selection the trial court process employed entered judgment does not reversal of the of sentence compel below. in criminal is Pennsylvania, impaneling
In cases C(l) Part of the Rules of Criminal governed Chapter the one non-capital currently Procedure. In cases such as us, Rule two methods formerly provides before dire, it is the discretion of the of voir and directs that within which Pa. R.Crim. judge employ. trial to choose alternative 631(E)(l)-(2); 118, 135, Berrigan, P. (1985). alternative, The first the “individual 631(E)(1), in Rule challenge system,” voir dire and is set forth which directs follows:
(a) jurors dire of shall be conducted prospective Voir be conducted individually beyond hearing jurors. of other presence
(b) cause, both and for shall be Challenges, attorney exercised with the for the alternately, beginning chosen.[1] Commonwealth, jurors Challenges until all are immediately prospective juror shall be exercised after the is parties, juror examined. Once all a accepted prospective shall not be removed by peremptory challenge. Without mistrial, declaring judge may challenge a a allow a for cause deliberate, any jury begins provided time before the to selected, sufficient alternates have been or the defendant 12, by jury pursuant consents to be tried a of fewer than to Rule 641. (footnote added). 681(E)(l)(a)-(b)
Pa. R.Crim. P. The second case, selecting non-capital alternative for a a criminal 631(E)(2), system challenges,” the “list is set forth in Rule which directs that:
(a) A prospective jurors prepared. list of shall be The jurors prospective list shall contain a sufficient number of to 12, the number of alternates be plus total at least to selected, the total number of plus peremptory challenges alternates). (including
(b)
be
or
Prospective jurors may
collectively
examined
jurors
their
If the
are
individually regarding
qualifications.
challenge
prospective juror’s ability
1. "A
for cause is directed at a
to
serve,
challenge may
while a
be exercised for
reason or
13,
Chmiel,
no reason at
v.
585 Pa.
577 fn.
all.” Commonwealth
Evans,
(2005) (citing
v.
212 Pa.
889 A.2d
518 fn. 13
(1905)).
parties
examined jurors. of other beyond hearing presence the and (c) orally be exercised as soon Challenges for cause shall as the cause is determined.
(d) sustained, which a for cause has been challenge When the number of 12 the total number on the list below brings alternates, (including alter- plus peremptory challenges plus nates), the jurors additional shall be added to prospective list.
(e) to the list juror subsequently Each added prospective (E)(2)(b). paragraph be examined as set forth (f) all completed the examination has been When exercised, for cause have been chal- by shall then be exercised the list between lenges passing ... prosecution and defense. 6Sl(E)(2)(a)-(f). P.
Pa. R.Crim. method, Thus, parties under the individual the examine exercise for cause prospective juror one at a time and must juror moving to that before on to peremptory challenges next, an examination of the so the decision whether to exercise peremptory challenge knowledge a is made without of the examined, jurors to be and with for cause yet potential method, the list on the other challenges remaining. Under hand, with knowl peremptory challenge decisions are made all for edge prospective jury pool, of the entire and after cause have panel been exercised. As explained: The critical difference between the two methods of dire, in the voir an selection is that case of individual only sees and examines one attorney selecting pro- At the an must spective juror attorney at a time. time juror whether to particular question, decide attorney absolutely nothing panel knows about which member next be called for examination. Under the might hand, on ... know the system, attorneys list the other name, jurors entire face and the panel prospective by the voir dire colloquy prior revealed qualifications forth. time the list is back and passed Pittman, Pa.Super. (1983). of voir dire matter, employing system In the instant list 631(E)(2), jurors to select twelve parties began under Rule of 41 by examining pool prospec- two alternates an initial and the trial jurors. judge tive N.T. at 16.2 Counsel 2/8/10 after several questions pool additional agreed pose Id. cause or hardship. were excused for prospective of what is best described as a miscalcula- 185. As result court, however, the trial the final four part tion on the were before such questioning on the list dismissed people *7 Thus, Id. hardship after the excusáis for remaining occurred. made, jurors remained. only prospective and cause were 631(E)(2)(d) above, Rule Id. at 207-208. As noted directs that sustained, brings for cause has been which challenge “when of 12 plus number on the list below the number the total alternates), alternates, (including plus peremptory challenges, be added to the list.” Pa. jurors additional shall prospective 631(e)(2)(d). to the immediately adding P. Instead of R.Crim. however, suggested parties begin the trial court pool, prospective decisions on the making peremptory challenge 207.3 that a jurors Noting then available. N.T. 2/8/10 the trial following day, had been ordered for the panel” “fresh Attorney’s suggestion District court declined the Assistant wait until the exercise of should peremptory that of the Id. at 208-209. An extensive discussion that time. 631(E)(2) ensued, although Appel- of Rule requirements time, the the list at that objected passing lant’s counsel such, Id. at 209-224. As objection parties was overruled. to the challenge make decisions as peremptory were asked to knowledge of jurors, having initial -without pool prospective following day. examined the jurors to be prospective reasons, through jurors were numbered 1 but for unknown 2. The juror from the list. N.T. at 16. 27 had been scratched 2/8/10 requiring attempting was to avoid appears It that the trial court day. day’s jury pool to return for second unneeded members of N.T. at 209. 2/8/10 of its seven to exercise six proceeded The Commonwealth to use while chose challenges, allotted peremptory selection, Thus, day at the end of the first all seven.4 remained to be been and four seats jurors accepted, ten had fol- jurors were presented Additional prospective filled. objection to the trial renewed his lowing day, jury pool before court’s failure to add additional objection challenges. exercised parties peremptory overruled, dire was conducted the same and voir day, parties it had been the i.e.—the previous manner as and then the Commonwealth challenges, exercised cause The rec- challenge. its one remaining peremptory exercised from the the trial court’s deviation ord thus shows 631(E)(2) limit set forth in Rule did not method of voir dire parties the number of to which Rule of Procedure Pennsylvania were entitled under Criminal 634,5 to make being peremp- but resulted in the asked parties jurors had been prospective decisions before all tory challenge examined, so that the voir dire method took on the character- 631(E)(1), for cause and istic of wherein pro- are made knowledge decisions without jurors yet to be examined. spective seated, the matter to trial. Appellant’s jury proceeded With revealed that on June presented The evidence McPeak was in his vehicle at Eugene putting groceries *8 in Phila- store located on Avenue ShopRite grocery Aramingo man him delphia, wearing clothing approached a black black had in his hand. When and demanded the cash McPeak refused, gun pushed McPeak the man out a pulled McPeak, Avenue. walking away Aramingo before toward the man to police, McPeak the incident and described reported from a identify perpetrator group but he was unable to the identify he day, men the assembled that nor did could police during up. the man a later line Appellant dispute that he could have reserved 4. does following day. for the only involving non-capital felony "In trials a and when there is one defendant, and the defendant shall each be entitled the Commonwealth 634(A)(2). peremptory challenges.” to 7 Pa. R.Crim. P. that, revealed while presented walking Additional evidence Street, Zachary near Avenue and Somerset Willis Aramingo wearing clothing, a black man black who approached by and demanded his wallet. pointed gun a at Willis Willis wallet, and the man fled. Police to responded surrendered Street, Willis to eventually transported the scene and Wishart the man who robbed him. Appellant where he identified co-conspirator, also identified Steve Reiner Appellant’s Willis (a.k.a. Reiter), at him staring Michael a man Willis had seen Street, in a Mitsubishi on driving by while black Somerset trial, immediately prior robbery. During again Willis identified as the man who robbed him on June Appellant 2008, McPeak was not the man he Appellant but testified day. encountered that Reiner, to by agreed
Further evidence was offered who for the testify against Appellant exchange mandatory sentencing minimum waiving requirements ap- to him. Reiner that he and had plicable explained Philadelphia driven Reiner’s black Mitsubishi to on June then used heroin and drove around all night. and had a woman named day, they picked up Stayton next Sara to rob a dealer she for them to drug arranged and decided Avenue lot. Accord- Aramingo ShopRite parking meet Reiner, appear, Appellant got when the dealer did not ing Reiner out of the Mitsubishi and McPeak. saw approached handed, empty out a but he returned Appellant pull pistol, Willis, encountered whom away. They trio drove soon testified that pistol. then robbed with the Reiner Willis, cocaine Appellant bought after he and robbing meantime, police heroin and in the car. In the had got high in a robbery been notified that a black Mitsubishi was involved police began following in the cruiser neighborhood. When Reiner, ensued, ending a car chase when Reiner crashed direction, carrying pistol. Mitsubishi. Reiner fled in one direction, BB carrying gun in another Appellant fled disposed Reiner. Reiner testified that he belonged pursuing police as he ran. This was observed pistol *9 officers, also recovered the pistol. who recovered the Officers
110 was observed through Appellant BB in a which gun schoolyard Appellant, soon encountered Another officer running. apprehended. items before he was saw him discard several ID, ID, and several of Willis’ Appellant’s The items included credit cards. Willis’ 19, 2010, guilty found of February Appellant
On McPeak, guilty conspir- but of criminal robbery Eugene of crime,7 of of an instrument acy robbery,6 possession to commit manufacturer’s number al- of a firearm with possession Willis, victim, Zachary to the second regard tered.8 With criminal guilty robbery,9 conspiracy found Appellant license,10 not to be carried without a robbery, commit firearms crime, an instrument of of firearms possession possession of a firearm with prohibited person,11 possession a manufacturer’s number altered. Court, filed to the seek- appeal a direct trial that the trial court violated
ing grounds a new on during in misconduct prosecution engaged Rule 631 and the review, As it to our current closing argument. pertains error Rule 631 supported allegation regarding his itself, of the Rule specific requirements with citation to the dictum employ- case single Superior suggesting Court method of voir dire violates Rule and three ing hybrid role pertaining important federal cases securing impartial jury. Appel- a fair and challenges play “clear of Rule lant insisted that the trial court’s violation” 631(E)(2) of what the United States Su- “deprive[d] [him] has described as an essential means preme repeatedly impartial jury.” Appellant’s for the selection of a fair and by requiring brief at 11. He asserted that Superior Court before the exercise peremptory challenges to exercise parties § 6. 18 Pa.C.S. §
7. 18 Pa.C.S. §
8. 18 Pa.C.S. 6110.2 §
9. 18 Pa.C.S. §
10. 18 Pa.C.S. §
11. 18 Pa.C.S.
Ill
cause,
violated Rule
the trial court
challenges
of all
“
631(E)(2)
him ‘the
by denying
prejudiced Appellant
and
on a
challenges
his preemptory [sic]
to exercise
opportunity
jurors
been examined’
prospective
ha[d]
basis after all
priority
he or she least
jurors
strike off the
attorney
so that ‘each
”
(citing
Id. at 15
Pa. R.Crim. P.
to hear the case.’
prefers
Clark,
658,
631(E)(2);
663 n. 3
v.
Commonwealth
“importance
peremptory
(Pa.Super.2002)).12 Regarding
trial,” Appel
to a fair
right
to criminal defendants’
challenges
comment that
Supreme
lant
the United States
Court’s
quoted
to
right
peremptory
the constitution does not confer a
“[w]hile
have been
traditionally
...
those
challenges,
challenges
qualified
the selection of a
assuring
viewed as one means of
“long
jury,”
acknowledgment
and unbiased
and its
is a
peremptory challenge
necessary
held belief that
widely
brief at 16
by jury.” Appellant’s Superior
of trial
part
1712,
79, 91, 106
Kentucky,
Batson v.
476 U.S.
S.Ct.
(quoting
(1986);
Alabama,
v.
Accordingly,
his per-
violation of Rule 631
counsel
exercise
requiring
exam-
before all
were
emptory challenges
prospective
consequence.
ined and
for cause made was of no
similarly
Superior Court
12. The defendant in Clark had
asserted to the
entitled
a new trial because the method of voir dire used
that he was
before
by the trial court forced him to exercise
challenges. Vacating
remanding on other
exercising all
for cause
grounds,
that the method of voir
Court noted
dictum
631,”
specifical-
wording
but the court
dire
the strict
of Rule
”violate[d]
ly
express
opinion
whether the violation would have
declined to
an
on
Clark,
Id. 17.14 not enti- countered that
The Commonwealth he failed to prove the windfall of a new trial because tled to Even fair was violated. impartial jury that his to a the method of voir dire be consid- employed could assuming asserted, ered a violation of *11 technical, was not wholly Appellant prejudiced violation was peremptory mere fact that he was to make by required the made, were and determinations before all for cause that to a fair and he had failed to demonstrate his v. DeMar- Commonwealth Citing was violated. impartial Pittman, co, (1984),15 481 A.2d Pa.Super. 1373,16the that the emphasized 466 A.2d at Commonwealth Thus, Appellant that he was denied the correct did not assert 14. challenges, refusing in peremptory of that the trial court erred number exercise, sought peremptory challenges the he to or that he was of peremptory challenge juror have forced to exercise a on a who should allegation simply removed for cause. His was that he was entitled been opportunity deprived trial him of the to to a new trial because the court peremptory challenges having the entire exercise his after examined prospective jurors. Appellant’s requested pool relief was based solely prejudiced by process on the claim that he was a mistake the rules, prescribed by procedural dire the but he never asserted that voir seated, actually jury, the caused the as to be unfair or biased. mistake DeMarco, appellant that the failure of the court to In the asserted 15. supply jurors, detailing in which him with a roster of the order selected, process. in an unfair alternates were to be resulted selection Court, noting alleged any Superior appellant had not The that argued prejudice arising process, that material from the selection nor 1106(E)(2), agreed process failed to conform to Rule with the trial purpose provide is not to counsel with the court that "the of voir dire exercising challenges, peremptoiy but limited to the deter- basis for is cause, being challenged juror subject for mination of whether a is DeMarco, qualification, holding opinion lack of or for a fixed or bias.” 640. Pittman, appellant violated Rule In asserted that the trial court 1106(E)(1)(b) allowing by the Commonwealth to exercise a sides, juror accepted by because Rule to a who had been both 1106(E)(1)(B) specifically accepted by parties, a states that once all juror by peremptory challenge. Al- prospective shall not be removed employed though Superior that the trial court had Court noted the accused provide voir dire examination is purpose fair, not to unprejudiced jury, competent, impartial with a to exercise peremptory counsel with a better basis provide insisted, bar, In the case at the Commonwealth challenges. succeeded, to show had not much less Appellant attempted, unfair, or partial resulted in an the voir dire method he regard was prejudiced jury, prejudice absent to a new trial. not entitled with majority opinion agreed
The
selection,
trial court erred in its administration of
that a new trial was not warrant-
but nevertheless concluded
Noel,
A.3d
857 (Pa.Super.2012).
ed.
that the error was
determining,
majority
In so
concluded
of the voir dire
per
very aspect
se because
prejudicial
of,
to make
complained
requiring
parties
method
i.e.
there were
left to
challenge decisions while
made,
to be
potential
be examined and
for cause
631(E)(1).
authorized
specifically
was a characteristic
further
that because
never
majority
found
seated,
unfair or
he
unqualified,
asserted that the
jury,
to establish that the method of voir dire caused
had failed
majority specifi-
a new trial. The
prejudice requiring
actual
*12
at bar did not involve the
cally noted that
circumstances
improper
a
to correct the
peremptory challenge
forced use of
selecting
jury
individu-
hybrid method of
not within the ambit of the
1106(E)(1),
system prescribed by
it nevertheless concluded that:
al
Rule
challenge,
of a
without
The allowance or disallowance
more,
light
upon
competence, fairness or
sheds neither
nor doubt
arise,
impartiality
hear the evidence. Taint will
selected to
all,
inherent
in the mechanics of the selection
if at
from unfairness
only
permits
process
process itself.
It is
when the court
the selection
competence,
impugn
qualities of
fairness and
the fundamental
"palpable
impartiality
may
that a
abuse of discre-
that we
conclude
in this case
tion" has been committed. Our review of
record
any
us that the actions of the trial court did not undermine
convinces
qualities of the
which heard this case.
of the fundamental
Pittman,
A.2d at
The
Court further concluded that
466
occurred, "[ejrror
require
if
in the abstract does not
even
error had
trial,”
"[ejrror
prejudice
result
new
and
which does not
deny
appellate
an
accused or
the accused a fair trial does not warrant
court's denial of a motion for a new trial.”
court’s reversal of the trial
Id. at 1375.
and the
exhaustion
challenge,
subsequent
denial of a for cause
this
majority distinguished
thus the
peremptory challenges,
of
because of
granted
case from instances where a new trial was
(distin-
Noel,
The Honorable David Wecht authored a Appellant’s judgment that he would reverse indicating sentence and remand for a new trial based on his conclusion misapplication impaired the trial court’s exercise of and constituted Appellant’s determining, Judge reversible error. In so Wecht specifically that no disagreed majority’s prejudice with the conclusion selection, in jury arose as a result of the trial court’s error instead opined “prejudice necessarily inheres [18] where compelled such errors have a defendant to exhaust his than he would have peremptory challenges differently done (Wecht Noel, J., dissenting) absent the error.” added). (footnote conclusion, Judge
In
this
did not address
reaching
Wecht
631(E)(l)’s
the implications
permitting peremptory
of Rule
Instead,
jury pool
before the full
is examined.
despite acknowledging Appellant’s “sparse” analysis of federal
examined the
principles, Judge
constitutional
Wecht
United
Supreme
explanation
origins
States
Court’s
historical
majority
prosecution
engaged
17. The
also determined that the
had not
*13
Noel,
in
at 859.
misconduct.
"[tjo
permanent,
inseparable,
18.
Inhere is defined as
exist as a
or
thing;
something.”
quality of a
to be intrinsic to
essential attribute or
(9th ed.2009).
Dictionary
Black’s Law
the
challenges,
reflecting upon
of peremptory
and nature
Swain,
any
that
exemplified
supra,
as
position,
Court’s
peremptory
unfettered
to exercise
upon
right
intrusion
showing
constituted reversible error without a
challenges
rejection of
subsequent
but also
prejudice,
acknowledging
amounts to
peremptory challenge
the notion that the loss of a
to an
Ross
impartial jury,
a violation of the constitutional
Oklahoma,
2273,
The result practical [of Johnson, Jones, and 631(E)(2) as in was the same ] in an intractable court placed Appellant McBee: The trial a beyond to find it is impossible under which position to opportunity not denied the doubt that he was reasonable in the challenges of peremptory number prescribed use of the derogation was in intended the rule. This way in as reflected challenges underlying peremptory principles their adopted govern has Pennsylvania the rules a reason- exercise, beyond not harmless and the error was doubt. able reasons, that a trial I would hold foregoing
For the infringement upon Appellant’s erroneous court’s challenges by peremptory a certain number of exercise when combined procedure, the rules of criminal misapplying infringed-upon par- of the exhaustion subsequent with error underlying rendered ty’s challenges, reasons harm was found harmful for the same precisely McBee. Jones and
Id., at 866. discretionary review granted and was
Appellant sought request In of his support the voir dire issue. this Court as to trial, reiterates the Appellant award him a new that this Court and the of the Rule itself requirements assertion that that the trial court violated dictum in Clark demonstrate Appellant brief at 16. Appellant’s of Rule 631. wording strict find that he majority’s refusal to disputes Superior Court error, was result prejudiced circumstances differ Appellant’s conclusion that majority’s Jones, Johnson, McBee. asserts from those in holding: that in so disregarded Appellant’s argu- simply
[T]he Clark, (at 15) that, citing ment in his brief 4[sic], error that due to the court’s id. 802 A.2d at n. system of the list of a benefit deprived “the to exercise challenge, namely, opportunity basis after all priority his on preemptory been examined” so that “each attor- jurors have prospective strike off the he or she least to hear ney may prefers the case.” Court, therefore, issue for this is whether on precise majority’s rejection Appel-
one hand the Superior Court *15 rejection lant’s claim of as well as its of the prejudice demonstration of and its claim dissenting Judge’s prejudice, error was harmless— contrary the trial court’s —that whether, hand, prejudice were correct. Or on other did 631(E)(1) argued by result from the violation of Rule as Judge and as Wecht demonstrated with much Appellant, erudition in his that greater Dissenting Opinion: “prejudice such errors have a necessarily compelled inheres where challenges differently defendant to exhaust his peremptory than he would have done absent the error”. brief at 16-17.
Appellant’s dissent, acknowledges Wecht’s Mimicking Judge has held that Supreme peremp- United States Court dimension,” are “not of constitutional but he tory challenges Ross, to supra “recognized right notes that of states afford to greater importance peremptory challenges the exercise of law—and therefore under state constitutional under state law—than is afforded under the United States Constitution.” Rivera, brief at 17. Appellant’s Appellant emphasizes a supra right grant greater significance “reiterated state’s peremptory challenges by observing to the exercise of decide, law, ‘are free to as a matter of state that a trial states is reversible peremptory challenge court’s mistaken denial of ’ se,” error and insists that Courts have per Pennsylvania to the exer- greater importance exercised this to afford have “found peremptory challenges prejudice cise of itself, not in its effect on the trial deprivation Noel, 17-18 53 A.3d at Appellant’s (citing seated.” brief at (Wecht, J., does not dissenting)). Appellant provide 862-863 independent analysis point, quotes following on this but portion Judge dissenting opinion: Wecht’s McBee, Jones, our
In
which rest Johnson and
upon
a new trial
requiring
found
error
Supreme
prejudicial
was forced to use a
chal-
peremptory
when the defendant
to excuse a
to cure a trial court’s erroneous refusal
lenge
remaining
exhausted his
juror
for cause and thereafter
before the
empaneled.
peremptory
prior
reasoned a
from
Court’s
Jones Court
fortiori
Moore,
In held that it was harmless error to this Court [Moore ] for cause where the proper challenge proposed refuse a juror peremptory challenge was excluded and the It peremptory challenges. defense did not exhaust its that it is logically [Moore] [not harmless] follows from error to force a defendant to use his chal- who should have been excused for lenges person on a chal- cause and that defendant exhausts those lenges prior seating jury.
Jones,
Thus,
Supreme
per
Despite
divergent positions
arguments pre
sented, the
before us is whether
is
specific question
trial court
used a
initially
entitled to a new trial because the
method
voir dire which
to exercise
permitted
parties
their
with full
peremptory challenges
knowledge
pro
but switched to a method of voir dire which
spective
pool,
without such full
required
them to exercise such
conclude that
is not entitled to
knowledge.
We
new trial as the result of the trial court’s method of voir dire.
argues
21. To the extent that the amicus
that the trial court's actions
28-29,
reversal,
here
Amicus Brief at
we do
should result
automatic
appeal
not reach this claim because amicus cannot raise issues
an
*17
preserved
parties
which
themselves.
have not been
or raised
Allshouse,
229,
18,
163,
Commonwealth v.
614 Pa.
256 n.
36 A.3d
179 n.
denied,-U.S.-,
2336,
(2012)
18
cert.
133 S.Ct.
“The of purpose following of jury capable fair and ing impartial of a by the trial court.” Com provided instructions on the law as 1102, Marrero, 596, 606, 1107 546 Pa. 687 A.2d monwealth v. 194, (1996) Pa. 620 A.2d Jermyn, v. 533 (citing Commonwealth 703, (1993), denied, 1049, 114 126 cert. 510 S.Ct. 1128 U.S. (1994)).22 Tedford, v. 669 also Commonwealth L.Ed.2d See 672, 1, (2008); v. 639, 960 A.2d 20 Commonwealth 598 Pa. 501, (2005); Chmiel, 547, 578, Common 585 Pa. 889 A.2d 519 (1971). 361, Crowder, 489, 491, 363 444 Pa. 282 A.2d wealth v. guarantees the constitution of this Commonwealth While heretofore, thereof right and the by jury shall be “[t]rial I, 6, inviolate,” interpreted § Art. we have remain Pa. Const. “freedom from substan inviolability right to mean does not emphasized “[i]t tial and have impairment,” a impanelling of in the manner of import rigidity regulation is that the essential jury. principle The cardinal features preserved.” as known at the common law shall be by jury trial 691, Craver, 17, 25, 695 v. 547 Pa. 688 A.2d Commonwealth Eckhart, 311, 314-15, (1997) v. 430 Pa. (citing Commonwealth 271, (1968) (emphasis original)). 242 A.2d 273 conducted long “[although perfectly This has held objective judicial process, trial indeed the ideal of our is entitled to relief because necessarily simply defendant is trial, been long in the so as he has imperfections some a fair trial. ‘A defendant is entitled to a fair trial accorded ” deprive one.’ If a trial error does not perfect but not trial, of a fair his conviction defendant of the fundamentals will not be reversed. 270, 298, v. Pa. Wright,
Commonwealth (2008) (citations omitted). Procedure, including
The Rules of
Criminal
just
every
were enacted to
for the
determination of
provide
simplici-
and shall be construed to secure
proceeding,
criminal
impartial
explicitly
"A criminal defendant's
to an
is
Pennsylvania
granted by Article
Constitution and the
Section
Sixth Amendment of the United States Constitution.”
Chmiel,
Ellison,
1, 7-8,
(2006).
See also
v.
A.2d
Oklahoma,
supra).
(citing
Peremptory
constitutionally
but are not
years,
selection for hundreds
explained,
Supreme
As the United States
guaranteed.
challenges
are valuable tools
“[although peremptory
trials,
fundamental
constitutionally protected
‘are not
they
means to the
they
rather
are but one state-created
rights;
”
an
and a fair trial.’ J.E.B.
impartial jury
constitutional end of
T.B.,
127, 137
7, 114
1419,
fn.
v. Alabama ex rel.
511 U.S.
S.Ct.
(1994)
McCollum,
7, 128
v.
(citing Georgia
1426 fn.
L.Ed.2d 89
(1992)).
42, 57,
2348, 2358,
112
Appellant recognizes peremptory the exercise of the full number of permitted dispute him Rule 634. He does not by provided for the peremptory challenges that he could have reserved dire, did. He second of voir as day by affected identically concedes that the Commonwealth was the trial court. He does the method of voir dire employed challenge he forced to use a peremptory not claim that was juror to strike a failure of the court wrongful cure trial erroneously He does not aver that court cause. juror. He particular denied him a to a seated, was unfair or jury, makes no assertion that the Instead, that we him a new grant asks impartial. that the trial court trial on the circumstance singular based under Rule system the list initially employed then, 631(E)(2), to the altered the parties, but after notice to make they required method so that were day examined on first challenge decisions as *19 selection, to prospects additional were added of before that a new trial is Essentially, insisting the he is pool. the set procedure because the trial court altered required 631(E)(2) resemble, part, to in the method forth Rule 631(E)(1). Rule allowed matter, the in the instant
Although
Superior
majority
Court
Clark,
method of voir dire does
hybrid
like
concluded that
631(E)(2),
with Rule
and thus constituted
strictly comply
not
error,
consistently
the
has not
held that the
Superior Court
the two methods
for voir
prescribed
failure to follow either of
Pittman,
the award of a new trial. See
466
dire necessitates
the
not
selecting
jury [ ]
A.2d at 1374
method of
(“hybrid
system prescribed by
the ambit of the individual
within
145,
1106(E)(1)”);
Berrigan,
Pa.Super.
Commonwealth v.
91,
(1987),
609,
denied 521 Pa.
557 A.2d
appeal
535 A.2d
96-97
(1989),
219,
cert. denied 493 U.S.
S.Ct.
(1989)
acceptance
hybrid
L.Ed.2d 173
Pittman’s
of “a
(noting
system
that combined elements of both the list
and
system
of discretion in
system,”
finding
failing
individual
no abuse
1106(E)(2)(c)). Indeed, shortly
to
with Rule
strictly comply
after the
its belief that the exercise of
panel expressed
Clark
before the exercise of all for cause
peremptory challenges
631(E)(2),
the strict
of Rule
challenges
wording
violated
different
Court found that such a
panel
Superior
a new trial where the
failed
appellant
violation did not warrant
jury.
the error resulted in an
Com
impartial
to show that
Williams,
(table),
(Pa.Super.2003)
monwealth v.
decisions before
allow
specifically
selection to
has formulated the rules for
exercise their
parties
method
which the
by
for a
with
Underlying
disagreement
our
knowledge.
without such
to a new trial is our
insistence that he is entitled
Appellant’s
simply did not
employed
that the method of voir dire
opinion
provides. Appellant
Rule 631
Appellant of
which
deprive
was
impaired
that his exercise of
urges
peremptory
631(E)(2).
Rule
It is
the trial court failed to follow
because
dire,
however,
methods of voir
clear,
provides
Rule 631
two
juror at a
decisions are made one
one in which
come,
time,
and the other
jurors
without
of those
knowledge
are made after all
have been examined.
they
in which
Here,
employed
clearly
the method of voir dire
although
methods,
strictly comply
not
of these two
and thus did
hybrid
631(E)(2),
fully
were
aware
parties
with
by
any challenges
the trial court before
procedure chosen
com-
employed merely
were exercised. The voir dire method
it
systems,
elements of the individual and the list
did
bined
requires
fundamental that it
deprive Appellant
so
of a new trial.25
award
be attributed to the method of
only
“harm”
here
and the
Appellant,
voir dire conducted
is that
Common-
wealth,
subject
hybridization
provid-
to a
of the methods
were
akin to the forced use of a
ed for
Rule 631. This is not
error.
challenge to cure a for cause
Common-
(2010)
Reed,
431, 445,
Pa.
wealth v.
impairment
require peremptory
If
were
it an
we
to consider
*21
challenges
before the exercise
all
for cause and before
decisions
every
jury pool,
trial
in which the
examination of the full
631(E)(1)
subject
pursuant
to review. The
selected
to Rule
would be
Appellant’s
upon
dilemma:
dissent laments
fate —"cast
the horns of this
peremptory
all
his
on the devils he
Exercise some or
i.e.,
remaining
twenty-three jurors currently
from the first
those
knew —
day's
hedges against
as
venire —or retain one or more
empaneled
prospect
jurors might be
that even more undesirable
very
following day”
acknowledges
the dissent never
this
—but
choosing
by every litigant
a
under Rule
"dilemma”
is faced
631(E)(1).
choice.”
"A hard choice is not the same as no
Martinez-
Salazar,
315,
528
at
Here, conclude, that the trial beyond we a reasonable make chal requirement parties court’s were examined decisions before all lenge prospective Thus, the order of did not contribute to the verdict. we affirm Court. *22 in did not the participate Former Justice McCAFFERY this decision of case. join and EAKIN
Chief Justice CASTILLE Justice opinion. concurring opinion.
Justice BAER files a dissenting opinion. files a Justice SAYLOR dissenting opinion. files a Justice TODD BAER, concurring. Justice within American criminal
There are several touchstones every identify: right with which citizen can jurisprudence silent; counsel; right to remain to effective and the right have by impartial jury. to trial a fair and Constitutions hallmarks, judicial formed these statutes and decisions have them, sharpened rules have them. procedural defined and by to trial a fair Inextricably encompassed within jurors are impartial jury process by and is the which the and, selected; by is Pennsylvania, process regulated (E)(1) subsections and Specifically, Pa.R.Crim.P. 631-635. (E)(2) of Rule 631 for two different methods of voir provide and the challenge system,” dire: “individual voir dire non-capital “list In cases system challenges,” respectively. the trial select presented instantly, judge such as the one shall case, the method to be utilized. In this the trial court chose (E)(2) the subsection “list system.” chosen, jurors the list is system battery potential When than compiled, shall be the number of which shall be no less twelve, the number of alternatives the trial court has plus selected, should be the total number of plus determined peremptory challenges for the Commonwealth defendant 631(E)(2)(a). Initially, per- combined. no See Pa.R.Crim.P. Rather, emptory challenges permitted. upon receipt are juror prospective and examination of the questionnaires jurors, be made either only challenges” may “for cause 631(E)(2)(b)-(c). If the of for cause granting side. See id. jurors number of below challenges brings potential total threshold, then more prospec- the aforementioned minimum list,” they “shall be added to the shall be tive *23 on the list. originally scrutinized in the same manner as those 631(E)(2)(d)-(e). to this importance appeal, See id. Of most examined, jurors once all have been and all only prospective made, have been chal- may peremptory for cause by remaining be exercised the list” of the lenges “passing the id. jurors alternatively parties. between See prospective 631(E)(2)(f). the exhaustion of all chal- Upon peremptory the and pool principal those left in the are seated as lenges, jurors.1 id. alternate See Noel, was to be
Instantly, (Appellant) Harold Winston Jr. tried for his role in two armed robberies. The trial alleged be of twelve composed court determined that the would alternates, above, and as noted select- principal jurors and two In ed the list as the mode of selection. accord system 634(A)(2), was seven party given with Rules 633 and each jurors, for and one additional peremptory challenges principal jurors. for alternate were peremptory challenge parties jurors, and the given forty-one potential then an initial list of questioning court and counsel the task of them. began and for cause hardship challenges quickly Dismissals for brought potential jurors twenty-three, the number of down to in Rule well below the minimum threshold described 631(E)(2)(a), thirty.2 According which for this case was to the 631(E)(2)(d), plain upon recognizing of Rule language exceeded, minimum threshold had been the trial court should dire, new, jurors to prospective have ceased voir obtained add method, system contrary 1. The list is to the individual voir dire where immediately peremptory challenges are exercised both for cause and juror. following prospective individual See Pa. examination of each 631(E)(l)(a)-(b). Accordingly, system, and unlike the list R.Crim.P. parties jurors will for cause before do not know which be dismissed utilizing method peremptory strikes. Accord id. The individual voir dire cases, mandatory usually employed in the serious of and is is most trials, given twenty perempto- capital parties in which the are homicide 634(A)(3). ry strikes instead of seven. See id. thirty computed the selec- 2. The minimum threshold for is as follows: jurors; principal the dismissal of tion of twelve and two alternate strike; prospective principal jurors and the fourteen via jurors prospective via strike. dismissal of two alternate list, system process by then resumed the list questioning added subjecting newly prospective and dismissal cause. however, new, jurors were
Apparently, prospective into brought to the court until a “fresh panel” available following day. Philadelphia Criminal Justice Center clear, difficulty, despite explicit, this pragmatic Given 631(E)(2)(d), the trial court direction of unambiguous on forced counsel for both sides to use peremptory list, jurors currently on the twenty-three prospective make-up as to what the any knowledge without or information this day. would be the next Based on panel” “fresh day of the first any juror not stricken the end procedure, objected, be seated on the counsel but jury. Appellant’s would *24 then objection. the court the counsel Appellant’s overruled challenges, exercised all seven of his while the peremptory day’s the next “fresh prosecuting attorney saved one for strikes, the thirteen the list of panel.” peremptory Given ten, jurors to who all twenty-three potential was reduced jurors. principal became of the “fresh following day, upon presentation
The the the objection proce- counsel renewed his panel,” Appellant’s dure, parties which the court overruled. The then again new, the in the manner examining prospective started 631(E)(2)(b)-(c). first six were provided by Rule After the interviewed, because, the court the ab- stopped process trial of these first six being granted, sent a strike for cause four fill After the court remaining jury. would slots on the indicated that it would not sua sponte any strike of the six for cause, Appellant’s pro- counsel moved for the court to strike cause, spective during Juror No. for as she had indicated officer, and questioning police that her sister was a in her answers as to whether she could therefore equivocal any evaluate a officer’s without untoward police testimony bias. The court denied the motion. denial, counsel the trial
Upon Appellant’s requested strike, reasoning: him an grant peremptory court to additional pool, I had the to evaluate the No. opportunity [Juror 2] “had *25 jury, not contend that the Appellant was because did apparent seated, allege or nor did he impartial unqualified, as was prejudice. other form of substantive See id. dissented, with the
Judge
initially agreeing
David N. Wecht
in
of Rule
application
that the trial court erred
its
majority
by
the
used
the trial
hybrid approach
and further that
disagreed,
court was not
se
The dissent
per
prejudicial.
trial,
however,
opining
with not
a new
granting Appellant
such errors
have
necessarily inheres where
“prejudice
exhaust his peremptory
a defendant to
compelled
have
absent the error.” Id.
differently than he would
done
(Wecht, J.,
The dissent noted that while the
dissenting).
loss of a
does not automatical-
improper
constitution’s
to an
ly implicate
impartial
federal
impartial
are a means to achieve the end of an
jury, “they
(Wecht, J.,
Ross v.
jury.”
dissenting) (quoting
Id. at 861
Oklahoma,
81, 88,
While the herein does not occurred, I accept my part, agree that error for with clearly that the trial court palpa- Court dissent noted, bly violated and Rule 631.3 As the court misapplied 631(E)(2) chose to utilize the Rule list selection for procedure this case. the trial court did not want to make the When twenty-three jurors remaining pool the selection come back selection, day for a second it presented with a Hobson’s choice: either use your now, but, tomorrow; peremptory challenges or wait failure to use the will result in left at peremptory challenges anyone jury. the end of the on the day being placed Tangentially, Majority, relating appropriate I note that the standard of review in this case is an evaluation of whether the trial discretion, court committed an seems overlook that discre- abuse of just partial tion is abused not when a court acts with biased or with, overrides, judgment, but further when it fails to conform or upon given misapplies prevailing law based the facts of a case. See Lineberger Wyeth, (Pa.Super.2006) (quoting 894 A.2d Miller According- Hosp., (Pa.Super.2000)). v. Sacred Heart infra, ly, misapplication of Rule described the trial court's certainly qualifies as an abuse of discretion. *26 in Rule 631 authorizes a trial point, nothing More to jury court to switch back and forth between the selection hybrid simply methods or to create a of the two because run late or the room is day jury assembly empty. Impor- has Court, from this the ultimate arbiter and tantly, no decision Procedure, of the Rules of Criminal countenances interpreter by' the unconventional scheme undertaken the trial court sure, if the in this Majority Opinion appeal here.4 To be is licensing read as this Court’s of trial courts to conduct here, in a manner similar to that then the completed selection by established Rule 631 "willbe of dichotomy procedures in import little the future. said, however, I ultimately myself
With that
find
in this
because
has failed
concurring posture
appeal
review the discrete issue of whether
preserve
appellate
he suffered
actual
under the
circum-
any
prejudice
specific
by
Majority
stances of this case. As recounted
both the
dissent,
Superior
herein and the
courts have noted that
loss of a
does not rise to
improper
peremptory challenge
se violation of one’s constitutional
per
the level of a
to a
if
jury.
notwithstanding,
fair and
That
rule
impartial
general
a defendant can show that he was tried before an improperly
Indeed,
Majority
inapposite Superior
resorts to two
Court cases
if
for the conclusion that an abuse of discretion does not lie a trial court
decides to
implement
employ hybrid
or
method of
selection. See
122-23,
these,
Maj. Op.
at
The first of
104 A.3d
1170-71.
Common-
(1987),
Berrigan,
Pa.Super.
wealth v.
535 A.2d
96-97
(Com-
misinterprets language
Superior
from an earlier
Court decision
Pittman,
Pa.Super.
466 A.2d
1373-74
monwealth
However,
(1983))
authorizing hybrid jury
actually
selection.
Pittman
hybrid
contemplated by
noted that
methods of voir dire are not
Pittman,
Rules of Criminal Procedure.
decision,
constituted then a new trial challenge, using peremptory defendant into of what is archetypal example The may be warranted. a defendant is “actual occurs when prejudice” deemed to be on a who person “to use his peremptory forced ex- excused for cause and the defendant should have been the seating to the of challenges prior hausts those peremptory 1101, Pa. Ingber, v. 516 jury.” Commonwealth Jones, (1987) (quoting (1978)). A.2d is rejects appeal the that the instant Majority argument Jones, error in this
akin to
or
and concludes
Ingber
of Rule 631 was
hybrid application
case associated with
I
Had the trial court followed the clear
disagree.
harmless.
631(E)(2)(d)
mandates of Rule
when
unambiguous
jury
thirty
minimally
available
fell below the
pool
note
jury,
supra
for selection of a full
see
required
adjourned
have
should have
court should
following
happened:
the “fresh
should have been added to the
day,
panel”
for
and,
the next
parties
when the
returned
prospective pool,
given
counsel should have been
morning, Appellant’s
her
question
concerning
potential
to
Juror No.
opportunity
officers and moved to strike her for
regarding police
biases
motion, counsel could
cause. When the trial court denied that
No. 2 or
strategic
then have made the
decision to strike Juror
juror
other
via
when
prospective
some
exercising
challenges.
the list was
for the
of those
passed
Then,
on
peremptory challenge
had
used a
Juror
Appellant
a meritorious issue for
appeal
No.
have had
Appellant
if an
court determined
pursuant
Ingber,
appellate
No. 2 for cause.
striking
trial court erred
not
Juror
course,
all of
happened
Appellant
what
instead was
used
Of
selection due to
day
his
on
one
the trial
procedure implemented by
the erroneous Rule 631
court,
No. 2
on
directly triggered
being placed
and that
Juror
fact
is not
on all fours with
jury.
pattern
quite
While this
same,
seems to be the
and this
Ingber,
resulting prejudice
disposition
have
an
case for
appropriate
appellate
would
been
courts that the trial
appellate
had
Appellant
argued
if
error, and
No. 2 for cause was
failure to strike Juror
court’s
2No.
actually
he was
when Juror
prejudiced
therefore that
on the venire.
placed
however,
this line
pursue
did
Unfortunately,
his
echo the
arguments
and instead
reasoning,
solely
exists here
because
logic
prejudice
dissent’s
of Rule 631 “forced
hybridization
the trial court’s
his
purposes
applying
an
incomplete
pool
assess
about the jury
without full information
peremptory challenges
J.,
Noel,
(Wecht,
Justice the trial Baer’s conclusion that agree I with Mr. Justice See Concur- violated Rule of Procedure court Criminal case, 130-31,104 being at 1175. That at A.3d ring Opinion, meritorious claim of trial and this Appellant preserved error, a harmless appropriate inquiry implicates court obligated is analysis, error for which Commonwealth doubt, not a reasonable that the error did prove, beyond Howard, v. contribute to the verdict. See Commonwealth see also Common- 86, 100, (1994); A.2d Pa. (2003) v. Strong, wealth 575 Pa. 836 A.2d to a violation of a rule of analysis a harmless error (applying cases); procedure collecting criminal Morris, (1989) 533, 541, 1226, 1230 (holding harmless).1 hearsay that a violation of the rule was I do not with the Accordingly, agree proposition is not entitled majority responsive opinions See prejudice. to relief because he has failed to establish (“Because A.3d at 1172 Majority Opinion, Appel- him deprived lant has not demonstrated that the of a process resulting argument from the trial court's violation of the error was, therefore, Respect- prejudicial was not harmless error. rules conclude, herein, majority, fully, I as does the as noted do by the trial court here was harmless error. violation of the rules Nevertheless, previously regard I note that we have indicated in this *29 upon a harmless error that this Court affirm lower court based argument by parties. even if such an is not raised the See Common- Allshouse, 229, 163, (2012). Rather, 182 I wealth v. 614 Pa. 36 A.3d reject per prejudicial the idea that a violation of the rules is se and that showing prejudice, by Appel- absent a of actual as was established the Ingber, relief in the form of a new trial is not lants Jones and warranted. consistently applied 1. The Court has not harmless error constructs See, e.g., when faced with a violation of a criminal rule. Common- 136, 541, Brown, (1999) (upon v. Pa. 544 wealth 556 governing finding rule the amendment of a a violation of the criminal information, proceeding criminal to examine whether the defendant violation). prejudiced by persuasive policy justifica- Absent upon undertaking approach based the character of tions for an ad hoc violated, has not advanced in this the rule case, which the Commonwealth grounds deviating general imposing I for from the rule see no upon prove preserved meritorious burden the Commonwealth to trial court errors are harmless. that Appellant neither do we conclude impartial jury, fair and prejudice.”); Concurring Opinion, suffered actual (“I concurring posture in a ultimately myself A.3d at 1176 find has failed to for preserve in this because appeal of whether he suffered review the discrete issue appellate ”). and as Common- prejudice.... Consequently, actual burden to its harmless error attempted satisfy wealth has not burden to evidentiary Appel- for grounds shifting or offer lant, I dissent. respectfully TODD, dissenting.
Justice in his by I the view Justice Baer agree expressed with Opinion Announcing that the thoughtful Concurring Opinion acknowledge does not Judgment adequately of the Court by using the error committed the trial court gravity of bifurcated, by selection not authorized hybrid method of I with Baer that the agree Pa.R.Crim.P. 631. also Justice selection once it be- suspended jury trial court should have jurors numbers of prospective came clear that insufficient method, and remained to selection the list complete jury day panel prospec- then resumed the with a fresh following depleted pool. respect tive added to the With to suffer of whether this error caused question however, Saylor I with that the prejudice, agree actual Justice to unshifting prove, beyond had the burden harmless, doubt, that the trial court’s error was reasonable satisfy this attempt and that the Commonwealth did not join Dissenting Opinion. I his Accordingly, burden. to also appeal
I that our allowance of granted note trial court’s error was consider the of whether the question Noel, 619 Pa. se per prejudicial. Commonwealth (order). (2013) I force in the A.3d 385 find considerable Justice, amicus, Association of Pennsylvania arguments in the man- that the to exercise right component ner law is a critical provided by Pennsylvania I, Article by jury protected by to a trial Section v. Fug- See Commonwealth Pennsylvania Constitution. (1938) mann, trial in (right 198 A. I, ... principle Article 6 reflects the “cardinal Section *30 as known at the common law by jury essential features of trial 136 of those essential features and that one preserved,”
shall be
for cause and
both
ample right
includes “an
defendant.”). Further,
the Supreme
secured to
peremptorily,
Illinois,
148,
556
in Rivera v.
U.S.
of the United States
Court
(2009),
1446,
expressly recognized
173 L.Ed.2d
129 S.Ct.
“[sjtates
law,
decide,
state
that
free to
as a matter of
are
challenge is
court’s mistaken denial of a
a trial
1446. Since
error
se.” Id.
S.Ct.
per
reversible
have
decision,
of four of our sister states
high
courts
to exercise
litigant’s right
denial of a
wrongful
found the
the law
litigant
under
—afforded
se,
matter of state
per
as a
jurisdictions prejudicial
of those
—
a new
law, and, thus,
necessitating
reversible error
constitutes
152, 928
457 Mass.
Hampton,
trial.
Commonwealth v.
See
Hecker,
(2010);
N.Y.3d
v.
People
N.E.2d
Bol,
(2010);
v. Yai
190 Vt.
However, brief to our Court my Appellant’s review of he preju- that he abandoned claim that suffered indicates se, in this argument regard; since he advances no per dice necessary he states that “it is not contrary, [our] 631(E)(1) prejudicial per of Rule are to find that all violations Thus, of this discrete Brief at 19. resolution Appellant’s se.” await a future case. question must