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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER JOHN SARVIS :
:
Appellant : No. 2717 EDA 2016
Appeal from the Judgment of Sentence July 7, 2016
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004990-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 04, 2018
The learned Majority holds that the trial court abused its discretion in
denying Appellant’s challenge for cause where Juror 17 initially expressed
concerns that he might accord more weight to two witnesses he had known
professionally for 20 years and considered trustworthy. I disagree, as the
juror’s statements during voir dire were not marked by certitude, involved no
display of emotion, revealed no close personal relationship or allegiance to the
witnesses, and reflected no entrenched, fixed bias suggesting a likelihood of
prejudice. Instead, after identifying his own comments in this regard as
“wavering,” the juror stated his belief that he would be impartial, that he
would hold the witnesses to the same test of credibility, and that he would
evaluate the two witnesses fairly.
I discern from such an evolving self-analysis a juror who demonstrated
a capacity to set aside his potential bias in order to render a fair and impartial
____________________________________
* Former Justice specially assigned to the Superior Court.
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verdict based on the complete body of evidence, which included far more than
the testimonies of the two witnesses in question. For this reason, I must
dissent.
It must be remembered the purpose of the voir dire
examination is to provide an opportunity to counsel to assess the
qualifications of prospective jurors to serve. It is therefore
appropriate to use such an examination to disclose fixed opinions
or to expose other reasons for disqualification. Thus the inquiry
must be directed at ascertaining whether the venireperson is
competent and capable of rendering a fair, impartial and unbiased
verdict. The law also recognizes that prospective jurors were not
cultivated in hermetically sealed environments free of all beliefs,
conceptions and views. The question relevant to a determination
of qualification is whether any biases or prejudices can be put
aside upon the proper instruction of the court.
A challenge for cause to service by a prospective juror should be
sustained and that juror excused where that juror demonstrates
through his conduct and answers a likelihood of prejudice. The
decision whether to disqualify a venireman is within the discretion
of the trial court and will not be disturbed on appeal absent a
palpable abuse of that discretion.
Commonwealth v. Ingber, 531 A.2d 1101, 1102–1103 (Pa. 1987) (internal
quotations and citations omitted) (emphasis added). “The test of
disqualification is the juror's ability and willingness to eliminate the influence
of his scruples and render a verdict according to the evidence. This
determination is to be made by the trial judge based on the juror's answers
and demeanor. . . . Commonwealth v. DeHart, 516 A.2d 656, 663 (Pa.
1986) (internal citations, quotations, and corrections omitted). This Court
shall not reverse the trial court’s determination in this regard absent a
palpable abuse of discretion. Id.
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The majority relies on Commonwealth v. Johnson, 445 A.2d 509 (Pa.
Super. 1982) and Commonwealth v. Penn, 132 A.3d 498 (Pa. Super. 2016)
to conclude that the trial court should have excused Juror 17 for cause. A
review of both decisions shows them to be distinguishable from the present
case.
In Johnson, a prospective juror admitted the facts of the case before
him evoked strong emotions he believed would compromise his ability to be
impartial at trial. Specifically, the juror explained during voir dire that his
daughter had been the victim of a rape and robbery bearing some important
similarities with the facts of Johnson. The juror became emotional during
the proceeding and confided with the court “I didn’t realize how strongly I feel
about this and that if I consider that, I’m not what I thought I was [with
respect to] trying to be fair and consider the evidence in such a case . . . .”
Id. at 512.
When the court asked him if he believed he would be fair, particularly
where the facts here did not involve a sex crime, the juror replied it would be
difficult to be fair “because I can see how I’m reacting. I didn’t realize how
strongly I felt about this. . . . [A]t the last moment this [the sex crime] is
what the robbers did [to his daughter].” Id. To the court’s follow-up question
of whether the juror would persist in this mindset even if the court instructed
him that it would be improper to allow such emotions to infiltrate his
assessment of facts, the juror answered, “I realize that, logically. It should
not be so but I could see emotionally, I can see that I don’t have full control
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in that case, because as I said, I didn’t realize how strong it was in relating it
to you and I didn’t expect myself to break down, practically.” Id. at 513.
The court continued to engage the juror in a lengthy exchange in which
he counseled the juror on the importance of appreciating the difference
between the two cases and committing himself to controlling emotional
reactions to evidence so they would not impede his ability to make fair and
impartial credibility determinations in the present case. “That’s the
question[,]” the court asked, “[c]an you be fair?” Id. The juror responded
that he could be fair, and the court later refused to excuse the juror for cause.
On appeal, this Court reversed, given the “considerable distress” the
juror clearly felt at the prospect of sitting in judgment over a case bearing
similarities to a violent crime his daughter had endured. We reasoned:
Mr. Rubin vividly demonstrated during voir dire that he would be
likely not to be an impartial juror. He not only visibly manifested
emotional distress but specifically expressed substantial doubts
about his ability to be impartial at least five times. Although he
acknowledged that “logically” he could separate the robbery and
rape of his daughter from the robbery of appellant's victims, he
added at once that “emotionally, I can see that I don't have full
control.”
Id. at 514.
Moreover, given the juror’s deep-seated emotional reaction to the
charges and his repeated admissions that he doubted his ability to overcome
such emotions and deliberate impartially, his eventual assurance to the court
that he would “‘[b]e fair’ did not dispel the force of these admissions[,]” we
concluded.
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In Penn, it was undisputed that the Commonwealth’s entire case
depended upon the testimony of two police detectives. Juror R.Z. had made
a career in law enforcement and security, and her boyfriend was a municipal
police officer. When asked if she was “steeped in law enforcement” and
whether she “would be more likely to believe the testimony of a police officer,”
she answered a definitive “yes” to both questions. Similarly, to the question
“Would it be hard for you not to believe [the police officers slated to testify in
the case,]” R.Z. answered, “I feel like I would be more inclined to believe
them, yes.” Id. at 500.
Later, however, R.Z. confirmed that she could follow instructions not to
give police any more weight or credibility, and to the question of whether she
could render a fair and impartial decision, R.Z. answered, “I would think so,
yes.” Id. Nevertheless, R.Z. soon reverted to her original position, nodding
her head in the affirmative when defense counsel asked her “would it be hard
for you not to believe them because of your experience?” She qualified her
answer, however, saying “I mean—again, I think it comes down to the
evidence though.” Id. at 501. Afterward, the trial court denied the defense
challenge to excuse R.Z. for cause.
Critical to our decision to reverse in Penn were two features to the
matter. First, we observed, “the Commonwealth’s entire case rested upon the
credibility of the police officers, given that the Commonwealth’s only two
witnesses at trial were City of Pittsburgh Police detectives.” Id. at 504. This
placed in sharp relief R.Z.’s assured, unequivocal answer of “yes” to the
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question put to her both in the written questionnaire and again in open court
during voir dire, “[w]ould you be more likely to believe the testimony of a
police officer or any other law enforcement officer because of his or her job?”
We found the certitude of these answers “indicat[ed] that R.Z. was biased in
favor of the police and the Commonwealth.” Id.
Second, “as was true in Johnson, R.Z.’s admitted bias in favor of the
police rested on a firm bedrock, given that R.Z. testified [to an extensive work
history in law enforcement and to a present romantic relationship with a police
officer from a nearby municipality.]” Id. at 505. This intrinsic partiality came
to the fore not only in R.Z.’s initial answers during voir dire, but also in her
testimony immediately following her assurance to the court that she could
render a fair and impartial decision pursuant to jury instructions, when she
again declared that “because of [her] experience[,] . . . [she] would be inclined
to believe” the police. Id.
In contrast to Johnson and Penn, there is no indication in the case sub
judice that Juror 17 harbored strong emotions about, or deep-seated loyalties
to, the two prospective witnesses because they were educators. Instead, he
stated their examples of workplace honesty over the course of many years
carried weight with him. Unlike in Johnson, we cannot infer from the record
that Juror 17 delivered this statement in anything other than a dispassionate
manner, nor did he offer swift, definitive answers, as the juror did in Penn,
that he would likely believe what they said. Indeed, he accurately described
his own responses to questions on the issue as “wavering,” before he settled
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on the position that he could evaluate the witnesses fairly and render an
impartial decision.
As such, Juror 17’s answers during voir dire did not betray a fixed
disposition to favor the educators’ respective testimonies at trial. Instead,
they reflected a composed respect for two witnesses he knew to be honest
persons, which Juror 17 tempered with his repeated assertion that he would
nevertheless base his determinations on an even-handed assessment of all
evidence admitted at trial.
The governing standard of review in cases such as this accepts that
prospective jurors may come to the court with certain biases and still be
suitable for jury duty. That is to say, the existence of a bias does not
necessarily mandate removal for cause. Instead, the test is whether the juror
exhibits an ability to set aside the bias and render a fair and impartial decision
in the matter at hand. See Ingber, supra. In Johnson and Penn, removal
of the jurors in question was required because they held entrenched
predispositions that placed squarely in doubt their abilities to evaluate the
evidence impartially. The same concerns simply do not arise from the record
before us.
Moreover, unlike in Penn, the Commonwealth’s entire case did not rest
upon the testimonies of the two educators. Although they did relate the child’s
incriminating statements made in school, many other sources of incriminating
evidence—including the now 11 year-old victim who consistently described her
sexual abuse throughout the investigation, her mother, two CYS caseworkers,
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a police detective, and a forensic interview specialist for the Child Advocacy
Center—were expected at trial, thus alleviating concerns that Juror 17’s long-
standing respect for the two educators would render him incapable of viewing
the evidence impartially.
Accordingly, I find no abuse of discretion in the trial court’s denial of
Appellant’s challenge for cause, as the record does not support the conclusion
that Juror 17 exhibited a fixed bias in favor of two Commonwealth witnesses
producing a likelihood of prejudice on his part. For this reason, I respectfully
dissent.
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