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COMMONWEALTH v. COLON (12/11/72)

decided: December 11, 1972.

COMMONWEALTH
v.
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.

COUNSEL

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.

Author: PACKEL

[ 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, ยง 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 ...


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