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COMMONWEALTH PENNSYLVANIA v. HAROLD MCNEIL (06/27/89)

submitted: June 27, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
HAROLD MCNEIL, APPELLANT



Appeal from the Judgment of Sentence Docketed April 7, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 87-09-1116, 1117, 1118

COUNSEL

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Del Sole, Tamilia and Cercone, JJ. Del Sole, J., concurs in the result.

Author: Cercone

[ 388 Pa. Super. Page 109]

This is an appeal from a judgment of sentence. Appellant, Harold McNeil, was tried and found guilty by a jury of burglary and possessing an instrument of a crime, generally. Subsequent to the denial of his post-verdict motions, appellant was sentenced to a term of ten (10) to twenty (20) years on the burglary charge and a term of two and one-half (2-1/2) to five (5) years on the possession of an instrument of crime charge. Appellant then filed a petition for reconsideration of sentence. Upon consideration of this

[ 388 Pa. Super. Page 110]

    petition, the court changed appellant's sentence to allow the period of incarceration on the weapons charge to run concurrently with the sentence imposed on the burglary charge. This timely appeal follows.

The facts of this case, as outlined by the lower court, are as follows:

On September 5, 1987, at about 9:40 P.M., Philadelphia police officer John Burke received a radio call of a burglary in progress at the rear of a house at 2505 West Sterner Street, in Philadelphia, Pennsylvania. Burke arrived on the scene and entered the back alley of the house within two minutes of getting the call. He saw [appellant], identified as Harold McNeil, with one leg inside the property and with a tire iron in his hand. Burke apprehended McNeil and placed him under arrest. He observed at the time pry marks or "jimmie" marks around the window consistent with its having been forced open.

Appellant presents four issues for our review. First, appellant argues that the lower court's comments to the venire denied him of his constitutional right to a fair trial and impartial jury.*fn1 Second, appellant states that the lower court erred by refusing to quash an information charging him with burglary. Third, appellant alleges that the evidence was insufficient to sustain his conviction for possession of an instrument of crime. Finally, appellant argues that his double jeopardy rights were violated when the lower court denied his demurrer to the possession of an instrument of crime charge. Because we find no merit to

[ 388 Pa. Super. Page 111]

    these allegations, we affirm the lower court's judgment of sentence.

As previously noted, appellant first contends that the judge's comments to the venire denied him a fair trial and impartial jury. Specifically, appellant argues that the lower court's statements minimized the seriousness of the instant case and the importance of the jury's responsibilities. Appellant also argues that these comments improperly encouraged the jury to presuppose appellant's guilt and aligned the lower court with the prosecution in the eyes of the jurors. Appellant contests four lower court statements. First, appellant argues that lower court improperly commented on the appellate rights of convicted persons. Second, appellant states that the lower court improperly stated that many defendants in his courtroom were convicted. Third, appellant argues that the lower court judge improperly informed the jury of his former employment as a prosecutor. Finally, appellant states that the lower court improperly commented on how quickly the instant action would proceed as a bench trial as opposed to a jury trial.

Reviewing the province of judges, our supreme court has declared that a judge has a duty "to insure that his conduct is 'above reproach,' or minimally, is not prejudicial." Commonwealth v. Hammer, 508 Pa. 88, 96, 494 A.2d 1054, 1058 (1985) (citation omitted). Our review of the jury selection transcripts demonstrates that the conduct of the lower court in the case sub judice was not prejudicial to appellant. Pertinent excerpts of the judge's comments to the venire follow:

The court: Thank you. Members of the panel, I use this occasion now to kill the clock. Have a little fun with you. Maybe rap a little. Tell you what is going on now. This is the time when lawyers do their thing. The piece of paper is going to be passed back and forth between Mr. Bookman and Mr. Means. They are going to write down strike or accept, strike or accept. They get seven peremptory challenges. Not eight. Seven. They get an unlimited number of challenges for cause. It's a very

[ 388 Pa. Super. Page 112]

    exact science. All kinds of books have been written about it. I never understood it. I was prosecutor years ago. I was an original appointee here years ago with a man by the name of Richardson Dilworth and served ten years, then ten years in my own practice. I was always a maverick bucking some political party. I ran four times and the fifth time you made a mistake and you elected me. Then you retained me again some three or four years ago. But this is a job and if you ask me how they do it, I don't know. I used to flip a coin. I am sure Mr. Means and Mr. Bookman have a better technique than that.

Here is your chance to ask a judge a question. Don't ask me about the case because I don't know anything. If I did I would not tell you. But ask me anything that you see or hear on TV or radio or in the newspapers about the courts or about the system or criminal justice. And I learn from you an awful lot. Come on. You must be wondering something. You are stuck here today. You may as well -- I have not taken an envelope in quite awhile as far as I know. Let's see how we can make out. Come on, somebody.

Juror: Are all judges as informal as you are?

The court: They think that I'm crazy. But I don't care. I just find that jurors when they go out to do their thing are so intense, do such a marvelous job, that anything that can relax them I think is preferable. I don't think that justice is going to by any means necessarily prevail in an overly ritualistic fashion. I never have buttoned my robe in 14 years. I wouldn't know how. And don't hold this against my other colleagues. They are very nice people. Thank you. But that's the way I am. Question? I am pretty much that way in everything. When I come to work I wear a jacket and cowboy hat.

Juror: What are your duties after ...


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