Commonwealth v. Noel, 23 EAP 2013

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Justice STEVENS.
• Citation: 104 A.3d 1156
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Harold Winston NOEL, Jr., Appellant.
• Docket Number: No. 23 EAP 2013,23 EAP 2013
• Decision Date: 21 November 2014

104 A.3d 1156

COMMONWEALTH of Pennsylvania, Appellee
v.
Harold Winston NOEL, Jr., Appellant.

No. 23 EAP 2013

Supreme Court of Pennsylvania.

Argued Sept. 11, 2013.
Decided Nov. 21, 2014.

104 A.3d 1158

J. Michael Farrell, Esq., for Harold Winston Noel, Jr.

Michael J. Foley, Esq., Thomas J. Foley III, Esq., Foley Law Firm, Scranton, for Pennsylvania Association for Justice, Amicus Curiae.

Hugh J. Burns Jr., Esq., Philadelphia, Priya M. Travassos, Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice STEVENS.

Appellant, Harold Winston Noel, Jr., has been convicted of robbery and related offenses, and sentenced to an aggregate 29 to 58 years' imprisonment for these crimes. In this discretionary appeal, he does not challenge the sufficiency of the evidence to sustain his convictions, but instead insists that the trial court's failure to conduct voir dire in strict compliance with Rule 631 of the Pennsylvania Rules of Criminal Procedure entitles him to a new trial. We have studied the asserted error, and the prejudice it is alleged to have caused, and find that the jury selection process employed by the trial court does not compel reversal of the judgment of sentence entered below.

In Pennsylvania, impaneling a jury in criminal cases is governed by Chapter 6, Part C(1) of the Rules of Criminal Procedure. In non-capital cases such as the one currently before us, Rule 631, formerly Rule 1106, provides two methods of voir dire, and directs that it is within the discretion of the trial judge to choose which

104 A.3d 1159

alternative to employ. Pa. R.Crim. P. 631(E)(1)-(2) ; Commonwealth v. Berrigan, 509 Pa. 118, 135, 501 A.2d 226, 235 (1985). The first alternative, the “individual voir dire and challenge system,” is set forth in Rule 631(E)(1), which directs as follows:

(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.

(b) Challenges, both peremptory and for cause, shall be exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen.^{[ 1 ]} Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to Rule 641.

Pa. R.Crim. P. 631(E)(1)(a)-(b) (footnote added). The second alternative for selecting a jury in a non-capital criminal case, the “list system of challenges,” is set forth in Rule 631(E)(2), which directs that:

(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least 12, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).

(b) Prospective jurors may be examined collectively or individually regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.

(c) Challenges for cause shall be exercised orally as soon as the cause is determined.

(d) When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.

(e) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (E)(2)(b).

(f) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense. ...

Pa. R.Crim. P. 631(E)(2)(a)-(f).

Thus, under the individual method, the parties examine one prospective juror

104 A.3d 1160

at a time and must exercise for cause and peremptory challenges to that juror before moving on to an examination of the next, so the decision whether to exercise a peremptory challenge is made without knowledge of the jurors yet to be examined, and with potential for cause challenges remaining. Under the list method, on the other hand, peremptory challenge decisions are made with knowledge of the entire prospective jury pool, and after all for cause challenges have been exercised. As a panel of the Superior Court explained:

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 the other hand, ... the attorneys know the entire panel of prospective jurors by name, face and the qualifications revealed by the voir dire colloquy prior to the time the list is passed back and forth.

Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370, 1374 (1983).

In the instant matter, employing the list system of voir dire under Rule 631(E)(2), the parties began to select twelve jurors and two alternates by examining an initial pool of 41 prospective jurors. N.T. 2/8/10 at 16.² Counsel and the trial judge agreed to pose additional questions to the pool after several prospective jurors were excused for cause or hardship. Id. at 185. As the result of what is best described as a miscalculation on the part of the trial court, however, the final four people on the list were dismissed before such questioning occurred. Id. Thus, after the remaining excusals for hardship and cause were made, only 23 prospective jurors remained. Id. at 207–208. As noted above, Rule 631(E)(2)(d) directs that “when a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges, (including alternates), additional prospective jurors shall be added to the list.”Pa. R.Crim. P. 631(e)(2)(d). Instead of immediately adding to the pool, however, the trial court suggested that the parties begin making peremptory challenge decisions on the prospective jurors then available. N.T. 2/8/10 at 207.³ Noting that a “fresh panel” had been ordered for the following day, the trial court declined the Assistant District Attorney's suggestion that the exercise of peremptory challenges should wait until that time. Id. at 208–209. An extensive discussion of the requirements of Rule 631(E)(2) ensued, and although Appellant's counsel objected to passing the list at that time, the objection was overruled. Id. at 209–224. As such, the parties were asked to make peremptory challenge decisions as to the initial pool of prospective jurors, without having knowledge of the prospective jurors to be examined the following day.

The Commonwealth proceeded to exercise six of its seven allotted peremptory

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challenges, while Appellant chose to use all seven.⁴ Thus, at the end of the first day of jury selection, ten jurors had been accepted, and four seats remained to be filled. Additional prospective jurors were presented the following day, and Appellant renewed his objection to the trial court's failure to add additional jurors to the jury pool before the parties exercised peremptory challenges. The objection was overruled, and voir dire was conducted in the same manner as it had been the previous day, i.e.—the parties exercised for cause challenges, and then the Commonwealth exercised its one remaining peremptory challenge. The record thus shows that the trial court's deviation from the method of voir dire set forth in Rule 631(E)(2) did not limit the number of peremptory challenges to which the parties were entitled under Pennsylvania Rule of Criminal Procedure 634,⁵ but resulted in the parties being asked to make peremptory challenge decisions before all prospective jurors had been examined, so that the voir dire method took on the characteristic of Rule 631(E)(1), wherein for cause and peremptory challenge decisions are made without knowledge of the prospective jurors yet to be examined.

With Appellant's jury seated, the matter proceeded to trial. The evidence presented revealed that on June 29, 2008, as Eugene McPeak was putting groceries in his vehicle at the ShopRite grocery store located on Aramingo Avenue in Philadelphia, a black man wearing black clothing approached him and demanded the cash McPeak had in his...