J-S50010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

NAEEM JOHNSON

                         Appellant                   No. 183 EDA 2016


         Appeal from the Judgment of Sentence December 4, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014322-2013


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 13, 2017

      A jury convicted Appellant, Naeem Johnson, of several crimes arising

from his involvement in a drug trafficking scheme. While picking the jury for

the trial, Johnson’s counsel noticed that several jurors on the venire had not

been properly seated according to their venire number. He objected, and

after some confusion on the part of the trial court, most of the jurors were

properly seated. However, one juror was never properly seated, and

therefore was not subjected to voir dire.

      On appeal, Johnson argues that his right to a fair and impartial jury

was violated, as the single, improperly seated juror was effectively stricken

from the panel without cause and without Johnson’s knowledge. After careful

review, we conclude that Johnson has failed to establish that the inadvertent
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exclusion of the juror impacted his right to an impartial jury, and therefore

affirm.

       As Johnson raises a purely procedural challenge, we need not detail

the factual background of his conviction. Instead, we will focus on the pre-

trial procedure used for jury selection in this case.

       For purposes of this appeal, it is undisputed that jury selection in

criminal cases in Philadelphia County starts by summoning a jury venire (or

pool, in common parlance) consisting of approximately forty prospective

jurors.   Each    venire    member      is     assigned   a   sequential   number   for

identification purposes.

       Due to seating limitations in the courtrooms, the venire is then

separated into three separate groups. Venire members are sorted according

to the answers they give on a written questionnaire. Group “A” consists of

venire members who provided answers that raised no legal concerns on the

questionnaire.

       Up to approximately twenty Group “A” members are brought into the

courtroom according to their sequential number for purposes of individual

voir dire.1 If there are more than twenty Group “A” venire members, those

____________________________________________


1  “Voir dire” is a legal term of art, defined as “the examination and
interrogation of prospective jurors,” Commonwealth v. McNamara, 662
A.2d 9, 13 (Pa. Super 1995), for the purpose of ensuring that the jurors can
be impartial and correctly apply the law to the facts as they find them, see
Commonwealth v. Drew, 459 A.2d 318, 320 (Pa. 1983).



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members with later sequential numbers will not be initially brought into the

courtroom for individual voir dire. These Group “A” members will be brought

in for individual voir dire in the eventuality that too many of the initial group

are stricken to allow for a full panel of twelve jurors.

      If there are insufficient Group “A” jurors to fill a jury panel remaining

after individual voir dire, Group “A-1” venire members are brought into the

courtroom according to their sequential venire number to participate in

individual voir dire. Group “A-1” members are venire members who provided

answers of minor legal concern on the written questionnaire.

      Group “B” venire members provided answers that raise significant

legal concerns. They are only called in for individual voir dire if the jury

panel cannot be filled with Group “A” and “A-1” members.

      At Johnson’s jury selection, his counsel noticed that venire members 4,

11, and 15 were all identified as Group “A-1” members. Thus, they were not

initially brought into the courtroom with Group “A” for individual voir dire.

      Johnson’s counsel voiced an objection to the trial court. He argued

venire members should only be separated into Group “A” and Group “B”.

See N.T., Jury Selection, 9/1/15, at 7, 9. Counsel requested that jurors 4,

11, 15, 26, and 35 be brought in with the initial group for voir dire. See id.,

at 35. In response, the trial court directed the court crier to include those

venire members be brought into the courtroom with Group “A” for voir dire.

See id., at 36.


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      Venire members 11, 15, 26, and 35 were brought into the courtroom

and ultimately participated in individual voir dire. See id., at 55-62, 67-73,

99-104, 127-131. Venire member 11 was seated on the jury panel. See id.,

at 62. However, venire member 4 never participated in individual voir dire.

      On appeal, Johnson argues the exclusion of venire member 4 from the

jury selection process violated his right to a fair and impartial jury. Johnson

was entitled to an impartial jury, and thus, his challenge to the selection of

his jury raises a cognizable claim. See Commonwealth v. Sauers, 159

A.3d 1, 14 (Pa. 2017). Our courts utilize voir dire in an effort to ensure a

fair, impartial jury panel that can apply the law as it is given to them by the

trial court. See id. “The process of selecting a jury is committed to the

sound discretion of the trial judge and will be reversed only where the record

indicates an abuse of discretion, and the appellant carries the burden of

showing that the jury was not impartial.” Id., at 14 (citations omitted).

       Here, we are presented with a record that indicates that through

mere inadvertence, a juror that the trial court intended to subject to voir

dire was excluded. There is no allegation that the Commonwealth was at

fault. Nor is there any allegation that the trial court intentionally excluded

this juror. We cannot locate any controlling authority that dealt with a

similar situation. Nor has Johnson.

      However, we need not reach the thorny substantive issue, as Johnson

has entirely failed to establish that the jury that tried him was not impartial.


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Rather, he argues that the Commonwealth cannot establish harmless error.

See Appellant’s Brief, at 15. However, as noted above, a claim that a

defendant’s right to an impartial jury has been violated requires the

defendant prove that the jury panel was not impartial. See Sauers, supra.

       As Johnson concedes in his brief, the record does not reveal any

details about juror number 4. More importantly, the record does not reveal

any glaring issues with the empaneled jury. During jury selection, both

Johnson and the Commonwealth were permitted seven peremptory2 strikes.

See    Pa.R.Crim.P.      634(A)(2).      He    only   exercised   four,   while   the

Commonwealth exercised just five.

       Under these circumstances, Johnson cannot establish that juror

number 4 would have been seated even if they had been subjected to voir

dire. Nor can he establish that he was forced to accept a juror he would have

otherwise stricken. As there is no evidence the composition of the jury was

imbalanced or that juror number 4 belonged to a protected category,

Johnson cannot establish that the jury was unfair or impartial. Thus, he has

failed to carry his burden in establishing that the jury that convicted him was

not impartial.

       Judgment of sentence affirmed.

____________________________________________


2 “A peremptory challenge is a challenge to a prospective juror for which no
reason need be given or cause assigned.” 7 Standard Pennsylvania Practice
2d § 47:42.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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