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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT

OF PENNSYLVANIA

v.

DAVID WIGGINS

Appellee

Appellant No. 1668 EDA 2015

Appeal from the Judgment of Sentence Entered May 1, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0007117-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,

LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and

McLAUGHLIN, J.

DISSENTING MEMORANDUM BY STABILE, J.: FILED JULY 19, 2019

The Learned Majority concludes that the trial court did not abuse its

discretion in this case when it denied the defense's motion to strike for cause

prospective juror 56 ("PJ 56") whom the defense claimed displayed hesitation

and equivocation in his ability to act fairly and impartially. I respectfully

disagree with the Majority's conclusion. Based on my review of the record, I

conclude that the defense's for -cause challenge had merit and that Appellant

subsequently suffered sufficient prejudice when he was compelled to use one

of his peremptory challenges on PJ 56 and subsequently exhausted all of his

peremptories. I find this conclusion to be well supported by prior precedent

of this Court. Accordingly, I would vacate and remand this matter to the trial

court for a new trial.
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As the Majority observes, we need not recount the background of this

case because the issue on appeal is discrete insofar as it pertains only to the

jury selection process. As a result, I will provide only a brief summation of

the facts. In connection with an armed robbery of a Rite Aid store in Chester,

Pennsylvania, that resulted in the death of Jason McClay (the "victim"),

Appellant along with two other individuals ("co-defendants") was charged with

a number of offenses, including second-degree murder, robbery and

conspiracy. Appellant and co-defendants proceeded to a joint trial.

During jury selection, PJ 56 attracted the defense's attention.

Specifically, during the group voir dire, PJ 56 did not either stand or respond

when the court asked the following two questions. First, "[i]s there anything

about the nature of the charges themselves that would prevent you from being

a fair and impartial juror in this case?" Second, "[i]s there anyone among you

for any reason that I may not have touched upon who could not serve as a

fair and impartial juror in this case?" N.T. Trial, 1/28/15, at 35, 38. In

addition, PJ 56 responded affirmatively (by standing) to three other questions.

First, "[h]ave any of you read, seen, or heard anything about this case in the

news media or from some other source?" Second, "[h]ave you or has any

member of your family or a close friend ever been the victim of or accused of

a crime similar to those with which the [d]efendants are charged?" Third,

"[i]s there anyone here who lives or works in the vicinity of 2722 West 9th

Street in Chester, Pennsylvania?" Id. at 32, 34, 38.

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During individual voir dire, the trial court followed up on the foregoing

areas with PJ 56:

THE COURT: Sir, you gave a "yes" response to three of my

questions, one was having known something or heard about the

case, a victim of a similar crime, and either living or working in

the vicinity?

JURY PANELIST #56: Yes.

THE COURT: So could you elaborate on all those, why you gave a

"yes" response to those?

JURY PANELIST #56: The first one was?

THE COURT: The first one was hearing about the case or reading

about the case.

JURY PANELIST #56: Oh, I read the newspaper constantly. I am

a subscriber to the Wilmington Journal and I read the Sunday

Daily Times every day -- every Sunday.

THE COURT: So when's the last time you heard about this case or

read about it?

JURY PANELIST #56: Last time, when it was active, a couple --

what's it, two years?

THE COURT: Pardon?

JURY PANELIST #56: When it was active, when they were --

THE COURT: Which would have been, what --

JURY PANELIST #56: Two years --

THE COURT: Okay.

JURY PANELIST #56: -- I've heard this.

THE COURT: So the last time you read anything about the case or

heard anything about the case?

JURY PANELIST #56: Yes. Um -hum.

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THE COURT: Okay. Someone you knew --

JURY PANELIST #56: My wife --

THE COURT: -- victim of a similar crime?

JURY PANELIST #56: Yes, my wife was robbed while she was

working in a supermarket, and we work midnights. I work at

another store but that -- but a fellow came up with his couple

groceries. As soon as the register[] opened, he picked up his

shirt, showed her a pistol, said empty the register, and so that

was - I thought that was pretty similar.

THE COURT: Okay. All right. And you live or work in the vicinity

of --

JURY PANELIST #56: I'm about three miles directly down Market

Street.

THE COURT: And have you ever been in that particular Rite Aid?

JURY PANELIST #56: In it? No, sir.

THE COURT: Okay. Anyone else have any questions for juror

#56?

[Appellant's counsel]: Sir, does the fact that your wife was robbed

similar as you say in a grocery store, does that impact your ability

to be fair in this particular case? Are you going to be thinking

about that?

JURY PANELIST #56: Probably not. It happened 25 years ago.

[Appellant's counsel]: Okay.

JURY PANELIST #56: Probably not.

[Appellant's counsel]: But you're not sure; that's why you're

saying "probably"?

JURY PANELIST #56: Can I tell you what's in the back of my mind?

I was going to say (inaudible) --

[Appellant's counsel]: Okay.

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JURY PANELIST #56: -- leaning towards like 51 percent not

but --

[Appellant's counsel]: Thank you for being honest.

THE COURT: All right. Any other -- anyone else?

MR. WISMER [co-defendant Pultro's counsel]: What do you

remember reading about the case?

JURY PANELIST #56: Just the fellow got killed, he was the store

manager. I forget what -- he was helping somebody or something

and he -- oh, he was -- he covered for a day off for somebody so

he shouldn't even have been there that day and it struck me as

no good deeds go unpunished. I say that all the time.

MR. WISMER: Is that all you remember reading?

JURY PANELIST #56: Pretty -- for the most part. That's the

highlights, yeah. I mean I don't remember exactly how many

people were involved, you know, or how -- too much of the details.

MR. WISMER: And it was tragic, certainly, but does that -- is that

going to affect your ability to be a fair and impartial juror knowing

what you know about what happened to this man?

JURY PANELIST #56: Probably not. Again, I'm going to say

probably 51 percent on it.

THE COURT: Let me phrase the question a little differently.

JURY PANELIST #56: Please.

THE COURT: Is there a doubt in your mind about your ability to

be fair and impartial?

JURY PANELIST #56: No. I can do it. I can do it.

THE COURT: All right. Anyone else?

MR. TINARI [co-defendant Mahmud's counsel]: May I just follow

that up briefly?

THE COURT: Yes.

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MR. TINARI: It seems as though you're hesitating. There's no

right or wrong answer even to the Judge's question. We're just

trying to find out --

JURY PANELIST #56: I -

MR. TINARI: -- what's in your heart and your mind, and when --

as lawyers especially for Defendants who are accused of crimes,

we hear probably or 51 percent, that makes us nervous. So we're

just asking you --

JURY PANELIST #56: Absolutely.

MR. TINARI: -- just as the Court did, it seems as though there's a

little bit of hesitation, and if there is, just tell us. It's okay. No

one's going to --

JURY PANELIST #56: And I realize --

MR. TINARI: -- thinking negatively of you --

JURY PANELIST #56: -- you've got 120 -- 18 other people --

MR. TINARI: -- you know what I mean? We're --

JURY PANELIST #56: -- that you can use.

MR. TINARI: -- just trying to proceed in accordance with what

we're required to ask.

JURY PANELIST #56: Yes.

MR. TINARI: And if your answer is you have some doubt, just tell

us.

JURY PANELIST #56: I'd have to be saying I was kidding you

if there was absolutely nothing because I experienced it.

MR. TINARI: Understood.

JURY PANELIST #56: But I still think I could probably be fair.

I mean I understand --

MR. TINARI: You still think you can be? See, that's what's making

us --

JURY PANELIST #56: I'm --

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MR. TINARI: You know what I'm saying? If you were in our shoes

JURY PANELIST #56: I can --

MR. TINARI: -- you wouldn't want to hear someone say --

JURY PANELIST #56: I see.

MR. TINARI: -- well, I think I could be fair, I'm hoping I could be

fair.

JURY PANELIST #56: I can appreciate your -- you on that. I think

I can -- okay. So --

MR. TINARI: All right. I won't ask any more times.

JURY PANELIST #56: I --

MR. TINARI: That's -- I think --

JURY PANELIST #56: I believe I can.

MR. TINARI: Okay. Thank you, sir.

JURY PANELIST #56: I believe I can and I --

THE COURT: Mr. DiRosato?

MR. DIROSATO [for the Commonwealth]: Sir, the role of a juror

is to hear the evidence --

JURY PANELIST #56: Exactly.

MR. DIROSATO: -- to weigh the evidence per the instructions

given by the Court.

JURY PANELIST #56: Exactly.

MR. DIROSATO: And --

JURY PANELIST #56: I'm not trying to be rude.

MR. DIROSATO: -- the Court will give you the instructions on the

law, take whatever facts as you find true along with your fellow

jurors and apply that to the law to determine whether the

Commonwealth has met its burden beyond a reasonable doubt to

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prove these Defendants guilty of the crimes they're facing - have

been charged with.

JURY PANELIST #56: Exactly.

MR. DIROSATO: And knowing that, can you put aside your past

experience and follow the Court's instruction and render a verdict

based upon a fair and impartial weighing of the evidence?

JURY PANELIST #56: I think I can. I'm saying -- I said -- okay.

I can. Putting it in context, you show me evidence, it is or it isn't.

MR. DIROSATO: If the Commonwealth fails to meet your - meet

its burden, would you hesitate and acquit these Defendants?

JURY PANELIST #56: If you didn't prove they did it, I will.

THE COURT: You understand that it has to be proven beyond a

reasonable doubt. It's not a 51 percent. It's beyond a

reasonable doubt. Do you understand that?

JURY PANELIST #56: Yes, sir.

THE COURT: And you could follow that standard, correct?

JURY PANELIST #56: Yes, sir. I'm sure I could.

N.T. Trial, 1/28/15 (Vol. II), at 280-88 (emphasis added). As the Majority

notes, counsel for one of the co-defendants then moved to strike for cause PJ

56 based on PJ 56's equivocation and hesitation in his responses to the

questions relating to fairness and impartiality. Id. at 288. Appellant's counsel

joined the motion, asserting that PJ 56 gave two different responses. Id. at

289 ("There's two [answers]. Either you can be or you can't be. I mean it

shouldn't matter the wording of the question. The meaning is still the same,

and based on that, I think the [trial court] should grant the challenge."). The

trial court denied the defense's for -cause motion to strike PJ 56.

Subsequently, as my review of the strike list reveals, Appellant's counsel

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exercised a peremptory challenge, Appellant's second out of three such

challenges,' to strike PJ 56. As a result, PJ 56 was neither selected nor seated

as a juror in this case.

On appeal, Appellant principally argues that the trial court abused its

discretion in denying the defense's motion to strike for cause PJ 56 and, as a

result, Appellant was prejudiced by exercising one of his three peremptory

challenges to strike PJ 56. Unlike the Majority, I agree.

It is well -settled that we apply an abuse of discretion standard in

reviewing a trial court's decision to grant or deny a for -cause challenge.

Commonwealth v. Cox, 983 A.2d 666, 682 (Pa. 2009). In Commonwealth

v. Briggs, 12 A.3d 291 (Pa. 2011), our High Court explained:

A trial court's decision regarding whether to disqualify a juror for

cause is within its sound discretion and will not be reversed in the

absence of a palpable abuse of discretion. In determining if a

motion to strike a prospective juror for cause was properly denied

our Court is guided by the following precepts:

The test for determining whether a prospective juror

should be disqualified is whether he is willing and able

to eliminate the influence of any scruples and render

a verdict according to the evidence, and this is to be

determined on the basis of answers to questions and

demeanor. . . . It must be determined whether any

biases or prejudices can be put aside on proper

instruction of the court. . . . A challenge for cause

should be granted when the prospective juror has

such a close relationship, familial, financial, or

' I observe that each of the three defendants here received three peremptory

challenges for an aggregate of nine peremptories. The defendants in their

sole discretion were free to use, or not use, their respective challenges. The

Commonwealth also received nine such strikes.

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situational, with the parties, counsel, victims, or

witnesses that the court will presume a likelihood of

prejudice or demonstrates a likelihood of prejudice by

his or her conduct or answers to questions.

Id. at 332-33 (citations omitted).

"[T]he jury selection process is crucial to the preservation of the right

to an impartial jury as guaranteed by Article I, § 9 of the Pennsylvania

Constitution." Commonwealth v. Buford, 101 A.3d 1182, 1191 (Pa. Super.

2014) (citation omitted), appeal denied, 114 A.3d 415 (Pa. 2015). Indeed,

"[t]he purpose of voir dire is to ensure the empaneling of a fair and impartial

jury capable of following the instructions on the law as provided by the trial

court." Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014) (citations

omitted). We long have explained:

There are two types of situations in which challenges for cause

should be granted: (1) when the potential juror has such a close

relationship, be it familial, financial or situational, with parties,

counsel, victims, or witnesses, that the court will presume the

likelihood of prejudice; and (2) when the potential juror's

likelihood of prejudice is exhibited by his conduct and answers to

questions at voir dire. In the former situation, the determination

is practically one of law and as such is subject to ordinary review.

In the latter situation, much depends upon the answers and

demeanor of the potential juror as observed by the trial judge and

therefore reversal is appropriate only in case of palpable error.

Commonwealth v. Kelly, 134 A.3d 59, 61-62 (Pa. Super. 2016) (citations

omitted), appeal denied, 158 A.3d 75 (Pa. 2016). Moreover, the law

recognizes that it would be unrealistic to expect jurors to be free

from all prejudices, a failing common to all human beings. We

can only attempt to have them put aside those prejudices in the

performance of their duty, the determination of guilt or innocence.

We therefore do not expect a tabula rasa but merely a mind

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sufficiently conscious of its sworn responsibility and willing to

attempt to reach a decision solely on the facts presented,

assiduously avoiding the influence of irrelevant facts.

Commonwealth v. Pittman, 466 A.2d 1370, 1373 (Pa. Super. 1983)

(citations omitted). Finally, a new trial will be granted when "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." Commonwealth v. Johnson, 445 A.2d 509, 514

(Pa. Super. 1982); accord Commonwealth v. Penn, 132 A.3d 498, 505 (Pa.

Super. 2016).

In Johnson, during voir dire, a prospective juror indicated by his

answers that he would not be impartial and the questioning revealed that the

reason for his attitude was a situational relationship. Johnson, 445 A.2d at

512. In particular, he stated that his daughter was the victim of a robbery

and rape with facts similar to the case in that matter. The prospective juror

became distressed to the point where he practically broke down. Id. He

repeatedly acknowledged that he was surprised at how he was reacting and

how strongly he felt. Id. As a result, the prospective juror wavered on

whether he could be fair and impartial in Johnson's case. When questioned

about whether he could be fair, the prospective juror remarked, inter a/ia, "I

think it would be difficult[,]" and "I'm wondering if I am able to do it." Id. at

512-13 (record citations omitted). Given his strong emotional reactions, the

prospective juror indicated that he might not have "full control" when following

the court's instructions in the case. Id. at 513. The trial court ultimately
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denied the appellant's for -cause challenge to strike prospective juror. The

appellant exercised a peremptory challenge to strike the prospective juror and

subsequently exhausted his peremptory strikes.

On appeal, and based on the foregoing record, a panel of this Court

concluded that the trial court erred in denying the appellant's for -cause

challenge. In so doing, we reasoned the prospective juror

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 (emphasis added). We also concluded that the prospective juror's

"eventual assurance to the court that he would '[b]e fair' did not dispel the

force of these admissions." Id. (citation omitted). We explained:

This is particularly so in view of the court's questions, which [the

prospective juror] may well have understood as suggesting that

his proper response, and the response desired by the court, was

to say, despite his doubts, that he would be an impartial juror. It

is not the court's function to persuade a prospective juror to put

aside doubts expressed, and explained, as earnestly as [this

prospective juror's] were.

Id. We, therefore, held in Johnson that the trial court abused its discretion

in denying the appellant's motion to strike for cause the prospective juror and

that the error was not harmless because the appellant was "forced to use one

of his peremptory challenges to excuse" the prospective juror, and he

"exhaust[ed] his peremptories before the jury was seated." Id. Accordingly,

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we vacated the appellant's judgment of sentence and granted him a new trial.

Id.

Relying upon Johnson, we arrived at the same outcome in Penn.

There, a prospective juror, R.Z., conveyed to the court during voir dire that

she previously had worked in law enforcement, and that her boyfriend was a

police officer. Penn, 132 A.3d at 500.

[[Penn's] Attorney]: So you're pretty steeped in law enforcement?

A: Yes.

[[Penn's] Attorney]: You would be more likely to believe the

testimony of a police officer?

A: Yes.

[[Penn's] Attorney]: So you're going to have to hear from two or

three police officers in this case. And you-because of your own

personal experience in working in law enforcement, you would

give them credibility, extra credibility simply because they are

police. And there are no right or wrong answers. Would it be hard

for you not to believe them?

A: I feel like I would be more inclined to believe them, yes.

[[Penn's] Attorney]: I have nothing else....

[The Commonwealth]: What it comes down to though, the Judge

would tell you that you can't give them any more weight or

credibility. You would be instructed to do that. Do you think you

could follow the instruction and not raise them up because of their

position?

A: Yes.

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[The Commonwealth]: Obviously your relationship with your

boyfriend, would that-and the testimony of there being police

officers in this case, would you be able to be fair and impartial?

A: I would think so, yes.

[The Commonwealth]: Follow up?

[[Penn's] Attorney]: Well, when you-well, when you say you

think so, I mean, basically the entire Commonwealth case is going

to be testimony from the police officers. Would it be difficult for

you to just not believe them because of your experience? I mean,

you've been a police officer, you've worked with police, you're

dating a police officer. I presume you have a certain attachment

to this profession.

A: Correct.

[[Penn's] Attorney]: I'm not going to offend you in any way if I

am-I apologize, but would it be difficult to not-kinship to the

police to cause for you not to be ableA: I think it all comes down to evidence, testimony. So as long

as I'd-

[[Penn's] Attorney]: If they got up there and said, we don't know

anything and we didn't see anything, I would understand, but if

they testify to facts which you believe would be enough to convict,

would it be hard for you not to believe them because of your

experience? Would you, as you said before, you would be inclined

to believe them?

A: (Nods head [in the affirmative].)

[[Penn's] Attorney]: I know it's based on the evidence.

A: Right.

[[Penn's] Attorney]: But there would be an inclination on your

part, because of your experience, to be more likely to credit their

testimony?

A: I mean-again, I think it comes down to the evidence though.

Id. at 500-01(sonne brackets added) (emphasis added).

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In determining that the trial court should have stricken for cause R.Z.,

we stressed that, like the juror in Johnson, R.Z. "initially indicated that she

was incapable of 'rendering a fair, impartial and unbiased verdict.' Penn,

132 A.3d at 504. We also relied on the fact that R.Z. "unequivocally testified

during voir dire that she 'would be more likely to believe the testimony of a

police officer,' thus indicating that [she] was biased in favor of the police and

the Commonwealth." Id. As an additional similarity to Johnson, "R.Z.'s

admitted bias in favor of the police rested on a firm bedrock," given R.Z.'s

prior employment in law enforcement, and that her boyfriend was a police

officer. Id. at 505. Finally, the Penn Court concluded that,

as in Johnson, R.Z. eventually testified that she would be able to

follow the trial court's instructions and render a "fair and impartial"

decision. However, in the case at bar, almost immediately after

R.Z. testified that she would be able to "be fair and impartial,"

R.Z. again testified that, "because of [her] experience[,] . . . [she] would be inclined to believe" the police. Therefore, as we

held in Johnson, we hold in the case at bar that "[R.Z.'s] eventual

assurance to the [trial] court that [she] would 'be fair' did not

dispel the force of [her] admissions" of bias.[FN1] Johnson, 445

A.2d at 514.

[FN1.] R.Z.'s declaration that "it comes down to the

evidence" also did not dispel her admissions of bias,

given that R.Z.'s admitted view of the evidence was

that police officers were entitled to more credibility.

Id. (emphasis in original). Thus, given that Penn had used a peremptory

strike to excuse R.Z., and then exhausted his remaining peremptory

challenges, the Penn panel granted him a new trial. Id.

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In light of and consistent with Johnson and Penn, two cases that are

virtually indistinguishable from this case, I conclude that Appellant is entitled

to a new trial because the trial court abused its discretion in denying the

defense's for -cause challenge to strike P3 56. My record review confirms

Appellant's contention that P3 56 displayed sustained hesitation and

equivocation in answering whether he would be fair and impartial. As detailed

earlier, in responding to specific questions about fairness and impartiality by

a counsel for one of Appellant's co-defendants, PJ 56 remarked thrice

"probably not," and twice "leaning towards like 51 percent" or

"probably 51 percent." Thereafter, the trial court asked P3 56 whether

there was "a doubt in [his] mind about [his] ability to be fair and impartial[.]"

P3 56 responded, "No. I can do it. I can do it." Immediately, thereafter,

counsel for another co-defendant inquired further about P3 56's ability to act

fairly and impartially. In response, P3 56 again expressed hesitation and

equivocation and seemingly questioned why the parties did not select another

prospective juror. Indeed, P3 56 stated, "I'd have to be saying I was kidding

you if there was absolutely nothing because I experienced it" and "But I still

think I could probably be fair." P3 56 repeatedly vacillated and qualified his

responses using the phrases "I believe" or "I think." Toward the end of P3

56's individual voir dire, the trial court once again participated in questioning

P3 56. In so doing, however, the trial court altered the line of questioning.

Instead of inquiring about P3 56's ability to be fair and impartial, the trial court

shifted the focus away from P3 56's ability to act fairly and asked P3 56 about

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his ability to apply the correct standard of proof, i.e., the beyond a reasonable

doubt standard. This question, of course, was irrelevant to the issue of

fairness and impartiality. Given the foregoing and under the circumstances of

this case, I am constrained to conclude that the trial court abused its discretion

in denying the defense's motion to strike for cause PJ 56 who could not

separate the incident involving his wife from the instant case and expressed

sustained equivocation and hesitation.

Moreover, like the appellants in Johnson and Penn, Appellant was also

forced to use a peremptory challenge to strike a prospective juror whom the

trial court refused to excuse for cause.2 Upon reviewing the certified record,

in particular the strike list sub judice, it is apparent that Appellant exercised

his second of three peremptory challenges to strike PJ 56. Thereafter,

Appellant exhausted his peremptories. Thus, as we held in Johnson and

reaffirmed in Penn, I must conclude that the error of not striking for cause PJ

56 was not harmless "[w]here, as here, a defendant is forced to use one of

his peremptory challenge 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." Penn, 132 A.3d at 505 (quotation and

2 Based upon the outcome herein, which is premised on a conclusion that

Appellant in fact exercised to his detriment one of his three peremptory

challenges to strike PJ 56, I decline to address Appellant's argument that he

shared a common interest with his co-defendants in the selection of the jury.

In particular, I decline to entertain the argument that in a joint trial,

irrespective of which defendant uses a peremptory to strike a prospective juror

following the denial of a for -cause challenge, all defendants are presumed to

have suffered prejudice.

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citation omitted). I, therefore, respectfully dissent and would vacate and

remand this case to the trial court for a new trial.

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