J-A35035-15

                                2016 PA Super 26

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARLIN KELLY,

                         Appellant                   No. 367 WDA 2015


        Appeal from the Judgment of Sentence September 26, 2014
             In the Court of Common Pleas of Beaver County
           Criminal Division at No(s): CP-04-CR-0000133-2013


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

DISSENTING OPINION BY SHOGAN, J.:               FILED FEBRUARY 08, 2016

      I respectfully dissent.

      In reviewing a trial court’s ruling on a challenge to the empaneling of a

juror, “we employ a standard of review which affords great deference to the

trial judge who is in the best position to assess the credibility of the jurors

and their ability to be impartial.”   Commonwealth v. Impellizzeri, 661

A.2d 422, 427 (Pa. Super. 1995). As noted by the Majority, in the case at

bar, during voir dire, Juror No. 1 responded that he was a police officer who

had previously worked with the Commonwealth attorneys, and he knew

some of the police officers who may be called as witnesses. However, “just

because an individual is a policeman is no reason to automatically exclude

him from a jury.”    Commonwealth v. Fletcher, 369 A.2d 307, 308 (Pa.

Super. 1976) (citation omitted).      Moreover, in Impellizzeri, this Court
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explained that “[i]ndividuals are not expected to be free from all prejudices

in order to sit on a jury and the burden here is on appellant to establish that

the challenged jurors possessed a fixed, unalterable opinion that prevented

them from rendering a verdict based solely on the evidence and the law.”

Impellizzeri, 661 A.2d at 427 (internal quotation marks omitted).

      Here, Appellant’s cohort, Tyrone Fuller (“Fuller”), pled guilty and

cooperated with the prosecution.      Moreover, Fuller, as a witness for the

Commonwealth and Appellant, in his own defense, both testified at trial.

Thus, the salient issue was whether jurors could make a credibility

determination with respect to Fuller’s and Appellant’s testimony and if they

could be fair and impartial in reaching a decision based on the law.         The

difficulty Juror No. 1 may have had weighing the credibility of a police

officer’s testimony was largely ancillary.     Compare Commonwealth v.

Jones, 383 A.2d 874, 877 (Pa. 1978) (discussing bias where the potential

juror was a Philadelphia police officer, all police officers who testified were

Philadelphia police officers, Appellant did not testify, the focus of the defense

was on an alleged involuntary confession, and the credibility of the testifying

officers was a critical factor). The trial court addressed Appellant’s challenge

to Juror No. 1 as follows:

      In this case, however, juror number 1 had no personal
      relationship with anyone in the case, and only professional
      relationships with defense counsel, the district attorneys, and
      the police officers. T.T. 8/11/14 (afternoon), at 41-42. The
      district attorneys were not handling any of [Juror No. 1’s] cases
      at that time. Id. at 41. He never discussed the case with any of

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J-A35035-15


       the other officers. Id. at 48. He was not a member now or
       previously of the same law enforcement department as any of
       the officers [in the case at bar]. Id. He indicated that he could he
       fair, would listen to the evidence, and would follow the law. Id.
       at 42, 46.

                                     * * *

              The Court listened carefully to the juror’s responses and
       closely observed his demeanor as he gave his responses. T.T.
       18/11/14 (afternoon), at 50. The Court found the juror to be
       credible and sincere. In the judgment of the Court there was no
       indication from the juror that he could not be fair and impartial
       in this case. Rather, the Court believed, as the juror indicated,
       that he could listen to the evidence presented and would follow
       the law as instructed. Because prejudice is not presumed under
       the circumstances of this case and because the juror could be
       fair and impartial. [Appellant’s] challenge regarding this juror
       was properly denied.

Trial Court Opinion, 4/21/15, at 23-24. I agree that the trial court should

not have presumed prejudice, and given our deferential standard of review, I

conclude that the trial court committed no abuse of discretion or error of

law.

       Additionally, in applying the above standard of review and the

rationale from Impellizzeri, I would reach the same conclusion with respect

to the other two jurors. While Juror No. 14 had seen media coverage of the

case and was unsure she could reach an impartial verdict due to the use of a

firearm and the death of an unborn child, and while Juror No. 22 had read

about the case and admitted that he had formed an opinion concerning

Appellant’s guilt, Appellant did not establish that these jurors had a fixed,

unalterable opinion that prevented them from rendering a verdict based


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J-A35035-15


solely on the evidence and the law. After my review of the record, I cannot

conclude that the trial court abused its discretion or committed reversible

error warranting a new trial.1

       Pursuant to our standard of review, I would affirm Appellant’s

judgment of sentence. Accordingly, I respectfully dissent.




____________________________________________


1
  Regarding Appellant’s challenge to the weight of the evidence, I conclude
that Appellant is entitled to no relief on this issue. An allegation that the
verdict is against the weight of the evidence is addressed to the discretion of
the trial court. Commonwealth v. Sullivan, 820 A.2d 795 (Pa. Super.
2003)). To grant a new trial on the basis that the verdict is against the
weight of the evidence, this Court has explained that the evidence must be
so tenuous, vague, and uncertain that the verdict shocks the conscience of
the court. Id. at 806 (citation omitted). In the instant case, Appellant’s
theory of the case was that it was Fuller who was solely responsible for the
crimes and that Appellant’s version of events should be believed.
Appellant’s Brief at 20. Here, there is nothing shocking about the jury’s
verdict, and I discern no abuse of discretion in the trial court’s decision
denying Appellant’s challenge to the weight of the evidence.



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