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COMMONWEALTH PENNSYLVANIA v. ROBERT RONALD SIMON (03/19/86)

decided: March 19, 1986.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER,
v.
ROBERT RONALD SIMON, RESPONDENT



Petition No. 82 W.D.Misc.Dkt. 1985, for Extraordinary Relief and/or Application for Exercise of King's Bench Power.

Nix, C.j., and Zappala, J., file dissenting statements.

Author: Per Curiam

[ 509 Pa. Page 548]

ORDER

AND NOW, this 19th day of March, 1986, the Order of the Court of Common Pleas of Allegheny County, Criminal Division, entered October 11, 1985, at No. CC8406482 in the above-captioned matter is vacated. The matter is remanded for trial without prejudice to respondent's right to raise the death qualification issue on direct appeal.

Disposition

Matter is vacated. The matter is remanded for trial without prejudice to respondent's right to raise the death qualification issue on direct appeal.

NIX, Chief Justice, dissenting.

I dissent.

[ 509 Pa. Page 549]

The claims the Commonwealth attempts to assert are premature and it is inappropriate for this Court to review them in the abstract. It has been a principle of long standing in this Commonwealth that objections to voir dire will not be entertained where the objecting party has not exhausted its peremptory challenges. See, e.g., Commonwealth Page 549} v. Morales, 508 Pa. 51, 494 A.2d 367 (1985); Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984); Commonwealth ex rel. Ryan v. Rundle, 411 Pa. 613, 192 A.2d 362, cert. denied, 375 U.S. 948, 84 S.Ct. 358, 11 L.Ed.2d 277 (1963); Commonwealth v. Moon, 389 Pa. 304, 132 A.2d 224, cert. dismissed, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 270 (1957); Commonwealth v. Bibalo,, 375 Pa. 257, 100 A.2d 45 (1953); Commonwealth v. Spahr, 211 Pa. 542, 60 A. 1084 (1905); Commonwealth v. Fry, 198 Pa. 379, 48 A. 257 (1901). In the instant case no voir dire has even been conducted. Any claim of prejudice, therefore, is purely speculative.

Moreover, if the merits are to be reached, it would be appropriate to allow oral argument. The procedure adopted by the trial court was formulated in response to its conclusion that the death-qualification process results in the empaneling of juries which are conviction-prone and unrepresentative of the community. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court found the empirical data then available "too tentative and fragmentary" to support that conclusion. Id. at 517, 88 S.Ct. at 1774. In the wake of Witherspoon, however, numerous studies of increasing reliability and precision have been conducted. See Commonwealth v. Maxwell, 505 Pa. 152, 171-75, 477 A.2d 1309, 1320-21, cert. denied, U.S. , 105 S.Ct. 370, 83 L.Ed.2d 306 (1984) (Nix, C.J., dissenting). The United States Supreme Court has recently agreed to review a case which will provide the opportunity to reevaluate the death-qualification issue in light of the data now available. Lockhart v. McCree, U.S. , 106 S.Ct. 59, 88 L.Ed.2d 48 (1985). While the decision in Lockhart will be dispositive under the federal Constitution, this Court has an independent responsibility to reevaluate the death-qualification procedure as a matter of state constitutional law. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). Unlike prior cases in which the death-qualification issue has been

[ 509 Pa. Page 550]

    raised, e.g., Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984); Commonwealth v. Maxwell, supra, the instant matter presents a full evidentiary record including both empirical studies and expert testimony. The majority's ...


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