                            [J-64-2013] [MO: Stevens, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                No. 23 EAP 2013
                              :
              Appellee        :                Appeal from the Judgment of the Superior
                              :                Court entered September 11, 2012 at No.
                              :                1336 EDA 2010, affirming the Judgment of
         v.                   :                Sentence entered April 16, 2010 in the
                              :                Court of Common Pleas of Philadelphia
                              :                County, Criminal Division, at Nos. CP-51-
HAROLD WINSTON NOEL, JR.,     :                CR-0011510-2008; CP-51-CR-0011511-
                              :                2008; and MC-51-CR-0033142-2008.
              Appellant       :
                              :                ARGUED: September 11, 2013


                                CONCURRING OPINION


MR. JUSTICE BAER                                         DECIDED: November 21, 2014
       There are several touchstones within American criminal jurisprudence with which

every citizen can identify: the right to remain silent; the right to effective counsel; and

the right to trial by a fair and impartial jury. Constitutions have formed these hallmarks,

statutes and judicial decisions have defined them, and procedural rules have sharpened

them. Inextricably encompassed within the right to trial by a fair and impartial jury is the

process by which the jurors are selected; and, in Pennsylvania, that process is

regulated by Pa.R.Crim.P. 631 - 635. Specifically, subsections (E)(1) and (E)(2) of Rule

631 provide for two different methods of voir dire: the “individual voir dire and challenge

system,” and the “list system of challenges,” respectively. In non-capital cases such as

the one presented instantly, the trial judge shall select the method to be utilized. In this

case, the trial court chose the subsection (E)(2) “list system.”
       When the list system is chosen, a battery of potential jurors shall be compiled,

the number of which shall be no less than twelve, plus the number of alternatives the

trial court has determined should be selected, plus the total number of peremptory

challenges for the Commonwealth and defendant combined.                 See Pa.R.Crim.P.

631(E)(2)(a).      Initially, no peremptory challenges are permitted.   Rather, upon the

receipt of the juror questionnaires and examination of the prospective jurors, only “for

cause challenges” may be made by either side. See id. 631(E)(2)(b)-(c). If the granting

of for cause challenges brings the total number of potential jurors below the

aforementioned minimum threshold, then more prospective jurors “shall be added to the

list,” and they shall be scrutinized in the same manner as those originally on the list.

See id. 631(E)(2)(d)-(e). Of most importance to this appeal, only once all prospective

jurors have been examined, and all for cause challenges have been made, may

peremptory challenges be exercised by “passing the list” of the remaining prospective

jurors alternatively between the parties. See id. 631(E)(2)(f). Upon the exhaustion of all

peremptory challenges, those left in the pool are seated as the principal and alternate

jurors.1 See id.

       Instantly, Harold Winston Noel, Jr. (Appellant) was to be tried for his alleged role

in two armed robberies. The trial court determined that the jury would be composed of

twelve principal jurors and two alternates, and as noted above, selected the list system

as the mode of jury selection. In accord with Rules 633 and 634(A)(2), each party was

1
       The list system is contrary to the individual voir dire method, where both for
cause and peremptory challenges are exercised immediately following examination of
each individual prospective juror. See Pa.R.Crim.P. 631(E)(1)(a)-(b). Accordingly, and
unlike the list system, the parties do not know which jurors will be dismissed for cause
before utilizing peremptory strikes. Accord id. The individual voir dire method is usually
employed in the most serious of cases, and is mandatory in capital homicide trials, in
which the parties are given twenty peremptory strikes instead of seven. See
id. 634(A)(3).



                              [J-64-2013] [MO: Stevens, J.] - 2
given seven peremptory challenges for principal jurors, and one additional peremptory

challenge for alternate jurors. The parties were then given an initial list of forty-one

potential jurors, and the court and counsel began the task of questioning them.

      Dismissals for hardship and for cause challenges quickly brought the number of

potential jurors down to twenty-three, well below the minimum threshold described in

Rule 631(E)(2)(a), which for this case was thirty.2 According to the plain language of

Rule 631(E)(2)(d), upon recognizing that the minimum threshold had been exceeded,

the trial court should have ceased voir dire, obtained new, prospective jurors to add to

the list, and then resumed the list system process by subjecting the newly added

prospective jurors to questioning and dismissal for cause.

      Apparently, however, new, prospective jurors were not available to the court until

a “fresh panel” was brought into the Philadelphia Criminal Justice Center the following

day. Given this pragmatic difficulty, and despite the clear, explicit, and unambiguous

direction of Rule 631(E)(2)(d), the trial court forced counsel for both sides to use

peremptory challenges on the twenty-three jurors currently on the prospective list,

without any knowledge or information as to what the make-up of the “fresh panel” would

be the next day. Based on this procedure, any juror not stricken by the end of the first

day would be seated on the jury. Appellant’s counsel objected, but the court overruled

the objection.    Appellant’s counsel then exercised all seven of his peremptory

challenges, while the prosecuting attorney saved one for the next day’s “fresh panel.”

Given the thirteen peremptory strikes, the list of twenty-three potential jurors was

reduced to ten, who all became principal jurors.

2
       The minimum threshold for thirty is computed as follows: the selection of twelve
principal and two alternate jurors; the dismissal of fourteen prospective principal jurors
via peremptory strike; and the dismissal of two prospective alternate jurors via
peremptory strike.



                            [J-64-2013] [MO: Stevens, J.] - 3
      The following day, upon the presentation of the “fresh panel,” Appellant’s counsel

renewed his objection to the procedure, which the court again overruled. The parties

then started examining the new, prospective jurors in the manner provided by Rule

631(E)(2)(b)-(c). After the first six were interviewed, the trial court stopped the process

because, absent a strike for cause being granted, four of these first six would fill the

remaining slots on the jury. After the court indicated that it would not sua sponte strike

any of the six for cause, Appellant’s counsel moved for the court to strike prospective

Juror No. 2 for cause, as she had indicated during questioning that her sister was a

police officer, and was equivocal in her answers as to whether she could therefore

evaluate a police officer’s testimony without any untoward bias. The court denied the

motion.

      Upon that denial, Appellant’s counsel requested the trial court to grant him an

additional peremptory strike, reasoning: “had I had the opportunity to evaluate the pool,

[Juror No. 2] would have been a juror that I would have stricken.” Notes of Testimony,

Feb. 9, 2010 at 60.     Counsel further observed that he was forced to use his final

peremptory strike during the previous day’s selection on a prospective juror who had

twice been the victim of armed robberies, after the trial court had denied a strike for

cause for the same juror. Counsel therefore averred that, absent the trial court granting

him an eighth peremptory strike, Appellant would be denied his constitutional right to an

impartial jury. The prosecuting attorney responded that he would have liked to have

stricken a juror during the previous day’s proceedings, but strategically kept his seventh

peremptory challenge for day two, and that it was not his fault that Appellant’s counsel

did not do the same. The trial court agreed and denied Appellant counsel’s motion.

Appellant would later be convicted of the majority of the charges against him, and this

appeal followed.




                            [J-64-2013] [MO: Stevens, J.] - 4
      A majority of the Superior Court affirmed the judgment of sentence. The panel

first opined that, when the trial court forced the parties into using any peremptory

challenges it wished at the conclusion of day one (and thus before all members of the

venire were chosen) in evident violation of Rule 631(E)(2), such a violation was not per

se prejudicial because it essentially mirrored the individual voir dire process

contemplated by Rule 631(E)(1), and nothing prohibited the trial court from selecting the

jury in such a hybrid fashion. See Commonwealth v. Noel, 53 A.3d 848, 857 (Pa.

Super. 2012). The panel then continued that no actual prejudice to Appellant was

apparent because Appellant did not contend that the jury, as seated, was not impartial

or unqualified, nor did he allege any other form of substantive prejudice. See id.

      Judge David N. Wecht dissented, initially agreeing with the majority that the trial

court erred in its application of Rule 631, and further that the hybrid approach used by

the trial court was not per se prejudicial. The dissent disagreed, however, with not

granting Appellant a new trial, opining that “prejudice necessarily inheres where such

errors may have compelled a defendant to exhaust his peremptory challenges

differently than he would have done absent the error.” Id. at 860 (Wecht, J., dissenting).

The dissent noted that while the improper loss of a peremptory challenge does not

automatically implicate the federal constitution’s right to an impartial jury, “they are a

means to achieve the end of an impartial jury.”       Id. at 861 (Wecht, J., dissenting)

(quoting Ross v. Oklahoma, 487 U.S. 81, 88 (1988)). The dissent contended, however,

that a showing of actual prejudice is also not necessary; indeed, it is quite often

impossible. Rather, the dissent concluded that reversible error should be found if the

decision of the trial court denied the defendant “the opportunity to use the prescribed

number of peremptory challenges in the way intended by the rule.” Id. at 866 (Wecht,

J., dissenting). Here, in the dissent’s view, that denial took the form of the trial court




                            [J-64-2013] [MO: Stevens, J.] - 5
essentially forcing Appellant to exhaust his challenges on the first day, before the entire

pool of potential jurors was subject to questioning and for cause challenges.

      While the Majority Opinion herein does not completely accept that error occurred,

for my part, I agree with the Superior Court dissent that the trial court clearly and

palpably violated and misapplied Rule 631.3 As noted, the court chose to utilize the

Rule 631(E)(2) list selection procedure for this case. When the trial court did not want

to make the twenty-three jurors remaining in the selection pool come back for a second

day of jury selection, it presented Appellant and the Commonwealth with a Hobson’s

choice: either use your peremptory challenges now, or wait for tomorrow; but, failure to

use the peremptory challenges will result in anyone left at the end of the day being

placed on the jury.

      More to the point, nothing in Rule 631 authorizes a trial court to switch back and

forth between the jury selection methods or to create a hybrid of the two simply because

the day has run late or the jury assembly room is empty. Importantly, no decision from

this Court, the ultimate arbiter and interpreter of the Rules of Criminal Procedure,

countenances the unconventional scheme undertaken by the trial court here.4 To be

3
       Tangentially, I note that the Majority, in relating that the appropriate standard of
review in this case is an evaluation of whether the trial court committed an abuse of
discretion, seems to overlook that discretion is abused not just when a court acts with
biased or partial judgment, but further when it fails to conform with, overrides, or
misapplies the prevailing law based upon the facts of a given case. See Lineberger v.
Wyeth, 894 A.2d 141, 146 (Pa. Super. 2006) (quoting Miller v. Sacred Heart Hosp., 753
A.2d 829, 832 (Pa. Super. 2000)). Accordingly, the trial court’s misapplication of Rule
631, as described infra, certainly qualifies as an abuse of discretion.
4
       Indeed, the Majority resorts to two inapposite Superior Court cases for the
conclusion that an abuse of discretion does not lie if a trial court decides to implement
or employ a hybrid method of jury selection. See Maj. Slip Op. at 21-22. The first of
these, Commonwealth v. Berrigan, 535 A.2d 91, 96-97 (Pa. Super. 1987), misinterprets
language from an earlier Superior Court decision (Commonwealth v. Pittman, 466 A.2d
1370, 1373-74 (Pa. Super. 1983)) as authorizing hybrid jury selection. However,
(continuedH)

                            [J-64-2013] [MO: Stevens, J.] - 6
sure, if the Majority Opinion in this appeal is read as this Court’s licensing of trial courts

to conduct jury selection in a manner similar to that completed here, then the dichotomy

and procedures established by Rule 631 will be of little import in the future.

       With that said, however, I ultimately find myself in a concurring posture in this

appeal because Appellant has failed to preserve for appellate review the discrete issue

of whether he suffered any actual prejudice under the specific circumstances of this

case. As recounted by both the Majority herein and the Superior Court dissent, courts

have noted that the improper loss of a peremptory challenge does not rise to the level of

a per se violation of one’s constitutional right to a fair and impartial jury. That general

rule notwithstanding, if a defendant can show that he was tried before an improperly

constituted jury due to a trial court wrongfully forcing a defendant into using a

peremptory challenge, then a new trial may be warranted. The archetypal example of

what is deemed to be “actual prejudice” occurs when a defendant is forced “to use his

peremptory challenges on a person who should have been excused for cause and the

defendant exhausts those peremptory challenges prior to the seating of the jury.”

Commonwealth v. Ingber, 531 A.2d 1101, 1104 (Pa. 1987) (quoting Commonwealth v.

Jones, 383 A.2d 874, 876 (Pa. 1978)).


(Hcontinued)
Pittman actually noted that hybrid methods of voir dire are not contemplated by the
Rules of Criminal Procedure. Pittman, 466 A.2d at 1374. The other decision,
Commonwealth v. Williams, No. 560 WDA 2001 (Pa. Super. 2003) (unpublished
memorandum) is unpublished, not precedential, and not properly cited in a judicial
opinion, pursuant to the Superior Court’s Internal Operating Procedure § 65.37(A) (“An
unpublished memorandum decision shall not be relied upon or cited by a Court or a
party in any other action or proceeding, except that such a memorandum decision may
be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res
judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal
action or proceeding because it recites issues raised and reasons for a decision
affecting the same defendant in a prior action or proceeding.”).



                             [J-64-2013] [MO: Stevens, J.] - 7
       The Majority rejects the argument that the instant appeal is akin to Ingber or

Jones, and concludes that any error in this case associated with the hybrid application

of Rule 631 was harmless.        I disagree. Had the trial court followed the clear and

unambiguous mandates of Rule 631(E)(2)(d) when the available jury pool fell below the

thirty jurors minimally required for selection of a full jury, see supra note 2, the following

should have happened: court should have adjourned for the day, the “fresh panel”

should have been added to the prospective pool, and, when the parties returned the

next morning, Appellant’s counsel should have been given the opportunity to question

Juror No. 2 concerning her potential biases regarding police officers and moved to strike

her for cause. When the trial court denied that motion, counsel could then have made

the strategic decision to strike Juror No. 2 or some other prospective juror via

peremptory challenge when the list was passed for the exercising of those challenges.

Then, had Appellant used a peremptory challenge on Juror No. 2, Appellant may have

had a meritorious issue for appeal pursuant to Ingber, if an appellate court determined

that the trial court erred in not striking Juror No. 2 for cause.

       Of course, what happened instead was Appellant used all of his peremptory

challenges on day one of jury selection due to the erroneous Rule 631 procedure

implemented by the trial court, and that directly triggered Juror No. 2 being placed on

the jury.   While this fact pattern is not quite on all fours with Ingber, the resulting

prejudice seems to be the same, and this would have been an appropriate case for

appellate disposition if Appellant had argued to the appellate courts that the trial court’s

failure to strike Juror No. 2 for cause was error, and therefore that he was actually

prejudiced when Juror No. 2 was placed on the venire.

       Unfortunately, however, Appellant did not pursue this line of reasoning, and

instead his arguments echo the Superior Court dissent’s logic that prejudice exists here




                              [J-64-2013] [MO: Stevens, J.] - 8
solely because the trial court’s hybridization of Rule 631 “forced Appellant to assess an

incomplete jury pool for purposes of applying his peremptory challenges without full

information about the jury pool as it would composed.” Noel, 53 A.3d at 866 (Wecht, J.,

dissenting).   Appellant and the dissent expound that relief should therefore be granted

upon “the mere possibility that the defendant had been cheated of one peremptory

challenge.” Id. at 865 (Wecht, J., dissenting) (emphasis in original).

       Respectfully, the “mere possibility” of prejudice is antithetical to the prevailing

standard defined by federal and Pennsylvania jurisprudence: actual prejudice. Instantly,

the prospect of actual prejudice exists and, again, would have been a worthy question

to review. However, Appellant has waived any challenge to the prejudice associated

with Juror No. 2 sitting in judgment of him by failing to raise such an argument in his

statement of matters complained of on appeal pursuant to Pa.R.A.P 1925(b), see

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”); or in his briefs to the Superior Court and this Court.

See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“Where an appellate brief

fails toHdevelop an issue in any other meaningful fashion capable of review, that claim

is waived.     It is not the obligation of an appellate court to formulate appellant’s

arguments for him.”) (internal quotations omitted); see also Pa.R.A.P. 2119(a)

(providing that appellate briefs must contain “such discussion and citation of authorities

as are deemed pertinent”). Accordingly, while I disagree with much of the Majority

Opinion, I am constrained to concur in the result.5

5
        Unlike this author, Mr. Justice Saylor, in dissent, would find Appellant entitled to
relief given the Commonwealth’s failure to assert an argument that any error resulting
from the trial court’s violation of the rules was not prejudicial and was, therefore,
harmless error. Respectfully, as noted herein, I do not conclude, as does the majority,
that the violation of the rules by the trial court here was harmless error. Nevertheless, in
this regard I note that we have previously indicated that this Court may affirm a lower
(continuedH)

                            [J-64-2013] [MO: Stevens, J.] - 9
(Hcontinued)
court based upon harmless error even if such an argument is not raised by the parties.
See Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). Rather, I reject the idea
that a violation of the rules is per se prejudicial and that absent a showing of actual
prejudice, as was established by the Appellants in Jones and Ingber, relief in the form of
a new trial is not warranted.




                           [J-64-2013] [MO: Stevens, J.] - 10
