A PROSPECTIVE JUROR WHO IS MORE LIKELY TO BELIEVE THE TESTIMONY OF LAW ENFORCEMENT SHOULD BE STRICKEN FOR CAUSE (even if they later claim they could still be “fair and impartial”)
The Superior Court has held, in the case of Commonwealth v. Penn, No. 1522 WDA 2014 (February 1, 2016), that it is improper for the trial court to require a Defendant to use a peremptory strike to remove a juror who initially admits to being incapable rendering a fair, impartial and unbiased verdict because they are more likely to believe the testimony of a police officer or any other law enforcement officer.
FACTS
Penn was arrested and charged with a variety of crimes, including possession of a controlled substance with the intent to deliver (hereinafter “PWID”). The Commonwealth’s entire case rested upon the credibility of the police officers. The Commonwealth’s only two witnesses at trial were City of Pittsburgh Police detectives.
During the selection process, Prospective Juror (“R.Z.”) answered “yes” to the following questions on the written juror information questionnaire: 1) “[h]ave you or anyone close to you ever worked in law enforcement or the justice system?” and 2) “[w]ould you be more likely to believe the testimony of a police officer or any other law enforcement officer because of his or her job?”
R.Z. initially indicated that she was incapable of rendering a fair, impartial and unbiased verdict. R.Z. answered “yes” to the written question “[w]ould you be more likely to believe the testimony of a police officer or any other law enforcement officer because of his or her job?” R.Z. also unequivocally testified during voir dire that she “would be more likely to believe the testimony of a police officer,” thus indicating that she was biased in favor of the police and the Commonwealth.
Defense counsel asked to strike R.Z. from the jury for cause in that she demonstrated through her conduct and answers a likelihood of prejudice against the Defendant and in favor of the Commonwealth. The trial court denied Penn’s challenge to excuse R.Z. for cause and Penn was forced to use one of his peremptory challenges to strike R.Z. as a juror. Penn eventually exhausted all of his peremptory challenges.
Penn proceeded to a jury trial, where the Commonwealth presented two witnesses: Detective Burgunder and City of Pittsburgh Police Detective Edward Fallert. The jury found Penn guilty of PWID and possession of heroin and, on August 27, 2014, the trial court sentenced Penn to serve a term of seven to 14 years in prison.
ISSUE
Did the trial court err when it denied Penn’s challenge to excuse prospective juror R.Z. for cause, thus forcing Penn to use one of his peremptory challenges to strike R.Z. as a juror.
HOLDING
The trial court abused its discretion when it denied Penn’s challenge to excuse R.Z. for cause. Moreover, the error was not harmless. Penn’s judgment of sentence is vacated and the matter remanded for a new trial.
REASONING
The Superior Court stated that the test of disqualification is a juror’s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence. Accordingly, the purpose of the voir dire examination is to provide an opportunity to counsel to assess the qualifications of prospective jurors to serve. It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. The inquiry must be directed at ascertaining whether the venireperson is competent and capable of rendering a fair, impartial and unbiased verdict.
The Commonwealth and defense are each given a limited number of peremptory strikes before jury selection. Prospective jurors may be stricken for any non-discriminatory reason by the use of a peremptory strike. They may also be stricken “for cause.”A challenge for cause to service by a prospective juror should be sustained and that juror excused where that juror demonstrates through his conduct and answers a likelihood of prejudice. For example, a challenge for cause should be granted “when the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice.”
Although a prospective juror may ultimately inform the trial court that they could be fair and impartial, the Superior Court noted that the juror’s eventual assurance that he could be fair did not dispel the force of his prior candid admissions. Additionally, previous case law reflected the appellate court’s skepticism about the juror’s assurances when those assurances appeared to be the product of suggestive questioning by the court aimed at eliciting a judicially desired response. For each of these reasons, the Superior Court determined that the trial court’s refusal to excuse the juror for cause constituted an abuse of discretion.
In the instant case, R.Z’s admitted bias in favor of the police was documented by her own testimony: she currently works as a security officer for a casino; she previously worked in the California University of Pennsylvania Police Department for two years, while she was a student in college; she previously served two years in the United States Marshals’ apprenticeship program; she previously completed an internship with the Bethel Park Police Department; and, her boyfriend is a police officer in a borough that surrounds the City of Pittsburgh.
As in the prior case relied upon by the Superior Court, R.Z. eventually testified that she would be able to follow the trial court’s instructions and render a “fair and impartial” decision. However, almost immediately after R.Z. testified that she would be able to “be fair and impartial,” she again testified that, “because of her experience . . . she would be inclined to believe” the police.
Therefore, R.Z.’s eventual assurance to the trial court that she would be fair did not dispel the force of her admissions of bias. R.Z. should have accordingly be excused for cause.
In conclusion, where a defendant such as Penn is forced to use one of his peremptory challenges to excuse a prospective juror – who should have been excused for cause – exhausts his peremptories before the jury is seated, a new trial will be granted.
http://www.pacourts.us/assets/opinions/Superior/out/J-A27017-15o%20-%201025269996064295.pdf?cb=1
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