Lead Opinion
Appellant, Harold Winston Noel, Jr., has been convicted of robbery and related offenses, and sentenced to an aggregate 29 to 58 years’ imprisonment for these crimes. In this discretionary appeal, he does not challenge the sufficiency of the evidence to sustain his convictions, but instead insists that the trial court’s failure to conduct voir dire in strict compliance with Rule 631 of the Pennsylvania Rules of Criminal Procedure entitles him to a new trial. We have studied the asserted error, and the prejudice it is alleged to have caused, and find that the jury selection process employed by the trial court does not compel reversal of the judgment of sentence entered below.
In Pennsylvania, impaneling a jury in criminal cases is governed by Chapter 6, Part C(l) of the Rules of Criminal Procedure. In non-capital cases such as the one currently before us, Rule 631, formerly Rule 1106, provides two methods of voir dire, and directs that it is within the discretion of the trial judge to choose which
(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.
(b) Challenges, both peremptory and for cause, shall be exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen.[1] Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to Rule 641.
Pa. R.Crim. P. 681(E)(l)(a)-(b) (footnote added). The second alternative for selecting a jury in a non-capital criminal case, the “list system of challenges,” is set forth in Rule 631(E)(2), which directs that:
(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least 12, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).
(b) Prospective jurors may be examined collectively or individually regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.
(c) Challenges for cause shall be exercised orally as soon as the cause is determined.
(d) When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.
(e) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (E)(2)(b).
(f) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense. ...
Pa. R.Crim. P. 6Sl(E)(2)(a)-(f).
Thus, under the individual method, the parties examine one prospective juror
The critical difference between the two methods of jury selection is that in the case of individual voir dire, an attorney selecting a jury sees and examines only one prospective juror at a time. At the time an attorney must decide whether to challenge the particular juror in question, the attorney knows absolutely nothing about which panel member might next be called for examination. Under the list system, on the other hand, ... the attorneys know the entire panel of prospective jurors by name, face and the qualifications revealed by the voir dire colloquy prior to the time the list is passed back and forth.
Commonwealth v. Pittman,
In the instant matter, employing the list system of voir dire under Rule 631(E)(2), the parties began to select twelve jurors and two alternates by examining an initial pool of 41 prospective jurors. N.T. 2/8/10 at 16.
The Commonwealth proceeded to exercise six of its seven allotted peremptory
With Appellant’s jury seated, the matter proceeded to trial. The evidence presented revealed that on June 29, 2008, as Eugene McPeak was putting groceries in his vehicle at the ShopRite grocery store located on Aramingo Avenue in Philadelphia, a black man wearing black clothing approached him and demanded the cash McPeak had in his hand. When McPeak refused, the man pulled out a gun and pushed McPeak, before walking away toward Aramingo Avenue. McPeak reported the incident and described the man to police, but he was unable to identify the perpetrator from a group of men the police assembled that day, nor did could he identify the man during a later line up.
Additional evidence presented revealed that, while walking near Aramingo Avenue and Somerset Street, Zachary Willis was approached by a black man wearing black clothing, who pointed a gun at Willis and demanded his wallet. Willis surrendered the wallet, and the man fled. Police responded to the scene and eventually transported Willis to Wishart Street, where he identified Appellant as the man who robbed him. Willis also identified Appellant’s co-conspirator, Steve Reiner (a.k.a. Michael Reiter), a man Willis had seen staring at him while driving by in a black Mitsubishi on Somerset Street, immediately prior to the robbery. During trial, Willis again identified Appellant as the man who robbed him on June 29, 2008, but McPeak testified that Appellant was not the man he encountered that day.
Further evidence was offered by Reiner, who agreed to testify against Appellant in exchange for the Commonwealth waiving the mandatory minimum sentencing requirements applicable to him. Reiner explained that he and Appellant had driven Reiner’s black Mitsubishi to Philadelphia on June 28, 2008, and had then used heroin and drove around all night. The next day, they picked up a woman named Sara Stayton and decided to rob a drug dealer she arranged for them to meet in the Aramingo
On February 19, 2010, the jury found Appellant not guilty of the robbery of Eugene McPeak, but guilty of criminal conspiracy to commit robbery,
Appellant filed a direct appeal to the Superior Court, seeking a new trial on the grounds that the trial court violated Rule 631 and the prosecution engaged in misconduct during closing argument. As it pertains to our current review, Appellant supported his allegation of error regarding Rule 631 with citation to the specific requirements of the Rule itself, a single Superior Court case suggesting in dictum that employing a hybrid method of voir dire violates Rule 631, and three federal cases pertaining to the important role peremptory challenges play in securing a fair and impartial jury. Appellant insisted that the trial court’s “clear violation” of Rule 631(E)(2) “deprive[d] [him] of what the United States Supreme Court has repeatedly described as an essential means for the selection of a fair and impartial jury.” Appellant’s Superior Court brief at 11. He asserted that by requiring the parties to exercise peremptory challenges before the exercise of all challenges for cause, the trial court violated Rule 631(E)(2) and prejudiced Appellant by denying him “ ‘the opportunity to exercise his preemptory [sic] challenges on a priority basis after all prospective jurors ha[d] been examined’ so that ‘each attorney may strike off the jurors he or she least prefers to hear the case.’ ” Id. at 15 (citing Pa. R.Crim. P. 631(E)(2);
Accordingly, it hardly can be claimed that the trial court’s violation of Rule 631 requiring counsel to exercise his peremptory challenges before all prospective jurors were examined and challenges for cause made was of no consequence. Rather, the court simply disregarded a rule specifically designed to contribute to a defendant’s right to a trial before an unbiased jury.
Id. at 17.
The Commonwealth countered that Appellant was not entitled to the windfall of a new trial because he failed to prove that his right to a fair and impartial jury was violated. Even assuming the method of voir dire employed could be considered a violation of Rule 631, the Commonwealth asserted, the violation was wholly technical, Appellant was not prejudiced by the mere fact that he was required to make peremptory determinations before all challenges for cause were made, and he had failed to demonstrate that his right to a fair and impartial jury was violated. Citing Commonwealth v. DeMarco,
The Superior Court majority opinion agreed with Appellant that the trial court erred in its administration of jury selection, but nevertheless concluded that a new trial was not warranted. Commonwealth v. Noel,
The Honorable David Wecht authored a dissenting opinion, indicating that he would reverse Appellant’s judgment of sentence and remand for a new trial based on his conclusion that the trial court’s misapplication of Rule 631 impaired Appellant’s exercise of peremptory challenges and constituted reversible error. In so determining, Judge Wecht specifically disagreed with the majority’s conclusion that no prejudice arose as a result of the trial court’s error in jury selection, and instead opined that “prejudice necessarily inheres [
In reaching this conclusion, Judge Wecht did not address the implications of Rule 631(E)(l)’s permitting peremptory challenges before the full jury pool is examined. Instead, despite acknowledging Appellant’s “sparse” analysis of federal constitutional principles, Judge Wecht examined the United States Supreme Court’s explanation of the historical origins and nature of peremptory challenges, reflecting upon the Court’s position, as exemplified in Swain, supra, that any intrusion upon the unfettered right to exercise peremptory challenges constituted reversible error without a showing of prejudice, but also acknowledging the subsequent rejection of the notion that the loss of a peremptory challenge amounts to a violation of the constitutional right to an impartial jury, Ross v. Oklahoma,
Turning to Pennsylvania case law, Judge Wecht found guidance in several cases which he believed “assessed the effect of, and remedy for, the impairment of a party’s exercise of peremptory challenges,” suggesting that “the harm for which they granted relief was the mere possibility that the defendant had been cheated of one peremptory challenge.” Noel,
The practical result [of the trial court’s misapplication of Rule 631(E)(2) ] was the same as in Johnson, Jones, and McBee: The trial court placed Appellant in an intractable position under which it is impossible to find beyond a reasonable doubt that he was not denied the opportunity to use the prescribed number of peremptory challenges in the way intended by the rule. This was in derogation of the principles underlying peremptory challenges as reflected in the rules that Pennsylvania has adopted to govern their exercise, and the error was not harmless beyond a reasonable doubt.
For the foregoing reasons, I would hold that a trial court’s erroneous infringement upon Appellant’s right to exercise a certain number of peremptory challenges by misapplying the rules of criminal procedure, when combined with the subsequent exhaustion of the infringed-upon party’s peremptory challenges, rendered the underlying error harmful for precisely the same reasons harm was found in Jones and McBee.
Id.,
Appellant sought and was granted discretionary review in this Court as to the voir dire issue. In support of his request that this Court award him a new trial, Appellant reiterates the assertion that the requirements of the Rule itself and the dictum in Clark demonstrate that the trial court violated the strict wording of Rule 631. Appellant’s brief at 16. Appellant disputes the Superior Court majority’s refusal to find that he was prejudiced as a result of the error, and challenges the majority’s conclusion that Appellant’s circumstances differ from those in Jones, Johnson, and McBee. Appellant asserts that in so holding:
[T]he Superior Court simply disregarded Appellant’s argument in his brief (at 15) that, citing Commonwealth v. Clark, id.802 A.2d at 663, n. 4 [sic], that due to the court’s error Appellant was deprived of a benefit of the list system of peremptory challenge, namely, “the opportunity to exercise his preemptory challenges on a priority basis after all prospective jurors have been examined” so that “each attorney may strike off the jurors he or she least prefers to hear the case.”
The precise issue for this Court, therefore, is whether on one hand the Superior Court majority’s rejection of Appellant’s claim of prejudice as well as its rejection of the dissenting Judge’s demonstration of prejudice, and its claim to the contrary — that the trial court’s error was harmless— were correct. Or whether, on the other hand, prejudice did result from the violation of Rule 631(E)(1) as argued by Appellant, and as Judge Wecht demonstrated with much greater erudition in his Dissenting Opinion: that “prejudice necessarily inhereswhere such errors may have compelled a defendant to exhaust his peremptory challenges differently than he would have done absent the error”.
Appellant’s brief at 16-17.
Mimicking Judge Wecht’s dissent, Appellant acknowledges that the United States Supreme Court has held that peremptory challenges are “not of constitutional dimension,” but he notes that Ross, supra “recognized the right of states to afford greater importance to the exercise of peremptory challenges under state law — and therefore under state constitutional law — than is afforded under the United States Constitution.” Appellant’s brief at 17. Appellant emphasizes that Rivera, supra “reiterated a state’s right to grant greater significance to the exercise of peremptory challenges by observing that states ‘are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se,” ’ and insists that Pennsylvania Courts have exercised this right to afford greater importance to the exercise of peremptory challenges and have “found prejudice in the deprivation itself, not in its effect on the trial jury as seated.” Appellant’s brief at 17-18 (citing Noel,
In Jones, upon which rest Johnson and McBee, our Supreme Court found prejudicial error requiring a new trial when the defendant was forced to use a peremptory challenge to cure a trial court’s erroneous refusal to excuse a juror for cause and thereafter exhausted his remaining peremptory challenges before the jury was empaneled. The Jones Court reasoned a fortiori from the Court’s prior decision Commonwealth v. Moore,462 Pa. 231 ,340 A.2d 447 (1975):
In [Moore ] this Court held that it was harmless error to refuse a proper challenge for cause where the proposed juror was excluded by a peremptory challenge and the defense did not exhaust its peremptory challenges. It logically follows from [Moore] that it is [not harmless] error to force a defendant to use his peremptory challenges on a person who should have been excused for cause and that defendant exhausts those peremptory challenges prior to the seating of the jury.
Jones,383 A.2d at 876 . Thus, our Supreme Court found per se reversible error under Pennsylvania law in circumstances materially identical to those in Ross, in which the United States Supreme Court granted no relief under the federal constitution. In so doing, the Supreme Court of Pennsylvania availed itself of its prerogative to afford relief under state law — a prerogative underscored in Ross.
Appellant’s brief at 18-19 (citing Noel,
Appellant lastly asserts that “it is not necessary for the Court to find that all violations of Rule 631(E)(1) are prejudicial per se, or to find that the final empaneled jury consisted of one or more incompetent jurors, to justify a ruling that the error in the present case was not harmless.” Appellant’s brief at 19. Again, in the place of independent analysis, Appellant provides a lengthy citation to the dissenting opinion for the proposition that “ ‘prejudice necessarily inhere[d]’ in the trial court’s error in the present case.” Id. at 19.
The Commonwealth urges us to affirm the Superior Court majority, arguing that the particular circumstances presented here required the trial court to interpret Rule 631(E)(2) and use its discretion to determine how to best reconcile the rule with the practical difficulties confronted. Thus, the Commonwealth asserts, the resulting technical violation of Rule 631(E)(2) did not constitute an abuse of discretion. Alternatively, the Commonwealth urges us to find that any technical violation of the rule did not prevent Appellant from exercising the full number of peremptory challenges granted by the procedural rules, did not prejudice Appellant’s right to an impartial jury, and thus does not require the drastic remedy of a new trial.
Despite the divergent positions and arguments presented, the specific question before us is whether Appellant is entitled to a new trial because the trial court initially used a method of voir dire which permitted the parties to exercise their peremptory challenges with full knowledge of the prospective jury pool, but switched to a method of voir dire which required them to exercise such challenges without such full knowledge. We conclude that Appellant is not entitled to a new trial as the result of the trial court’s method of voir dire.
“The purpose of voir dire is to ensure the empaneling of a fair and impartial jury capable of following the instructions on the law as provided by the trial court.” Commonwealth v. Marrero,
This Court has long held “[although a perfectly conducted trial is indeed the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial. ‘A defendant is entitled to a fair trial but not a perfect one.’ ” If a trial error does not deprive the defendant of the fundamentals of a fair trial, his conviction will not be reversed.
Commonwealth v. Wright,
The Rules of Criminal Procedure, including Rule 631, were enacted to provide for the just determination of every criminal proceeding, and shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Pa. R.Crim. P. 101. The process of selecting a jury is committed to the sound discretion of the trial judge and will be reversed only where the record indicates an abuse of discretion, and the appellant carries the burden of showing that the jury was not impartial. Chmiel,
Peremptory challenges have been a feature of jury selection for hundreds of years, but are not constitutionally guaranteed. As the United States Supreme Court explained, “[although peremptory challenges are valuable tools in jury trials, they ‘are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial.’ ” J.E.B. v. Alabama ex rel. T.B.,
Appellant recognizes this. He also acknowledges that he was permitted the exercise of the full number of peremptory challenges provided to him by Rule 634. He does not dispute that he could have reserved peremptory challenges for the second day of voir dire, as the Commonwealth did. He concedes that the Commonwealth was identically affected by the method of voir dire employed by the trial court. He does not claim that he was forced to use a peremptory challenge to cure the wrongful failure of the court to strike a juror for cause. He does not aver that the trial court erroneously denied him a peremptory challenge to a particular juror. He makes no assertion that the jury, as seated, was unfair or impartial. Instead, Appellant asks that we grant him a new trial based on the singular circumstance that the trial court initially employed the list system of challenges under
Although the Superior Court majority in the instant matter, like Clark, concluded that a hybrid method of voir dire does not strictly comply with Rule 631(E)(2), and thus constituted error, the Superior Court has not consistently held that the failure to follow either of the two methods prescribed for voir dire necessitates the award of a new trial. See Pittman,
Here, the trial court’s deviation from the specific language of Rule
The only “harm” that may be attributed to the method of voir dire conducted here is that Appellant, and the Commonwealth, were subject to a hybridization of the methods provided for by Rule 631. This is not akin to the forced use of a peremptory challenge to cure a for cause error. Commonwealth v. Reed,
As such, even assuming arguendo that the trial court erred in its method of voir dire, the error was harmless. The harmless error doctrine, as announced in Chapman v. California,
Notes
1. "A challenge for cause is directed at a prospective juror’s ability to serve, while a peremptory challenge may be exercised for any reason or no reason at all.” Commonwealth v. Chmiel,
. The jurors were numbered 1 through 42, but for unknown reasons, juror 27 had been scratched from the list. N.T. 2/8/10 at 16.
. It appears that the trial court was attempting to avoid requiring unneeded members of that day’s jury pool to return for a second day. N.T. 2/8/10 at 209.
. Appellant does not dispute that he could have reserved peremptory challenges for the following day.
. "In trials involving a non-capital felony and when there is only one defendant, the Commonwealth and the defendant shall each be entitled to 7 peremptory challenges.” Pa. R.Crim. P. 634(A)(2).
. 18 Pa.C.S. § 903
. 18 Pa.C.S. § 907
. 18 Pa.C.S. § 6110.2
. 18 Pa.C.S. § 3701
. 18 Pa.C.S. § 6106
. 18 Pa.C.S. § 6105
. The defendant in Clark had similarly asserted to the Superior Court that he was entitled to a new trial because the method of voir dire used by the trial court forced him to exercise peremptory challenges before exercising all for cause challenges. Vacating and remanding on other grounds, the Superior Court noted in dictum that the method of voir dire ”violate[d] the strict wording of Rule 631,” but the court specifically declined to express an opinion on whether the violation would have warranted a new trial. Clark,
. In Dejesus, the United States Third Circuit Court of Appeals was confronted with a defendant's allegation that the prosecution’s use of peremptory strikes was based on race or religious affiliation, violating Batson. DeJesus,
. Thus, Appellant did not assert that he was denied the correct number of peremptory challenges, that the trial court erred in refusing any of the peremptory challenges he sought to exercise, or that he was forced to exercise a peremptory challenge on a juror who should have been removed for cause. His allegation was simply that he was entitled to a new trial because the trial court deprived him of the opportunity to exercise his peremptory challenges after having examined the entire pool of prospective jurors. Appellant’s requested relief was based solely on the claim that he was prejudiced by a mistake in the process of voir dire prescribed by the procedural rules, but he never asserted that the mistake actually caused the jury, as seated, to be unfair or biased.
. In DeMarco, the appellant asserted that the failure of the court to supply him with a roster of jurors, detailing the order in which alternates were to be selected, resulted in an unfair selection process. The Superior Court, noting that the appellant had not alleged any material prejudice arising from the selection process, nor argued that the process failed to conform to Rule 1106(E)(2), agreed with the trial court that "the purpose of voir dire is not to provide counsel with the basis for exercising peremptoiy challenges, but is limited to the determination of whether a juror is subject to being challenged for cause, for lack of qualification, or for holding a fixed opinion or bias.” DeMarco,
. In Pittman, the appellant asserted that the trial court violated Rule 1106(E)(1)(b) by allowing the Commonwealth to exercise a peremptory challenge to a juror who had been accepted by both sides, because Rule 1106(E)(1)(B) specifically states that once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Although the Superior Court noted that the trial court had employed a hybrid method of selecting the jury not within the ambit of the individual system prescribed by Rule 1106(E)(1), it nevertheless concluded that:
The allowance or disallowance of a peremptory challenge, without more, sheds neither light nor doubt upon the competence, fairness or impartiality of the jury selected to hear the evidence. Taint will arise, if at all, from unfairness inherent in the mechanics of the selection process itself. It is only when the court permits the selection process to impugn the fundamental qualities of competence, fairness and impartiality that we may conclude that a "palpable abuse of discretion" has been committed. Our review of the record in this case convinces us that the actions of the trial court did not undermine any of the fundamental qualities of the jury which heard this case.
Pittman,
. The majority also determined that the prosecution had not engaged in misconduct. Noel,
. Inhere is defined as "[tjo exist as a permanent, inseparable, or essential attribute or quality of a thing; to be intrinsic to something.” Black’s Law Dictionary (9th ed.2009).
. In Ingber, a new trial was granted after the appellant used a peremptory challenge to remove a juror who should have been excused for cause, and then exhausted his peremptory challenges.
. In Moore, the appellant claimed the trial court erred in failing to grant challenges for cause. On direct appeal, this Court found that, even assuming that the challenges should have been sustained, the proposed jurors were excluded by peremptory challenge and the defense did not exhaust its peremptory challenges, thus the error was harmless.
. To the extent that the amicus argues that the trial court's actions here should result in automatic reversal, Amicus Brief at 28-29, we do not reach this claim because amicus cannot raise issues in an appeal which have not been preserved or raised by the parties themselves. Commonwealth v. Allshouse,
. "A criminal defendant's right to an impartial jury is explicitly granted by Article 1, Section 9 of the Pennsylvania Constitution and the Sixth Amendment of the United States Constitution.” Commonwealth v. Ellison,
. In Williams, the trial court first employed the individual voir dire method, then, apparently based on time concerns, switched to the list method. After for cause and peremptory challenges had been exercised however, the jury had not been seated and the pool of prospective jurors had been exhausted. A second panel was assembled and examined the following day, but only for cause challenges were permitted because the parties had exhausted their peremptory challenges on the previous day’s panel. On subsequent direct appeal, the appellant claimed that it was error for the trial court to force him to exercise his peremptory challenges without knowledge of the prospective jurors to come, and that the prejudice created by the error required a new trial. The Williams court, noting that the appellant had claimed he was prejudiced by the method of voir dire but had failed to complain that any particular juror was improperly seated or that the juiy was biased, concluded that even if it were to assume that the method of voir dire violated Rule 631(E)(2), no relief was due because there was no evidence that the appellant had been deprived of a fair trial. Williams,
. In Glaspy, the Court found that voir dire was initially properly conducted pursuant to the list system of challenges under then Rule 1106(E)(12), but once that method revealed the existence of racial prejudice within the jury pool, it became incumbent upon the trial court to examine the remainder of the juror pool using the individual method to reveal any bias a juror may have harbored. Glaspy,
. If we were to consider it an impairment to require peremptory decisions before the exercise of all challenges for cause and before examination of the full jury pool, every trial in which the jury was selected pursuant to Rule 631(E)(1) would be subject to review. The dissent laments Appellant’s fate — "cast upon the horns of this dilemma: Exercise some or all of his peremptory challenges on the devils he knew — i.e., those twenty-three jurors currently remaining from the first day's venire — or retain one or more challenges as hedges against the prospect that even more undesirable jurors might be empaneled the following day” — but the dissent never acknowledges that this very "dilemma” is faced by every litigant choosing a jury under Rule 631(E)(1). "A hard choice is not the same as no choice.” Martinez-Salazar,
Concurrence Opinion
concurring.
There are several touchstones within American criminal jurisprudence with which every citizen can identify: the right to remain silent; the right to effective counsel; and the right to trial by a fair and impartial jury. Constitutions have formed these hallmarks, statutes and judicial decisions have defined them, and procedural rules have sharpened them. Inextricably encompassed within the right to trial by a fair and impartial jury is the process by which the jurors are selected; and, in Pennsylvania, that process is regulated by Pa.R.Crim.P. 631-635. Specifically, subsections (E)(1) and (E)(2) of Rule 631 provide for two different methods of voir dire: the “individual voir dire and challenge system,” and the “list system of challenges,” respectively. In non-capital cases such as the one presented instantly, the trial judge shall select the method to be utilized. In this case, the trial court chose the subsection (E)(2) “list system.”
When the list system is chosen, a battery of potential jurors shall be compiled, the number of which shall be no less than twelve, plus the number of alternatives the trial court has determined should be selected, plus the total number of peremptory challenges for the Commonwealth and defendant combined. See Pa.R.Crim.P. 631(E)(2)(a). Initially, no peremptory challenges are permitted. Rather, upon the receipt of the juror questionnaires and
Instantly, Harold Winston Noel, Jr. (Appellant) was to be tried for his alleged role in two armed robberies. The trial court determined that the jury would be composed of twelve principal jurors and two alternates, and as noted above, selected the list system as the mode of jury selection. In accord with Rules 633 and 634(A)(2), each party was given seven peremptory challenges for principal jurors, and one additional peremptory challenge for alternate jurors. The parties were then given an initial list of forty-one potential jurors, and the court and counsel began the task of questioning them.
Dismissals for hardship and for cause challenges quickly brought the number of potential jurors down to twenty-three, well below the minimum threshold described in Rule 631(E)(2)(a), which for this case was thirty.
Apparently, however, new, prospective jurors were not available to the court until a “fresh panel” was brought into the Philadelphia Criminal Justice Center the following day. Given this pragmatic difficulty, and despite the clear, explicit, and unambiguous direction of Rule 631(E)(2)(d), the trial court forced counsel for both sides to use peremptory challenges on the twenty-three jurors currently on the prospective list, without any knowledge or information as to what the make-up of the “fresh panel” would be the next day. Based on this procedure, any juror not stricken by the end of the first day would be seated on the jury. Appellant’s counsel objected, but the court overruled the objection. Appellant’s counsel then exercised all seven of his peremptory challenges, while the prosecuting attorney saved one for the next day’s “fresh panel.” Given the thirteen peremptory
The following day, upon the presentation of the “fresh panel,” Appellant’s counsel renewed his objection to the procedure, which the court again overruled. The parties then started examining the new, prospective jurors in the manner provided by Rule 631(E)(2)(b)-(c). After the first six were interviewed, the trial court stopped the process because, absent a strike for cause being granted, four of these first six would fill the remaining slots on the jury. After the court indicated that it would not sua sponte strike any of the six for cause, Appellant’s counsel moved for the court to strike prospective Juror No. 2 for cause, as she had indicated during questioning that her sister was a police officer, and was equivocal in her answers as to whether she could therefore evaluate a police officer’s testimony without any untoward bias. The court denied the motion.
Upon that denial, Appellant’s counsel requested the trial court to grant him an additional peremptory strike, reasoning: “had I had the opportunity to evaluate the pool, [Juror No. 2] would have been a juror that I would have stricken.” Notes of Testimony, Feb. 9, 2010 at 60. Counsel further observed that he was forced to use his final peremptory strike during the previous day’s selection on a prospective juror who had twice been the victim of armed robberies, after the trial court had denied a strike for cause for the same juror. Counsel therefore averred that, absent the trial court granting him an eighth peremptory strike, Appellant would be denied his constitutional right to an impartial jury. The prosecuting attorney responded that he would have liked to have stricken a juror during the previous day’s proceedings, but strategically kept his seventh peremptory challenge for day two, and that it was not his fault that Appellant’s counsel did not do the same. The trial court agreed and denied Appellant counsel’s motion. Appellant would later be convicted of the majority of the charges against him, and this appeal followed.
A majority of the Superior Court affirmed the judgment of sentence. The panel first opined that, when the trial court forced the parties into using any peremptory challenges it wished at the conclusion of day one (and thus before all members of the venire were chosen) in evident violation of Rule 631(E)(2), such a violation was not per se prejudicial because it essentially mirrored the individual voir dire process contemplated by Rule 631(E)(1), and nothing prohibited the trial court from selecting the jury in such a hybrid fashion. See Commonwealth v. Noel,
Judge David N. Wecht dissented, initially agreeing with the majority that the trial court erred in its application of Rule 631, and further that the hybrid approach used by the trial court was not per se prejudicial. The dissent disagreed, however, with not granting Appellant a new trial, opining that “prejudice necessarily inheres where such errors may have compelled a defendant to exhaust his peremptory challenges differently than he would have done absent the error.” Id. at 860 (Wecht, J., dissenting). The dissent noted that while the improper loss of a peremptory challenge does not automatically implicate the federal
While the Majority Opinion herein does not completely accept that error occurred, for my part, I agree with the Superior Court dissent that the trial court clearly and palpably violated and misapplied Rule 631.
More to the point, nothing in Rule 631 authorizes a trial court to switch back and forth between the jury selection methods or to create a hybrid of the two simply because the day has run late or the jury assembly room is empty. Importantly, no decision from this Court, the ultimate arbiter and interpreter of the Rules of Criminal Procedure, countenances the unconventional scheme undertaken by' the trial court here.
With that said, however, I ultimately find myself in a concurring posture in this appeal because Appellant has failed to preserve for appellate review the discrete issue of whether he suffered any actual prejudice under the specific circumstances of this case. As recounted by both the Majority herein and the Superior Court dissent, courts have noted that the improper loss of a peremptory challenge does not rise to the level of a per se violation of one’s constitutional right to a fair and impartial jury. That general rule notwithstanding, if a defendant can show that he was tried before an improperly constituted jury due to a trial court wrongfully forcing a defendant into using a peremptory challenge, then a new trial may be warranted. The archetypal example of what is deemed to be “actual prejudice” occurs when a defendant is forced “to use his peremptory challenges on a person who should have been excused for cause and the defendant exhausts those peremptory challenges prior to the seating of the jury.” Commonwealth v. Ingber,
The Majority rejects the argument that the instant appeal is akin to Ingber or Jones, and concludes that any error in this case associated with the hybrid application of Rule 631 was harmless. I disagree. Had the trial court followed the clear and unambiguous mandates of Rule 631(E)(2)(d) when the available jury pool fell below the thirty jurors minimally required for selection of a full jury, see supra note 2, the following should have happened: court should have adjourned for the day, the “fresh panel” should have been added to the prospective pool, and, when the parties returned the next morning, Appellant’s counsel should have been given the opportunity to question Juror No. 2 concerning her potential biases regarding police officers and moved to strike her for cause. When the trial court denied that motion, counsel could then have made the strategic decision to strike Juror No. 2 or some other prospective juror via peremptory challenge when the list was passed for the exercising of those challenges. Then, had Appellant used a peremptory challenge on Juror No. 2, Appellant may have had a meritorious issue for appeal pursuant to Ingber, if an appellate court determined that the trial court erred in not striking Juror No. 2 for cause.
Of course, what happened instead was Appellant used all of his peremptory challenges on day one of jury selection due to the erroneous Rule 631 procedure implemented by the trial court, and that directly triggered Juror No. 2 being placed on the jury. While this fact pattern is not quite on all fours with Ingber, the resulting prejudice seems to be the same, and this would have been an appropriate case for appellate disposition if Appellant had argued to the appellate courts that the trial court’s failure to strike Juror No. 2 for cause was error, and therefore that he was actually prejudiced when Juror No. 2 was placed on the venire.
Unfortunately, however, Appellant did not pursue this line of reasoning, and instead his arguments echo the Superior Court dissent’s logic that prejudice exists here solely because the trial court’s hybridization of Rule 631 “forced Appellant to assess an incomplete jury pool for purposes
Respectfully, the “mere possibility” of prejudice is antithetical to the prevailing standard defined by federal and Pennsylvania jurisprudence: actual prejudice. Instantly, the prospect of actual prejudice exists and, again, would have been a worthy question to review. However, Appellant has waived any challenge to the prejudice associated with Juror No. 2 sitting in judgment of him by failing to raise such an argument in his statement of matters complained of on appeal pursuant to Pa.R.A.P 1925(b), see Commonwealth v. Lord,
. The list system is contrary to the individual voir dire method, where both for cause and peremptory challenges are exercised immediately following examination of each individual prospective juror. See Pa. R.Crim.P. 631(E)(l)(a)-(b). Accordingly, and unlike the list system, the parties do not know which jurors will be dismissed for cause before utilizing peremptory strikes. Accord id. The individual voir dire method is usually employed in the most serious of cases, and is mandatory in capital homicide trials, in which the parties are given twenty peremptory strikes instead of seven. See id. 634(A)(3).
. The minimum threshold for thirty is computed as follows: the selection of twelve principal and two alternate jurors; the dismissal of fourteen prospective principal jurors via peremptory strike; and the dismissal of two prospective alternate jurors via peremptory strike.
. Tangentially, I note that the Majority, in relating that the appropriate standard of review in this case is an evaluation of whether the trial court committed an abuse of discretion, seems to overlook that discretion is abused not just when a court acts with biased or partial judgment, but further when it fails to conform with, overrides, or misapplies the prevailing law based upon the facts of a given case. See Lineberger v. Wyeth,
. Indeed, the Majority resorts to two inapposite Superior Court cases for the conclusion that an abuse of discretion does not lie if a trial court decides to implement or employ a hybrid method of jury selection. See Maj. Op. at 122-23,
. Unlike this author, Mr. Justice Saylor, in dissent, would find Appellant entitled to relief given the Commonwealth’s failure to assert an argument that any error resulting from the trial court's violation of the rules was not prejudicial and was, therefore, harmless error. Respectfully, as noted herein, I do not conclude, as does the majority, that the violation of the rules by the trial court here was harmless error. Nevertheless, in this regard I note that we have previously indicated that this Court may affirm a lower court based upon harmless error even if such an argument is not raised by the parties. See Commonwealth v. Allshouse,
Dissenting Opinion
dissenting.
I agree with Mr. Justice Baer’s conclusion that the trial court violated Rule of Criminal Procedure 631. See Concurring Opinion, at 130-31,
Accordingly, I do not agree with the proposition of the majority and responsive
. The Court has not consistently applied harmless error constructs when faced with a violation of a criminal rule. See, e.g., Commonwealth v. Brown,
Dissenting Opinion
dissenting.
I agree with the view expressed by Justice Baer in his thoughtful Concurring Opinion that the Opinion Announcing the Judgment of the Court does not adequately acknowledge the gravity of the error committed by the trial court in using a bifurcated, hybrid method of jury selection not authorized by Pa.R.Crim.P. 631. I also agree with Justice Baer that the trial court should have suspended jury selection once it became clear that insufficient numbers of prospective jurors remained to complete jury selection by the list method, and then resumed the following day with a fresh panel of prospective jurors added to the depleted pool. With respect to the question of whether this error caused Appellant to suffer actual prejudice, however, I agree with Justice Saylor that the Commonwealth had the unshifting burden to prove, beyond a reasonable doubt, that the trial court’s error was harmless, and that the Commonwealth did not attempt to satisfy this burden. Accordingly, I join his Dissenting Opinion.
I note that our Court granted allowance of appeal to also consider the question of whether the trial court’s error was per se prejudicial. Commonwealth v. Noel,
However, my review of Appellant’s brief to our Court indicates that he abandoned any claim that he suffered prejudice per se, since he advances no argument in this regard; to the contrary, he states that “it is not necessary for [our] Court to find that all violations of Rule 631(E)(1) are prejudicial per se.” Appellant’s Brief at 19. Thus, resolution of this discrete question must await a future case.