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COMMONWEALTH PENNSYLVANIA v. RONALD LEE SMITH (05/13/85)

submitted: May 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RONALD LEE SMITH, APPELLANT



Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8002724A.

COUNSEL

Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, concurs in the result.

Author: Wieand

[ 346 Pa. Super. Page 485]

The present appeal has been filed from an order dismissing a P.C.H.A. petition after hearing. Ronald Lee Smith argues that trial counsel was constitutionally ineffective for failing to request a public voir dire examination of prospective jurors. We find no merit in this argument and affirm the order denying post-conviction relief.

Appellant was tried by jury on September 17 and 18, 1980, and was found guilty of murder in the second degree. The Superior Court, on direct appeal, affirmed the judgment of sentence per curiam; and the Supreme Court denied allocatur. Appellant then filed a P.C.H.A. petition alleging that trial counsel, who had been privately retained, was ineffective for failing to request public voir dire examination of prospective jurors. He relied upon the 1984 decision of the United States Supreme Court in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and a 1982 decision of the

[ 346 Pa. Super. Page 486]

Superior Court of Pennsylvania in Commonwealth v. Johnson, 309 Pa. Super. 367, 455 A.2d 654 (1982). These decisions held that a defendant's right to public trial under both the United States Constitution and the Pennsylvania Constitution included the right to have the jury selected in public.

The circumstances under which a jury was selected to try appellant were not challenged or in any way made an issue during his trial, in post-verdict motions filed thereafter, or on direct appeal from the judgment of sentence. The issue, therefore, has been waived. Even if Johnson is to be given retroactive effect, it can be applied only "to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

In apparent recognition that the issue has not been preserved, appellant argues in this collateral attack on his conviction that trial counsel was ineffective for failing to raise the issue in the trial court and for failing to preserve it at all stages of adjudication up to and including the direct appeal. However, we will not "impose upon trial counsel the qualities of a seer . . . and counsel will not be deemed ineffective for failing to predict future developments in the law." Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel's stewardship under standards as they existed at the time of his actions. Id., 476 Pa. at 89, 381 A.2d at 881.

When this case was tried it was not unusual in this Commonwealth to conduct voir dire in an area apart from the courtroom and then bring the selected jury into the courtroom for trial. See, e.g., Commonwealth v. Knight, 469 Pa. 57, 69-70 n. 11, 364 A.2d 902, 908 n. 11 (1976). This was true even though the right to public trial (and hence public voir dire) had been a longstanding recognized part of Anglo-American jurisprudence. See: Press-Enterprise, ...


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