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Commonwealth of Pennsylvania v. Harold Winston Noel

September 11, 2012

COMMONWEALTH OF PENNSYLVANIA,
APPELLEE
v.
HAROLD WINSTON NOEL, JR., APPELLANT



Appeal from the Judgment of Sentence Entered April 16, 2010, In the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. CP-51-CR-0011510-2008, CP-51-CR-0011511-2008, MC-51-CR-0033142-2008.

The opinion of the court was delivered by: Shogan, J.:

J-A06007-12

BEFORE: GANTMAN, SHOGAN and WECHT, JJ.

OPINION BY SHOGAN, J.:

Appellant, Harold Winston Noel, Jr., appeals from the judgment of sentence entered on April 16, 2010, in the Philadelphia County Court of Common Pleas. On appeal, Appellant challenges, inter alia, the trial court's application of Pa.R.Crim.P. 631(E)(2) in that he was required to exercise peremptory challenges before the exercise of all his challenges for cause. For the reasons set forth below, we affirm.

The relevant facts of this matter may be briefly summarized as follows. At a jury trial held on February 16, 2010 through February 18, 2010, Mr. Zachary Willis ("Willis") testified as a witness for the Commonwealth. Willis stated that on June 29, 2008, while walking to a gas station at Aramingo Avenue and Somerset Street in Philadelphia, a man later identified as Appellant approached him. N.T., Trial, 2/16/10, at 17. Appellant said "Yo, let me get your wallet." Id. Willis thought it was a joke at first, but he realized that it was not when he saw Appellant was pointing a gun at him. Id. at 18. Willis gave his wallet to Appellant, and Appellant fled towards Somerset and Memphis Streets. Id. Willis subsequently identified Appellant in a line-up as the man who robbed him. Id. at 66.

Next, Mr. Eugene McPeak ("McPeak") testified and stated that on June 29, 2008, as he was placing his groceries into his vehicle, a man approached him and demanded the cash McPeak had in his hand. N.T., Trial, 2/17/10, at 22. The man then lifted his shirt and removed a gun. Id. at 23. With the gun drawn, the man pushed McPeak down and ran north towards Aramingo Avenue. Id. at 23. McPeak, however, was unable to identify the person who attempted to rob him. Id. at 29.

Next, a co-conspirator, Steven Reiner ("Reiner"), who is also known as Michael Reiter, testified for the Commonwealth. He testified that he was involved in the robberies involving Willis and McPeak, and that he pled guilty to these crimes and was currently incarcerated. N.T., Trial, 2/17/10, at 89. He testified that he and Appellant conspired to engage in these robberies in an effort to obtain cash so that they could buy drugs. Id. at 70-74. Reiner corroborated the testimony of Willis and McPeak. Id.

At the conclusion of the trial, on February 19, 2010, the jury returned a verdict of guilty as to criminal conspiracy to commit robbery, possession of an instrument of crime, and possession of a firearm with the manufacturer number altered with respect to McPeak. The jury further found Appellant guilty of robbery, criminal conspiracy to commit robbery, firearms not to be carried without a license, possession of an instrument of crime, possession of a firearm by a prohibited person, and possession of a firearm with the manufacturer number altered with respect to Willis.

On April 16, 2010, the trial court sentenced Appellant to an aggregate term of 29 to 58 years of incarceration. Appellant timely appealed. On appeal, Appellant raises two issues for this Court's consideration:

Did not the trial court violate Pa. R. Crim. P. 631(E)(2) by requiring the defense and prosecution to exercise peremptory challenges before the exercise of all challenges for cause?

Whether Appellant was deprived of his right to a fair trial under the United States and Pennsylvania Constitutions by the prosecutor's accusation in closing argument that defense counsel "insulted" and "excoriated" complainant Zachary Willis and

"dragged (him) through the mud, in court", and by implicitly injecting a claim of entitlement to special consideration for the complainant by expressing personal outrage at alleged mistreatment of "victims in my prosecutions, victims in my cases"?

Appellant's Brief at 2. We will address these issues in the order in which they were presented.

In his first issue, Appellant claims the trial court violated Pa.R.Crim.P. 631 and erred in requiring the parties to exercise peremptory challenges before the exercise of challenges for cause. Because this argument requires us to interpret a procedural rule, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Dowling, 598 Pa. 611, 616, 959 A.2d 910, 913 (2008). The rule at issue is set forth below:

Examination and Challenges of Trial Jurors

(A) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge's presence is waived by the attorney for the Commonwealth, the defense attorney, and the defendant, with the judge's consent.

(B) This oath shall be administered individually or collectively to the prospective jurors:

"You do solemnly swear by Almighty God (or do declare and affirm) that you will answer truthfully all questions that may be put to you concerning your qualifications for service as a juror."

(C) Voir dire, including the judge's ruling on all proposed questions, shall be recorded in full unless the recording is waived. The record will be transcribed only upon written request of either party or order of the judge.

(D) Prior to voir dire, each prospective juror shall complete the standard, confidential juror information questionnaire as provided in Rule 632. The judge may require the parties to submit in writing a list of proposed questions to be asked of the jurors regarding their qualifications. The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or the judge may conduct the examination. In the latter event, the judge shall permit the defense and the prosecution to supplement the examination by such further inquiry as the judge deems proper.

(E) In capital cases, the individual voir dire method must be used, unless the defendant waives that alternative. In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:

(1) Individual Voir Dire and Challenge System

(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.

(b) Challenges, both peremptory and for cause, shall be exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to

Rule 641.

(2) List System of Challenges

(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least 12, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).

(b) Prospective jurors may be examined collectively or individually regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.

(c) Challenges for cause shall be exercised orally as soon as the cause is determined.

(d) When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.

(e) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (E)(2)(b).

(f) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated. No one shall disclose which party peremptorily struck any juror.

Comment: This rule applies to all cases, regardless of potential sentence. Formerly there were separate rules for capital and non-capital cases.

If Alternative (E)(1) is used, examination continues until all peremptory challenges are exhausted or until 12 jurors and 2 alternates are accepted. Challenges must be exercised immediately after the prospective juror is questioned. In capital cases, only Alternative (E)(1) may be used unless affirmatively waived by all defendants and the Commonwealth, with the approval of the trial judge.

If Alternative (E)(2) is used, sufficient jurors are assembled to total 12, plus the number of alternates, plus at least the permitted number of peremptory challenges (including alternates). It may be advisable to assemble additional jurors to encompass challenges for cause. Prospective jurors may be questioned individually, out of the presence of other prospective jurors, as in Alternative (E)(1); or prospective jurors may be questioned in the presence of each other. Jurors may be challenged only for cause, as the cause arises. If the challenges for cause reduce the number of prospective jurors below 12, plus alternates, plus peremptory challenges (including alternates),

new prospective jurors are called and they are similarly examined. When the examination is completed, the list is reduced, leaving only 12 jurors to be selected, plus the number of peremptories to be exercised; and sufficient additional names to total the number of alternates, plus the peremptories to be exercised in selecting alternates. The parties then exercise the peremptory challenges by passing the list back and forth and by striking names from the list alternately, beginning with counsel for the prosecution. Under this system, all peremptory challenges must be utilized. Alternates are selected from the remaining names in the same manner. Jurors are not advised by whom each peremptory challenge was exercised. Also, under Alternative (E)(2), prospective jurors will not know whether they have been chosen until the challenging process is complete and the roll is called. . .

Pa.R.Crim.P. 631 (and selected comments).

Jury selection in this case spanned two days, February 8 and 9, 2010. At the outset, the trial court made clear that it intended to proceed pursuant to the "list method" of jury selection (N.T., 2/8/2010, at 19; Trial Court Opinion, 5/9/11, at 12), which, as noted above, is prescribed by Rule 631(E)(2). The record reveals confusion among the court and the parties regarding the gravamen of that rule generally, and its application in this case specifically. Appellant's counsel repeatedly requested that the parties not be asked to exercise peremptory strikes until the jury pool had ...


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