J-S03010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 WALTER JOHN SARVIS                        :
                                           :
                     Appellant             :    No. 2717 EDA 2016

            Appeal from the Judgment of Sentence 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.

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

      The learned Majority holds that the trial court abused its discretion in

denying Appellant’s challenge for cause where Juror 17 initially expressed

concerns that he might accord more weight to two witnesses he had known

professionally for 20 years and considered trustworthy. I disagree, as the

juror’s statements during voir dire were not marked by certitude, involved no

display of emotion, revealed no close personal relationship or allegiance to the

witnesses, and reflected no entrenched, fixed bias suggesting a likelihood of

prejudice.    Instead, after identifying his own comments in this regard as

“wavering,” the juror stated his belief that he would be impartial, that he

would hold the witnesses to the same test of credibility, and that he would

evaluate the two witnesses fairly.

      I discern from such an evolving self-analysis a juror who demonstrated

a capacity to set aside his potential bias in order to render a fair and impartial

____________________________________
* Former Justice specially assigned to the Superior Court.
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verdict based on the complete body of evidence, which included far more than

the testimonies of the two witnesses in question.       For this reason, I must

dissent.

             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. It is therefore
      appropriate to use such an examination to disclose fixed opinions
      or to expose other reasons for disqualification. Thus the inquiry
      must be directed at ascertaining whether the venireperson is
      competent and capable of rendering a fair, impartial and unbiased
      verdict. 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.

      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. 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.

Commonwealth v. Ingber, 531 A.2d 1101, 1102–1103 (Pa. 1987) (internal

quotations   and   citations   omitted)   (emphasis    added).    “The   test     of

disqualification is the juror's ability and willingness to eliminate the influence

of his scruples and render a verdict according to the evidence.                 This

determination is to be made by the trial judge based on the juror's answers

and demeanor. . . .     Commonwealth v. DeHart, 516 A.2d 656, 663 (Pa.

1986) (internal citations, quotations, and corrections omitted).      This Court

shall not reverse the trial court’s determination in this regard absent a

palpable abuse of discretion. Id.



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        The majority relies on Commonwealth v. Johnson, 445 A.2d 509 (Pa.

Super. 1982) and Commonwealth v. Penn, 132 A.3d 498 (Pa. Super. 2016)

to conclude that the trial court should have excused Juror 17 for cause. A

review of both decisions shows them to be distinguishable from the present

case.

        In Johnson, a prospective juror admitted the facts of the case before

him evoked strong emotions he believed would compromise his ability to be

impartial at trial. Specifically, the juror explained during voir dire that his

daughter had been the victim of a rape and robbery bearing some important

similarities with the facts of Johnson. The juror became emotional during

the proceeding and confided with the court “I didn’t realize how strongly I feel

about this and that if I consider that, I’m not what I thought I was [with

respect to] trying to be fair and consider the evidence in such a case . . . .”

Id. at 512.

        When the court asked him if he believed he would be fair, particularly

where the facts here did not involve a sex crime, the juror replied it would be

difficult to be fair “because I can see how I’m reacting. I didn’t realize how

strongly I felt about this. . . . [A]t the last moment this [the sex crime] is

what the robbers did [to his daughter].” Id. To the court’s follow-up question

of whether the juror would persist in this mindset even if the court instructed

him that it would be improper to allow such emotions to infiltrate his

assessment of facts, the juror answered, “I realize that, logically. It should

not be so but I could see emotionally, I can see that I don’t have full control

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in that case, because as I said, I didn’t realize how strong it was in relating it

to you and I didn’t expect myself to break down, practically.” Id. at 513.

      The court continued to engage the juror in a lengthy exchange in which

he counseled the juror on the importance of appreciating the difference

between the two cases and committing himself to controlling emotional

reactions to evidence so they would not impede his ability to make fair and

impartial credibility determinations in the present case.            “That’s the

question[,]” the court asked, “[c]an you be fair?” Id. The juror responded

that he could be fair, and the court later refused to excuse the juror for cause.

      On appeal, this Court reversed, given the “considerable distress” the

juror clearly felt at the prospect of sitting in judgment over a case bearing

similarities to a violent crime his daughter had endured.    We reasoned:

      Mr. Rubin vividly demonstrated during voir dire that he would be
      likely not to 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 appellant's victims, he
      added at once that “emotionally, I can see that I don't have full
      control.”

Id. at 514.

      Moreover, given the juror’s deep-seated emotional reaction to the

charges and his repeated admissions that he doubted his ability to overcome

such emotions and deliberate impartially, his eventual assurance to the court

that he would “‘[b]e fair’ did not dispel the force of these admissions[,]” we

concluded.


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      In Penn, it was undisputed that the Commonwealth’s entire case

depended upon the testimony of two police detectives. Juror R.Z. had made

a career in law enforcement and security, and her boyfriend was a municipal

police officer.   When asked if she was “steeped in law enforcement” and

whether she “would be more likely to believe the testimony of a police officer,”

she answered a definitive “yes” to both questions. Similarly, to the question

“Would it be hard for you not to believe [the police officers slated to testify in

the case,]” R.Z. answered, “I feel like I would be more inclined to believe

them, yes.” Id. at 500.

      Later, however, R.Z. confirmed that she could follow instructions not to

give police any more weight or credibility, and to the question of whether she

could render a fair and impartial decision, R.Z. answered, “I would think so,

yes.” Id. Nevertheless, R.Z. soon reverted to her original position, nodding

her head in the affirmative when defense counsel asked her “would it be hard

for you not to believe them because of your experience?” She qualified her

answer, however, saying “I mean—again, I think it comes down to the

evidence though.” Id. at 501. Afterward, the trial court denied the defense

challenge to excuse R.Z. for cause.

      Critical to our decision to reverse in Penn were two features to the

matter. First, we observed, “the Commonwealth’s entire case rested upon the

credibility of the police officers, given that the Commonwealth’s only two

witnesses at trial were City of Pittsburgh Police detectives.” Id. at 504. This

placed in sharp relief R.Z.’s assured, unequivocal answer of “yes” to the

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question put to her both in the written questionnaire and again in open court

during voir dire, “[w]ould you be more likely to believe the testimony of a

police officer or any other law enforcement officer because of his or her job?”

We found the certitude of these answers “indicat[ed] that R.Z. was biased in

favor of the police and the Commonwealth.” Id.

      Second, “as was true in Johnson, R.Z.’s admitted bias in favor of the

police rested on a firm bedrock, given that R.Z. testified [to an extensive work

history in law enforcement and to a present romantic relationship with a police

officer from a nearby municipality.]” Id. at 505. This intrinsic partiality came

to the fore not only in R.Z.’s initial answers during voir dire, but also in her

testimony immediately following her assurance to the court that she could

render a fair and impartial decision pursuant to jury instructions, when she

again declared that “because of [her] experience[,] . . . [she] would be inclined

to believe” the police. Id.

      In contrast to Johnson and Penn, there is no indication in the case sub

judice that Juror 17 harbored strong emotions about, or deep-seated loyalties

to, the two prospective witnesses because they were educators. Instead, he

stated their examples of workplace honesty over the course of many years

carried weight with him. Unlike in Johnson, we cannot infer from the record

that Juror 17 delivered this statement in anything other than a dispassionate

manner, nor did he offer swift, definitive answers, as the juror did in Penn,

that he would likely believe what they said. Indeed, he accurately described

his own responses to questions on the issue as “wavering,” before he settled

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on the position that he could evaluate the witnesses fairly and render an

impartial decision.

      As such, Juror 17’s answers during voir dire did not betray a fixed

disposition to favor the educators’ respective testimonies at trial. Instead,

they reflected a composed respect for two witnesses he knew to be honest

persons, which Juror 17 tempered with his repeated assertion that he would

nevertheless base his determinations on an even-handed assessment of all

evidence admitted at trial.

      The governing standard of review in cases such as this accepts that

prospective jurors may come to the court with certain biases and still be

suitable for jury duty.    That is to say, the existence of a bias does not

necessarily mandate removal for cause. Instead, the test is whether the juror

exhibits an ability to set aside the bias and render a fair and impartial decision

in the matter at hand. See Ingber, supra. In Johnson and Penn, removal

of the jurors in question was required because they held entrenched

predispositions that placed squarely in doubt their abilities to evaluate the

evidence impartially. The same concerns simply do not arise from the record

before us.

      Moreover, unlike in Penn, the Commonwealth’s entire case did not rest

upon the testimonies of the two educators. Although they did relate the child’s

incriminating statements made in school, many other sources of incriminating

evidence—including the now 11 year-old victim who consistently described her

sexual abuse throughout the investigation, her mother, two CYS caseworkers,

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a police detective, and a forensic interview specialist for the Child Advocacy

Center—were expected at trial, thus alleviating concerns that Juror 17’s long-

standing respect for the two educators would render him incapable of viewing

the evidence impartially.

      Accordingly, I find no abuse of discretion in the trial court’s denial of

Appellant’s challenge for cause, as the record does not support the conclusion

that Juror 17 exhibited a fixed bias in favor of two Commonwealth witnesses

producing a likelihood of prejudice on his part. For this reason, I respectfully

dissent.




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