Com. ex rel. Fletcher v. Cavell

• Decision Date: 20 March 1959
• Citation: 149 A.2d 434,395 Pa. 134
• Parties: COMMONWEALTH ex rel. James Morris FLETCHER v. Angelo C. CAVELL, Warden, Western State Penitentiary.
• Court: Pennsylvania Supreme Court

149 A.2d 434

395 Pa. 134

COMMONWEALTH ex rel. James Morris FLETCHER v. Angelo C. CAVELL, Warden, Western State Penitentiary.

Supreme Court of Pennsylvania.

March 20, 1959.

Marjorie Hanson Matson, Pittsburgh, for petitioner.

Glenn R. Toothman, Jr., Dist. Atty., Waynesburg, for respondent.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES and COHEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

By this petition for a writ of habeas corpus, which is here under our original jurisdiction, the relator, James Morris Fletcher, seeks release from his present restraint in the Western State Penitentiary where he is serving a life sentence for his conviction of murder in the first degree.

The principal contention, which the petitioner now advances, was urged upon the court below in support of his motion for a new trial following his conviction. After the new trial motion had been denied and sentence of life imprisonment, as fixed by the jury's verdict, had been imposed upon the defendant, he appealed the judgment of sentence to this court. Here, he assigned as trial error the same reasons which he had relied upon in the court below. Following argument of the appeal, we overruled the assignments of error and affirmed the judgment of sentence (Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897). The defendant then petitioned the Supreme Court of the United States for a writ of certiorari which was denied sub nom Fletcher v. Commonwealth of Pennsylvania, 354 U.S 913, 77 S.Ct. 1300, 1 L.Ed.2d 1429.

Fletcher's main contention in support of his petition for a writ of habeas corpus is that he was denied due process at his trial for murder, in violation of the 14th Amendment of the Federal Constitution, by not being permitted to challenge, either for cause or peremptorily, two of the sworn jurors in circumstances about to be related.

Pursuant to the trial procedure which obtains in Greene County (where Fletcher's trial was had), as well as in many other counties of the Commonwealth, a juror who has been examined on his voir dire and accepted by both sides is immediately sworn upon his being accepted and is not again sworn. In short, the jury, when completed, is not sworn as a body, each juror having been sworn separately.

After eight jurors had been selected and so sworn, the defendant's counsel moved the court for leave to challenge juror number one for the reason that he was the son-in-law of a county detective who had been an investigating officer in the case, and juror number seven because of her (actually very remote) relationship to the victim of the felonious homicide for which the defendant was being tried. These matters, concerning jurors one and seven, were not known to the defendant at the time those jurors were selected and sworn. When the motion to challenge was made, the defendant had twelve peremptory challenges left. The trial judge rules that the proposed exercise of challenges came too late and, accordingly, denied the motion. This ruling Fletcher assigned as trial error on his appeal to this Court. It was then fully considered by us and rejected for the specific reason that 'Since defendant made no objection to the Court's failure to discharge these jurors until after the jurors had been sworn, the verdict cannot be challenged because of any juror's disqualification * * *.' [387 Pa. 602, 128 A.2d 900.] In the course of our discussion of the issue thus raised by the appellant we quoted from Section 9 of the Act of May 17, 1939, P.L. 157, 17 P.S. § 1340, just as the court below had done in denying the defendant's motion for a new trial. Section 9 provides that 'After jurors are sworn without objection all objections to their qualifications as prescribed by this act or to the manner of their selection, drawing, or summoning shall be deemed to have been waived.' It so happens, however, that the Act of 1939 is applicable to third class counties whereas Greene County, the venue of Fletcher's trial, is a sixth class county.

It is plain enough that the fact that the Act of 1939, supra, was not applicable to trials in Greene County was of no material moment whatsoever and does not affect in the slightest the merit of either the lower court's decision or our affirmance. The applicable common law rule of criminal procedure uniformly enforced throughout the State is the same as that declared by the Act of 1939, supra, for counties of the third class. The controlling rule was well stated in Traviss v. Commonwealth, 106 Pa. 597, 607, where the defendant was likewise appealing from a sentence imposed upon a first degree murder conviction. As there enunciated, 'The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party * * *.' Then followed the observation that 'it is not even pretended there was anything of the kind in this case'--a circumstance that is equally the situation in the case now before us.

In Commonwealth v. Walker, 283 Pa. 468, 472-473, 129 A. 453, 454, before quoting the rule as stated in Traviss v. Commonwealth, supra, this court declared that, 'It is the duty of parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors. Here there was no deception by the juror or anyone as to the fact; no effort was made to elicit such information; the failure to do so and to make objection at the proper time operates as a waiver [citing authorities from various jurisdictions].' The Walker case was also an appeal by a defendant from a sentence imposed upon a conviction for murder in the first degree.

In Commonwealth v. Penrose, 27 Pa.Super. 101, 111, President Judge Rice said, after nothing that, 'The only remaining question that need be noticed is that which relates to the refusal of the court to grant a new trial, upon the ground, not discovered until after the trial, that one of the jurors was an alien. It is to be observed in this connection that * * * when he was drawn as a juror in the defendant's case he was accepted and sworn without being interrogated by counsel on either side as to his qualifications * * *. [The disqualification] would have been disclosed, if he had been interrogated at the time he was sworn, but the defendant voluntarily omitted to avail himself of the means at his hand for informing himself and the court upon the subject. He preferred, perhaps, to hold them in reserve to be used in the event of an adverse verdict, as he had a perfect right to do, if the position of his counsel is correct. We think, however, that their position is not tenable.'

Again, in Romesberg v. Merrill, 99 Pa.Super. 197, 200, the court said, 'As stated above, the time to challenge is before the juror is sworn. If not exercised then, the right is waived. Traviss v. Com., supra; Com. v. Dombek, 268 Pa. 262 ; Com. v. Penrose, 27 Pa.Super. 101; Com. v. Walker, 283 Pa. 468 . There was no attempt to show that there was any misconduct.' The same was equally true here.

But, even if it had been permissible for the defendant to challenge for cause after the jurors had been sworn, it clearly appeared at the time of Fletcher's appeal to this Court that there was no valid cause for challenging either juror number one or number seven.

In Commonwealth v. Peronace, 328 Pa. 86, 195 A. 57, it was held that the relationship between a juror and a county detective who was the active prosecutor in the case did not justify a challenge of the juror for cause. This fully answered the defendant's objection to juror number one who was a son-in-law of a county detective, a witness in the case. And, as to juror number seven, the relationship between her and the victim of the homicide was that of a second cousin, once removed; that she and the deceased had lived twenty-five miles apart; and that they had never visited each other during their lives.

As recognized in Commonwealth v. Gelfi, 282 Pa. 434, 437, 438, 128 A. 77, 79, 'The 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, and this is to be determined by the discretion of the trial judge, based upon the juror's answers and demeanor * * *. Nothing short of a palpable abuse of discretion justifies a reversal in passing on a challenge for cause * * *.' In the present case, the trial judge was most circumspect in ascertaining whether or not the two jurors whom the defendant belatedly sought to challenge were capable of rendering fairly a verdict on the evidence adduced. In deciding that they were so qualified the trial judge cannot justly be held guilty of an abuse of discretion.

In any event, the remedy of habeas corpus may not properly be used as a substitute for an appeal for the review of alleged trial errors which could have been considered and, if they were actually such, could have been corrected in the regular course of appellate review: Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 144, 137 A.2d 236; Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 46, 96 A.2d 909; Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A.2d 593; and numerous cases there cited. The fact is that in the instant case the want of due process which the petitioner alleges rests upon alleged trial error which we had reviewed on his appeal and after thorough consideration had rejected.

Commonwealth ex rel. Penland v. Ashe, 341 Pa. 337, 340, 19 A.2d 464 466, aptly states that, 'The writ of habeas corpus can never be used as a substitute for an appeal to test the correctness of the administration of the law in...