                            [J-85-2019] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


 MENDY TRIGG, INDIVIDUALLY AND                  :   No. 3 WAP 2019
 SMITHFIELD TRUST, INC., AS THE                 :
 GUARDIAN OF THE ESTATE OF J. T., A             :   Appeal from the Order of the
 MINOR,                                         :   Superior Court dated May 14, 2018
                                                :   at No. 1041 WDA 2017, vacating the
                     Appellees                  :   Judgment of the Court of Common
                                                :   Pleas of Allegheny County entered
                                                :   June 28, 2017 at No. GD 13-002322
              v.                                :   and remanding.
                                                :
                                                :   ARGUED: October 15, 2019
 CHILDREN'S HOSPITAL OF PITTSBURGH              :
 OF UPMC,                                       :
                                                :
                     Appellant                  :


                                 CONCURRING OPINION


JUSTICE WECHT                                          DECIDED: APRIL 22, 2020
      We accepted review of this case to determine whether the court of common pleas

erred in failing to observe the demeanor of prospective jurors who were challenged for

cause during jury selection. Appellees failed to preserve their claim in the trial court.

Appellees’ waiver of their claim precluded the Superior Court from considering it. We

therefore are constrained to reverse the Superior Court. Although this Court can provide

no relief in this case, Allegheny County’s civil jury-selection process gives cause for

serious concern.

      In their medical malpractice action against UPMC Children’s Hospital of Pittsburgh

(“UPMC”), Appellees filed suit in Allegheny County. Pursuant to Allegheny County Local

Rules of Civil Procedure, neither the calendar control judge nor the trial judge oversees

voir dire. Rather, jury selection occurs in the jury assignment room, presided over by a
clerk. The clerk asks the prospective jurors general questions, which are prescribed by

the local rules. Maj. Op. at 3. Once the general questions have concluded, the clerk asks

questions of each prospective juror individually. Id. at 4. Following questioning by the

clerk, counsel for both parties are afforded the opportunity to ask “reasonable” follow-up

questions. Id. In the event a challenge arises during voir dire, the parties must leave the

room and report to a judge elsewhere in the building, who will then hear and rule upon

the challenge. This is not the judge who will try the case but is instead the calendar

control judge, whose several duties include jury selection issues.

       Consistent with this practice, Appellees and UPMC posed follow-up questions to

the prospective jurors under the supervision of a clerk. Appellees questioned prospective

juror number 29 regarding her feelings about medical malpractice actions.               The

prospective juror indicated that she might not be able to be fair and impartial because she

had family members who were doctors and nurses.                Appellees challenged this

prospective juror, and two others, for cause.

       In accordance with Allegheny County practice, counsel for both parties then

departed the jury assignment room and walked to the courtroom of the calendar control

judge to present their for-cause challenges. The judge asked Appellees to proceed with

their objections. Appellees’ counsel asked whether the judge would like to read the

transcripts of the prospective jurors’ voir dire. The judge replied, “Whatever you would

want to do to make your record on your objection, go right ahead.” See Maj. Op. at 6

(citing Notes of Testimony (“N.T.”) 3/17/2017, at 201). Appellees’ counsel responded that

“it would be easier” and “quicker” if the judge read the transcripts, as opposed to bringing

the challenged jurors into the courtroom to once again subject them to questioning. Id.

(citing N.T. 3/17/2017, at 201-02). The judge read the transcripts and denied the for-




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cause challenges. Appellees then used their peremptory challenges to exclude these

jurors. Trial commenced, resulting in a defense verdict.

       Like the Majority, I conclude that Appellees waived their argument that the court

erred by not observing voir dire. Maj. Op. at 13. Not only did Appellees fail to object in

pretrial motions to the judge’s absence during voir dire, they failed to make a

contemporaneous objection to the judge’s absence when advancing their for-cause

challenges. See Pa.R.C.P. 227.1(b).

       Whether by strategy or inadvertence, or perhaps a sense of futility in the face of

long-standing (albeit erroneous) Allegheny County practice, Appellees’ counsel waived

the challenge to the voir dire process and to the judge’s failure to observe the prospective

jurors during voir dire. Appellees are bound by this waiver. In order to preserve an issue

for appellate review, counsel must place a timely, specific objection on the record. See

Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011); Straub v. Cherne

Indus., 880 A.2d 561, 566 (Pa. 2005); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114,

116-17 (Pa. 1974). Issues that are not preserved by specific objection in the lower court

are waived. Pa.R.A.P. 302(a); Straub, 880 A.2d at 617-18. Because Appellees failed to

make a specific objection before the trial court, the Superior Court exceeded the scope

of appellate review by considering an issue that was not preserved.

       The obligation to preserve claims of error for a litigant falls upon counsel. The

classic definition of waiver is the “intentional relinquishment or abandonment of a known

right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). To preserve an objection

for appellate review, “trial counsel is required to make a timely, specific objection during

trial.” Takes v. Metro. Edison Co., 695 A.2d 397, 400 (Pa. 1997). There are two benefits

of timely preservation:

       (1) a timely objection made to the trial court gives that court the opportunity
       to take immediate corrective action, which promotes efficiency in the judicial


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       process by allowing litigants to avoid incurring unnecessary expense and
       delay by being forced to resort to the appellate process; and (2) it offers a
       predictable and neutral standard for appellate review of claims of trial court
       error which is applicable to all cases, unlike the [plain error] standard which
       was inconsistently applied by appellate courts on a case by case basis.
SugarHouse HSP Gaming, L.P. v. Pa. Gaming Control Bd., 162 A.3d 353, 365 (Pa. 2017)

(citing Dilliplaine, 322 A.2d at 117).

       As we have explained, “[r]equiring a specific objection on the record ‘remove[s] the

advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate

court to compensate for his trial omissions.” Jones v. Ott, 191 A.3d 782, 788 (Pa. 2018)

(quoting Dilliplaine, 322 A.2d at 117). It prevents a trial from turning into “merely a dress

rehearsal.” Id.

       A timely objection affords the court the opportunity to remedy the alleged error.

Here, Appellees’ counsel deprived the court of the opportunity to remedy any defects

when he acquiesced without objection to the procedure established in Allegheny County.

By the time counsel alleged in post-trial motions that the trial court erred in not striking

prospective juror 29 for cause based upon that prospective juror’s demeanor outside of

the observation of the trial court, the damage was done and was not subject to correction

by the trial court.

       Because counsel’s waiver results in the relinquishment of the client’s rights, an

attorney representing a client is obligated to invest some thought into the future

progression of the case. To succeed on appeal, counsel is obligated to take affirmative

steps to build a record. This is so even where counsel does not believe that a timely

objection will remedy the challenged conduct. But even if counsel is certain that the court

will overrule the objection, the objection is not futile. Rather, an overruled objection

becomes the basis of an appeal.          One cannot succeed on appeal by wasting the

opportunity to preserve an issue at trial. Even before trial, counsel must anticipate

appellate issues and exercise forethought, laying the groundwork for appeal. It is the


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obligation of every attorney to keep the trial record clear, correct, and complete so that

there is an accurate history of the proceedings. Without constructing a record, the

possibility of appellate review is circumscribed by counsel’s failures.

       Like Justice Donohue, I have deep misgivings about voir dire that is conducted

outside the presence of a judge. See Concurring Op. at 3.1 As Justice Donohue cogently

explains, “[v]oir dire is an essential component of our constitutional right to trial by jury.”

Id. (citing PA. CONST. art. 1, § 6; Bruckshaw v. Frankford Hosp. of Phila., 58 A.3d 102,

108-09 (Pa. 2012)). It is the process by which courts secure a fair and impartial jury.2

       In Shinal v. Toms, 162 A.3d 429, 441-42 (Pa. 2017), this Court established two

standards of review applicable when an appellate court reviews the trial court’s denial of

a challenge for cause. The applicable standard will depend upon whether the prospective

juror was challenged based on presumed prejudice or actual prejudice.                Presumed

prejudice arises from a juror’s close relationship to the case, while actual prejudice is

revealed through the juror’s “conduct and answers” during voir dire. Id. at 441. When a

1       In this regard, I join the Majority in noting that Allegheny County has very recently
revised its local rules to allow for the possibility of some meaningful judicial role in civil
voir dire. See Maj. Op. at 3, n.3 (citing A.C.L.R.C.P. 212.2(d) (effective Feb. 8, 2020)).
Whether this new development has ensued as a result of this litigation or rather from other
causes, it is at all events to be welcomed. But it should begin the process of reform, not
end it. It may well be that Allegheny County’s civil trial rotation list tradition should finally
yield to a modern system of individual trial judge dockets as is the rule in federal courts
and in many state courts. Detailed contemplation of such issues must be left to the
wisdom and experience of the common pleas judges of Allegheny County in the first
instance.
2      Prior to the commencement of jury selection, the calendar control judge advised
counsel of his views regarding for-cause challenges to prospective jurors. In particular,
the judge explained that he did not perceive the prospective juror’s life-experiences as
disqualifying. N.T., 3/17/17, at 14. As we have explained, “[c]hallenges for cause are
essential means by which to obtain a jury that in all respects is impartial, unbiased, free
from prejudice, and capable of judging a case based solely upon the facts presented and
the governing law.” Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017). Contrary to the
judge’s view, life experiences certainly may render a prospective juror partial, biased, or
prejudiced, incapable of deciding a case on the facts and governing law.

                                [J-85-2019] [MO: Todd, J.] - 5
prospective juror reveals a likelihood of prejudice through conduct and answers to

questions during jury selection, we defer to the trial court’s determination and will only

reverse upon an abuse of discretion. Id. at 443.

       The reason we defer to the trial court is simple: personal observation. We defer to

the trial judge because it is the trial judge’s function to ensure the empaneling of a fair

and impartial jury and to assess the juror’s demeanor, conduct, and answers. Shinal, 162

A.3d at 442 (explaining that the reason that an appellate court will defer to the trial judge’s

assessment of a prospective juror is “because it is he or she that observes the juror’s

conduct and hears the juror’s answers”). As we explained:

       [T]he juror appears before [the trial judge, who] sees him and hears what is
       said; and is able to form his opinion as much from the proposed juror's
       conduct as from the words which he utters, printed in the record. Hesitation,
       doubt, and nervousness indicating an unsettled frame of mind, with other
       matters, within the judge's view and hearing, but which it is impossible to
       place in the record, must be considered. As it is not possible to bring these
       matters to our attention, the trial judge's view should be given great weight
       in determining the matters before him.
Id. (quoting Commonwealth v. Gelfi, 128 A. 77, 79 (Pa. 1925)).               It is the court’s

observation of the potential juror’s conduct and demeanor during voir dire that warrants

deference.

       Answers, without demeanor, paint only half the picture. Demeanor and answers

together help paint for the judge a picture of the state of mind, personality, and credibility

of the prospective juror; one cannot be separated from the other.                  Demeanor

encompasses all of the subtle non-verbal cues that comprise communication, such as

facial expressions, body language, hesitation, nervousness, tone, inflection, and

gestures. All of these can communicate a potential bias that may not be apparent from

the words on the page. As the Superior Court in this case observed, physical and verbal

cues, such as “a juror[’s] furtive glance, a tremor of voice, a delayed reply, a change in


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posture, or myriads of other body language” all make up the answers to a question, and

are part of the basis for a challenge to the potential juror’s response. Trigg v. Children’s

Hosp. of Pittsburgh of UPMC, 187 A.3d 1013, 1017 (Pa. Super. 2018); see also Snyder

v. Louisiana, 552 U.S. 472, 477 (2008) (recognizing that challenges to prospective jurors

are often based upon “a juror’s demeanor (e.g., nervousness, inattention), making the

trial court’s firsthand observations of even greater importance”); Commonwealth v.

Robinson, 864 A.2d 460, 490 (Pa. 2004) (noting that it is the trial judge “who sees and

hears the juror, and, in the exercise of a wide discretion, may conclude that he is not

competent to enter the jury box for the purpose of rendering an impartial verdict”) (quoting

Commonwealth v. Sushinskie, 89 A. 564, 565 (Pa. 1913)). Because the foundation of

appellate deference to voir dire rulings is such observation, the lack of personal

observation by the judge ruling on for-cause challenges undermines the rationale for

deference quite thoroughly.

       In this case, the court’s conclusion that the answers of prospective juror 29

revealed that she could be fair and impartial was limited by what the calendar control

judge was able to perceive from the record, a cold record that an appellate court is equally

equipped to view. Had the judge been in the courtroom, he also would have been able

to assess the juror’s hesitation, doubt, nervousness, or non-verbal cues that may have

indicated an unsettled frame of mind. Without personal observation, we will not defer to

the trial court’s resolution of for-cause challenges based upon actual prejudice.

       Like Justice Donohue, I do not believe that calling the prospective juror in before

the judge for a second round of questioning sufficed to replicate the opportunity for

personal observation that the judge already missed. See Concurring Op. at 2-3. Knowing




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he or she is undergoing additional scrutiny, any prospective juror would consciously or

unconsciously recalibrate his or her answers during this second round of questioning.

This is not the functional equivalent of the judge’s presence during voir dire. Id. at 3.

       I agree as well with Justice Donohue’s observation that the unequal treatment of

jury selection in criminal and civil trials contained within our procedural rules cannot be

justified given the critical function performed by the judge overseeing voir dire in both

species of trials.   Compare Pa.R.Crim.P. 631(A), with Pa.R.C.P. 220.3.            Our Civil

Procedural Rules Committee should examine and address this disparate treatment.

       Justice Dougherty joins this concurring opinion.




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