[J-64-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 23 EAP 2013
:
Appellee : Appeal from the Judgment of Superior
: Court entered September 11, 2012 at No.
: 1336 EDA 2010, affirming the Judgment of
v. : Sentence entered April 16, 2010 in the
: Court of Common Pleas of Philadelphia
: County, Criminal Division, at Nos.
HAROLD WINSTON NOEL, JR., : CP-51-CR-0011510-2008;
: CP-51-CR-0011511-2008 and
Appellant : MC-51-CR-0033142-2008.
:
: ARGUED: September 11, 2013
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
MR. JUSTICE STEVENS DECIDED: November 21, 2014
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 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
1 “A challenge for cause is directed at a prospective juror's ability to serve, while a
peremptory challenge may be exercised for any reason or no reason at all.”
Commonwealth v. Chmiel, 585 Pa. 547, 577 fn. 13, 889 A.2d 501, 518 fn. 13 (2005)
(citing Commonwealth v. Evans, 212 Pa. 369, 61 A. 989 (1905)). The parties have the
right to challenge a prospective juror for lack of impartiality, and must show that the
prospective juror possesses a fixed, unalterable opinion that would prevent him or her
from rendering a verdict based solely on the evidence and the law. Commonwealth v.
Smith, 518 Pa. 15, 36, 540 A.2d 246, 256 (1988) (citations omitted). The primary
function of a peremptory challenge is to allow parties to strike prospective jurors whom
they have good reason to believe might be biased but who are not so clearly and
obviously partial that they could otherwise be excluded from the panel. Bruckshaw v.
Frankford Hosp. of City of Philadelphia, 619 Pa. 135, 153, 58 A.3d 102, 112 (2012)
(citation omitted).
[J-64-2013] - 2
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. H
Pa. R. Crim. P. 631(E)(2)(a)-(f).
Thus, under the individual method, the parties examine one prospective juror 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, H
the attorneys know the entire panel of prospective jurors by name, face
[J-64-2013] - 3
and the qualifications revealed by the voir dire colloquy prior to the time the
list is passed back and forth.
Commonwealth v. Pittman, 466 A.2d 1370, 1374 (Pa. Super. 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
2 The jurors were numbered 1 through 42, but for unknown reasons, juror 27 had been
scratched from the list. N.T. 2/8/10 at 16.
3 It appears that the trial court was attempting to avoid requiring unneeded members of
that day’s jury pool to return for a second day. N.T. 2/8/10 at 209.
[J-64-2013] - 4
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
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
4 Appellant does not dispute that he could have reserved peremptory challenges for the
following day.
5 “In trials involving a non-capital felony and when there is only one defendant, the
Commonwealth and the defendant shall each be entitled to 7 peremptory challenges.”
Pa. R. Crim. P 634(A)(2).
[J-64-2013] - 5
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 hand. When McPeak refused, the man pulled out a gun and pushed McPeak,
before walking away toward Aramingo Avenue. McPeak reported the incident and
described the man to police, but he was unable to identify the perpetrator from a group of
men the police assembled that day, nor did could he identify the man during a later line
up.
Additional evidence presented revealed that, while walking near Aramingo
Avenue and Somerset Street, Zachary Willis was approached by a black man wearing
black clothing, who pointed a gun at Willis and demanded his wallet. Willis surrendered
the wallet, and the man fled. Police responded to the scene and eventually transported
Willis to Wishart Street, where he identified Appellant as the man who robbed him.
Willis also identified Appellant’s co-conspirator, Steve Reiner (a.k.a. Michael Reiter), a
man Willis had seen staring at him while driving by in a black Mitsubishi on Somerset
Street, immediately prior to the robbery. During trial, Willis again identified Appellant as
the man who robbed him on June 29, 2008, but McPeak testified that Appellant was not
the man he encountered that day.
Further evidence was offered by Reiner, who agreed to testify against Appellant in
exchange for the Commonwealth waiving the mandatory minimum sentencing
requirements applicable to him. Reiner explained that he and Appellant had driven
Reiner’s black Mitsubishi to Philadelphia on June 28, 2008, and had then used heroin
and drove around all night. The next day, they picked up a woman named Sara Stayton
and decided to rob a drug dealer she arranged for them to meet in the Aramingo Avenue
[J-64-2013] - 6
ShopRite parking lot. According to Reiner, when the dealer did not appear, Appellant
got out of the Mitsubishi and approached McPeak. Reiner saw Appellant pull out a
pistol, but he returned empty handed, and the trio drove away. They soon encountered
Willis, whom Appellant then robbed with the pistol. Reiner testified that after robbing
Willis, he and Appellant bought cocaine and heroin and got high in the car. In the
meantime, police had been notified that a black Mitsubishi was involved in a robbery in
the neighborhood. When a police cruiser began following Reiner, a car chase ensued,
ending when Reiner crashed the Mitsubishi. Reiner fled in one direction, carrying the
pistol. Appellant fled in another direction, carrying a BB gun that belonged to Reiner.
Reiner testified that he disposed of the pistol as he ran. This was observed by the
pursuing police officers, who recovered the pistol. Officers also recovered the BB gun
in a schoolyard through which Appellant was observed running. Another officer soon
encountered Appellant, and saw him discard several items before he was apprehended.
The items included Appellant’s ID, Willis’ ID, and several of Willis’ credit cards.
On February 19, 2010, the jury found Appellant not guilty of the robbery of
Eugene McPeak, but guilty of criminal conspiracy to commit robbery,6 possession of an
instrument of crime,7 and possession of a firearm with manufacturer’s number altered.8
With regard to the second victim, Zachary Willis, the jury found Appellant guilty of
robbery,9 criminal conspiracy to commit robbery, firearms not to be carried without a
6 18 Pa. C. S. § 903
7 18 Pa. C. S. § 907
8 18 Pa. C. S. § 6110.2
9 18 Pa. C. S. § 3701
[J-64-2013] - 7
license,10 possession of an instrument of crime, possession of firearms by a prohibited
person,11 and possession of a firearm with manufacturer’s number altered.
Appellant filed a direct appeal to the Superior Court, seeking a new trial on the
grounds that the trial court violated Rule 631 and the prosecution engaged in misconduct
during closing argument. As it pertains to our current review, Appellant supported his
allegation of error regarding Rule 631 with citation to the specific requirements of the
Rule itself, a single Superior Court case suggesting in dictum that employing a hybrid
method of voir dire violates Rule 631, and three federal cases pertaining to the important
role peremptory challenges play in securing a fair and impartial jury. Appellant insisted
that the trial court’s “clear violation” of Rule 631(E)(2) “deprive[d] [him] of what the United
States Supreme Court has repeatedly described as an essential means for the selection
of a fair and impartial jury.” Appellant’s Superior Court brief at 11. He asserted that by
requiring the parties to exercise peremptory challenges before the exercise of all
challenges for cause, the trial court violated Rule 631(E)(2) and prejudiced Appellant by
denying him “‘the opportunity to exercise his preemptory [sic] challenges on a priority
basis after all prospective jurors ha[d] been examined’ so that ‘each attorney may strike
off the jurors he or she least prefers to hear the case.’” Id. at 15 (citing Pa. R. Crim. P.
631(E)(2); Commonwealth v. Clark, 802 A.2d 658, 663 n. 3 (Pa. Super. 2002)). 12
10 18 Pa. C. S. § 6106
11 18 Pa. C. S. § 6105
12 The defendant in Clark had similarly asserted to the Superior Court that he was
entitled to a new trial because the method of voir dire used by the trial court forced him to
exercise peremptory challenges before exercising all for cause challenges. Vacating
and remanding on other grounds, the Superior Court noted in dictum that the method of
voir dire “violate[d] the strict wording of Rule 631,” but the court specifically declined to
(continuedH)
[J-64-2013] - 8
Regarding the “importance of peremptory challenges to criminal defendants’ right to a fair
trial,” Appellant quoted the United States Supreme Court’s comment that “[w]hile the
constitution does not confer a right to peremptory challenges, H those challenges
traditionally have been viewed as one means of assuring the selection of a qualified and
unbiased jury,” and its acknowledgment of the “long and widely held belief that
peremptory challenge is a necessary part of trial by jury.” Appellant’s Superior Court
brief at 16 (quoting Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 1720 (1986);
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). Appellant
additionally relied on United States v. DeJesus, 347 F.3d 500, 505-506, (3d Cir. 2003),
which noted that peremptory strikes “serve an important role in empaneling fair and
impartial juries.” Appellant’s Superior Court Brief at 16-17.13 Appellant concluded his
argument that the trial court’s error entitled him to a new trial by asserting:
Accordingly, it hardly can be claimed that the trial court’s violation of Rule
631 requiring counsel to exercise his peremptory challenges before all
prospective jurors were examined and challenges for cause made was of
no consequence. Rather, the court simply disregarded a rule specifically
designed to contribute to a defendant’s right to a trial before an unbiased
jury.
Id. at 17.14
(Hcontinued)
express an opinion on whether the violation would have warranted a new trial. Clark,
802 A.2d at 663 fn. 3.
13 In DeJesus, the United States Third Circuit Court of Appeals was confronted with a
defendant’s allegation that the prosecution’s use of peremptory strikes was based on
race or religious affiliation, violating Batson. DeJesus, 347 F.3d at 505.
14 Thus, Appellant did not assert that he was denied the correct number of peremptory
challenges, that the trial court erred in refusing any of the peremptory challenges he
sought to exercise, or that he was forced to exercise a peremptory challenge on a juror
who should have been removed for cause. His allegation was simply that he was
(continuedH)
[J-64-2013] - 9
The Commonwealth countered that Appellant was not entitled to the windfall of a
new trial because he failed to prove that his right to a fair and impartial jury was violated.
Even assuming the method of voir dire employed could be considered a violation of Rule
631, the Commonwealth asserted, the violation was wholly technical, Appellant was not
prejudiced by the mere fact that he was required to make peremptory determinations
before all challenges for cause were made, and he had failed to demonstrate that his right
to a fair and impartial jury was violated. Citing Commonwealth v. DeMarco, 481 A.2d
632, 640 (Pa. Super. 1984),15 and Pittman, 466 A.2d at 1373,16 the Commonwealth
(Hcontinued)
entitled to a new trial because the trial court deprived him of the opportunity to exercise
his peremptory challenges after having examined the entire pool of prospective jurors.
Appellant’s requested relief was based solely on the claim that he was prejudiced by a
mistake in the process of voir dire prescribed by the procedural rules, but he never
asserted that the mistake actually caused the jury, as seated, to be unfair or biased.
15 In DeMarco, the appellant asserted that the failure of the court to supply him with a
roster of jurors, detailing the order in which alternates were to be selected, resulted in an
unfair selection process. The Superior Court, noting that the appellant had not alleged
any material prejudice arising from the selection process, nor argued that the process
failed to conform to Rule 1106(E)(2), agreed with the trial court that “the purpose of voir
dire is not to provide counsel with the basis for exercising peremptory challenges, but is
limited to the determination of whether a juror is subject to being challenged for cause,
for lack of qualification, or for holding a fixed opinion or bias.” DeMarco, 481 A.2d at
640.
16 In Pittman, the appellant asserted that the trial court violated Rule 1106(E)(1)(b) by
allowing the Commonwealth to exercise a peremptory challenge to a juror who had been
accepted by both sides, because Rule 1106(E)(1)(B) specifically states that once
accepted by all parties, a prospective juror shall not be removed by peremptory
challenge. Although the Superior Court noted that the trial court had employed a hybrid
method of selecting the jury not within the ambit of the individual system prescribed by
Rule 1106(E)(1), it nevertheless concluded that:
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
(continuedH)
[J-64-2013] - 10
emphasized that the purpose of voir dire examination is to provide the accused with a
competent, fair, impartial and unprejudiced jury, not to provide counsel with a better basis
to exercise peremptory challenges. In the case at bar, the Commonwealth insisted,
Appellant had not attempted, much less succeeded, to show that the voir dire method
resulted in an unfair, partial or prejudiced jury, and absent prejudice in that regard he was
not entitled to a new trial.
The Superior Court majority opinion agreed with Appellant that the trial court erred
in its administration of jury selection, but nevertheless concluded that a new trial was not
warranted. Commonwealth v. Noel, 53 A.3d 848, 857 (Pa. Super. 2012). In so
determining, the majority concluded that the error was not prejudicial per se because the
very aspect of the voir dire method complained of, i.e. requiring the parties to make
peremptory challenge decisions while there were jurors left to be examined and potential
for cause challenges to be made, was a characteristic specifically authorized by Rule
631(E)(1). The majority further found that because Appellant never asserted that the
jury, as seated, was unfair or unqualified, he had failed to establish that the method of
voir dire caused actual prejudice requiring a new trial. The majority specifically noted
(Hcontinued)
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.
Pittman, 466 A.2d at 1374. The Superior Court further concluded that even if error had
occurred, “[e]rror in the abstract does not require a new trial,” and “[e]rror which does not
result in prejudice to the accused or deny the accused a fair trial does not warrant an
appellate court's reversal of the trial court's denial of a motion for a new trial.” Id. at
1375.
[J-64-2013] - 11
that the circumstances at bar did not involve the forced use of a peremptory challenge to
correct the improper denial of a for cause challenge, and the subsequent exhaustion of
peremptory challenges, thus the majority distinguished this case from instances where a
new trial was granted because of the existence of actual prejudice. Noel, 53 A.3d at
857 (distinguishing Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978) (new
trial granted after the appellant used a peremptory challenge to remove a juror who
should have been excused for cause, and then exhausted his peremptory challenges),
Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982) (same), and
Commonwealth v. McBee, 405 A.2d 1297 (Pa. Super. 1979) (same)). The majority
concluded that here, any error stemming from voir dire was harmless, and denied
Appellant’s request for a new trial. Noel, 53 A.3d at 857.17
The Honorable David Wecht authored a dissenting opinion, indicating that he
would reverse Appellant’s judgment of sentence and remand for a new trial based on his
conclusion that the trial court’s misapplication of Rule 631 impaired Appellant’s exercise
of peremptory challenges and constituted reversible error. In so determining, Judge
Wecht specifically disagreed with the majority’s conclusion that no prejudice arose as a
result of the trial court’s error in jury selection, and instead opined that “prejudice
necessarily inheres[18] where such errors may have compelled a defendant to exhaust
his peremptory challenges differently than he would have done absent the error.” Noel,
53 A.3d at 860 (Wecht J., dissenting) (footnote added).
17 The majority also determined that the prosecution had not engaged in misconduct.
Noel, 53 A.3d at 859.
18 Inhere is defined as “[t]o exist as a permanent, inseparable, or essential attribute or
quality of a thing; to be intrinsic to something.” Black's Law Dictionary (9th ed. 2009).
[J-64-2013] - 12
In reaching this conclusion, Judge Wecht did not address the implications of Rule
631(E)(1)’s permitting peremptory challenges before the full jury pool is examined.
Instead, despite acknowledging Appellant’s “sparse” analysis of federal constitutional
principles, Judge Wecht examined the United States Supreme Court’s explanation of the
historical origins and nature of peremptory challenges, reflecting upon the Court’s
position, as exemplified in Swain, supra, that any intrusion upon the unfettered right to
exercise peremptory challenges constituted reversible error without a showing of
prejudice, but also acknowledging the subsequent rejection of the notion that the loss of
a peremptory challenge amounts to a violation of the constitutional right to an impartial
jury, Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), as well as
the rejection of the suggestion that per se prejudice results from any impairment of the
exercise of peremptory challenges, Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173
L.Ed.2d 320 (2009). Judge Wecht pointed out, however, that Rivera also emphasized
that states are free to decide, as a matter of state law, that a trial court’s mistaken denial
of a peremptory challenge is reversible error per se.
Turning to Pennsylvania case law, Judge Wecht found guidance in several cases
which he believed “assessed the effect of, and remedy for, the impairment of a party’s
exercise of peremptory challenges,” suggesting that “the harm for which they granted
relief was the mere possibility that the defendant had been cheated of one peremptory
challenge.” Noel, 53 A.3d at 862, 865 (Wecht J., dissenting) (emphasis in original)
[J-64-2013] - 13
(citing and discussing Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d 1101 (1987);19
Jones, supra; Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975);20 Johnson,
supra; and McBee, supra). Judge Wecht took issue with requiring Appellant to
establish prejudice, suggesting that to do so “when the issue is how a criminal defendant
would have used one or more of his peremptory challenges had not the trial court
patently violated the rules governing jury selection is to render a right provided to
criminal defendants by Pennsylvania law a “mere abstraction,” and, consequently, a
nullity.” Noel, 53 A.3d at 864 (Wecht, J. dissenting) (emphasis in original).
The practical result [of the trial court’s misapplication of Rule 631(E)(2)]
was the same as in Johnson, Jones, and McBee: The trial court placed
Appellant in an intractable position under which it is impossible to find
beyond a reasonable doubt that he was not denied the opportunity to use
the prescribed number of peremptory challenges in the way intended by
the rule. This was in derogation of the principles underlying peremptory
challenges as reflected in the rules that Pennsylvania has adopted to
govern their exercise, and the error was not harmless beyond a reasonable
doubt.
For the foregoing reasons, I would hold that a trial court's erroneous
infringement upon Appellant's right to exercise a certain number of
peremptory challenges by misapplying the rules of criminal procedure,
when combined with the subsequent exhaustion of the infringed-upon
party's peremptory challenges, rendered the underlying error harmful for
precisely the same reasons harm was found in Jones and McBee.
Id., 53 A.3d at 866.
19 In Ingber, a new trial was granted after the appellant used a peremptory challenge to
remove a juror who should have been excused for cause, and then exhausted his
peremptory challenges.
20 In Moore, the appellant claimed the trial court erred in failing to grant challenges for
cause. On direct appeal, this Court found that, even assuming that the challenges
should have been sustained, the proposed jurors were excluded by peremptory
challenge and the defense did not exhaust its peremptory challenges, thus the error was
harmless.
[J-64-2013] - 14
Appellant sought and was granted discretionary review in this Court as to the voir
dire issue. In support of his request that this Court award him a new trial, Appellant
reiterates the assertion that the requirements of the Rule itself and the dictum in Clark
demonstrate that the trial court violated the strict wording of Rule 631. Appellant’s brief
at 16. Appellant disputes the Superior Court majority’s refusal to find that he was
prejudiced as a result of the error, and challenges the majority’s conclusion that
Appellant’s circumstances differ from those in Jones, Johnson, and McBee. Appellant
asserts that in so holding:
[T]he Superior Court simply disregarded Appellant's argument in his brief
(at 15) that, citing Commonwealth v. Clark, id. 802 A.2d at 663, n. 4 [sic],
that due to the court's error Appellant was deprived of a benefit of the list
system of peremptory challenge, namely, "the opportunity to exercise his
preemptory challenges on a priority basis after all prospective jurors have
been examined" so that "each attorney may strike off the jurors he or she
least prefers to hear the case.”
The precise issue for this Court, therefore, is whether on one hand
the Superior Court majority's rejection of Appellant's claim of prejudice as
well as its rejection of the dissenting Judge's demonstration of prejudice,
and its claim to the contrary - that the trial court's error was harmless - were
correct. Or whether, on the other hand, prejudice did result from the
violation of Rule 631(E)(1) as argued by Appellant, and as Judge Wecht
demonstrated with much greater erudition in his Dissenting Opinion: that
"prejudice necessarily inheres where such errors may have compelled a
defendant to exhaust his peremptory challenges differently than he would
have done absent the error".
Appellant’s brief at 16-17.
Mimicking Judge Wecht’s dissent, Appellant acknowledges that the United States
Supreme Court has held that peremptory challenges are "not of constitutional
dimension," but he notes that Ross, supra “recognized the right of states to afford greater
importance to the exercise of peremptory challenges under state law — and therefore
under state constitutional law — than is afforded under the United States Constitution
H.” Appellant’s brief at 17. Appellant emphasizes that Rivera, supra “reiterated a
[J-64-2013] - 15
state's right to grant greater significance to the exercise of peremptory challenges by
observing that states ‘are free to decide, as a matter of state law, that a trial court's
mistaken denial of a peremptory challenge is reversible error per se,’" and insists that
Pennsylvania Courts have exercised this right to afford greater importance to the
exercise of peremptory challenges and have "found prejudice in the deprivation itself, not
in its effect on the trial jury as seated." Appellant’s brief at 17-18 (citing Noel, 53 A.2d at
862-863 (Wecht, J., dissenting)). Appellant does not provide independent analysis on
this point, but quotes the following portion of Judge Wecht’s dissenting opinion:
In Jones, upon which rest Johnson and McBee, our Supreme Court
found prejudicial error requiring a new trial when the defendant was forced
to use a peremptory challenge to cure a trial court's erroneous refusal to
excuse a juror for cause and thereafter exhausted his remaining
peremptory challenges before the jury was empaneled. The Jones Court
reasoned a fortiori from the Court's prior decision Commonwealth v.
Moore, 462 Pa. 231, 340 A.2d 447 (1975):
In [Moore ] this Court held that it was harmless error to refuse
a proper challenge for cause where the proposed juror was
excluded by a peremptory challenge and the defense did not
exhaust its peremptory challenges. It logically follows from
[Moore] that it is [not harmless] error to force a defendant to
use his peremptory challenges on a person who should have
been excused for cause and that defendant exhausts those
peremptory challenges prior to the seating of the jury.
Jones, 383 A.2d at 876. Thus, our Supreme Court found per se reversible
error under Pennsylvania law in circumstances materially identical to those
in Ross, in which the United States Supreme Court granted no relief under
the federal constitution. In so doing, the Supreme Court of Pennsylvania
availed itself of its prerogative to afford relief under state law—a
prerogative underscored in Ross.
Appellant’s brief at 18-19 (citing Noel, 53 A.3d at 863).
Appellant lastly asserts that “it is not necessary for the Court to find that all
violations of Rule 631(E)(1) are prejudicial per se, or to find that the final empaneled jury
consisted of one or more incompetent jurors, to justify a ruling that the error in the
present case was not harmless.” Appellant’s brief at 19. Again, in the place of
[J-64-2013] - 16
independent analysis, Appellant provides a lengthy citation to the dissenting opinion for
the proposition that “‘prejudice necessarily inhere[d]’ in the trial court’s error in the
present case.” Id. at 19.
In support of Appellant, the Pennsylvania Association for Justice (Pennsylvania
Trial Lawyers Association) has filed an amicus brief which extols the importance of the
peremptory challenge and emphasizes the constitutional right to trial by jury. The
amicus argues that the right to “ample” peremptory challenge is protected by the
Pennsylvania Constitution as well as by rule of court and asserts that the trial court’s
misapplication of Rule 631 cannot be deemed harmless error and requires automatic
reversal.21
The Commonwealth urges us to affirm the Superior Court majority, arguing that
the particular circumstances presented here required the trial court to interpret Rule
631(E)(2) and use its discretion to determine how to best reconcile the rule with the
practical difficulties confronted. Thus, the Commonwealth asserts, the resulting
technical violation of Rule 631(E)(2) did not constitute an abuse of discretion.
Alternatively, the Commonwealth urges us to find that any technical violation of the rule
did not prevent Appellant from exercising the full number of peremptory challenges
21 To the extent that the amicus argues that the trial court’s actions here should result in
automatic reversal, Amicus Brief at 28-29, we do not reach this claim because amicus
cannot raise issues in an appeal which have not been preserved or raised by the parties
themselves. Commonwealth v. Allshouse, 614 Pa. 229, 256 n. 18 36 A.3d 163, 179 n.
18 (2012) cert. denied, 133 S. Ct. 2336, 185 L.Ed.2d 1063 (2013). Further, even if
Appellant had raised the propriety of automatic reversal, he did not do so before the
lower courts, and we cannot review a case upon a theory different from that upon which
it was presented to the court below. Commonwealth v. Isabell, 503 Pa. 2, 8-9, 467 A.2d
1287, 1290 (1983).
[J-64-2013] - 17
granted by the procedural rules, did not prejudice Appellant’s right to an impartial jury,
and thus does not require the drastic remedy of a new trial.
Despite the divergent positions and arguments presented, the specific question
before us is whether Appellant is entitled to a new trial because the trial court initially
used a method of voir dire which permitted the parties to exercise their peremptory
challenges with full knowledge of the prospective jury pool, but switched to a method of
voir dire which required them to exercise such challenges without such full knowledge.
We conclude that Appellant is not entitled to a new trial as the result of the trial court’s
method of voir dire.
“The purpose of voir dire is to ensure the empaneling of a fair and impartial jury
capable of following the instructions on the law as provided by the trial court.”
Commonwealth v. Marrero, 546 Pa. 596, 606, 687 A.2d 1102, 1107 (1996) (citing
Commonwealth v. Jermyn, 533 Pa. 194, 620 A.2d 1128 (1993), cert. denied, 510 U.S.
1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994)).22 See also Commonwealth v. Tedford,
598 Pa. 639, 672, 960 A.2d 1, 20 (2008); Commonwealth v. Chmiel, 585 Pa. 547, 578,
889 A.2d 501, 519 (2005); Commonwealth v. Crowder, 444 Pa. 489, 491, 282 A.2d 361,
363 (1971). While the constitution of this Commonwealth guarantees that “[t]rial by jury
shall be as heretofore, and the right thereof remain inviolate,” Pa. Const. Art. I, § 6, we
have interpreted the inviolability of the right to mean “freedom from substantial
impairment,” and have emphasized that “[i]t does not import rigidity of regulation in the
22 “A criminal defendant's right to an impartial jury is explicitly granted by Article 1,
Section 9 of the Pennsylvania Constitution and the Sixth Amendment of the United
States Constitution.” Commonwealth v. Ellison, 588 Pa. 1, 7-8, 902 A.2d 419, 423
(2006). See also Chmiel, 585 Pa. at 578, 889 A.2d at 519 (citing Ross v. Oklahoma,
supra).
[J-64-2013] - 18
manner of impanelling a jury. The cardinal principle is that the essential features of trial
by jury as known at the common law shall be preserved.” Commonwealth v. Craver,
547 Pa. 17, 25, 688 A.2d 691, 695 (1997) (citing Commonwealth v. Eckhart, 430 Pa.
311, 314-15, 242 A.2d 271, 273 (1968) (emphasis in original)).
This Court has long held “[a]lthough a perfectly conducted trial is indeed
the ideal objective of our judicial process, the defendant is not necessarily
entitled to relief simply because of some imperfections in the trial, so long
as he has been accorded a fair trial. ‘A defendant is entitled to a fair trial
but not a perfect one.’” If a trial error does not deprive the defendant of
the fundamentals of a fair trial, his conviction will not be reversed.
Commonwealth v. Wright, 599 Pa. 270, 298, 961 A.2d 119, 135 (2008) (citations
omitted).
The Rules of Criminal Procedure, including Rule 631, were enacted to provide for
the just determination of every criminal proceeding, and shall be construed to secure
simplicity in procedure, fairness in administration, and the elimination of unjustifiable
expense and delay. Pa. R. Crim. P 101. The process of selecting a jury is committed
to the sound discretion of the trial judge and will be reversed only where the record
indicates an abuse of discretion, and the appellant carries the burden of showing that the
jury was not impartial. Chmiel, 585 Pa. at 578, 889 A.2d at 519.
Peremptory challenges have been a feature of jury selection for hundreds of
years, but are not constitutionally guaranteed. As the United States Supreme Court
explained, “[a]lthough peremptory challenges are valuable tools in jury trials, they ‘are
not constitutionally protected fundamental rights; rather they are but one state-created
means to the constitutional end of an impartial jury and a fair trial.’” J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, 137 fn. 7, 114 S. Ct. 1419, 1426 fn. 7, 128 L.Ed.2d 89 (1994)
(citing Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33
[J-64-2013] - 19
(1992)). See also Commonwealth v. Wharton, 530 Pa. 127, 144, fn. 6, 607 A.2d 710,
719 fn. 6 (1992); Commonwealth v. Lesko, 553 Pa. 233, 253, 719 A.2d 217, 227 (1998).
States may withhold peremptory challenges “altogether without impairing the
constitutional guarantee of an impartial jury and a fair trial.” McCollum, 505 U.S. at 57,
112 S.Ct. at 2358; Commonwealth v. Henderson, 497 Pa. 23, 30-31, 438 A.2d 951, 954
(1981).
Appellant recognizes this. He also acknowledges that he was permitted the
exercise of the full number of peremptory challenges provided to him by Rule 634. He
does not dispute that he could have reserved peremptory challenges for the second day
of voir dire, as the Commonwealth did. He concedes that the Commonwealth was
identically affected by the method of voir dire employed by the trial court. He does not
claim that he was forced to use a peremptory challenge to cure the wrongful failure of the
court to strike a juror for cause. He does not aver that the trial court erroneously denied
him a peremptory challenge to a particular juror. He makes no assertion that the jury,
as seated, was unfair or impartial. Instead, Appellant asks that we grant him a new trial
based on the singular circumstance that the trial court initially employed the list system of
challenges under Rule 631(E)(2), but then, after notice to the parties, altered the method
so that they were required to make peremptory challenge decisions as to the jurors
examined on the first day of jury selection, before additional prospects were added to the
pool. Essentially, he is insisting that a new trial is required because the trial court
altered the procedure set forth in Rule 631(E)(2) to resemble, in part, the method allowed
by Rule 631(E)(1).
[J-64-2013] - 20
Although the Superior Court majority in the instant matter, like Clark, concluded
that a hybrid method of voir dire does not strictly comply with Rule 631(E)(2), and thus
constituted error, the Superior Court has not consistently held that the failure to follow
either of the two methods prescribed for voir dire necessitates the award of a new trial.
See Pittman, 466 A.2d at 1374 (“hybrid method of selecting the jury [] not within the ambit
of the individual system prescribed by Rule 1106(E)(1)”); Commonwealth v. Berrigan,
535 A.2d 91, 96-97 (Pa Super. 1987), appeal denied 521 Pa. 609, 557 A.2d 341 (1989),
cert. denied 493 U.S. 883, 110 S.Ct. 219 (1989) (noting Pittman’s acceptance of “a hybrid
system that combined elements of both the list system and the individual system,” and
finding no abuse of discretion in failing to strictly comply with Rule 1106(E)(2)(c)).
Indeed, shortly after the Clark panel expressed its belief that the exercise of peremptory
challenges before the exercise of all for cause challenges violated the strict wording of
Rule 631(E)(2), a different panel of the Superior Court found that such a violation did not
warrant a new trial where the appellant failed to show that the error resulted in an impartial
jury. Commonwealth v. Williams, 823 A.2d 1031 (Pa. Super. 2003) (table), No. 560
WDA 2001, appeal denied, 574 Pa. 774, 833 A.2d 143 (table).23 In fact, this Court has
23 In Williams, the trial court first employed the individual voir dire method, then,
apparently based on time concerns, switched to the list method. After for cause and
peremptory challenges had been exercised however, the jury had not been seated and
the pool of prospective jurors had been exhausted. A second panel was assembled and
examined the following day, but only for cause challenges were permitted because the
parties had exhausted their peremptory challenges on the previous day’s panel. On
subsequent direct appeal, the appellant claimed that it was error for the trial court to force
him to exercise his peremptory challenges without knowledge of the prospective jurors to
come, and that the prejudice created by the error required a new trial. The Williams
court, noting that the appellant had claimed he was prejudiced by the method of voir dire
but had failed to complain that any particular juror was improperly seated or that the jury
(continuedH)
[J-64-2013] - 21
observed that “[t]here is nothing in Rule 1106 that requires the judge to choose one type
of voir dire and to bind him forever to that system of voir dire.” Commonwealth v. Glaspy,
532 Pa. 572, 579, fn. 7, 616 A.2d 1359, 1362 fn. 7 (1992).24
Here, the trial court’s deviation from the specific language of Rule 631(E)(2) was
clearly not part of a regular practice, nor was it intended to disadvantage Appellant. We
do not view this single instance of combining the characteristics of Rules 631(E)(1) and
(2) to require that most serious remedy of a new trial. As the Superior Court expressed
in Pittman, “[i]t is only when the court permits the [jury] 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.” Pittman, 466 A.2d at 1374
(citations omitted). Even if the method of voir dire employed here is viewed as an abuse
of discretion on the part of the trial court, Appellant is not entitled to a new trial as the
result of the error. Appellant has consistently argued that he was prejudiced by the trial
court’s instruction to the parties to begin making their peremptory challenge decisions
before examining the entire jury pool. This Court has formulated the rules for jury
(Hcontinued)
was biased, concluded that even if it were to assume that the method of voir dire violated
Rule 631(E)(2), no relief was due because there was no evidence that the appellant had
been deprived of a fair trial. Williams, 823 A.2d 1031 (Pa. Super. 2003) (table), No. 560
WDA 2001, unpublished memorandum opinion at 22, 23-24 (citing Commonwealth v.
Moon, 389 Pa. 304, 132 A.2d 224 (1957), cert. dismissed, 355 U.S. 908 (1957); Pittman,
supra)).
24 In Glaspy, the Court found that voir dire was initially properly conducted pursuant to
the list system of challenges under then Rule 1106(E)(12), but once that method
revealed the existence of racial prejudice within the jury pool, it became incumbent upon
the trial court to examine the remainder of the juror pool using the individual method to
reveal any bias a juror may have harbored. Glaspy, 532 Pa. 572, 579, fn. 7 616 A.2d
1359, 1362, fn. 7 (1992). The Rules of Criminal Procedure have not been amended in
a way that would alter Glaspy’s conclusion.
[J-64-2013] - 22
selection to specifically allow for a method by which the parties exercise their challenges
without such knowledge. Underlying our disagreement with Appellant’s insistence that
he is entitled to a new trial is our opinion that the method of voir dire employed simply did
not deprive Appellant of that which Rule 631 provides. Appellant urges that his
exercise of peremptory challenges was impaired because the trial court failed to follow
Rule 631(E)(2). It is clear, however, Rule 631 provides two methods of voir dire, one in
which peremptory decisions are made one juror at a time, without knowledge of those
jurors to come, and the other in which they are made after all jurors have been
examined. Here, although the method of voir dire employed was clearly a hybrid of
these two methods, and thus did not strictly comply with Rule 631(E)(2), the parties were
fully aware of the procedure chosen by the trial court before any challenges were
exercised. The voir dire method employed merely combined elements of the individual
and the list systems, it did not deprive Appellant of a right so fundamental that it requires
the award of a new trial.25
The only “harm” that may be attributed to the method of voir dire conducted here
is that Appellant, and the Commonwealth, were subject to a hybridization of the methods
provided for by Rule 631. This is not akin to the forced use of a peremptory challenge
25 If we were to consider it an impairment to require peremptory decisions before the
exercise of all challenges for cause and before examination of the full jury pool, every
trial in which the jury was selected pursuant to Rule 631(E)(1) would be subject to
review. The dissent laments Appellant’s fate - “cast upon the horns of this dilemma:
Exercise some or all of his peremptory challenges on the devils he knew - i.e., those
twenty-three jurors currently remaining from the first day’s venire - or retain one or more
challenges as hedges against the prospect that even more undesirable jurors might be
empaneled the following day” - but the dissent never acknowledges that this very
“dilemma” is faced by every litigant choosing a jury under Rule 631(E)(1). “A hard
choice is not the same as no choice.” Martinez-Salizar, 528 U.S. at 315.
[J-64-2013] - 23
to cure a for cause error. Commonwealth v. Reed, 605 Pa. 431, 445, 990 A.2d 1158,
1167 (2010) (distinguishing Johnson, supra, as involving the forced use of a peremptory
challenge to cure a for cause error, from situation where the defendant could not show
prejudice because the defendant was not required to utilize a peremptory challenge on a
juror who should have been stricken for cause). Because the very aspect of the
process Appellant complains of is a feature specifically provided for by Rule 631(E)(1),
we decline to find it presumptively or inherently prejudicial. Because Appellant has not
demonstrated that the process deprived him of a fair and impartial jury, neither do we
conclude that Appellant suffered actual prejudice.
As such, even assuming arguendo that the trial court erred in its method of voir
dire, the error was harmless. The harmless error doctrine, as announced in Chapman
v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and adopted by this
Court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), reflects the reality
that the accused is entitled to a fair trial, not a perfect trial. Commonwealth v. Rasheed,
536 Pa. 567, 570-71, 640 A.2d 896, 898 (1994); Commonwealth v. Norris, 498 Pa. 308,
316-17, 446 A.2d 246, 250 (1982). “[A]n error may be harmless where the properly
admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so
insignificant by comparison that it is clear beyond a reasonable doubt that the error could
not have contributed to the verdict.” Story, 476 Pa. at 412–413, 383 A.2d at 166. In
instances of alleged trial court error such as the one currently at issue, “the judgment of
sentence will be affirmed in spite of the error only where the reviewing court concludes
beyond a reasonable doubt that the error did not contribute to the verdict.”
Commonwealth v. Bullock, 590 Pa. 480, 497, 913 A.2d 207, 218 (2006) (citing
[J-64-2013] - 24
Commonwealth v. Samuels, 566 Pa. 109, 112–13, 778 A.2d 638, 641 (2001)). Here,
we conclude, beyond a reasonable doubt, that the trial court’s requirement that the
parties make peremptory challenge decisions before all prospective jurors were
examined did not contribute to the verdict. Thus, we affirm the order of the Superior
Court.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Chief Justice Castille and Mr. Justice Eakin join in the opinion.
Mr. Justice Baer files a concurring opinion.
Mr. Justice Saylor files a dissenting opinion.
Madame Justice Todd files a dissenting opinion.
[J-64-2013] - 25