Com. v. Pittman

• Decision Date: 14 October 1983
• Citation: 466 A.2d 1370,320 Pa.Super. 166
• Parties: COMMONWEALTH of Pennsylvania v. Robert PITTMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 1370

466 A.2d 1370

320 Pa.Super. 166

COMMONWEALTH of Pennsylvania v. Robert PITTMAN, Appellant.

Superior Court of Pennsylvania.

Argued May 4, 1982.

Filed Oct. 14, 1983.

[320 Pa.Super. 169] John J. Kevlock, Philadelphia, for appellant.

Garold E. Tennis, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, ROWLEY and CIRILLO, JJ.

ROWLEY, Judge:

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 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.

waived. In his post-verdict motions, appellant assigned numerous errors. Appellant's counsel filed no 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:

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. Holzer, 480 Pa. 93, 100-101, 389 A.2d 101, 105 (1978) ("failure to either brief or orally argue 102 issues ... deprived [lower court] of any meaningful opportunity to consider them"). Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509-510 (1978) ("requirement that counsel either brief or argue points of error raised in the written post-trial motions ... furthers the policies underpinning [Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) ]"). Therefore, we will discuss only the single claim presented to the trial court.

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 Pa.R.Crim.P. 1106(e)(1)(B). ² Because this juror was "accepted," appellant contends, he could not be removed because Rule 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 committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). Likewise, the process of selecting a jury is committed to the sound discretion of the trial judge. The principles of law, including our scope of review, concerning claims regarding the erroneous grant or denial of a challenge of a prospective juror for cause were aptly set forth by Judge Price in Commonwealth v. Short, 278 Pa.Super. 581, 590-591, 420 A.2d 694, 698-699 (1980):

                1106(e)(1)(B) specifically states that "[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge."   Although the assistant district attorney had written "acceptable" next to Juror No. 10's name, he informed the court very shortly thereafter that he had made a "mistake" and actually intended to peremptorily dismiss Juror No. 10.  The record is not clear as to which jurors the Commonwealth had accepted or whether the parties were in fact alternating in casting the initial vote to retain or dismiss a given juror.  The only record of what transpired is in a partial transcript of the voir dire and discussion in chambers.  The relevant portion of that transcript is reproduced in an Appendix to this opinion.  It shows only that defense counsel had "accepted" Juror No. 10;  that the assistant district attorney then "accepted" No. 10 and, nearly simultaneously thereafter, defense counsel accepted No. 11 and the assistant district attorney discovered that he had made a mistake:  he had intended to excuse Juror No. 10.  The record indicates that this was the first peremptory challenge utilized by the Commonwealth.  The trial court accepted the prosecutor's explanation and permitted the challenge to be exercised
                

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 rosa [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 abuse of discretion, Commonwealth v. Bighum, supra. (Emphasis supplied.)

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 unreasonable, 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 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 "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. Therefore, we cannot conclude that the trial court committed a palpable abuse of discretion and we will not disturb appellant's conviction.

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).

Although the appellant invokes the provisions of Pa.R.Crim.P. 1106(e)(1)(B), our review of the record leads us to the conclusion that subsection (e)(1) of the Rule does not apply. The sequence of events leading up to the striking of Juror No. 10 shows that the parties were utilizing the "List System" of selection prescribed by subsection (e)(2) rather than the "Individual Voir Dire" system prescribed by Rule 1106(e)(1). The parties examined the prospective jurors after they had taken seats as a group in the jury box. (See Tr.Ct.Op., p. 4; N.T. 3/2/81, pp. 6-7.) After the examination regarding the qualifications of the jurors was complete, see Rule 1106(e)(2)(F), the attorneys for the Commonwealth and the appellant exercised their peremptory challenges ³ by passing back and forth between them a sheet of paper with each juror's name and number written upon it. The record reveals that the parties were exercising their peremptory challenges seriatim, without any intervening examination of other jurors. The attorneys took turns casting votes either to "accept" or peremptorily excuse the prospective jurors.

This hybrid method of selecting the jury is not within the ambit of the individual system prescribed by Rule 1106(e)(1). That subpart contemplates, rather, that the parties completely examine a juror and challenge his fitness for cause, peremptorily remove him from service or refrain from doing so in one single stage before the next prospective juror is even called. 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...