Commonwealth v. Noel

DISSENTING OPINION by

WECHT, J.

In this case, we are called upon to address a trial court’s misapplication of the Pennsylvania Rules of Criminal Procedure governing jury selection. Specifically, we must decide whether a ruling that impairs the exercise of the peremptory challenges to which a criminal defendant is entitled by law constitutes reversible error. I would hold, under the circumstances presented, that it does. Accordingly, I would vacate Appellant Harold Noel’s judgment of sentence and remand for a new trial. Because my analysis would dictate a contrary result to that reached by the majority, I respectfully dissent.

At the outset, I note my agreement with the majority’s determination that the trial court’s application in this case of the “list system” of jury selection specified in Pa. R.Crim.P. 631(E)(2) constituted legal error, Maj. Op. at 850-57, and I join in the majority’s interpretation of Rule 631(E)(2). Specifically, I agree that trial courts must apply the rule consistently with its plain language, as elucidated by the majority.

My disagreement with the majority lies in its determination that no prejudice arose as a result of the trial court’s legal error. As set forth below, criminal defendants as a matter of law are entitled to faithful application of the rules of procedure governing jury selection. To be *860clear, I would not hold that all deviations from those rules constitute reversible error per se. However, I do believe 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. I believe the matter before us is just such a case.

The majority does not discuss the considerations that have animated the peremptory challenge for nearly as long as the jury trial itself has been employed in the Anglo-American judicial system. Although Appellant’s analysis of federal constitutional principles is sparse, see Brief for Appellant at 15-17, the United States Supreme Court has, in a long line of cases, elucidated the historical origins and nature of peremptory challenges. Because this history informs my convictions regarding this matter’s proper disposition, I begin by reviewing those cases.

Appellant cites Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and United States v. DeJesus, 347 F.3d 500 (3d Cir.2003), to support his contention that the deprivation of the prescribed use of one or more peremptory challenges violates “a defendant’s right to a trial before an unbiased jury.” Brief for Appellant at 17. In Batson, the Supreme Court, relying in part on, but substantively reversing its decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), considered an equal protection challenge to a prosecutor’s systematic use of peremptory challenges to strike jurors of a particular race. Despite the prosecution’s historic prerogative to exercise peremptory strikes without judicial interference, the Court found it a “perversion” of the role of peremptory strikes, and a violation of the equal protection clause of the United States Constitution, to use peremptory strikes in a racially discriminatory fashion. See Batson, 476 U.S. at 92-96, 106 S.Ct. 1712.

In Swain, the Court surveyed the common-law origins of the peremptory challenge in the Anglo-American tradition. The Ordinance for Inquests, implemented in England in the year 1305, was construed to permit the prosecutor to direct any juror, after he was examined, to “stand aside” until the entire panel had been examined and the defendant had exercised his challenges. See Swain, 380 U.S. at 213, 85 S.Ct. 824. The use of perempto-ries in that form continued until the separation of the American colonies, and continues in modified form in England. Id. at 213 & n. 12, 85 S.Ct. 824. The same privilege, in different form, was enacted by the United States Congress in 1790. Id. at 214-15, 85 S.Ct. 824. By 1870, “most, if not all, States had enacted statutes conferring on the prosecution a substantial number of peremptory challenges, the number generally being at least half, but often equal to, the number had by the defendant.” Id. at 216, 85 S.Ct. 824.

Following its lengthy review, the Supreme Court continued, in oft-quoted language:

The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. Although there is nothing in the Constitution of the United States which requires the Congress or the States to grant peremptory challenges, nonetheless the challenge is one of the most important of the rights secured to the accused. The denial or impairment of the right, is reversible error without a showing of prejudice. For it is, as Blackstone says, an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose.

*861Id. at 219, 85 S.Ct. 824 (internal quotation marks, modifications, and citations omitted). Thus, the Court appeared to hold that any intrusion upon the unfettered right to exercise peremptory challenges was reversible error.

More recent cases, however, have deflated much of Swain’s grandiloquence. In Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the defendant was forced to expend a peremptory strike in lieu of a for-cause challenge that the trial court erroneously had refused to hon- or. The Supreme Court “rejected] the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury,” and stated that peremptory challenges are “not of constitutional dimension.” Id. at 88, 108 S.Ct. 2273. Rather, “[tjhey are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. The Court thus rejected the defendant’s claim that the impairment of his use of the peremptory challenges provided by state law constituted a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Court noted that “it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the ‘right’ to peremptory challenges is ‘denied or impaired’ only if the defendant does not receive that which state law provides.” Id. at 89, 108 S.Ct. 2273 (citations omitted).

The Oklahoma law that the Ross Court examined required a defendant to exercise a peremptory challenge to preserve a claim of trial court error with respect to a for-cause challenge. Under state law, relief on appeal would only be warranted if a) the défendant exhausted all of his remaining peremptory challenges during jury selection, and b) an incompetent jury was empaneled. Id. The Court held that, because the defendant could not demonstrate that an incompetent juror had been seated in his case, he had received all that state law required. Id. at 89-91, 108 S.Ct. 2273.

In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), the Court further circumscribed the constitutional dimension of peremptory challenges, this time under federal law. The Court, applying Ross, held that no federal rule violation had occurred when the defendant was forced to use a peremptory challenge against a juror who should have been dismissed for cause. Focusing on the impartiality of the jury ultimately seated, the Court held that, because the defendant had received his full allotment of peremptory challenges, no constitutional violation had occurred. Id. at 315-316, 120 S.Ct. 774. Had a juror been seated who should have been excused for cause, however, reversal of the conviction would have been constitutionally required. Id., at 316, 120 S.Ct. 774.

In Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009), the Court rejected Swain’s suggestion that per se prejudice resulted from any impairment of the exercise of peremptory challenges. In that case, a.state trial court erroneously had rejected one of the defendant’s peremptory challenges on the basis that the defendant was exercising his challenge in a biased manner made impermissible under Batson. The Illinois Supreme Court disagreed with defendant’s argument that the deprivation of his peremptory challenge required relief, regardless of whether the defendant could show actual prejudice in the jury as composed following the trial court’s error. Rivera, 556 U.S. at 155, 129 *862S.Ct. 1446. Finding no “structural error,” and no showing that the error was prejudicial, the Illinois court denied relief. Id.

The United States Supreme Court affirmed. First, it rejected Rivera’s argument that the improper seating of a jury— e.g., because a defendant was denied the opportunity to strike a juror peremptorily due to an erroneous ruling — was not “amenable to harmless-error analysis because it is impossible to ascertain how a properly constituted jury ... would have decided his case.” Id. at 157, 129 S.Ct. 1446. Rather, “[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.” Id. Further, the Court expressly disapproved Swain’s suggestion that no prejudice need be shown to require a remedy for the improper impairment of a peremptory challenge. The Court nonetheless 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.” Id. at 161-62,129 S.Ct. 1446.

Pennsylvania lacks a large body of contemporary case law examining the peremptory challenge. In particular, we have not yet confronted under Pennsylvania law the question of-the prejudice to a party’s jury selection rights in circumstances analogous to those before us. However, this Court and the Supreme Court of Pennsylvania have assessed the effect of, and remedy for, the impairment of a party’s exercise of peremptory challenges. The circumstances in those cases differ from those in the matter now before us, but they provide ample guidance nonetheless.

Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509 (1982), is the leading Pennsylvania case in this area. In that case, as in Ross and Martinez-Salazar, the trial court erred in failing to excuse for cause a prospective juror whose impartiality was, for several reasons, subject to doubt. Johnson, 445 A.2d at 511-14. The defense used one of its peremptory challenges to rectify the trial court’s error. Id. at 514. This Court did not analyze in depth the need for a new trial, nor did we engage in a harmless error analysis based upon the composition of the jury or the effect of the de facto deprivation of one of defendant’s peremptory challenges. Rather, we found prejudice in the deprivation itself, not in its effect on the trial jury as seated:

We ... find the court’s refusal to excuse Mr. Rubin for cause an abuse of discretion. This error was not harmless. Where, as here, a defendant is forced to use one of his peremptory challenges to excuse a prospective juror who should have been excused for cause, and then exhausts his peremptories before the jury is seated, a new trial will be granted.

Id. at 514 (citing, inter alia, Commonwealth v. Jones, 477 Pa. 164, 883 A.2d 874 (1978) (plurality)); see Commonwealth v. McBee, 267 Pa.Super. 49, 405 A.2d 1297 (1979) (same).

We ruled similarly in Commonwealth v. higher, 516 Pa. 2, 581 A.2d 1101 (1987). Once again, a criminal defendant had exercised a peremptory challenge to prevent the seating of a juror whom the trial court erroneously declined to excuse for cause. Relying upon our Supreme Court’s decision in Jones, we emphasized that “it is error to force a defendant to use his peremptory challenges on a person who should have been excused for cause [when] that defendant exhausts those peremptory *863challenges prior to the seating of the jury.” Ingber, 531 A.2d at 1104 (quoting Jones, 383 A.2d at 876; internal quotation marks and modifications omitted). “Wrongful deprivation of one or more of the number of peremptory challenges provided for by statute or rule of course is clearly an impairment of the defendant’s exercise of his right to peremptory challenges.” Id. at 1105. Because the appellant in Ingber had been forced to exercise a peremptory challenge to strike a juror who should have been excused by the court for cause, the appellant was entitled to a new trial. Id.

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.

In a one-page discussion, the majority today finds that Jones, Johnson, and McBee — cases in which the respective appellants exercised peremptory strikes on jurors who should have been stricken for cause-dictate by negative implication that no such prejudice occurred in this case:

In those cases, there was a forced selection of a juror and a forced use of a peremptory challenge and. such coercion was not held to be harmless error. Here, while Appellant was compelled to use peremptory strikes prematurely, there is absolutely no evidence and no argument that Appellant was forced to select a juror whom he would have stricken. Therefore, we do not find, and Appellant does not cite, any actual prejudice. Accordingly, we conclude that any error stemming from voir dire was harmless....

Maj. Op. at 857. That those cases are inapposite to the case at bar is hardly conclusive as to whether prejudice accrued under the circumstances of the instant case. Indeed, that those cases, which comprise the bulk of Pennsylvania law in this area, are distinguishable merely underscores the fact that we should not uncritically invert or upend their reasoning. In doing so, the majority erodes the degree to which Pennsylvania courts protect a mechanism viewed for well over seven centuries as critical to the administration of justice.

I do not disagree that we have no choice but to reason from the cases presently on the books, despite the fact that they are distinguishable. And I do not disagree with the majority that per se prejudice does not result simply from misapplication of the prescribed procedures for jury se*864lection. Thus, I agree that we must apply harmless error analysis to each case.1

That being said, the common law long has recognized that “a right without a remedy is not a right at all but a mere abstraction.” Willcox v. Penn Mut. Life Ins. Co., 357 Pa. 581, 55 A.2d 521, 531 (1947). Thus, to demand a showing of prejudice 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. Surely, in prescribing a detailed procedure for jury selection, our Supreme Court did not intend to deny all practicable recourse for ensuring the rule’s faithful application by the trial courts.

Yet, as a practical matter, this absence of remedy is precisely the result that the majority’s analysis ensures. One would be hard-pressed to hypothesize a plausible circumstance under which the trial court error here at issue could ever result in demonstrable prejudice, absent the empan-elment of a juror who should have been stricken for cause. Admittedly, this is the only prejudice the United States Supreme Court has identified as rising to federal constitutional dimension, see Rivera, 556 U.S. at 157, 129 S.Ct. 1446. However, this is not responsive to the question of what remedies are appropriate to ensure protection of the time-honored right to the unfettered exercise of peremptory challenges as prescribed by the law of Pennsylvania. See id. at 157, 129 S.Ct. 1446 (erroneous impairment of state-created right to unfettered peremptory challenge “is a matter for the state to address under its own laws”); id. at 161-62, 129 S.Ct. 1446 (“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 ”).

I believe that the very cases upon which the majority relies compel a finding of remediable harm in this case. The majority suggests that no remedy will lie absent a demonstration of actual prejudice, a demonstration that can never be made under the circumstances at bar. The majority rejects the application of Jones and McBee to this case because, in those cases, “actual prejudice” resulted from the defendant being forced to exercise a peremptory challenge on a juror who should have been stricken for cause. However, in neither case did the defendant demonstrate, nor was he required to demonstrate, that the premature exhaustion of his peremptory challenges resulted in the empanelment of a partial jury. Thus, the defendant in neither case identified “actual prejudice” in the final composition of the jury, only that a compromised jury would have been empaneled had defendants opted not to use a peremptory challenge to strike the improperly qualified juror. It cannot be disputed that Pennsylvania law, according to the majority’s own account, protects the free exercise of all peremptory challenges provided by state law to a greater extent than federal law. Compare Rivera; Ross, supra (denying constitutional relief under materially identical circumstances), with Ross, 487 U.S. at 89, 108 S.Ct. 2273 (“[T]he right to peremptory challenges is denied or impaired ... if the defendant does not receive that which state law provides.”).

*865Moore also must inform any reliance on Jones and McBee. Moore presented very similar circumstances, but resulted in a divergent outcome. In Moore, as in Jones and McBee, the appellant was compelled to use a peremptory challenge on a juror who should have been excluded for cause. Unlike in Jones and McBee, however, the appellant did not thereafter exhaust his peremptory challenges. Consequently, our Supreme Court deemed the error “harmless.” 340 A.2d at 451.

The only way to harmonize Jones, McBee, and Moore is to examine the one material distinction between those cases: Whether the appellant exhausted his peremptory challenges after using one of them to rectify an erroneous refusal to disqualify a juror for cause. Thus, the harm found in the former two cases was the mere inference that the defendant used one less peremptory challenge than he would otherwise have used. For it is equally consistent with the facts of Jones and McBee to posit that, as in Moore, the defendants used precisely as many peremptory strikes as they chose to use. The defendants in Jones and McBee might just as easily have used their full complement of peremptory challenges, including the use of one to strike a juror who should have been stricken for cause, when they would otherwise have opted to use one less challenge than he was afforded by law. In those cases, this Court could not know, and therefore could not have considered dispositive, whether the defendant in fact had been denied one peremptory strike he certainly would have exercised had he not used it on the for-cause juror. Consequently, there is no other tenable way to reconcile these cases but to conclude that the harm for which they granted relief was the mere possibility that the defendant had been cheated of one peremptory challenge.

Notably, this interpretation squares fully with our definition of harmless error. As duly noted by the majority, “[Hjarmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt.” Maj. Op. at 857 n. 4 (quoting Commonwealth v. Allshouse, - Pa. -, 36 A.3d 163, 182 (2012)). Nothing harmonizes Moore, Jones, and McBee better than the process of gauging whether, in each of those cases, one fairly could conclude that the error was harmless beyond a reasonable doubt. In Moore, despite being forced to sacrifice one peremptory challenge to correct trial court error, the appellant did not exhaust the balance of his challenges. Accordingly, we were free to conclude beyond a reasonable doubt that the trial court’s error deprived the .appellant of nothing. In Jones and McBee, however, the appellants’ exhaustion of their available challenges, including ones they used to correct trial court error, manifestly created reasonable doubt that trial court error had cost them the free use of one of the peremptory challenges to which they were entitled by law.

In the case before us, Appellant was compelled to accept or peremptorily challenge jurors at the end of the first day of jury selection, aware that more jurors, wholly unknown to him, would be summoned to fill out the jury the following day, jurors as to whom he had none of the information he would have had pursuant to Rules 631-35 had the trial court strictly observed the requirements of Rule 631(E)(2). Notwithstanding this critical lack of information, Appellant was permitted just one chance to determine whether to strike any of the twenty-three jurors deemed eligible as of the evening of February 8. Thus, Appellant was cast upon the horns of this dilemma: Exercise some or *866all of his peremptory challenges on the devils he knew — ie., 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.

The trial court’s erroneous application of Pa.R.Crim.P. 631(E)(2) forced Appellant to assess an incomplete jury pool for purposes of applying his peremptory challenges without full information about the jury pool as it finally would be composed. Appellant opted to exhaust his peremptory challenges against the twenty-three prospective jurors remaining at that time, his only opportunity to peremptorily challenge any of those individuals under the court’s confabulated procedure. His challenges, combined with those of the Commonwealth, reduced the first day’s jury pool to ten of the fourteen necessary to conduct trial. Thus, Appellant left to fate, and to the limited remedy of for-cause challenges, the selection of the final four jurors on day two.

It was plain error for the trial court to put Appellant in that position. This error was met with Appellant’s premature exhaustion of his challenges, which was justifiable, if not inevitable, under the circumstances he faced. The practical result 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. Thus, I would reverse Appellant’s judgment of sentence and remand for a new trial. Accordingly, I respectfully dissent.2

. As noted by the majority, "[H]armless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt.” Maj. Op. at 857 n. 4 (quoting Commonwealth v. Allshonse, - Pa. -, 36 A.3d 163, 182 (2012)).

. In light of my views on this issue, my approval or disapproval of Appellant's challenge to certain comments made by the prosecution during closing argument is immaterial.