COMMONWEALTH of Pennsylvania v. Robert PITTMAN, Appellant.
Superior Court of Pennsylvania.
Argued May 4, 1982. Filed Oct. 14, 1983.
466 A.2d 1370
Fоr these reasons, I would reverse the judgment of sentence and remand for a new trial.
Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before SPAETH, ROWLEY and CIRILLO, JJ.
This is a direct appeal from the judgment of sentence imposed upon appellant after a jury returned its verdict finding him guilty of criminal conspiracy, criminal trespass, and attempted theft in connection with an early morning break-in on September 10, 1980, of the Mission Church in South Philadelphia. Post-verdict motions were filed and denied on June 17, 1981. This appeal followed. We conclude that the trial court committed no error and, accordingly, the judgment of sentence will be affirmed.
Appellant makes several arguments.1 However, except for one, they have been waived. In his post-verdict motions, appellant assigned numerous errors. Appellant‘s counsel filed nо brief in support of the motions. When the motions were called for argument, counsel at first stated that he had no argument but then he asked leave to present argument in support of the sixth assignment of error, which reads:
6. That Defendant was denied his Constitutional, legal, and procedural rights as set forth by Rule 1106 by the Attorney for the Commonwealth‘s exercise of a peremptory challenge of a juror after said juror had been accepted by both sides.
Leave was granted and argument was heard, after which the lower court denied the motions.
Appellant has waived the assignments of error that he neither briefed nor argued. See Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979) cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979), (issues raised in post-verdict motions but not presented orally or in a brief to lower court are waived); Commonwealth v.
The single claim which appellant has preserved is that the trial court erred in permitting the Commonwealth to peremptorily excuse prospective Juror No. 10. Appellant argues that the Commonwealth had “accepted” Juror No. 10 within the meaning of
The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are
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, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated; but no one shall disclose which party peremptorily struck any juror.
The sole purpose of voir dire examination is to provide the accused with a “competent, fair, impartial and unprejudiced jury.” Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973). See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975). Nevertheless, voir dire is not designed to provide a defendant with twelve persons devoid of emotion or opinion.
The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can only attempt to have them put aside those prejudices in the performance of their duty, the determination of guilt or innocence. We therefore do not expect a tabula rosа [rasa] but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision solely on the facts presented, assiduously avoiding the influence of irrelevant facts.
Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973)
Thus, “[t]he test of disqualification is the juror‘s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence....” Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255, 259 (1973), quoting, Commonwealth v. Gelfi, 282 Pa. 434, 437, 128 A. 77, 79 (1925). Moreover, this determination is to be made by the trial judge based upon the juror‘s answers and demeanor, and we will not reverse a judge‘s ruling on a challenge for cause absent a palpable
Furthermore, in determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that “the law is overriden or misapplied, or the judgment exercised is manifestly unrеasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused.” Commonwealth v. Niemetz, 282 Pa.Super. at 445 n. 12, 422 A.2d at 1376 n. 12, quoting, Man O‘War Racing Association Inc. v. State Horse Racing Commission, 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969), quoting, Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).
In reviewing the trial court‘s allowance of a peremptory challenge, our standard should be the same. 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 “рalpable 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. Therefore, we cannot conclude that the trial court committed a palpable abuse of discretion and we will not disturb appellant‘s conviction.
Although the appellant invokes the provisions of
This hybrid method of selecting the jury is not within the ambit of the individual system prescribed by
Moreover, appellant is required to show that the individual system does apply in this case before relief can be granted on the basis of
We will, therefore, not apply
Moreover, even if any “error” occurred, it was caused by an unintentional mistake on the part of the assistant district attorney in mismarking the jury list. However, a determination that “error” has been committed does not and should not end our inquiry. Error in the abstract does not require a new trial. Error which does not result in prejudice to the accused or deny the accused a fair trial does not warrant an appellate court‘s reversal of the trial court‘s denial of a motion for a nеw trial.
The right to a fair trial is not, it has been properly said, the right to a perfect trial. Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Grimm, 249 Pa.Super. 441, 378 A.2d 377 (1977). In almost every trial, error will occur, and it would be intolerable to require that a trial be repeated, and re-repeated, until no error occurred. Accordingly, the question is not whether there was error, but whether the error was so serious as to deprive the defendant of his right to a fair trial. See, e.g., Commonwealth v. Snopek, 200
The defendant ... has no standing in an appellate court to complain ... unless the error contributed to the result reached by the jury. Id. 389 Pa. at 308-309, 132 A.2d at 226.
See also Commonwealth v. Short, 278 Pa.Super. at 598, 420 A.2d at 702-703 (Spaeth, J., concurring). Because the appellant has only a right to reject, rather than select jurors, and because the Commonwealth in this case did not and could not have gained any unfair advantage, we conclude that the error, if any, was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
It also seems appropriate that we should consider what would be accomplished were we to remand this case for a new trial. In some cases, what we view as error may be “corrected” or “rectified” by a second trial. For example, if the “error” is the result of the admission of inadmissable evidence, a second trial will correct the error by eliminating such evidence from the fact-finder‘s consideration. Or the converse: if the “error” is the result of the exclusion of relevant and admissable evidence, a second trial will correct the error by making it possible for the fact-finder to consider and evaluate the evidence in reaching its verdict. Or if the accused is tried without having the assistance of
In this case, however, a new trial will not in any way correct what is claimed to be “error.” The claimed “error” was committed by allowing the Commonwealth to еxercise a peremptory challenge removing from service prospective Juror No. 10. Appellant‘s new trial would not be by a jury on which prospective Juror No. 10 would sit; we cannot order that, at appellant‘s new trial, the jury be composed of eleven citizens chosen at random plus Juror No. 10. All that would be accomplished is that appellant would receive a second undeserved fair trial. Worse yet, we would have invaded, without justification or cause, the responsibility that rightfully rests with the trial court to exercise its sound discretion in resolving problems such as these that arise in the course of a trial.
Judgment of sentence is affirmed.
SPAETH, J., files a dissenting opinion.
APPENDIX
(Discussion in chambers as follows:)
MR. KEVLOCK [Defense Counsel]: Your Honor, I wish to point out what I think was an irregularity in the procedure and make my objection noted. This District Attorney accepted a juror and appаrently reconsidered his acceptance and later struck a juror.
MR. McGOVERN [Assistant District Attorney]: What I did, if I may clarify, I numerically made an error on the last one I wanted to strike. I think I had the option. I thought it was ten or it might have been eleven.
THE COURT: Let‘s start from the beginning. What juror is in question?
MR. KEVLOCK: Juror No. 10.
MR. KEVLOCK: Defense.
THE COURT: So the defense indicated their acceptance?
MR. KEVLOCK: Correct, Your Honor. And Commonwealth indicated acceptance and it came back to us.
MR. McGOVERN: What I am trying to say to the Court is—
THE COURT: When did you exercise your strike on 10, after you had picked 11?
MR. McGOVERN: I was handed the form and I wished to strike. He had already accepted No. 10. I wanted to strike and I had O.K. written down next to the names of two prospective jurors and I wrote “acceptable” and I believe I handed it back to Mr. DuBeck. As soon as I handed it to Mr. DuBeck, I looked at my pad and realized it was a mistake on my part.
THE COURT: Let‘s do this—in fall [sic] fairness to the defense, we are going to X out the “acceptable” on 11 and 12. It is really 11. And both of you just follow the same order and indicate what you want to do on 11, so the defense is not prejudiced.
MR. McGOVERN: What I am explaining was that—
THE COURT: As an officer of the court, I accept your explanation that you made a mistake. But I want to make it so that the defense, before they go on to 11, know how you feel about 10. That is why I am doing it this way.
MR. KEVLOCK: Your Honor, I understand that. My objection has to do with the fact that the defense believes we have a right to have that juror. My understanding was the juror was accepted, that the questioning had been completed.
THE COURT: The questioning has been completed, but we didn‘t dismiss anyone, and you were in the process of handing this back and forth. It may be in a very technical sense it is a little wrong. It was not as if there were eight
MR. McGOVERN: I immediately handed the pad back to Mr. DuBeck and I had not exercised any strike at that point. It was after he had already been accepted by Mr. Kevlock. It wasn‘t that I was trying to fish out what he was going to do.
MR. KEVLOCK: I should like to put my reason on the record that 11 was accepted after the acceptance of 10.
THE COURT: I understand your position. Under all the circumstances I am going to allow it. You had already taken a position as to 10 and the District Attorney knew that.
MR. McGOVERN: It wasn‘t that I was trying to fish out what you wanted to do.
THE COURT: Whose turn would it be for 11? It would be your turn. You have to decide whether you want 11 or not.
MR. McGOVERN: No. 11 was acceptable.
THE COURT: You can talk it over with your client whether you want to accept 11.
(End of discussion in chambers.)
SPAETH, Judge, dissenting:
The premise of the majority oрinion is that the appropriate rule is
The essential feature of the list system, provided by
Here, contrary to the majority, the record demonstrates that the list system was not used, and the challenge system was. After Prospective Juror No. 10 was examined for cause, defense counsel “accepted” him and passed the list to the prosecutor. The prosecutor then wrote “acceptable” after No. 10, and proceeded in his turn to No. 11, and marked No. 11 “acceptable.” Thus challenges were not exercised randomly as in the list system but in numerical order as in the challenge system. It is, moreover, aрparent from the record that both the trial court and counsel thought they were proceeding by the challenge system. The court specifically required counsel to accept or reject the prospective jurors in numerical order. N.T. 3/2/81 at 6-8. Also, the Commonwealth‘s argument is not that
When
Prospective Juror No. 10 was a Catholic priest. In response to questions by appellant‘s counsel, he said that the rectory of his church, in Germantown, had been burglarized three or four years ago. The court pointed out that this case also involved the burglary of a church, and asked whether he would “set aside that incident that happened to
After the assistant district attorney‘s questioning, a sidebar discussion occurred:
MR. McGOVERN [the assistant district attorney]: Your Honor, Father Rock doesn‘t remember me. In all fairness, I didn‘t realize it because he was in clerical garb the last time I saw him, but I know him and I had some dealings with him on a case. I just want to alert the Court to that. He didn‘t remember me.
THE COURT: He doesn‘t remember you and he didn‘t give any indication in his responses that he would be anything but fair. I think it goes without saying he is a Catholic priest. I think without any question most people, certainly Catholics, would say he would be more than fair.
MR. McGOVERN: Fine, Your Honor.
N.T. 3/2/81 at 4-5.
It was appellant‘s counsel‘s turn to vote first. He marked on the voting form that he accepted Prospective Juror No. 10, and then passed the form to the assistant district attorney. The assistant district attorney also marked on the form that he accepted Prospeсtive Juror No. 10. Then, proceeding in his turn, the assistant district attorney marked on the form that he accepted Prospective Juror No. 11. After passing the form back, N.T. 3/2/81 at 6, so that appellant‘s counsel could indicate whether he too accepted Prospective Juror No. 11, the assistant district attorney told the court that he had made “a mistake,” id., and that he
Challenges, both peremptory and for cause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen. 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 challenges. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate....
(Emphasis added.)
No rule could be clearer. Nor could the record be clearer that the rule was violated: the Commonwealth did not exercise a peremptory challenge “immediately after” Prospective Juror No. 10 was examined; and once he was accepted, Prospective Juror No. 10 was removed by peremptory challenge.
In support of its belated peremptory challenge, the Commonwealth relies heavily on Zell v. Commonwealth, 94 Pa. 258 (1880). There, “the first juror ... was passed without challenge by the Commonwealth‘s counsel, over to the prisoner, and the prisoner accepted him. He was then, at the request of the district attorney, ordered to stand aside,
Zell has no relevance to the present case, for the procedure approved by it has long since been expressly abolished, as appears from our decision in Commonwealth v. Brown, 23 Pa.Super. 470 (1903). There the trial court ruled that when the Commonwealth accepted a juror, defense counsel had to state whether he exercised a peremptory challenge, and that if he did not exercise his challenge then, “he waives his challenge, and, having waived it, he is bound by it.” Id., 23 Pa. Superior Ct. at 482. In support of this ruling the trial judge relied on the Act of March 16, 1901, P.L. 16, as amended by the Act of July 9, 1901, P.L. 629. We affirmed. We noted that the Act of 1901 was intended to abolish the practice оf asking a juror to “stand aside,” and went on to hold:
By this act the commonwealth and the defendant are put on an equality, both as to the number of peremptory challenges, and as to the time when the right to make them is to be exercised. The right is to be exercised, not “when the jury is called,” not “when the juror comes to the book,” not “at any time before the impaneled jury is sworn,” but “when the juror is called.” If the legislature had intended that either the prosecuting officer or the defendant might hold his peremptory challenges in reserve until there were twelve jurors in the box as to whom no specific cause of challenge could be assigned, we are confident that they would not have used this expression, “when the juror is called.”
The same observation may be made here. If the authors of
The old practice of asking a juror to “stand aside” was abolished, and the present practice adopted, first by the Act of 1901, supra, and now by
The danger of such unfair maneuvering has been expressly recognized by the courts. In Commonwealth v. Evans, 212 Pa. 369, 61 A. 989 (1905), the trial court ruled that after a party—the defendant—had questioned and then accepted a prospective juror, and had turned the juror over to the Commonwealth for questioning, it was too late for that party to exercise a peremptory challеnge. The case arose under the Act of 1901, supra, discussed in Commonwealth v. Brown, supra. Affirming, the Supreme Court said:
He [the defendant], therefore, knew that after the juror had passed the ordeal of his examination, the commonwealth might be content to ask no further questions, and to accept him as not being liable to challenge for cause. This is just what happened, and when the juror was so accepted by the commonwealth, the defendant, who had the right in the first instance to challenge without cause—peremptorily—then insisted upon so challenging. To have allowed him to do so would, as is forcefully put by the court below, have given him “a distinct advantage
Id., 212 Pa. at 371, 61 A. 989.
We similаrly commented on the unfairness of permitting a belated peremptory challenge in Commonwealth v. DiFilippo, 176 Pa.Super. 608, 109 A.2d 224 (1954). There, “[a]s additional jurors were called, appellant‘s counsel continued to exercise his right of [peremptory] challenge, without any corresponding exercise on the part of the Commonwealth, until he had exhausted his quota of twenty peremptory challenges. It became apparent that, as a matter of tactics, the defense had succeeded in securing an all male jury. The District Attorney was then permitted by the trial judge to exercise his right of challenge, and proceeded therewith until he had exhausted his original quota of peremptory challenges.” Id., 176 Pa.Superior Ct. at 610, 109 A.2d at 225. Reversing, we said:
While a defendant is “entitled to a trial by a fair and impartial jury, but not to a trial by any particular juror or jurors,” he nevertheless has the right to select that jury in a manner designed to accord, both to him and the Commonwealth, that fundamental equality which the Act of 1901 was designed to secure.
Id., 176 Pa.Superior Ct. at 615, 109 A.2d at 227 (footnote omitted).
The Commonwealth argues, however, that the assistant district attorney was not speculating—was not attempting to save a peremptory challenge at the defense‘s expense—but, rather, that he requested permission to exercise a belated peremptory challenge only because he had mistakenly marked the voting form, indicating his acceptance of Prospective Juror No. 10 when he had intended to indicate his rejection. This explanation seems inconsistent with the assistant district attorney‘s response (“Fine, Your Honor“) to the court‘s statement, after Prospective Juror No. 10 had been questioned, that the сourt was convinced that the
The Rule is absolute: it makes no allowance for “mistake.” It informs counsel, for the Commonwealth and the defense, that if they wish to remove a prospective juror by exercising a peremptory challеnge, they may do so only if they proceed in a certain way. These absolute terms both reflect and arise from the nature of a peremptory challenge.
A peremptory challenge is by nature an arbitrary decision. Counsel cannot demonstrate by his questioning any reason for a ruling by the court that the prospective juror will not be fair and should therefore be removed for cause. Counsel nevertheless doesn‘t want the prospective juror as a juror. He has a hunch that the prospective juror won‘t be sympathetic to, or will dislike, his client. The hunch may be shrewd, and based on close observation and long experience. Its accuracy, nevertheless, cannot be demonstrated—and any trial lawyer of experience can tell a story of having rejected, or accepted, someone on a jury, only to learn later that his appraisal of that person‘s attitude toward his client was entirely mistaken.
The decision whether to exercise a peremptory challenge is thus a sort of game. It‘s a game we permit counsel to play because of our belief that thereby some beneficial flexibility is introduced into trial by jury. In every trial by jury, but especially perhaps in a criminal trial by jury, it is important, not only that the persons on the jury appear to be fair, as shown by their response to questions asked them
The essentially arbitrary—game-like—nature of peremptory challenges is illustrated by the facts of Commonwealth v. DiFilippo, supra, where defense counsel‘s hunch—theory—was that women would be unsympathetic jurors, and so he exercised his peremptories with the aim of achieving an all-male jury. An even clearer illustration is in the cases involving race. Suppose the prosecutor exercises his peremptories so as to remove all prospective jurors who are black. May the defendant, who is black, complain of racial prejudice? Our Supreme Court has held that he may not—that so long as the prosecutor exercises his peremptories in the manner prescribed by the Rule, he may strike whomever he pleases, without any obligation to say why. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh‘g denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Accord, Swope v. State, 263 Ind. 148, 325 N.E.2d 193 (1975) cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); State v. Smith, 55 N.J. 476, 262 A.2d 868 (1970) cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970). Contra, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978);
The Commonwealth should not, as the majority permits, have it both ways. It should not be able to invoke
Since
The judgment of sentence should be vacated and the case remanded for new trial.
ROWLEY, JUDGE
Notes
(e) ... In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:
(1) Individual Voir Dire Challenge System
(A) Voire 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 сause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen. 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 less than twelve, pursuant to Rule 1103.
(2) List System of Challenges
(A) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least twelve, plus the number of peremptory challenges (including altеrnates).
(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 twelve (12) plus