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filed: October 14, 1983.


No. 1813 Philadelphia, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, October Term, 1980, Nos. 2034/2036.


John J. Kevlock, Philadelphia, for appellant.

Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Rowley and Cirillo, JJ. Spaeth, J., files a dissenting opinion.

Author: Rowley

[ 320 Pa. Super. Page 170]

This is a direct appeal from the judgment of sentence imposed upon appellant after a jury returned its verdict finding him guilty of criminal conspiracy, criminal trespass, and attempted theft in connection with an early morning break-in on September 10, 1980, of the Mission Church in South Philadelphia. Post-verdict motions were filed and denied on June 17, 1981. This appeal followed. We conclude that the trial court committed no error and, accordingly, the judgment of sentence will be affirmed.

Appellant makes several arguments.*fn1 However, except for one, they have been waived. In his post-verdict motions, appellant assigned numerous errors. Appellant's counsel filed no brief in support of the motions. When the motions were called for argument, counsel at first stated that he had no argument but then he asked leave to present argument in support of the sixth assignment of error, which reads:

6. That Defendant was denied his Constitutional, legal, and procedural rights as set forth by Rule 1106 by the Attorney for the Commonwealth's exercise of a peremptory challenge of a juror after said juror had been accepted by both sides.

Leave was granted and argument was heard, after which the lower court denied the motions.

[ 320 Pa. Super. Page 171]

Appellant has waived the assignments of error that he neither briefed nor argued. See Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979) cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979), (issues raised in post-verdict motions but not presented orally or in a brief to lower court are waived); Commonwealth v. Page 171} Holzer, 480 Pa. 93, 100-101, 389 A.2d 101, 105 (1978) ("failure to either brief or orally argue 102 issues . . . deprived [lower court] of any meaningful opportunity to consider them"). Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509-510 (1978) ("requirement that counsel either brief or argue points of error raised in the written post-trial motions . . . furthers the policies underpinning [ Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974)]"). Therefore, we will discuss only the single claim presented to the trial court.

The single claim which appellant has preserved is that the trial court erred in permitting the Commonwealth to peremptorily excuse prospective Juror No. 10. Appellant argues that the Commonwealth had "accepted" Juror No. 10 within the meaning of Pa.R.Crim.P. 1106(e)(1)(B).*fn2 Because

[ 320 Pa. Super. Page 172]

    this juror was "accepted," appellant contends, he could not be removed because Rule 1106(e)(1)(B) specifically states that "[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge." Although the assistant district attorney had written "acceptable" next to Juror No. 10's name, he informed the court very shortly thereafter that he had made a "mistake" and actually intended to peremptorily dismiss Juror No. 10. The record is not clear as to which jurors the Commonwealth had accepted or whether the parties were in fact alternating in casting the initial vote to retain or dismiss a given juror. The only record of what transpired is in a partial transcript of the voir dire and discussion in chambers. The relevant portion of that transcript is reproduced in an Appendix to this opinion. It shows only that defense counsel had "accepted" Juror No. 10; that the assistant district attorney then "accepted" No. 10 and, nearly simultaneously thereafter, defense counsel accepted No. 11 and the assistant district attorney discovered that he had made a mistake: he had intended to excuse Juror No. 10. The record indicates that this was the first peremptory challenge utilized by the Commonwealth. The trial court accepted the prosecutor's explanation and permitted the challenge to be exercised.

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are

[ 320 Pa. Super. Page 173]

    committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980). Likewise, the process of selecting a jury is committed to the sound discretion of the trial judge. The principles of law, including our scope of review, concerning claims regarding the erroneous grant or denial of a challenge of a prospective juror for cause were aptly set forth by Judge Price in Commonwealth v. Short, 278 Pa. Super. 581, 590-591, 420 A.2d 694, 698-699 (1980):

The sole purpose of voir dire examination is to provide the accused with a "competent, fair, impartial and unprejudiced jury." Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973). See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975). Nevertheless, voir dire is not designed to provide a defendant with twelve persons devoid of emotion or opinion.

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 rosa [rasa] but merely a mind 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. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973)

[ 320 Pa. Super. Page 174]

Thus, "[t]he test of disqualification is the juror's ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence . . . ." Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255, 259 (1973), quoting, Commonwealth v. Gelfi, 282 Pa. 434, 437, 128 A. 77, 79 (1925). Moreover, this determination is to be made by the trial judge based upon the juror's answers and demeanor, and we will not reverse a judge's ruling on a challenge for cause absent a palpable Page 174} abuse of discretion, Commonwealth v. Bighum, supra. (Emphasis supplied.)

Furthermore, in determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that "the law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused." Commonwealth v. Niemetz, 282 Pa. Super. at 445 n. 12, 422 A.2d at 1376 n. 12, quoting, Man O'War Racing Association Inc. v. State Horse Racing Commission, 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969), quoting, Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

In reviewing the trial court's allowance of a peremptory challenge, our standard should be the same. The allowance or disallowance of a peremptory challenge, without more, sheds neither light nor doubt upon the competence, fairness or impartiality of the jury selected to hear the evidence. Taint will arise, if at all, from unfairness inherent in the mechanics of the selection process itself. It is only when the court permits the selection process to impugn the fundamental qualities of competence, fairness and impartiality that we may conclude that a "palpable abuse of discretion" has been committed. Our review of the record in this case convinces us that the actions of the trial court did not undermine any of the fundamental qualities of the jury which heard this case. Therefore, we cannot conclude that the trial court committed a palpable abuse of discretion and we will not disturb appellant's conviction.

Although the appellant invokes the provisions of Pa.R.Crim.P. 1106(e) (1)(B), our review of the record leads us to the conclusion that subsection (e)(1) of the Rule does not apply. The sequence of events leading up to the striking of Juror No. 10 shows that the parties were utilizing the "List System" of selection prescribed by subsection (e) (2) rather

[ 320 Pa. Super. Page 175]

    than the "Individual Voir Dire" system prescribed by Rule 1106(e)(1). The parties examined the prospective jurors after they had taken seats as a group in the jury box. (See Tr.Ct.Op., p. 4; N.T. 3/2/81, pp. 6-7.) After the examination regarding the qualifications of the jurors was complete, see Rule 1106(e)(2)(F), the attorneys for the Commonwealth and the appellant exercised their peremptory challenges*fn3 by passing back and forth between them a sheet of paper with each juror's name and number written upon it. The record reveals that the parties were exercising their peremptory challenges seriatim, without any intervening examination of other jurors. The attorneys took turns casting votes either to "accept" or peremptorily excuse the prospective jurors.

This hybrid method of selecting the jury is not within the ambit of the individual system prescribed by Rule 1106(e)(1). That subpart contemplates, rather, that the parties completely examine a juror and challenge his fitness for cause, peremptorily remove him from service or refrain from doing so in one single stage before the next prospective juror is even called. The critical difference between the two methods of jury selection is that in the case of individual voir dire, an attorney selecting a jury sees and examines only one prospective juror at a time. At the time an attorney must decide whether to challenge the particular juror in question, the attorney knows absolutely nothing about which panel member might next be called for examination. Under the list system, on the other hand, as occurred in the case at bar, the attorneys know the entire panel of prospective jurors by name, face and the qualifications revealed by the voir dire colloquy prior to the time the list is passed back and forth. The timing and manner in which the challenges are exercised only underscores and preserves the differences in the selecting attorney's mental state. Furthermore, the trial court's requirement in this case that peremptory challenges be exercised seriatim in numerical order supports the conclusion that the list system was used.

[ 320 Pa. Super. Page 176]

Requiring the uninterrupted numerical exercise of peremptory challenges presupposes that the challenges for cause are to be exercised at some other time. The only system in which such a bifurcation takes place is under the list system. Under the individual system, the parties are to challenge a prospective juror either for cause or peremptorily or refrain from doing so before continuing on to examine the next juror. There is no evidence on this record that this was done.

Moreover, appellant is required to show that the individual system does apply in this case before relief can be granted on the basis of Rule 1106(e)(1). This he has not done. Rule 1106(e) states that "[i]n non-capital cases, the trial judge shall select" either of the two methods of voir dire set forth. See n. 1, supra. Here, appellant has not claimed that the trial judge in fact chose the individual voir dire and challenge system nor that he requested the trial judge to so choose. In the total absence of such information, appellant cannot properly invoke that rule to protect him now.

We will, therefore, not apply Rule 1106(e)(1), but rather Rule 1106(e)(2), because this latter subpart more closely approximates the procedure actually utilized in this case.*fn4 A perusal of subsection (e)(2) discloses no provision identical or similar to that contained in (e)(1)(B) upon which appellant relies. Appellant was entitled, under (e)(2)(F), only to an alternating vote as to the jurors each side sought to exclude by peremptory challenge. He was not entitled at

[ 320 Pa. Super. Page 177]

    any time to have the Commonwealth vote on the jurors in any order or to have the Commonwealth vote to "accept" any juror. Those requirements were imposed by the trial court and were not the subject of an objection by either party. The trial judge permitted the Commonwealth to exercise a peremptory challenge only after carefully evaluating the situation and insuring that the assistant district attorney was not "fishing" and that no harm would accrue to the defense. We agree. The Commonwealth had already known appellant's decision in regard to Juror No. 10 prior to making the mistake. The Commonwealth, therefore, could gain no advantage. Furthermore, the trial judge permitted the parties to vote again on Juror No. 11. The trial court's ruling was not "manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Commonwealth v. Niemetz, supra. The trial judge, therefore, did not abuse his discretion in permitting the Commonwealth to peremptorily challenge prospective Juror No. 10. Accordingly, appellant's argument is meritless.

Moreover, even if any "error" occurred, it was caused by an unintentional mistake on the part of the assistant district attorney in mismarking the jury list. However, a determination that "error" has been committed does not and should not end our inquiry. Error in the abstract does not require a new trial. Error which does not result in prejudice to the accused or deny the accused a fair trial does not warrant an appellate court's reversal of the trial court's denial of a motion for a new trial.

The right to a fair trial is not, it has been properly said, the right to a perfect trial. Commonwealth v. McQuaid, 273 Pa. Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Grimm, 249 Pa. Super. 441, 378 A.2d 377 (1977). In almost every trial, error will occur, and it would be intolerable to require that a trial be repeated, and re-repeated, until no error occurred. Accordingly, the question is not whether there was error, but whether the error was so ...

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