Commonwealth v. Webster, 58

• Court: Commonwealth Court of Pennsylvania
• Writing for the Court: ACKER, J.
• Citation: 53 Pa. D. & C.2d 90
• Decision Date: 30 July 1971
• Docket Number: 58
• Parties: Commonwealth v. Webster

53 Pa. D. & C.2d 90

Commonwealth
v.
Webster

No. 58

Common Pleas Court of Mercer County, Pennsylvania

July 30, 1971

September term, 1971.

Petition to dismiss grand jury panel.

Joseph Nelson, District Attorney, and Robert Banks, Assistant District Attorney, for Commonwealth.

Michael Wheery, for defendant.

OPINION [53 Pa. D. & C.2d 91]

ACKER, J.

The matter before the court arises from a rule to show cause why the entire grand jury panel selected for the September term of 1971 should not be dismissed. An answer was filed to this rule by the Commonwealth, the issue therefore joined and testimony taken. From the receipt of evidence and stipulations, this court makes the following findings of fact.

FINDINGS OF FACT

1. That the jury commissioners were ordered by John Q. Stranahan, President Judge of this court, toward the conclusion of the year of 1970, to fill the jury wheel with a total of 1,250 names.

2. That a meeting was held with the jury commissioners by Judge Stranahan in which the Court Administrator, John Cutler, participated. It was there agreed that every fiftieth person from the most recent voter registration list of the county be placed in the jury wheel comprising the 1,970 jurors.

3. That the jury commissioners met with their secretary for this purpose and commenced the preparation of the list starting with the boroughs and townships in alphabetical order and taking every fiftieth elector therefrom. This list is Exhibit # 1.

4. When the jury commissioners arrived at a total [53 Pa. D. & C.2d 92] of 1,141 jurors it was discovered that every fiftieth name from the registered voter list of Mercer County had been consumed and it was necessary, in order to comply with the court order, to have an additional 109 names added.

5. That the jury commissioners and president judge met for this purpose and added the additional 109 names in an equal one-third, one-third, one-third basis.

6. That no evidence was produced as to the source of the names supplied by Judge Stranahan or Mrs. Julia Welch, one of the jury commissioners, but that Commissioner Donald Hamilton had a list of names which had been compiled from people who had requested of him in the past to serve upon jury duty. This list was not political in nature; that he did not know the political affiliations of all the persons upon the list.

7. That after assembling the entire list which was typed as the names were given by the secretary, the President Judge and the two jury commissioners met; that it consumed approximately 10 days to two weeks by the two jury commissioners and the secretary to compile petitioner's exhibit no. 1 for every name as taken off of the voter registration list was checked to determine that the person was still a registered voter and residing at the address listed as appeared in the records of the Registration Office in the Mercer County Courthouse.

8. That after the entire list was compiled, the President Judge and the two jury commissioners met with two secretaries of the jury commissioners. Starting with the President Judge, followed by Commissioner Welch and Commissioner Hamilton, the names alternately were called off from petitioner's [53 Pa. D. & C.2d 93] exhibit no. 1, entered into the jury wheel and listed in the jury book by name, residence, occupation and borough or township.

9. The jury book is a bound volume into which entries are made at the selection of the jury panel each year and whose first entry was for the jurors for the year of 1962. The book is volume 6 of the jury books of Mercer County.

10. At the conclusion of the entry of the 1,250th name, Donald Hamilton, Julia Welch and President Judge John Q. Stranahan appeared before James Griffin, Prothonotary of Mercer County, and swore that they met on December 1st and 2nd in the Mercer County Courthouse, being the days set apart for so filling the jury wheel, and after being duly sworn did place in the wheel the names of the jurors which appeared in the book.

11. That Richard H. Miller, the Democratic County Chairman of Mercer County, as a result of a study of the potential qualified electors, discovered that there are between 15,000 and 18,000 persons over the age of 21 who are not upon the election records of Mercer County and could potentially become registered electors.

12. That a further study was made of the additional 109 names previously mentioned in finding no. 5 above and that 20 of that number were active politically in the sense that they participated in either Republican or Democratic party activities, were political officeholders or officers of their respective political parties.

13. John B. Cutler, Court Administrator, and former County Superintendent of Schools, testified that school census are conducted every three years but that only persons who are 17 years and under are [53 Pa. D. & C.2d 94] required by law to be recorded and that there was no accurate school census of the number of adults in each family in any particular school district who could be regarded as eligible to register or to vote from which a jury list could be composed.

14. That Donald Hamilton is presently the President of the Pennsylvania Association of Jury Commissioners and has attended conventions regularly since 1966 when he first took office. All counties are eligible to have representatives in this association with the exception of Allegheny, Delaware and Philadelphia, leaving class no. 3 to class no. 8 counties as eligible members. That to his knowledge from discussion with jury commissioners from other counties, no jury commissioners attempt to interview the prospective jurors or send out questionnaires to them prior to their being listed for jury duty.

15. It was stipulated by and between the parties that the jury commissioners did not, at anytime, nor did the Sheriff, have a seal or attempt to actually seal the jury wheel.

16. The jury wheel has upon it an individual lock, the key to which is kept by the Sheriff of Mercer County; that this wheel is contained within a box, which is likewise locked with an individual lock, which is also kept in the custody of the Sheriff of Mercer County; that the jury wheel and its outer box are kept in a cabinet which is locked; that there are but two keys to the lock to the outer cabinet, one of which is kept by Mr. Hamilton and the second by Mrs. Welch.

17. That the jury wheel is opened only for the purpose of inserting the names of the jurors at the time of the filling of the wheel and when names are withdrawn at the time of the making of lists as ordered by the court for various terms of criminal and civil court and for grand jury. [53 Pa. D. & C.2d 95]

18. That the jury wheel is opened and remains open only in the presence of the jury commissioners.

19. That there is no evidence that the jury wheel in this case has been tampered with, that the list of names has been changed, or that the persons listed for grand jury service at the forthcoming meeting of that body scheduled for Monday, August 2, 1971, are not regularly selected jurors.

20. That, in addition to the jury list previously referred to in finding of fact no. 3 which was posted on the bulletin board of the prothonotary, Commissioner Hamilton retains one of those copies.

21. That a person becomes a registered elector by making an application under oath or affirmation with the Election Bureau of Mercer County, that this application requires certain basic information as to identification, but in addition whether the applicant is naturalized and, if so, the derivation thereof, whether assistance is required in voting as a result of a physical disability or illiteracy and if physical in nature, the type of physical disability, the social security number, occupation, the date the residency began in the election district and any former registration under any other surname. All of the above information is available to the jury commissioners at the time of the selection of the names for the jury wheel.

22. That the Election Bureau is not permitted by law and does not require the applicant to vote to undergo any literacy test nor to answer any specific questions to test mental competency or prove qualifications to vote.

23. That the Election Bureau does not conduct any examination to determine whether the applicant is sober, judicious or intelligent.

24. That the Election Bureau does not conduct any examination to determine whether the physical or [53 Pa. D. & C.2d 96] mental ability of the elector has changed since the time of his registration.

25. That every December the Election Bureau " purges" the list of electors to determine those who have not registered or voted within the last two years.

26. That the number of registered electors substantially decreases on off presidential election years and conversely increases upon presidential election years.

27. That of the 109 additional electors added by the jury commissioners and the President Judge, but one is on the present grand jury list.

28. Defendant has been charged with the offense popularly known as " macing" by soliciting political contributions from employees of the State Department of Transportation for the Democratic Party in Mercer County.

The burden is upon the complaining party to establish the facts to support the challenge: Commonwealth v. Lopinson, 427 Pa. 284, 293, 234 A.2d 552 (1967), 392 U.S. 647, 20 L.Ed.2d 1344, 88 S.Ct. 2277. There is a heavy burden upon the petitioner to show that a public official did not properly perform: Commonwealth v. McSorley, 189 Pa.Super 223, 150 A.2d 570 (1959). A court cannot tell...