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


COMMONWEALTH OF PENNSYLVANIA, :               No. 23 EAP 2013
                              :
              Appellee        :               Appeal from the Judgment of 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
                              :


                                 DISSENTING OPINION


MADAME JUSTICE TODD                                     DECIDED: November 21, 2014
       I agree with the view expressed by Justice Baer in his thoughtful Concurring

Opinion that the Opinion Announcing the Judgment of the Court does not adequately

acknowledge the gravity of the error committed by the trial court in using a bifurcated,

hybrid method of jury selection not authorized by Pa.R.Crim.P. 631. I also agree with

Justice Baer that the trial court should have suspended jury selection once it became

clear that insufficient numbers of prospective jurors remained to complete jury selection

by the list method, and then resumed the following day with a fresh panel of prospective

jurors added to the depleted pool. With respect to the question of whether this error

caused Appellant to suffer actual prejudice, however, I agree with Justice Saylor that

the Commonwealth had the unshifting burden to prove, beyond a reasonable doubt, that

the trial court’s error was harmless, and that the Commonwealth did not attempt to

satisfy this burden. Accordingly, I join his Dissenting Opinion.
       I note that our Court granted allowance of appeal to also consider the question of

whether the trial court’s error was per se prejudicial. Commonwealth v. Noel, 65 A.3d

385 (Pa. 2013) (order).      I find considerable force in the arguments of amicus, the

Pennsylvania Association of Justice, that the right to exercise peremptory challenges in

the manner provided for by Pennsylvania law is a critical component of the right to a trial

by jury protected by Article I, Section 6 of the Pennsylvania Constitution.                See

Commonwealth v. Fugmann, 198 A. 99, 111 (Pa. 1938) (right to jury trial in Article I,

Section 6 reflects the “cardinal principle . . . that the essential features of trial by jury as

known at the common law shall be preserved,” and that one of those essential features

includes “an ample right of challenge both for cause and peremptorily, secured to

defendant.”). Further, the Supreme Court of the United States in Rivera v. Illinois, 556

U.S. 148 (2009), expressly recognized that “[s]tates are free to decide, as a matter of

state law, that a trial court's mistaken denial of a peremptory challenge is reversible

error per se.” Id. at 162. Since that decision, the high courts of four of our sister states

have found the wrongful denial of a litigant’s right to exercise peremptory challenges —

afforded to the litigant under the law of those jurisdictions — prejudicial per se, as a

matter of state law, and, thus, constitutes reversible error necessitating a new trial. See

Commonwealth v. Hampton, 928 N.E.2d 917 (Mass. 2010); People v. Hecker, 942

N.E.2d 248 (N.Y. 2010); State v. Yai Bol, 29 A.3d 1249 (Vt. 2011); State v. Mootz, 808

N.W.2d 207 (Iowa 2012).

       However, my review of Appellant’s brief to our Court indicates that he abandoned

any claim that he suffered prejudice per se, since he advances no argument in this

regard; to the contrary, he states that “it is not necessary for [our] Court to find that all

violations of Rule 631(E)(1) are prejudicial per se.” Appellant’s Brief at 19.           Thus,

resolution of this discrete question must await a future case.




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