decided: December 11, 1972.
COLON, APPELLANT. COMMONWEALTH V. MITCHELL, APPELLANT
Appeals from judgments of sentences of Court of Common Pleas of Chester County, March T., 1970, Nos. 274, 274A, B, D, E, and 275, 275A, B, D, E, in cases of Commonwealth of Pennsylvania v. Andrea San Colon; same v. Arnold Mitchell.
V. Clayton McQuiddy, III, Assistant Public Defender, for appellants.
Larry E. Jones, Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Hoffman, J., concurs in the result. Dissenting Opinion by Spaulding, J.
[ 223 Pa. Super. Page 204]
These appeals present the serious question of whether an enforcement official should be permitted to serve as a juror when alleged criminal conduct was aimed at the police.*fn1 The problem is claimed to be accentuated
[ 223 Pa. Super. Page 205]
by the circumstance that one of the appellants was a Black Muslim.
Three defendants were tried on charges stemming from the nighttime robbery of a West Chester bar. During voir dire the judge refused to dismiss for cause a police commissioner of a local township, after defense counsel had exercised all their peremptory challenges. At the trial there was evidence of shooting by the police but it was not clear whether shooting was done by the defendants. Many of the witnesses were police officers. The defendants were convicted of burglary, armed robbery with accomplice, violation of the Uniform Firearms Act, receiving stolen property, and conspiracy, but were acquitted on the charge of attempts with intent to kill.
Defendants are guaranteed the right to "an impartial jury" by the Sixth Amendment of the United States Constitution and by Article 1, § 9 of the Pennsylvania Constitution. Pennsylvania, neither by statute nor rule, provides any guidelines as to what constitutes impartiality, but merely indicates the duty of the court to consider challenges for cause.*fn2 Other states have statutes specifying categories of potential jurors that are removable for cause.*fn3
An analysis of case law indicates that 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
[ 223 Pa. Super. Page 206]
court will presume the likelihood of prejudice;*fn4 and (2) when the potential juror's likelihood of prejudice is exhibited by his conduct and answers to questions at voir dire.*fn5 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.*fn6
The broad question raised here is whether law enforcement officials, because of their occupational relationship to criminal cases, should automatically be removed for cause, or whether they should be removed only if their likelihood of prejudice is manifested by their answers and demeanor on voir dire. The categories of relationships which automatically call for removal should be limited because it is desirable to have a jury composed of persons with a variety of backgrounds and experiences. We believe that an enforcement officer is capable of professional objectivity in considering the case of a defendant accused of a crime against society. Absent any real relationship to the case, the removal of an enforcement officer should depend
[ 223 Pa. Super. Page 207]
on the sound exercise of discretion by the trial judge. In the light of the questioning of the police commissioner in this case, and defense counsel's failure to question him further, the judge could properly determine that the police commissioner had not exhibited any prejudice which would require his dismissal for cause.
The cases appear to support the view that the likelihood of bias on the part of police officers, who have no particular relationship to the case or to the police force involved, is not so great that the court must remove the officer from the jury. "Membership in a police force is no disqualification for jury duty." Cavness v. United States, 187 F. 2d 719, 723 (9th Cir. 1951), cert. den., 341 U.S. 951. In that case, the court held that a juror's failure to reveal membership in a reserve police force was not grounds for a new trial. In Mikus v. United States, 433 F. 2d 719 (2d Cir. 1970), it was held not to be error for the court to refuse to remove (1) a police officer who had left the service and (2) a wife of a state police officer. Commonwealth v. Schartner, 88 Pa. Dauph. 134 (1967), aff'd 214 Pa. Superior Ct. 748 (1969), held that it was no error for the court to refuse to remove a guard at a military installation.*fn7
A narrower aspect of the broad question must be considered because the defendants were accused of
[ 223 Pa. Super. Page 208]
shooting at police officers with intent to kill. This meant that the police commissioner as a juror was being required to decide the defendants' guilt or innocence as to a crime against police officers. Identification with the position of the victim has been recognized as grounds for removal. In Sims v. United States, 405 F. 2d 1381 (D.C. Cir. 1968), the court held that all persons who are, or who are related to, taxicab drivers should be excluded from the jury on re-trial in a case involving the felony murder of a cab driver.*fn8 In the instant case the crime being tried involved risks to the lives of police officers which are similar to the risks the potential juror and his associates must face. Therefore, the likelihood of prejudice from the relationship between the juror's occupation and the nature of the charge should have caused the court below to remove the police commissioner from the jury.
A trial error does not necessarily call for a new trial. The nature of the error and its underlying reason must be examined from the standpoint of its possible harm. We have concluded that the error was based on the factor that one of the charges involved
[ 223 Pa. Super. Page 209]
police officers as victims. However, the juror in question, as well as all the other jurors, found that the defendants were not guilty of that charge. The defendants were only found guilty of crimes which did not constitute criminal conduct aimed at policemen. The error of the court below, therefore, was harmless because the likelihood of prejudice, which would have called for automatic removal, was applicable only with respect to the charge upon which the defendants were acquitted.*fn9
Judgment of sentence affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Spaulding, J.:
I respectfully dissent.
I cannot agree with the majority that the error of allowing a police officer to sit as a juror was cured merely because in the instant case appellants were acquitted of the charge of attempts with intent to kill the arresting officers. Their holding assumes that the police officer's bias could only have had an effect upon that charge. It ignores the possibility that a dispute among the jurors over that charge may have been compromised by reaching verdicts of guilt on the other charges. It also disregards the effect a policeman's presence on the jury may have had on the other jurors' deliberations. Moreover, there is a real possibility that the bias of the police commissioner on the attempts charge, the existence of which the majority concedes, influenced the consideration of the other charges.
The police commissioner's answers to questions posed on voir dire concerning his ability to objectively
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evaluate the testimony of police officers were uncertain.*fn1 This failure to assert his objectivity leaves some doubt concerning this juror's lack of prosecutorial bias which when added to the fact that the testimony of six police officers*fn2 was to be evaluated, clearly indicates the potential for prejudice.
I agree with the majority that the categories of relationships calling for automatic disqualification of a juror should be limited for the laudable purpose of having juries comprised of persons from a broad variety of backgrounds. This purpose should not, however, be so exalted as to endanger the minimal due process guarantee of a fair trial by a panel of impartial jurors indifferent to the result of the case. See Irvin v. Dowd, 366 U.S. 717 (1961); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972). The majority holds that the likelihood of bias on the part of police officers is not so great that an officer must be removed from the jury. As their opinion points out, cases from other jurisdictions support this view. See Anno., 140 A.L.R. 1183, and cases listed therein. But, there are a number of cases to the contrary. See, e.g., State v. Jackson, 275 Minn. 462, 147 N.W. 2d 689 (1967); Tate v. People, 125 Colo. 527, 247 P. 2d 665 (1952); State v. Rowe, 238 Iowa 237, 26 N.W. 2d 422 (1947); State v. Langley, 342 Mo. 447, 116 S.W. 2d 38 (1938); and Wallis v. State, supra at n. 2. As the majority indicates, all of these cases, except Wallis, are distinguishable as involving
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more than the fact of occupational status as the grounds for disqualification. But the cases do recognize the problems of credibility and prosecutorial bias presented when police officers serve as jurors.*fn3
There has been then, at the very least, judicial recognition of the problem of prosecutorial bias present when policemen serve as jurors in criminal cases. Because of his view of expertise, the officer is likely to feel that his functions are performed with administrative regularity and that the arrest of a suspect therefore indicates his guilt. His predisposition is contrary to the presumption of innocence. See J. Skolnick, Justice Without Trial, at 192-96, 240-41 (1966).
Our Supreme Court recently held in Commonwealth v. Stewart, supra, that where the potential for prejudice is present, actual prejudice will be presumed for the sake of insured fairness. Given the Sixth Amendment's guarantee of an impartial jury and Stewart's clear indication that the potentialities, rather than actualities, or prejudice in jury selection should be focused upon, I cannot approve of police officers serving as jurors in criminal cases, where, as here, a substantial part of the Commonwealth's evidence is police testimony. The possibility of prejudice exists and if the police officer is challenged and is less than certain in
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his assertion of objectivity, the proper course is to disqualify him as a juror. The failure to disqualify the challenged juror in the instant case requires reversal despite the acquittal of the attempts charge.
I would reverse the judgments of sentence and grant appellants a new trial.