Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Carbon County, No. 246-CR-85.
Thomas S. McCready, Lansford, for appellant.
Richard W. Webb, District Attorney, Jim Thorpe, for Com.
Brosky, Wieand and Beck, JJ. Brosky, J., files a concurring and dissenting opinion.
[ 369 Pa. Super. Page 348]
James J. Didyoung was tried by jury and was found guilty of attempt to commit homicide*fn1 and aggravated assault*fn2 because of the May 27, 1985 beating of his sleeping brother about the head with a crowbar.*fn3 Post-trial motions were denied, and Didyoung was sentenced to serve a term of imprisonment for not less than five years nor more than ten years.*fn4 On appeal, he argues that he should receive a new trial because a juror failed to disclose during voir dire (1) that the juror's uncle, who died in 1968, had been a police officer; and (2) that the cousin of the juror's wife was married to Chief of Police Thomas Mase, who had been the arresting officer. Appellant also contends that the trial court abused its discretion by imposing an excessive sentence. We find no merit in these contentions and affirm the judgment of sentence.
Prior to trial the prospective jurors were given a questionnaire which asked, inter alia, the following question:
Are (have) you or any member of your immediate family: . . . presently (or in the past been) a member of any law enforcement agency?
During voir dire, the following questions were asked by the prosecution:
Is there anyone here who knows Chief [Thomas] Mase and, because of their knowledge of Chief Mase, would feel they could not decide the case solely on the evidence?
Does anybody in this prospective panel have family members who are involved in law enforcement?
One of the jurors, Dennis McHugh, failed to give an affirmative answer to any of the foregoing questions and was seated as a juror. Appellant contends that the juror's failure to disclose that his deceased uncle had been a
[ 369 Pa. Super. Page 349]
policeman and that his wife's cousin was then married to the arresting officer was improper and deprived him of a fair trial.
"'It is the duty of the parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors . . . . [T]he failure to do so and to make objection at the proper time operates as a waiver . . . .'" Commonwealth v. Aljoe, 420 Pa. 198, 206, 216 A.2d 50, 55 (1966), quoting Commonwealth v. Walker, 283 Pa. 468, 472-473, 129 A. 453, 454 (1925). Such a waiver will be excused, however, where "'the party affected has been intentionally ...