Com. v. McNeil

• Decision Date: 06 October 1989
• Citation: 388 Pa.Super. 108,564 A.2d 1289
• Parties: COMMONWEALTH of Pennsylvania v. Harold McNEIL, Appellant. 1465 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 1289

564 A.2d 1289

388 Pa.Super. 108

COMMONWEALTH of Pennsylvania v. Harold McNEIL, Appellant.

1465 PHILA. 1988

Superior Court of Pennsylvania.

Submitted June 27, 1989.

Filed Oct. 6, 1989.

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before DEL SOLE, TAMILIA and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from a judgment of sentence. Appellant, Harold McNeil, was tried and found guilty by a jury of burglary and possessing an instrument of a crime, generally. Subsequent to the denial of his post-verdict motions, appellant was sentenced to a term of ten (10) to twenty (20) years on the burglary charge and a term of two and one-half (2- 1/2) to five (5) years on the possession of an instrument of crime charge. Appellant then filed a petition for reconsideration of sentence. Upon consideration of this petition, the court changed appellant's sentence to allow the period of incarceration on the weapons charge to run concurrently with the sentence imposed on the burglary charge. This timely appeal follows.

The facts of this case, as outlined by the lower court, are as follows:

On September 5, 1987, at about 9:40 P.M., Philadelphia police officer John Burke received a radio call of a burglary in progress at the rear of a house at 2505 West Sterner Street, in Philadelphia, Pennsylvania. Burke arrived on the scene and entered the back alley of the house within two minutes of getting the call. He saw [appellant], identified as Harold McNeil, with one leg inside the property and with a tire iron in his hand. Burke apprehended McNeil and placed him under arrest. He observed at the time pry marks or "jimmie" marks around the window consistent with its having been forced open.

Appellant presents four issues for our review. First, appellant argues that the lower court's comments to the venire denied him of his constitutional right to a fair trial and impartial jury. ¹ Second, appellant states that the lower court erred by refusing to quash an information charging him with burglary. Third, appellant alleges that the evidence was insufficient to sustain his conviction for possession of an instrument of crime. Finally, appellant argues that his double jeopardy rights were violated when the lower court denied his demurrer to the possession of an instrument of crime charge. Because we find no merit to these allegations, we affirm the lower court's judgment of sentence.

As previously noted, appellant first contends that the judge's comments to the venire denied him a fair trial and impartial jury. Specifically, appellant argues that the lower court's statements minimized the seriousness of the instant case and the importance of the jury's responsibilities. Appellant also argues that these comments improperly encouraged the jury to presuppose appellant's guilt and aligned the lower court with the prosecution in the eyes of the jurors. Appellant contests four lower court statements. First, appellant argues that lower court improperly commented on the appellate rights of convicted persons. Second, appellant states that the lower court improperly stated that many defendants in his courtroom were convicted. Third, appellant argues that the lower court judge improperly informed the jury of his former employment as a prosecutor. Finally, appellant states that the lower court improperly commented on how quickly the instant action would proceed as a bench trial as opposed to a jury trial.

Reviewing the province of judges, our supreme court has declared that a judge has a duty "to insure that his conduct is 'above reproach,' or minimally, is not prejudicial." Commonwealth v. Hammer, 508 Pa. 88, 96, 494 A.2d 1054, 1058 (1985) (citation omitted). Our review of the jury selection transcripts demonstrates that the conduct of the lower court in the case sub judice was not prejudicial to appellant. Pertinent excerpts of the judge's comments to the venire follow:

The court: Thank you. Members of the panel, I use this occasion now to kill the clock. Have a little fun with you. Maybe rap a little. Tell you what is going on now. This is the time when lawyers do their thing. The piece of paper is going to be passed back and forth between Mr. Bookman and Mr. Means. They are going to write down strike or accept, strike or accept. They get seven peremptory challenges. Not eight. Seven. They get an unlimited number of challenges for cause. It's a very exact science. All kinds of books have been written about it. I never understood it. I was prosecutor years ago. I was an original appointee here years ago with a man by the name of Richardson Dilworth and served ten years, then ten years in my own practice. I was always a maverick bucking some political party. I ran four times and the fifth time you made a mistake and you elected me. Then you retained me again some three or four years ago. But this is a job and if you ask me how they do it, I don't know. I used to flip a coin. I am sure Mr. Means and Mr. Bookman have a better technique than that.

* * *

Here is your chance to ask a judge a question. Don't ask me about the case because I don't know anything. If I did I would not tell you. But ask me anything that you see or hear on TV or radio or in the newspapers about the courts or about the system or criminal justice. And I learn from you an awful lot. Come on. You must be wondering something. You are stuck here today. You may as well--I have not taken an envelope in quite awhile as far as I know. Let's see how we can make out. Come on, somebody.

Juror: Are all judges as informal as you are?

The court: They think that I'm crazy. But I don't care. I just find that jurors when they go out to do their thing are so intense, do such a marvelous job, that anything that can relax them I think is preferable. I don't think that justice is going to by any means necessarily prevail in an overly ritualistic fashion. I never have buttoned my robe in 14 years. I wouldn't know how. And don't hold this against my other colleagues. They are very nice people. Thank you. But that's the way I am. Question? I am pretty much that way in everything. When I come to work I wear a jacket and cowboy hat.

Juror: What are your duties after four o'clock?

The court: Stick around today. Why--

The court crier: Seven tonight. I need a lunch break already.

The court: He gets paid for doing that, too. Why, frankly I have been a judge for I told you 14 years. I have a large number who have been convicted. And everyone who is convicted has the right to appeal. Everybody does. And the first appeal is to me. And so it's a very complicated process. All the notes of testimony have been transcribed. I get a presentence report, psychiatric report. The sentencing process, assuming I hear the argument and deny any motions, say that I don't see any basis for a new trial, I then go ahead and sentence. That could take a long, long time. Then there were perhaps arguments or parole violations. Also as a judge I perform more weddings than all the priests, deacons, and rabbis and all the judge[s] put together in Philadelphia. I do. I don't know why, but I do. And it takes a lot of time. I am involved in lots of other things, writing and so forth. But we like to keep our deferred matters that I set for the afternoon because a lot of people have to come together at one time and it's very difficult to--they may have to be in other courts, and rather than strip them from other courtrooms we save that to the end of the day. That could run late.

Juror: If you disagree with a jury's verdict are you allowed to overturn that?

The court: Our appellate courts intentionally make it difficult. They say I am not to substitute my judgment in a factual judgment in a factual issue for that of a jury. And for a judge to overturn a verdict of a jury, say, they convict him and notwithstanding the verdict I--it's almost--not that it's impossible, but almost impossible. The sanctity of the jury's decision is something that stands there. To say if there's error in the trial, that's something else. I have had all kinds of interesting things. But short of that our appellate courts very properly say you have an enormous burden, Judge Halbert, to set aside that jury's decision. Enormous. I think that's right. As it should be. Question? Good Question.

Juror: How many cases do you hear in a year?

The court: How many cases a year? Well, actually this case will be very short they tell me, very fast. I could get into a homicide where there is the death penalty aspect and jury selection I would bring you in one at a time. That could take not just days and weeks but months just in a jury selection. But on average, four, five a month jury cases. Unless you get into--and I tried, let's say, everything from murders, robberies, rapes, on down. But it's an average unless you get into a protracted case. The first eight years I was a judge I say as a judge without a jury, where he's the fact finder as well. He'll determine guilt or innocence and so forth. I did that. A case like this would probably take me or any other judge maybe ten minutes to half an hour at the most to try. The jury process is a cumbersome procedure. And other things can cause things to be protracted that we have no control over. Those who are selected for the jury, hold me to this: if time appears to be wasted and you come in and we don't get to work on time, I can't usually tell you why we are delayed. But you make me account for every minute when the case is over. I promise you I will. I can't usually tell you during the course of the trial. But at the end I'll account for every minute. I think you're entitled to know that. Questions?

Reviewing this unusual colloquy, it is also apparent that the lower court's comments did not reveal a minimization of the seriousness of the instant case or the jury's responsibilities. Instead, the judge attempted to...