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filed: November 16, 1979.


No. 54 March Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Juniata County, Criminal Action No. 3 of 1977


Thomas M. Torquato, Lewistown, for appellant.

Lester H. Zimmerman, Jr., District Attorney, Mifflintown, for Commonwealth, appellee.

Spaeth, Hester and Montgomery, JJ. Spaeth, J., concurs in the result.

Author: Montgomery

[ 271 Pa. Super. Page 540]

The Appellant, Adrean Yohn, files the instant direct appeal from a judgment of sentence following his conviction, after jury trial, on charges of burglary and conspiracy. Written post-trial motions were filed in the lower court and considered prior to sentencing. On the instant appeal, the Appellant raises numerous claims of error.

Initially, the Appellant claims that the lower court committed error in refusing to grant his challenges for cause to four jurors. Thus, the Appellant claims that the lower court wrongfully hampered his ability to effectively use his peremptory challenges since he had to exercise them against the four jurors in question. Our review of the record of proceedings in the lower court reveals that Appellant, in post-trial motions and in a Brief in support of post-trial motions following his conviction, only claimed that the lower court had erred in refusing to grant challenges for cause to three jurors rather than four. Since the issue of Appellant's challenge to the fourth juror was not preserved by appropriate objection in the lower court, we will not consider it on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). The remaining jurors which Appellant claims should have been excluded for cause included one prospective juror who had been employed by the alleged victim some three to four years prior to the burglary, another who was related by marriage to a police officer who worked in another county, and a third who had gone on a fishing trip some six or eight years earlier with a Pennsylvania State police officer who was a superior officer of the prosecuting officer in the Appellant's case. In order to award a new trial in these circumstances, we must find that there was a palpable abuse of discretion by the trial judge in passing upon a challenge for cause to a prospective juror. Commonwealth v. Brown, 228 Pa. Super. 166, 323 A.2d 281 (1974). We cannot find such an abuse of discretion in the present case. The relationships of each of the prospective jurors in issue were quite remote in substance and attenuated in time from the circumstances surrounding the alleged burglary with which Appellant was

[ 271 Pa. Super. Page 541]

    charged. The trial court asked each of the prospective jurors in question whether the fact of the particular relationship involved would have a disturbing effect upon the impartiality expected of a juror. Each of the three individuals replied in the negative. The Appellant exercised three of his peremptory challenges against these individuals. The Appellant has not argued on appeal that this caused him to exhaust challenges which he would have exercised against any particular members of the jury which in fact considered his case. Thus, even if the lower court wrongfully refused to exclude the jurors in issue for good cause shown, the Appellant has not demonstrated any prejudice which evolved from such circumstances. Thus, because we find no abuse of discretion by the lower court, nor perceptible prejudice to the Appellant, we reject the claim of error based upon the lower court's refusal to exclude the three jurors in question for cause.

Next, the Appellant argues that reversal is appropriate because of comments by the prosecuting attorney which allegedly denied Appellant a fair trial. The first such contention concerns a claim that the Assistant District Attorney exceeded the bounds of fair comment when, in his opening argument, he characterized the case as one involving "very serious crimes". It is well settled that a mistrial is appropriate only if the remarks of the prosecuting attorney had the unavoidable effect of prejudicing the finders of fact so as to render them incapable of an objective judgment. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1970). In Commonwealth v. Rainey, 242 Pa. Super. 39, 363 A.2d 1148 (1976) we passed upon an almost identical situation, which involved the statement by the Commonwealth's attorney that "this is a serious case". We held that the contention raised by the appellant in that case was patently without merit and noted that all matters which come to trial are serious. In the instant case, we find it noteworthy that the lower court, immediately after the opening argument of the Assistant District Attorney, instructed the jury to disregard the comment that the case involved "a very serious

[ 271 Pa. Super. Page 542]

    crime". We find no merit whatsoever in appellant's argument concerning the prosecuting attorney's comment in his opening address.

We also find a lack of substance in the contention by Appellant that the Assistant District Attorney created grounds for reversal in allegedly misstating the testimony of witnesses in his closing remarks to the jury. Even if we were to assume that the Assistant District Attorney had in fact not correctly commented on the evidence which had been adduced at trial, we would find such error to have been inconsequential in view of the clear instruction by the Court thereafter, that the only evidence the jurors should consider was that elicited from the witnesses who testified. In our view, such ...

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