J-S03010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WALTER JOHN SARVIS,

                            Appellant                 No. 2717 EDA 2016


          Appeal from the Judgment of Sentence Entered July 7, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004990-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 04, 2018

        Appellant, Walter John Sarvis, appeals from the judgment of sentence

of an aggregate term of 17½ to 35 years’ incarceration, imposed after he

was convicted of aggravated indecent assault of a child and related offenses.

On appeal, Appellant alleges, inter alia, that the trial court erred by denying

his motion to strike a prospective juror for cause, thus forcing him to use a

preemptory challenge to remove that individual from the jury pool.        After

careful review, we vacate Appellant’s judgment of sentence and remand for

a new trial.

        The trial court summarized the facts and procedural history of this

case, as follows:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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            This case stems from [Appellant’s] sexual abuse of a 10-
     year-old girl (“Victim”) that occurred on an ongoing basis for
     over a year. [Appellant] was previously in a relationship with
     [V]ictim’s mother. During this time, and beyond the termination
     of the relationship, [Appellant] resided in the house with mother,
     her two sons[,] and [Victim]. When … [V]ictim was in fourth and
     fifth grade, her mother would leave for work very early in the
     morning before the children went to school. … [V]ictim’s two
     brothers would then leave for school, as the middle school
     started earlier than … [V]ictim’s elementary school. [Appellant]
     would then be alone in the house with Victim and would require
     her to go down to his bedroom in the basement and undress.
     [Appellant] sexually abused … [V]ictim, as he fondled …
     [V]ictim’s chest and genitals, penetrated … [V]ictim’s vagina with
     his fingers and made … [V]ictim fondle his penis.

           In May of 2015, when [V]ictim was in fifth grade, her class
     was shown a video on inappropriate touching and related
     matters. Victim became visibly upset during this video, at which
     point she left the room and her teacher saw her in the hall and
     took her to the counselor’s office.       Victim explained what
     [Appellant] had been doing to her, and the proper school
     reporting methods for suspected abuse were initiated. At that
     point, a criminal investigation began as well as investigations by
     Children and Youth Services (“CYS”) and the Child Advocacy
     Center. Victim made statements [that] consistently detailed the
     sexual abuse she endured at the hands of [Appellant].

            On February 11, 2016, [Appellant] was found guilty by a
     jury of three counts of Aggravated Indecent Assault of a Child,
     three counts of Indecent Assault of a Person Less than 13 years
     of age, one count of Corruption of Minors, and one count of
     Endangering Welfare of Children. On July 7, 2016, following [a
     Sexually Violent Predator (SVP)] Hearing o[n] June 16, 2016, []
     Appellant was sentenced to an aggregate term of confinement of
     17.5 to 35 years, Tier III Megan’s Law Registration and was
     deemed a[n] [SVP]. On July 14, 2016, [] Appellant filed a
     “Motion for Reconsideration of Sentence[.”] On July 27, 2016,
     the [c]ourt issued an [o]rder [d]enying [Appellant’s] Motion for
     Reconsideration of Sentence. On August 25, 2016, [] Appellant
     filed a timely Notice of Appeal. This [c]ourt directed [] Appellant
     to file a Concise Statement of [Errors] Complained of on Appeal
     pursuant to Pa.R.A.P. 1925(b). Following a request for [an]
     extension and the filing of a Statement of Matters Complained of


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      on Appeal, on December 14, 2016, Appellant filed an Amended
      Concise Statement of Matters Complained of on Appeal….

Trial Court Opinion (TCO), 7/19/17, at 1-2 (footnotes omitted).

      Herein, Appellant presents two issues for our review:

      [I.] Did the [t]rial court err in denying the motion of defense
      counsel to strike for cause Juror #17 at [j]ury selection who
      reported to the court that he was a coworker of two of the
      witnesses to be called to testify and that he would have a
      predisposition to believe them?

      [II.] Did the [t]rial court err in finding [Appellant] to be a[n]
      [SVP] as defined at 42 Pa.C.S.[] § 9799.12 because the
      Commonwealth failed to establish by clear and convincing
      evidence that due to a mental abnormality or personality
      disorder he is likely to engage in predatory[,] sexually violent
      offense[s] pursuant to 42 Pa.C.S.[] § 9799.24?

Appellant’s Brief at 5.

      Appellant first challenges the trial court’s denial of his motion to strike

a prospective juror (hereinafter “Juror 17”) for cause, after that juror

informed the court that he knew two witnesses who would be testifying for

the Commonwealth.         Juror 17 testified, upon further questioning, that he

believed those two witnesses were ‘trustworthy,’ and he could not be certain

that he would not give greater weight to their testimony, as compared to

witnesses he did not know. After this testimony, Appellant moved to strike

Juror 17, which the court denied, thus forcing Appellant to use a peremptory

challenge to excuse Juror 17.        Appellant then exhausted his remaining

peremptory challenges. He now argues that he was wrongfully deprived of

the peremptory challenge used to strike Juror 17 and, thus, he was denied

his right to a fair and impartial jury.


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      After careful consideration of Appellant’s arguments, the record before

us, and the case law on which Appellant relies, we are constrained to agree

that Appellant is entitled to a new trial. We begin by recognizing that

      [a] criminal defendant’s right to an impartial jury is explicitly
      guaranteed by Article I, section 9 of the Pennsylvania
      Constitution, Pa. Const. Art. I, § 9. The jury selection process is
      crucial to the preservation of that right. The relevant principles
      governing the examination of veniremen to assess their
      impartiality are set forth in this Court’s decision in
      Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983):

         It must be remembered the purpose of the voir dire
         examination is to provide an opportunity to counsel to
         assess the qualifications of prospective jurors to serve.
         Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5
         (1973); Commonwealth v. Lopinson, 427 Pa. 284, 234
         A.2d 552 (1967), vacated and remanded 392 U.S. 647, 88
         S.Ct. 2277, 20 L.Ed.2d 1344, appeal after remand, 449 Pa.
         3, 296 A.2d 524, cert. denied, 411 U.S. 986, 93 S.Ct.
         2269, 36 L.Ed.2d 963 (1973); Commonwealth v.
         McGrew, 375 Pa. 518, 100 A.2d 467 (1953).              It is
         therefore appropriate to use such an examination to
         disclose fixed opinions or to expose other reasons for
         disqualification. [] Johnson, supra; Commonwealth v.
         Swanson, 432 Pa. 293, 248 A.2d 12 (1968), cert. denied
         394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); []
         Lopinson, supra; [] McGrew, supra. Thus the inquiry
         must be directed at ascertaining whether the venireperson
         is competent and capable of rendering a fair, impartial and
         unbiased verdict.     [] Johnson, supra; [] Lopinson,
         supra; [] McGrew, supra. The law also recognizes that
         prospective jurors were not cultivated in hermetically
         sealed environments free of all beliefs, conceptions and
         views.     The question relevant to a determination of
         qualification is whether any biases or prejudices can be put
         aside upon the proper instruction of the court.
         Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292
         (1977); [] Johnson, supra.

      Id. at 588, 459 A.2d at 320.


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             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. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d
       811 (1985). The decision whether to disqualify a venireman is
       within the discretion of the trial court and will not be disturbed
       on appeal absent a palpable abuse of that discretion. [] Colson,
       supra; Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d
       255 (1973); Commonwealth ex rel. Fletcher v. Cavell, 395
       Pa. 134, 149 A.2d 434 (1959); Commonwealth v. Pasco, 332
       Pa. 439, 2 A.2d 736 (1938); Commonwealth v. Gelfi, 282 Pa.
       434, 128 A. 77 (1925).

Commonwealth v. Ingber, 531 A.2d 1101, 1102–03 (Pa. 1987).

       In   this   case,   Juror    17   indicated   that   he   knew   two   of   the

Commonwealth’s witnesses in this case, Tom Sherbinko, a teacher, and

Catherine Mallam, a guidance counselor.1 N.T. Jury Voir Dire, 2/8/16, at 68.

Juror 17 explained that he had worked with Mr. Sherbinko and Ms. Mallam at

the school where they taught. Id. Juror 17 was thereafter questioned, and

answered, in pertinent part, as follows:

       THE COURT: Regarding the witnesses you knew, these teachers
       you just mentioned, do you have any social experience with


____________________________________________


1 At trial, Tom Sherbinko testified that he is Victim’s teacher, and he
observed her sobbing in the hallway after seeing a classroom video about
inappropriate touching. See N.T. Trial, 2/9/16, at 157. When Mr. Sherbinko
asked Victim what was wrong, she said, “that’s what my stepdad does to
me.” Id. at 158. Mr. Sherbinko then notified Catherine Mallam, the school
guidance counselor, about Victim’s remark. Id. at 166. Ms. Mallam testified
that she spoke with Victim privately and Victim told her that her ‘stepdad,’
whom she identified as Appellant, “touches her in a way that makes [her]
feel uncomfortable.” Id. at 179. Victim elaborated that Appellant touches
“her chest area and her crotch.” Id. Ms. Mallam then notified the school
principal and the school social worker. Id.



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     them in a positive or negative way that would affect your ability
     to be fair and impartial?

     [Juror 17]: Not that I know of. I[] don’t believe so, no.

     THE COURT: So you’d be able to evaluate their testimony if they
     testified either way fairly and if they didn’t prove their case you’d
     be able to return a verdict of not guilty, and if they did prove
     their case --

     [Juror 17]: Yeah. I mean, I know them to be trustworthy
     individuals, and as I said, as long [as] I’ve known them so --

     …

     THE COURT: And you had answered that you knew them to be
     trustworthy. Would you be able to give that not any greater
     weight because you know them, that you would treat them as
     any other witness?

     [Juror 17]: It’s hard to say. It’s hard to say, because, again, I
     do know them and other witnesses I would not know so I would
     hope that I could be impartial but I mean, it’s up to you guys to
     decide. I mean, I do know them, known them for many years.

     THE COURT: Okay. So you’d give them the same test of
     credibility that you’d give any other witness on the stand?

     [Juror 17]: I would like to think I would.

     THE COURT: All right. Any other questions?

     …

     [Defense Counsel]:     So   how    long   have   you   known    Tom
     [Sherbinko]?

     [Juror 17]: I’ve known them both for I’d say maybe 15 to 20
     years.

     …

     [The Commonwealth]: You mentioned that you find the
     witnesses to be trustworthy and it’s hard to say whether you
     would give their testimony greater weight, right?

     [Juror 17]: As a witness I would not know.

     [The Commonwealth]: That’s your honest opinion?

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     [Juror 17]: Yes.

     …

     THE COURT: Let me make sure I understand your final answer.
     You’re not going to give them any greater weight as a witness?

     [Juror 17]: I would think I would not but again, because I know
     them and I believe them to be trustworthy --

     [The Commonwealth]: But is it correct to say you don’t know
     whether you can or cant?

     [Juror 17]: I would say – I can’t say I’m sure that I wouldn’t.

     [The Commonwealth]: That’s your honest answer?

     [Juror 17]: Yes.

     THE COURT: Do me a favor. Just stand over there for a second.

     Juror 17: Sure.

     [Sidebar discussion outside Juror 17’s presence.]

     THE COURT: What’s your feeling on [Juror 17]?

     …

     [Defense Co-Counsel]: Judge, he said he doesn’t know if he can
     be fair and impartial. He said --

     THE COURT: I heard him say that he would try and be fair and
     impartial.

     [Defense Counsel]: Well, I’m sure he would try.      Of course he
     would try.

     [Defense Co-Counsel]: He said his final answer was, he wasn’t
     sure.

     [Juror 17 recalled to the stand.]

     THE COURT: … We’re having [a] little [inaudible], because you
     know the witnesses --

     [Juror 17]: I’m wavering in my answers.




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     THE COURT: I asked you a number of questions, and I asked
     you do you socialize [with the witnesses], and you told me you
     don’t socialize with them?

     [Juror 17]: Right. I have not socialized with them.

     THE COURT: Now, the real question is, are you going to give
     them greater weight because you think they’re trustworthy
     because they’re teachers, because you know them. You don’t
     know them personally, you don’t socialize with them. You have
     to be able to, if somebody cross-examines them, you doubt their
     credibility, would you be able to say you know, I don’t quite
     believe you, and that’s really where we’re at, okay? Their
     testimony may be fine but it may be subject to cross-
     examination or [it] might not be. For the defense attorneys,
     they have to be able to be sure that if they have proven their
     testimony to be unworthy, not credible, that you’d be able to not
     believe their testimony. If that was the case, you wouldn’t
     believe them just because they were teachers --

     [Juror 17]: Right. That’s correct. Yes, I would not believe them
     just because they’re teachers and I worked with them, but the
     question you asked me was, would I give them more weight
     than, you know, somebody that I know, that I believe them to
     be trustworthy from my experience with them. I think I would
     probably give them more weight than someone I didn’t know.

     [Defense Counsel]: Sure. You have a predisposition to believe
     them.

     [Juror 17]: Right. I would base my belief on the testimony.

     [The Commonwealth]: Would you be able to put all of your prior
     experiences with them out of your mind and just think about
     how they testified, what they said, how they said it, were they
     believable on the stand in this trial?

     [Juror 17]: Yes, I believe I would.

     THE COURT: You know, just similar to the police question I ask
     people, a lot of people like police, a lot of people don’t like
     police, but the people that like police, we always ask that
     [inaudible] the fact that someone is a police officer, we give
     them no greater weight nor less weight, and that’s really the
     question here. Do you think that again you would evaluate them



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      fairly and not give them more credibility just because they’re in
      the teaching profession and you think that [inaudible]?

      [Juror 17]: I think I would evaluate them fairly. I think I could.
      I believe I would.

N.T. Trial at 69-76.

      At the conclusion of this questioning, defense counsel moved to strike

Juror 17 for cause, stressing that “[t]he big issue is that [Juror 17] said that

he would give [the two witnesses’] testimony more weight.” Id. at 78. The

court replied, “No, he didn’t. No, he didn’t. We questioned that and went

over that. You’re going to have to use a peremptory [strike]. I note your

objection.”   Id.   Appellant ultimately used a peremptory strike to remove

Juror 17 from the jury pool, and he also utilized all of his remaining

peremptory strikes in formulating the final jury panel.

      Appellant now claims on appeal that the trial court abused its

discretion by denying his motion to strike Juror 17. Appellant stresses that

the juror informed the court that he believed two of the Commonwealth

witnesses were trustworthy, and indicated “that he would be likely to find

them more credible than other witnesses.”            Appellant’s Brief at 10.

Appellant argues that this case is comparable to Commonwealth v. Penn,

132 A.3d 498 (Pa. Super. 2016), where this Court remanded for a new trial

after the trial court refused to strike a juror who exhibited a predisposition to

believe a police officer. After reviewing Penn, and the case on which Penn

relies, Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982), we

are compelled to agree with Appellant.



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      We begin with Johnson, where during voir dire, a prospective juror

exhibited emotional distress and wavered on whether he could be fair and

impartial, because his daughter had been the victim of a rape and robbery

that had similar facts as in Johnson’s case. When questioned about whether

he could be fair, the juror made remarks like, “I think it would be difficult[,]”

and “I’m wondering if I am able to do it.”      Johnson, 445 A.2d at 512-13

(citation to the record and emphasis omitted).       The juror also repeatedly

stated that he was surprised by his strong emotional reaction, and he

indicated that he might not have “full control” when following the court’s

instructions in the case. Id. at 513.

      Based on this record, the Johnson panel concluded that the juror

should have been excused for cause. We stressed that the juror

      vividly demonstrated during voir dire that he would … likely not
      … be an impartial juror.        He not only visibly manifested
      emotional distress but specifically expressed substantial doubts
      about his ability to be impartial at least five times. Although he
      acknowledged that “logically” he could separate the robbery and
      rape of his daughter from the robbery of [Johnson’s] victims, he
      added at once that “emotionally, I can see that I don’t have full
      control.”

Id. at 514.    We also concluded in Johnson that the juror’s “eventual

assurance to the court that he would ‘[b]e fair’ did not dispel the force of

these admissions.” Id. (citation omitted). We added:

      This is particularly so in view of the court’s questions, which [the
      juror] may well have understood as suggesting that his proper
      response, and the response desired by the court, was to say,
      despite his doubts, that he would be an impartial juror. It is not
      the court’s function to persuade a prospective juror to put aside


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      doubts expressed, and explained, as earnestly as [this juror’s]
      were.

Id. Thus, we held in Johnson that the trial court abused its discretion by

not striking the juror, and that the error was not harmless, given that

Johnson was “forced to use one of his peremptory challenges to excuse” the

juror, and he “exhaust[ed] his peremptories before the jury was seated….”

Id. Accordingly, we awarded Johnson a new trial. Id.

      Relying on Johnson, we reached the same outcome in Penn. There,

a prospective juror, R.Z., conveyed to the court during voir dire that she had

previously worked in law enforcement, and that her boyfriend was a police

officer. Penn, 132 A.3d at 500. Accordingly, the following questioning of

R.Z. took place:

      [[Penn’s] Attorney]:     So   you’re   pretty   steeped    in   law
      enforcement?

      A: Yes.

      [[Penn’s] Attorney]: You would be more likely to believe the
      testimony of a police officer?

      A: Yes.

      …

      [[Penn’s] Attorney]: So you're going to have to hear from two or
      three police officers in this case. And you—because of your own
      personal experience in working in law enforcement, you would
      give them credibility, extra credibility simply because they are
      police. And there are no right or wrong answers. Would it be
      hard for you not to believe them?

      A: I feel like I would be more inclined to believe them, yes.

      [[Penn’s] Attorney]: I have nothing else….




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     [The Commonwealth]: What it comes down to though, the Judge
     would tell you that you can't give them any more weight or
     credibility. You would be instructed to do that. Do you think you
     could follow the instruction and not raise them up because of
     their position?

     A: Yes.

     ...

     [The Commonwealth]: Obviously your relationship with your
     boyfriend, would that—and the testimony of there being police
     officers in this case, would you be able to be fair and impartial?

     A: I would think so, yes.

     [The Commonwealth]: Follow up?

     [[Penn’s] Attorney]: Well, when you—well, when you say you
     think so, I mean, basically the entire Commonwealth case is
     going to be testimony from the police officers. Would it be
     difficult for you to just not believe them because of your
     experience? I mean, you’ve been a police officer, you’ve worked
     with police, you're dating a police officer. I presume you have a
     certain attachment to this profession.

     A: Correct.

     [[Penn’s] Attorney]: I'm not going to offend you in any way if I
     am—I apologize, but would it be difficult to not—kinship to the
     police to cause for you not to be able—

     A: I think it all comes down to evidence, testimony. So as long
     as I’d—

     [[Penn’s] Attorney]: If they got up there and said, we don't
     know anything and we didn't see anything, I would understand,
     but if they testify to facts which you believe would be enough to
     convict, would it be hard for you not to believe them because of
     your experience? Would you, as you said before, you would be
     inclined to believe them?

     A: (Nods head [in the affirmative].)

     [[Penn’s] Attorney]: I know it’s based on the evidence.

     A: Right.



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     [[Penn’s] Attorney]: But there would be an inclination on your
     part, because of your experience, to be more likely to credit their
     testimony?

     A: I mean—again, I think it comes down to the evidence though.

Penn, 132 A.3d at 500-01 (some brackets added).

     In holding that R.Z. should have been stricken for cause, we stressed

that, like the juror in Johnson, R.Z. “initially indicated that she was

incapable of ‘rendering a fair, impartial and unbiased verdict.’” Id. at 504.

We also relied on the fact that R.Z. “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.” Id. Also similar to the juror in Johnson, “R.Z.’s admitted

bias in favor of the police rested on a firm bedrock,” given R.Z.’s prior

employment in law enforcement, and that her boyfriend was a police officer.

Id. at 505. Finally, the Penn panel concluded that,

     as in Johnson, R.Z. eventually testified that she would be able
     to follow the trial court’s instructions and render a “fair and
     impartial” decision. However, in the case at bar, almost
     immediately after R.Z. testified that she would be able to “be fair
     and impartial,” R.Z. again testified that, “because of [her]
     experience[,] ... [she] would be inclined to believe” the police.
     Therefore, as we held in Johnson, we hold in the case at bar
     that “[R.Z.’s] eventual assurance to the [trial] court that [she]
     would ‘be fair’ did not dispel the force of [her] admissions” of
     bias.5 Johnson, 445 A.2d at 514.
        5 R.Z.’s declaration that “it comes down to the evidence”
        also did not dispel her admissions of bias, given that R.Z.’s
        admitted view of the evidence was that police officers were
        entitled to more credibility.




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Id. (emphasis in original). Given that Penn had used a peremptory strike to

excuse R.Z., and then exhausted his remaining peremptory challenges, the

Penn panel granted him a new trial. Id.

     In light of Johnson and Penn, we are compelled to likewise grant

Appellant a new trial in this case. Here, Juror 17 repeatedly stated that he

believed that Mr. Sherbinko and Ms. Callam were trustworthy, and he

indicated at least four times that he would be likely to give their testimony

greater weight than other witnesses he did not know.         He also explicitly

confirmed that he had a “predisposition to believe them.” N.T. Jury Voir Dire

at 75. As in Johnson and Penn, Juror 17 exhibited a clear bias in favor of

these Commonwealth witnesses. The testimony of these witnesses was an

important piece of the Commonwealth’s case, as it involved Victim’s first

reports of abuse by Appellant.   Also similar to Johnson and Penn, Juror

17’s bias in favor of the Commonwealth rested on a ‘firm bedrock’ of his 15

to 20 year relationship with Mr. Sherbinko and Ms. Callam.

     Moreover, as in Johnson, the court’s questioning of Juror 17 was

inappropriate in this case. The court effectively cross-examined Juror 17 in

an attempt to elicit the court’s desired answers. It continuously disregarded

Juror 17’s wavering about whether he could be fair and impartial, and it

refused to accept the juror’s statements that he would give greater weight to

the testimony of the two Commonwealth witnesses. As set forth supra, “[i]t

is not the court’s function to persuade a prospective juror to put aside

doubts expressed, and explained, as earnestly as [this juror’s] were.”

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Johnson, 445 A.2d at 514.             Because here, the court did just that, we

conclude that any remarks by Juror 17 that suggested he could be fair and

impartial “did not dispel the force of [his] admissions” that he was

predisposed to believing the testimony of these two Commonwealth

witnesses.2

       Finally, as we held in Johnson and reiterated in Penn, “we must

conclude that the error [of not striking Juror 17 for cause] was not harmless:

‘[w]here, as here, a defendant is forced to use one of his peremptory

challenges to excuse a prospective juror who should have been excused for

cause, and then exhausts his peremptories before the jury is seated, a new

trial will be granted.’” Penn, 132 A.3d at 505 (quoting Johnson, 445 A.2d

____________________________________________


2 We point out that in the trial court’s Rule 1925(a) opinion, it cursorily
states, without any discussion, that Johnson, and our Supreme Court’s
decision in Ingber, “differ[] greatly” from the present case. TCO at 6. The
court then declares that Appellant’s case “is more akin to [Commonwealth]
v. W.P., 691 WDA 2016, 2017 WL 1380759, at *1 (Pa. Super. Apr. 17,
2017)[,] wherein our Superior Court affirmed the trial court’s decision to
deny Defendant’s motion to strike potential jurors for cause where
Defendant was on trial for charges relating to sexual assault of a child.” TCO
at 6. While our review of W.P. demonstrates that it is clearly distinguishable
from the present case, even if it were not, W.P. is an unpublished
memorandum decision. “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.”
Superior Court Internal Operating Procedures, § 65.37(A).




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at 514).    Therefore, we are compelled to vacate Appellant’s judgment of

sentence and remand for a new trial.3

       Judgment of sentence vacated.               Case remanded for a new trial.

Jurisdiction relinquished.

       Judge Panella joins this memorandum.

       President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




____________________________________________


3In light of our disposition, we need not address Appellant’s challenge to his
SVP designation, as that sentence is now vacated.



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