J-A35035-15
2016 PA Super 26
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARLIN KELLY,
Appellant No. 367 WDA 2015
Appeal from the Judgment of Sentence September 26, 2014
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000133-2013
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
DISSENTING OPINION BY SHOGAN, J.: FILED FEBRUARY 08, 2016
I respectfully dissent.
In reviewing a trial court’s ruling on a challenge to the empaneling of a
juror, “we employ a standard of review which affords great deference to the
trial judge who is in the best position to assess the credibility of the jurors
and their ability to be impartial.” Commonwealth v. Impellizzeri, 661
A.2d 422, 427 (Pa. Super. 1995). As noted by the Majority, in the case at
bar, during voir dire, Juror No. 1 responded that he was a police officer who
had previously worked with the Commonwealth attorneys, and he knew
some of the police officers who may be called as witnesses. However, “just
because an individual is a policeman is no reason to automatically exclude
him from a jury.” Commonwealth v. Fletcher, 369 A.2d 307, 308 (Pa.
Super. 1976) (citation omitted). Moreover, in Impellizzeri, this Court
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explained that “[i]ndividuals are not expected to be free from all prejudices
in order to sit on a jury and the burden here is on appellant to establish that
the challenged jurors possessed a fixed, unalterable opinion that prevented
them from rendering a verdict based solely on the evidence and the law.”
Impellizzeri, 661 A.2d at 427 (internal quotation marks omitted).
Here, Appellant’s cohort, Tyrone Fuller (“Fuller”), pled guilty and
cooperated with the prosecution. Moreover, Fuller, as a witness for the
Commonwealth and Appellant, in his own defense, both testified at trial.
Thus, the salient issue was whether jurors could make a credibility
determination with respect to Fuller’s and Appellant’s testimony and if they
could be fair and impartial in reaching a decision based on the law. The
difficulty Juror No. 1 may have had weighing the credibility of a police
officer’s testimony was largely ancillary. Compare Commonwealth v.
Jones, 383 A.2d 874, 877 (Pa. 1978) (discussing bias where the potential
juror was a Philadelphia police officer, all police officers who testified were
Philadelphia police officers, Appellant did not testify, the focus of the defense
was on an alleged involuntary confession, and the credibility of the testifying
officers was a critical factor). The trial court addressed Appellant’s challenge
to Juror No. 1 as follows:
In this case, however, juror number 1 had no personal
relationship with anyone in the case, and only professional
relationships with defense counsel, the district attorneys, and
the police officers. T.T. 8/11/14 (afternoon), at 41-42. The
district attorneys were not handling any of [Juror No. 1’s] cases
at that time. Id. at 41. He never discussed the case with any of
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the other officers. Id. at 48. He was not a member now or
previously of the same law enforcement department as any of
the officers [in the case at bar]. Id. He indicated that he could he
fair, would listen to the evidence, and would follow the law. Id.
at 42, 46.
* * *
The Court listened carefully to the juror’s responses and
closely observed his demeanor as he gave his responses. T.T.
18/11/14 (afternoon), at 50. The Court found the juror to be
credible and sincere. In the judgment of the Court there was no
indication from the juror that he could not be fair and impartial
in this case. Rather, the Court believed, as the juror indicated,
that he could listen to the evidence presented and would follow
the law as instructed. Because prejudice is not presumed under
the circumstances of this case and because the juror could be
fair and impartial. [Appellant’s] challenge regarding this juror
was properly denied.
Trial Court Opinion, 4/21/15, at 23-24. I agree that the trial court should
not have presumed prejudice, and given our deferential standard of review, I
conclude that the trial court committed no abuse of discretion or error of
law.
Additionally, in applying the above standard of review and the
rationale from Impellizzeri, I would reach the same conclusion with respect
to the other two jurors. While Juror No. 14 had seen media coverage of the
case and was unsure she could reach an impartial verdict due to the use of a
firearm and the death of an unborn child, and while Juror No. 22 had read
about the case and admitted that he had formed an opinion concerning
Appellant’s guilt, Appellant did not establish that these jurors had a fixed,
unalterable opinion that prevented them from rendering a verdict based
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solely on the evidence and the law. After my review of the record, I cannot
conclude that the trial court abused its discretion or committed reversible
error warranting a new trial.1
Pursuant to our standard of review, I would affirm Appellant’s
judgment of sentence. Accordingly, I respectfully dissent.
____________________________________________
1
Regarding Appellant’s challenge to the weight of the evidence, I conclude
that Appellant is entitled to no relief on this issue. An allegation that the
verdict is against the weight of the evidence is addressed to the discretion of
the trial court. Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super.
2003)). To grant a new trial on the basis that the verdict is against the
weight of the evidence, this Court has explained that the evidence must be
so tenuous, vague, and uncertain that the verdict shocks the conscience of
the court. Id. at 806 (citation omitted). In the instant case, Appellant’s
theory of the case was that it was Fuller who was solely responsible for the
crimes and that Appellant’s version of events should be believed.
Appellant’s Brief at 20. Here, there is nothing shocking about the jury’s
verdict, and I discern no abuse of discretion in the trial court’s decision
denying Appellant’s challenge to the weight of the evidence.
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