Com. v. Shirey

• Court: Superior Court of Pennsylvania
• Writing for the Court: MONTEMURO; We are constrained to observe that Johnson; Johnson; JOHNSON; JOHNSON
• Citation: 333 Pa.Super. 85,481 A.2d 1314
• Parties: COMMONWEALTH of Pennsylvania v. Everett E. SHIREY, Appellant. (Three cases).
• Decision Date: 07 September 1984

Page 1314

481 A.2d 1314 333 Pa.Super. 85 COMMONWEALTH of Pennsylvania
v.
Everett E. SHIREY, Appellant. (Three cases). Superior Court of Pennsylvania. Argued Feb. 18, 1982.
Filed Sept. 7, 1984.

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[333 Pa.Super. 99] Dante G. Bertani, Public Defender, Greensburg, for appellant.

Perry S. Patterson, Deputy Atty. Gen., Coudersport, for Com., appellee.

Before MONTEMURO, JOHNSON and MONTGOMERY, JJ.

MONTEMURO, Judge:

This matter is before the court on three consolidated appeals of Everett Shirey from judgments of sentence involving five different criminal complaints. To both comprehend and compartmentalize these various appeals, a thorough understanding of the procedural history of the case is required.

On January 26, 1980, the appellant was arrested on charges under four separate criminal actions docketed in Potter County. These four actions were as follows: (1) at No. 28 of 1980, appellant was charged with indecent assault, ¹ indecent exposure, ² and corruption of a minor, ³ said charges pertaining to appellant's alleged conduct towards Michelle Renee Marshall, age nine years; (2) at No. 29 of 1980, appellant was

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charged with indecent assault and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Bobbi Jo Marshall, age eleven years; (3) at No. 30 of 1980, appellant was charged with indecent assault, indecent exposure, and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Joy Michelle Paucke, age eight years; and (4) [333 Pa.Super. 100] at No. 31 of 1980, appellant was charged with indecent assault and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Julie Lynn Marshall, age thirteen years. A preliminary hearing on these four criminal complaints was held on February 8, 1980, and appellant was bound over on all the charges.

On February 13, 1980, the appellant was arrested on a fifth set of charges. At No. 44 of 1980, appellant was charged with statutory rape, ⁴ indecent assault, indecent exposure, and corruption of a minor, said charges pertaining to appellant's alleged conduct towards Pamela Sue McMillan, age less than fourteen years. A preliminary hearing on No. 44 was held on February 19, 1980, and a prima facie case was found to exist on all the charges.

The Commonwealth presented motions to consolidate No. 28 with No. 30, and No. 29 with No. 31, for the purpose of trial. The appellant objected to consolidation and argued in the alternative that Nos. 28, 29, 30, and 31 be combined in one trial. The lower court granted the consolidation motions as requested by the Commonwealth.

Trial was held on Nos. 28 and 30 on May 15 and 16, 1980. The jury was unable to reach a verdict, and the lower court declared a mistrial on May 16, 1980. Trial of these actions was rescheduled.

On July 10 and 11, 1980, trial was held on Nos. 29 and 31. The jury returned a verdict of guilty on each of the two corruption of minors charges. After denial of appellant's motions for a new trial and in arrest of judgment, the lower court imposed sentence. Appellant has filed a timely appeal from this judgment of sentence.

On July 16 and 17, 1980, trial was held on No. 44. A verdict of guilty was rendered on three of the four charges: statutory rape, indecent assault, and corruption of a minor. The appellant's post trial motions were denied and sentence was imposed. Appellant has appealed from this judgment of sentence.

[333 Pa.Super. 101] On September 8, 1980, jury selection was held for the retrial of Nos. 28 and 30. Appellant's counsel was not present at that proceeding because of a commitment in another case, and appellant's motion to continue the jury selection was denied. The jury was chosen with appellant acting pro se.

On October 22 and 23, 1980, retrial was held on Nos. 28 and 30. A verdict was reached by the jury finding appellant guilty on each of the two indecent exposure charges, as well as each of the two corruption of minor charges. Motions for a new trial and in arrest of judgment were denied and sentence was imposed. A timely appeal was filed from the judgment of sentence.

Before us, therefore, are appeals from: the judgment of sentence on Nos. 28 and 30, the judgment of sentence on Nos. 29 and 31, and the judgment of sentence on No. 44. While several of the issues raised in these three appeals overlap, each appeal is unique. We proceed, therefore, to examine each appeal individually.

I. APPEAL FROM NOS. 28 AND 30.

Appellant raises six issues as well as several sub-issues in this appeal. Those general issues concern: (1) selection of the jury in the absence of appellant's counsel, (2) selection of the jury six weeks prior to

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the trial, (3) alleged defective nature of the informations, (4) failure to consolidate all the offenses, (5) characterization of certain materials as "dirty" and "obscene", and (6) instructions to the jury. While resolution of the first issue requires the granting of a new trial, we find that issues (2) through (5) must still be addressed as they will undoubtedly recur upon retrial. Accordingly, we consider these issues seriatim.

1. Jury Selection in the Absence of Counsel.

Appellant argues that his fundamental right to counsel under the United States Constitution was violated by the trial court's requirement that he select the jury without the assistance of counsel. Selection of the jury was scheduled for September 8, 1980. During the week prior to that date, [333 Pa.Super. 102] appellant's counsel, Dante Bertani, communicated with the trial judge by phone and indicated that he would be trying a murder case in another county on that date. Bertani stated that he would contact John Duvall, a local Coudersport attorney, and request that he represent appellant during jury selection.

On September 8, 1980, Mr. Duvall appeared with appellant. Duvall reported that he was not there to represent the appellant but was there only to object to selection of the jury in Bertani's absence. ⁵ Thereupon, Duvall "withdrew", and the trial judge held a conference with the assistant district attorney and the appellant. The following exchange took place:

THE COURT: .... we will no[w] go in and draw the jury. Do you understand how to draw the jury?

MR. SHIREY: Might I now make that formal appeal to be postponed?

THE COURT: It is on the Record, but we are going to draw the jury today, none the less.

MR. SHIREY: I will do my best.

THE COURT: You will not be waiving your objection to drawing the jury today by virtue of doing so. But we are going to draw a jury today. That's definite and that's it. But you are not waiving your right to legally object.

MR. SHIREY: I understand.

N.T. September 8, 1980, at 6-7. Upon return to the courtroom, the trial judge conducted the voir dire examination, ⁶ and then the assistant district attorney and the appellant exercised their peremptory challenges. The members of the jury were announced and court adjourned.

Before the commencement of trial on October 22, 1980, Bertani took an exception to the entire jury because of its [333 Pa.Super. 103] selection by appellant without assistance of counsel. The trial judge responded that the court had adjusted its calendar to accommodate Bertani's schedule on many occasions throughout the various criminal proceedings against appellant and that the court's interest in regulating its calendar outweighed counsel's availability problems. In its opinion denying appellant's post trial motions, the lower court employed a balancing test with the court's need to conduct its business with dispatch on one hand, and a criminal defendant's need to be afforded due process on the other. The lower court then determined that since it was not notified of the conflict at the earliest possible date, and since counsel had already been granted numerous continuances and changes of scheduling, the balance fell against the appellant's due process concerns.

The Sixth Amendment to the United States Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance

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of Counsel for his defence." The right to counsel applies to the states via the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right inheres in all criminal prosecutions where a defendant's loss of liberty is at stake, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and specifically attaches at all "critical stages" of the proceedings against the accused, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Sixth Amendment right to counsel is a fundamental right and is essential to a fair trial. Gideon v. Wainwright, supra.

The issue presented here is whether the process of jury selection constitutes a "critical stage" of the prosecution during which appellant was entitled to the assistance of counsel. While other states have answered this question in the affirmative, Eason v. State, Tex.Cr.App., 563 S.W.2d 945 (1978); People v. Locklar, 84 Cal.App.3d 224, 148 Cal.Rptr. 322 (1978); there is no binding precedent in this Commonwealth to direct our resolution of this question.

[333 Pa.Super. 104] A "critical stage" of the prosecution has been defined as "any stage of the prosecution, formal or informal, in or out of court, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, supra, 388 U.S. at 226, 87 S.Ct. at 1932. The thrust of the right to counsel is the entrustment of the right to a fair trial. Thus, counsel's presence at "critical stages" of the proceedings is mandated because "counsel's legal training and expertise may then be employed on behalf of the accused to observe, discover and prevent possible unfairness or irregularity in ... procedures which may later irreparably prevent a basically fair determination of...