Commonwealth v. Lane

McDERMOTT, Justice,

dissenting.

A decision to disqualify a prospective juror is within the discretion of the trial court and will not be reversed in the absence of a palpable abuse of that discretion. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). In considering a challenge for cause this Court has held that the challenge should be granted when the prospective juror demonstrates a likelihood of prejudice by his or her conduct and answers to questions. Commonwealth v. higher, 516 Pa. 2, 531 A.2d 1101 (1987); Commonwealth v. Colson, supra.

In this case the trial judge carefully observed the juror, and was not confident of that juror’s ability to be impartial, and he summarized his reasons, in the following remarks:

[O]n the basis of [the juror’s] answers, reservations, vacillating and general demeanor in responding to the questions put to him on voir dire, he had a fixed opinion as to the defendent’s culpability because of the victim’s delay in reporting what occurred and was thereby unable to render a verdict based solely upon the evidence presented at trial notwithstanding defense counsel’s attempts to rehabilitate him during questioning. The granting of the Commonwealth’s challenge for cause was *403not an abuse of discretion and the defendant suffered no prejudice thereby.

Opinion of the Court En Banc, at 8-9 (entered August 9, 1983). These reasons aré certainly valid, and this writer is at a loss to understand how the Superior Court could presume to overrule the trial judge’s decision when that decision was as much dependent upon the juror’s non-verbal conduct, i.e., his demeanor, as it was on his verbal responses.

Seventy-five years ago, Mr. Justice Brown, writing for this Court made the following pertinent observations:

The challenge of a juror for cause is addressed to the trial judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. They are first to be weighed by the trial judge who sees and hears the juror, and, in the exercise of a wide discretion, may conclude that he is not competent to enter the jury box for the purpose of rendering an impartial verdict, notwithstanding his words to the contrary.

Commonwealth v. Sushinskie, 242 Pa. 406, 413, 89 A. 564, 565 (1913); see also, Commonwealth v. Johnson, 484 Pa. 545, 551, 400 A.2d 583, 585-86 (1979) (Opinion in Support of Affirmance). These observations are still valid.

The record in this case demonstrates that the trial judge fully examined the challenged juror and based his decision on what he heard and what he saw. There is no indication that the procedure utilized by the judge was flawed or unfair. Absent some such evidence, or independent evidence of judicial bias, an appellate court is not free to overrule the trial judge merely because on the same record it may have reached a different result.

Trial judges are not mere evidentiary technicians required to believe all the words they hear. It is the common *404experience of life, to say nothing of the atmosphere of a courtroom, to know that there is more to an answer than words. A trial judge is the eyes and ears of an appellate court, charged with the awesome responsibility of measuring credibility. He is enjoined, as are jurors, to use all of his common and unique experience to hear not only what is said but how, by whom, and for what reason the evidence is offered. He hears and sees what we do not, reads credibility from every aspect of the witness in which words alone are rarely sufficient. His task is among the most difficult of all judicial functions, and when honestly done, the only certainty we have. Without good reason, reasons beyond printed words, we must defer to what he finds and credit his experience or try all cases ourselves.

We note that the Superior Court did attempt to support its decision to reverse by declaring that the method of the exclusion may have had a “chilling effect” on the ability of the other jurors to consider the delay in reporting the crime as a factor in evaluating the victim’s credibility. However, the possibility of an adverse effect on the other members of the jury was never raised in post-trial motions and was, therefore, not properly before the Superior Court. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). Even had the issue been preserved, the record does not provide any support for the conclusion that the other jurors were tainted by the trial judge’s actions. See generally, Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983).

In conclusion, a reading of the record of the challenged voir dire in this case, discloses nothing therein which would indicate that the trial judge abused his discretion. If there is any “chilling effect” to be found here, it will be upon the exercise of honest discretion by trial judges who only doing their sworn best, cannot know what mood we may be in. I vigorously dissent.

LARSEN and PAPADAKOS, JJ., join in this dissenting opinion.