Com. v. Lane

• Decision Date: 13 March 1989
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Edward LANE, Appellee.
• Court: Pennsylvania Supreme Court

Page 1246

555 A.2d 1246

521 Pa. 390

COMMONWEALTH of Pennsylvania, Appellant, v. Edward LANE, Appellee.

Supreme Court of Pennsylvania.

Argued April 14, 1988.

Decided March 13, 1989.^*

William H. Platt, Dist. Atty., Wallace B. Eldridge, III, for appellant.

Dennis Charles, Allentown, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION

NIX, Chief Justice.^*

Edward Lane was tried and convicted of rape, statutory rape, indecent assault, terroristic threats and corruption of a minor, arising from an incident with an eight-year-old girl. He was sentenced to four to ten years incarceration. On appeal, the Superior Court reversed the judgment of sentence and granted him a new trial, 365 Pa.Super. 644, 526 A.2d 813. The Commonwealth petitioned for allowance of appeal and we granted allocatur.

The alleged sexual assault in this case occurred on October 1, 1980. It is charged that the eight-year-old victim, Jennifer Simonson, was lured to the basement of her apartment building by appellee, a neighbor in the same building where Jennifer and her mother lived, on the pretext of helping appellee look for a lost cat. In that basement area, appellee is charged with having violently raped the minor victim. As a result of this encounter, Jennifer became aware that she was bleeding in the vaginal area and when it continued she reported that fact to her mother. At that time she did not mention the sexual assault as the cause of the bleeding. On the next day when Jennifer was examined by her doctor she told him that she did not know what had happened. Jennifer's mother suggested that the injury, described by the attending doctor as a one-quarter inch laceration of the perineum, may have occurred while the victim was bicycling. The doctor's progress note sheet, however, indicated that the injury's cause was "unknown." Other evidence adduced at trial revealed that Jennifer and her mother were very close, and that they both were acquainted with appellee who had lived with a friend of Jennifer's mother.

The primary issue is whether the Superior Court erred in reversing the trial court's granting of a Commonwealth challenge for cause with respect to a prospective juror. The pertinent facts regarding this issue are as follows. During voir dire a prospective juror was questioned by counsel for appellee. His response revealed that he would have difficulty not considering the length of time between when the incident occurred and when it was reported to the police. (N.T. 7/12/82 at 7A)

Counsel and the prospective juror were then called to the bench, and the following discussion took place:

[Defense Counsel]

Q: It is my recollection of what you said, that you indicated that you may very well be affected by the length of time between the alleged offense and the date when it was reported, is that correct?

A: That's correct, that part, yes.

[Defense Counsel]

Q: I thought you also indicated that you felt that you would be able to listen to the evidence and decide the case based on evidence.

A: Just based on the evidence, right; but still, like I say, the evidence I can go 100% with the evidence, if [sic] just the point that there was such an elapsed time that we should really--that would really be the point that I felt would just not make a--

[Defense Counsel]

Q: Let me ask you this--

A: That may still have some of the doubt in my mind.

[Defense Counsel]

Q: About what, sir?

A: ... the facts were all reported to me, and to the jurors, then you know, that would be it. Then, I would go strictly on them facts; it's just the point that to me it seems impossible that they should wait so long when they have a child at that age.

[Defense Counsel]

Q: Are you saying that you would listen to the evidence?

A: I would listen to the evidence, right.

BY MRS. ROACH FOR THE COMMONWEALTH.

Q: ... when you first answered this line of questioning, is it not true that you said you didn't think you could be a fair juror?

A: Yes ... but just like I say, it's--it seems almost impossible that somebody would wait that long to, you know, to me it's--but, like I say, I would weigh the facts.

[Commonwealth Attorney]

Q: That is along with all of the other facts?

A: All of them together, that would have to be concluded in my mind right there to be honest, that could be one of the facts.

THE COURT: Do you feel you could be a fair juror?

A: I feel I could be fair, but I am still saying after that, all the facts that will be presented the fact that was brought out here at this time would still be in my mind, and I would still try to be as fair as possible.

(N.T. 7/12/82 at 8A, 9A, 10A).

Subsequent to this sidebar exchange, the trial judge granted the Commonwealth's challenge for cause and this prospective juror was dismissed. This dismissal was held to be in error by the Superior Court. In an unpublished memorandum opinion the Court stated its reason for this conclusion as follows:

[W]e believe the court erred when it granted the Commonwealth's challenge for cause: 1) because the court dismissed a juror who expressed a legitimate question as to a potential weakness in the Commonwealth's case; 2) because the court's action may have had a prejudicial effect on the jury members that sat in appellant's case.

For the reasons that follow we agree with both of these conclusions and affirm the Order entered by that court.¹

The test for the disqualification of a prospective juror for cause is well established in this Commonwealth. From the voir dire examination, the prospective juror's ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence must be determined. This judgment must be based upon the juror's answers and demeanor. Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255 (1973); Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A.2d 434 (1959); Commonwealth v. Gelfi, 282 Pa. 434, 437-438, 128 A. 77 (1925). The underlying question is whether the prospective juror had formed a fixed opinion or was willing to be guided by the evidence. Commonwealth v. Sparrow, 471 Pa. 490, 500-501, 370 A.2d 712 (1977). For example, a juror may be properly excluded where he or she has some relationship to the attorneys trying the case. See Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979). A venireman may also be stricken where he or she indicates a willingness to believe a policeman simply because he is a policeman, or to disbelieve a prison inmate simply because he is an inmate, see Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976). This is a decision that rests in the sound discretion of the trial judge and that decision "will not be reversed in the absence of palpable error." Commonwealth v. Bighum, supra; Commonwealth v. Sparrow, supra. The latter principle--that the decision rest within the sound discretion of the trial court--was never intended to be a euphemism for a ruling that is insulated from appellate review. The record must justify the action taken by the trial court.

The validity of our system of justice is dependent upon the integrity of our fact-finding process. The hallmark of that system is trial by jury. To achieve this goal, we are committed to provide a jury of one's peers and require that they be willing to decide the cause on the evidence presented following the instructions as to the law as provided by the court. Although our tradition has established the concept of peremptory challenges to be used by the parties, such an exercise of power by a judicial officer is foreign to our system of jurisprudence. The challenge for cause is vested in the judiciary to assure that persons unable to fill the role of a venire person will not participate. It is not the role of the court to attempt to use this prerogative based upon its belief that a particular venire person would be more or less persuaded by a particular aspect of the case. A review of this record only reflects that this prospective juror might well place great weight upon the belated accusations against the accused than another serving in that capacity. The record also indicates that the same venire person indicated he would assess that fact with all the other evidence presented.

It is hornbook evidentiary law that a witness may be impeached by showing that, on a prior occasion, he or she engaged in conduct inconsistent with testimony given at trial. See 3A Wigmore, Evidence § 1042 (Chadbourne rev. 1970). See also Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537 (1982). A corollary to this rule is that

[i]f a witness had been under a duty to speak on a prior occasion, or if it would have been natural for the witness to have spoken on such an occasion, but the witness remained silent, the witness may be impeached by showing that the present testimony included a fact as to which he had been silent on a prior occasion.

Torcia, Wharton's Criminal Evidence § 436 (14th ed.1986) (emphasis added).

Moreover, it is well established in this Commonwealth that the lack of a prompt complaint is a factor to be considered by a juror in cases involving sexual offenses. 18 Pa.C.S. § 3105 (amended 1976); see also Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979). Unquestionably, a prompt complaint is a factor which must be assessed with all of the other pertinent evidence bearing upon the question of the credibility of the complaining witness. See, e.g., Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (1949). In such cases the question of the sincerity of the complaint is raised if it is established that the delay under all of the factors present was either unreasonable or unexplained. See, e.g., Commonwealth v. Bradford, 202 Pa.Super. 468, 198 A.2d 412 (1964); Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982). See generally, Comment, 44 U.Pitt.L.Rev. 955, 968-73 (1983). Therefore, the inference of insincerity is only justified where the facts of ...