Commonwealth v. Tressler

*141OPINION

McDermott, justice.

The appellant was convicted of rape1, statutory rape2, indecent assault3 and corruption of a minor4 following a one day jury trial in the Court of Common Pleas of Centre County. Post-trial motions were filed and denied by the court and the appellant was sentenced to an aggregate period of incarceration of from five (5) to ten (10) years. He then appealed his judgment of sentence to the Superior Court and during the pendency of that appeal requested a remand of his case to the Court of Common Pleas based upon after-discovered evidence. The case was remanded and a hearing was conducted for consideration of the after-discovered evidence which evidence consisted of the recantation of the trial testimony of the victim’s sister. After this additional evidence was heard, the Court of Common Pleas reaffirmed its order of sentence dated July 16, 1984 and the case was returned to the Superior Court which affirmed 387 Pa.Super. 652, 559 A.2d 965. Thereafter the appellant was incarcerated at the State Correctional Institution at Rock-view.

Subsequent to the Superior Court’s affirmance the appellant dismissed trial counsel and secured the services of his present attorney to represent him in the filing of a P.C. H. A.5 petition. During the course of representation the appellant informed counsel that he was approached by one of the alternate jurors who stated that several of the jurors, in the presence of all others, expressed their distaste for sex offenders, their feeling that he was guilty and their desire to conclude the matter promptly in order that they might return home. Present counsel, in a P.C.H.A. petition *142filed with the Court of Common Pleas of Centre County on October 1, 1986, alleged that the appellant was denied his right to a trial by an impartial jury and that trial counsel was ineffective. The petition was denied by order dated April 28,1989, without a hearing, and affirmed on appeal by the Superior Court which in a Memorandum Opinion, dated December 13, 1988, held that the appellant had waived the right to raise the issue of the impartiality of the jurors. Thereafter a timely application for reargument was filed with the Superior Court which denied reargument by order dated January 31, 1989. A petition for allowance of appeal was filed with this Court which was granted by order dated August 2, 1989.

The appellant argues that trial counsel was ineffective in failing to pursue, on appeal, the issue of the partialiaty of the jury after being informed of the appellant’s post-trial conversation with the alternate juror and that such conversation conclusively establishes that he was denied a fair trial by an impartial jury as required under the United States and Pennsylvania constitutions. Additionally he asserts that trial counsel’s ineffectiveness in that regard constitutes an extraordinary circumstance which should not act as bar to Post-Conviction relief and that the denial of his petition by the P.C.H.A. court without the holding of an evidentiary hearing was error.

With regard to his allegation of trial counsel’s ineffectiveness the test is well settled. First we must determine whether the underlying claim is of arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim is devoid of merit, our inquiry ceases for counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim possesses merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must demonstrate how the ineffectiveness prejudiced him. *143Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). With these standards in mind we will now examine the appellant’s claim that trial counsel’s representation was deficient.

The record reveals that one to two months after he was convicted the appellant was approached by a Beatrice Butler, an alternate juror who was selected to hear the appellant’s case. She informed him that two to three of the male jurors had expressed opinions as to the appellant’s guilt prior to being sworn. A recording of her recollection of the conversations she overheard was made by present counsel on March 10, 1986, slightly more than two years after the conclusion of appellant’s trial. In relevant part her recollection of those utterances is as follows:

RBM: ... Now, I understand, Beatrice, that you were an alternate juror that was selected to hear the case of Leonard Tressler. Is that correct?
Beatrice: Yes.
RBM: Could you please tell me what you said to Leonard and when you told him?
Beatrice: Only that I just couldn’t understand why people would, could make a decision before a trial started and when they said they were, it was going to be a shut and closed case, that, uh, they were going to find him guilty so that they could get out of there. And I just couldn’t understand that, maybe I should have reported it at the time, I don’t know, if I’m wrong, I’m sorry.
•je * * * * *
RBM: ... Now can you remember specifically what you heard before the trial started and try to give me an indication as to how that came about?
Beatrice: Uh, to begin with, there was a couple people late and they, there was a couple there that wanted to hurry up and get it over with, they wanted to do it even though, go ahead with the case, get started before they got there since they already had two alternates and because they had to get back to work and that so it was *144going to be shut and closed case anyways because he had no business doing that.
* * * * * *
RBM: ... This conversation took place in the jury room after the jury was placed in the room as a body before the trial started is that correct?
Beatrice: Yes, before the trial started.

R. 239-246.

Appellant argues that the above transcript firmly establishes that he was denied the right to a fair trial by an impartial jury as set forth under the Sixth Amendment to the United States Constitution and under Article I Section 9 of the Pennsylvania Constitution. In support he argues that the decision of this Court in Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985) is controlling. For the following reasons we do not agree.

In Kerpan after the jurors were sworn the trial judge encouraged the jurors to experiment by holding discussions among themselves about questions they might have during the course of trial. This practice, we determined, violated the defendant’s right to an impartial jury for the reasons that: 1) since the prosecution’s evidence is presented first, any initial opinions formed by the jurors are likely to be unfavorable to the defendant, and there is a tendency for a juror to pay greater attention to evidence that confirms his initial opinion; 2) once a juror declares himself before his fellow jurors he is likely to stand by his opinion even if contradicted by subsequent evidence; 3) the defendant is entitled to have his casé considered by the jury as a whole, not by separate groups or cliques that might be formed with the jury prior to the conclusion of the case; 4) jurors might form premature conclusions without having had the benefit of the court’s instructions concerning what law they are to apply to the facts of the case; 5) jurors might form premature conclusions without having heard the final arguments of both sides. Id., 508 Pa. at 422, 423, 498 A.2d at 831-832.

*145In the instant matter the factual setting is distinguishable from that in Kerpan. Here the conversations occurred not after but rather before the jurors were sworn, before any evidence was received and before any jury instructions were given by the trial judge. That several jurors voiced their distaste for crimes of the nature in issue, their desire to conclude the matter with all due haste and their initial belief that the appellant was perhaps guilty, are not factors which constitute a denial per se of a fair trial by an impartial jury. On this point the opinion of the United States Supreme Court in Irvin v. Dowd, 366 U.S. 717, 81 5. Ct. 1639, 6 L.Ed.2d 751 (1961), is instructive. There the Court stated in relevant part:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Id. at 723-724, 81 S.Ct. at 1642-43.6

In this vein the trial court instructed the jurors, after being sworn, that they were to “keep an open mind throughout the trial” and that their duty was to be “the kind of juror that if you were vitally interested in the outcome of this case, you’d want someone like yourself to be a juror”. (R. 17-21). Since the record is devoid of any indication that the jurors who served were incapable of laying aside any preconceived impressions or opinions that they might have held prior to hearing the evidence presented and being sworn or further, that the instructions given *146to the jury after being sworn, failed to impress upon them the importance of the task at hand or the significance of each of their separate votes, we must conclude that the appellant’s assertion that he was denied a fair trial is a bald assertion and without merit7.

Having determined that the appellant’s underlying claim is without merit, further inquiry into the effectiveness of counsel is unnecessary as is a resolution of his remaining issues. We do note as an aside that trial counsel did attempt to secure a new trial for the appellant after the victim’s sister recanted her trial testimony. Faced with the dilemma of either attempting to seek a new trial based upon a subsequent recantation of testimony or the pursuit of a new trial through the discovery of innate bias and prejudice possessed by several jurors, we are not prepared to say that the avenue chosen by trial counsel, though unsuccessful, was unreasonable or not made with the best interest of his client in mind.

Accordingly, the order of the Superior Court is affirmed.

ZAPPALA and CAPPY, JJ., file dissenting Opinions.

. 18 Pa.C.S.A. § 3121(1).

. 18 Pa.C.S.A. § 3122.

. 18 Pa.C.S.A. § 3126.

. 18 Pa.C.S.A. § 6301(a).

. The Post Conviction Hearing Act has been modified in part, repealed in part, and renamed the Post Conviction Relief Act. 42 Pa.C.S. §§ 9541-51.

. This Court in similar fashion has stated that the Constitutional mandate of a fair and impartial jury does not require that prospective jurors be free from all knowledge of facts and circumstances surrounding the incident which forms the basis of the trial and, thus, the critical question ... is whether or not they are capable of casting aside any impressions or opinions they may have formed and rendering a verdict based solely upon the evidence presented to them during the course of the trial. Commonwealth v. Hoss, 469 Pa. 195, 200-201, 364 A.2d 1335, 1338 (1976).

. The record also reveals that the jury was polled at the conclusion of the trial and that each juror without hesitation reaffirmed the verdict of appellant’s guilt in open court.