Joel H. Ziev, Anthony S. Blasco, Easton, for appellant.
Charles H. Spaziani, Dist. Atty., Alan B. McFall, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., files a dissenting opinion.
On February 13, 1975, appellant, Richard Adams, was convicted by a judge sitting with a jury of murder of the third degree in connection with the stabbing death of Cheryl McNeil. Post-verdict motions were denied on July 31, 1975. Subsequently, appellant was sentenced to a term of imprisonment of ten to twenty years in a state correctional institution. This appeal followed.
Appellant first argues that the court below erred in denying him an opportunity to challenge the array of the jury. We do not agree. Appellant's challenge to the array is premised on an alleged systematic exclusion of blacks from the jury.
The facts surrounding this issue are as follows. On Monday, February 10, 1975, prior to voir dire, defense counsel challenged the array of the jury:
"DEFENSE COUNSEL: Before we get to that point, your Honor, we would move also the Court to challenge and object to the entire array for the reason that there seems to be, from our observations, just a matter of exclusion of blacks from the panel. This case involves all black parties."
The court, in denying the challenge, stated:
THE COURT: All right. I am guided by the decisions of the Supreme Court and the law and this panel was picked in accordance with all of the requirements of the law and all of the requirements of the Supreme Court, especially with that Montgomery County case recently that went up that considered this whole question. I can give the citation later. So that the application at this time within moments of the beginning of the voir dire is denied." (Emphasis added.)
Pennsylvania Rule of Criminal Procedure 1104(b) and (c) state:
"(b) Unless opportunity did not exist prior thereto, a challenge to the array shall be made not later than five days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.
"(c) A challenge to the array may be made only on the ground that the jurors were not selected, drawn or summoned substantially in accordance with law." (Emphasis added.)
Pa.R.Crim.P. 1104(b) establishes the procedure when a challenge to the array of the jury should be made. Rule 1104(b) requires that challenges to the array of the jury be made "not later than five days before the first day of the week the case is listed for trial . . ." and not thereafter,
absent a prior opportunity. Moreover, all challenges shall be in writing and specify the reasons for the challenge.
In the instant case the oral challenge to the array was made minutes before the voir dire was to begin.
The Trial Court did not err in refusing appellant an opportunity to challenge the array. Pa.R.Crim.P. 1104(b). Appellant alleges that this case is governed by Commonwealth v. (Ronald) Jones, 452 Pa. 299, 304 A.2d 684 (1973). We do not agree. In Jones this court stated:
"The Commonwealth vigorously asserts in its brief that we should not remand this case for a hearing because the appellant did not meet the procedural standards as set forth in Rule 1104 of the Pennsylvania Rules of Criminal Procedure. A review of the record clearly reveals that appellant's counsel did not comply with this Rule and under normal circumstances, appellant would thereby be precluded from requesting a hearing or complaining about the denial of a hearing. See Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89 (1972); Commonwealth v. Werner, 444 Pa. 458, 282 A.2d 258 (1971). However, the record also reveals the trial court did not deny the hearing on procedural grounds, but rather on substantive grounds, i. e., its belief, through experience, that the jury selection system in Delaware County was constitutionally valid. Under the circumstances, appellant is not procedurally barred from challenging the denial, since the denial rested on a substantive foundation." (Footnotes omitted.) (Emphasis added.)
In Jones, supra, this court held that untimely challenges to the array of the jury that are denied on substantive grounds, i. e., conformity with the constitution and prevailing case law, rather than procedural grounds should not be dismissed without a hearing. The instant case is clearly distinguished from Jones, supra. The record in the instant case reveals that while the trial court mentioned "substantive grounds", the trial court also proffered the independent and sufficient
reason of the untimely nature of the challenge.*fn1 We are of the opinion that the court below properly denied appellant's untimely challenge to the array of the jury.
Appellant next argues that a portion of the testimony of Police Officer Donald English of the City of Easton Police Department was inadmissible because it referred to police records and, therefore the jury could reasonably infer prior criminal activity and that such an inference was used as substantive evidence of the instant crimes. We do not agree.
The complained of portion of Officer English's testimony was:
"A. I received a phone call. In the meantime, I had contacted the sergeant on duty and notified him of the happenings.
"A. And that I had the warrants and who they were for and was generally trying to locate, through our records, where I might have an address for the defendant that he might be apprehended or looked for.
"MR. ZIEV: That's objected to, ...