J-A33016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYWAN JONES

                            Appellant                 No. 437 WDA 2016


          Appeal from the Judgment of Sentence Dated March 9, 2016
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000999-2015


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                             FILED APRIL 11, 2017

        Appellant, Tywan Jones, appeals from the judgment of sentence

imposed after a jury convicted him of aggravated assault, recklessly

endangering another person, and possession of an instrument of crime.1 We

affirm.

        On March 7, 2015, at the Knotty Pine Tavern in Erie, Appellant and the

Victim, Yagoub Arounda, “became involved in a verbal altercation, which

escalated into a physical fight.” Trial Ct. Op., 5/17/16, at 1. “As the victim

began punching, Appellant began stabbing him multiple times.” Id. Three

days later, Appellant was arrested and charged.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(1), 2705, and 907(b), respectively.
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       On January 13, 2016, Appellant proceeded to a jury trial. Prior to trial,

venirepersons were required to complete the written juror information

questionnaire, as required by Pa.R.Crim.P. 632.2      Pursuant to Pa.R.Crim.P.

632(H), the following questions were included:

       8.    Would you be more likely to believe the testimony of a
       police officer or any other law enforcement officer because of his
       or her job?

       9.    Would you be less likely to believe the testimony of a
       police officer or other law enforcement officer because of his or
       her job?

Multiple venirepersons initially answered that they would be more likely to

believe the testimony of a police officer.3 The record is silent as to what

transpired next, but subsequently the trial court explained this aspect of the

questionnaire to the venire, as follows:

       There is a question that you’ve all answered on your
       questionnaire, whatever your answer may be – let me say this,
       the question is about a police officer’s testimony, and it says:
       Would you believe a police officer just because he is a police
       officer?

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2
 Since no party requested that the jury questionnaires be preserved, they
were destroyed as part of normal court procedure, pursuant to Pa.R.Crim.P.
632(F).
3
  The record is unclear as to the exact number of venirepersons who
answered this question affirmatively.        In his statement of matters
complained of on appeal, Appellant claimed that “[a]t least ten members of
the prospective jury answered ‘yes.’” Pa.R.A.P. 1925(b) Statement at 2. The
Commonwealth does not dispute that assertion. Appellant does not claim
that any members of the venire who responded affirmatively to Question 8
were seated on his jury.



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        Under the law, all witnesses are equal when they take this
        witness stand, in terms of the fact that they are entitled to the
        same consideration as to their credibility. That means that just
        because someone is given a badge, a gun and a uniform, when
        they come into court doesn’t mean that they’re to be judged any
        differently in terms of credibility. That is, by any different
        standard. And those are things that I’ll instruct the jurors at the
        end of the trial to consider.

        So under the law, a witness is not to be believed just because he
        is a police office[r], he is a doctor, he is a lawyer, he is an auto
        mechanic, it doesn’t make any difference. Those witnesses may
        be truthful, they may not be truthful. They may be mistaken,
        they may not be mistaken. There are considerations that you
        are to apply to all of those witnesses when you determine
        credibility, and with the police officer, you can also consider his
        education, training, experience, et cetera, as you would with any
        other witnesses. But no one is to be, under the law, believed
        just because they hold a certain position.

        Is there anyone here who would not be able to follow that
        tenant[4] of our criminal justice system?

N.T. Trial, 1/13/16, at 8-10.5         None of the venirepersons then answered

affirmatively. Trial Ct. Op., 5/17/16, at 4; see also N.T., 1/13/16, at 10.

Appellant did not object to this clarification at any point during voir dire.

        Shortly thereafter, Appellant asked to examine individually those

venirepersons who originally answered on their questionnaires that they are

“more likely to believe the testimony of a police officer,” which counsel

erroneously referred to as question “number nine.” N.T., 1/13/16, at 13-14,

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4
    We assume this is a mistranscription of “tenet.”
5
  The record does not indicate whether the trial court’s explanation was
unprompted or was the result of a review of the completed questionnaires.



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18. The trial court denied this request. Appellant renewed his request at a

later time, and the trial court again denied it.

       On January 15, 2016, after a three-day trial, Appellant was convicted.

On March 9, 2016, the trial court imposed an aggregate sentence of 6.5 – 15

years’ incarceration. On March 23, 2016, Appellant filed a timely notice of

appeal.

       Appellant raises a single question for our review:

       Whether the [t]rial [c]ourt committed reversible error when it
       denied [Appellant’s] request to individually examine prospective
       [jurors] that indicated bias by answering “yes” to question
       number nine (9) of the Jury Questionnaire.

Appellant’s Brief at 1-2.6

       “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.”      Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa.

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6
  In response, the Commonwealth’s appellate brief merely states: “The
court did not deny the [A]ppellant right and accurate representation during
voir dire, nor abuse its discretion in the voir dire process. The jury did not
disregard its duty to follow the law as instructed.” Commonwealth’s Brief at
2. Otherwise, the Commonwealth “incorporate[d] the reasoning of the trial
court in its Opinion, dated May 17, 2016[.]” Id. The trial court’s reasoning,
in its entirety, is: “Judge Connelly explained to the jury panel the relevant
law and meaning of question nine. After his explanation, none of the jurors
responded affirmatively to the question, thereby inferring that the
empaneled jury was free from bias in favor of a police officer’s testimony
and thus, no further questioning was necessary. According[ly], Appellant’s
third claim is meritless.” Tr. Ct. Op., 5/17/16, at 4.



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2014) (plurality) (citing Commonwealth v. Chmiel, 889 A.2d 501, 519

(Pa. 2005)). “The purpose of voir dire is to ensure the empaneling of a fair

and impartial jury capable of following the instructions on the law as

provided by the trial court.”    Id. at 1168.   Where an appellant “has not

demonstrated that the process deprived him of a fair and impartial jury,

neither do we conclude that Appellant suffered actual prejudice.”       Id. at

1172.

        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.

Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016) (citation

omitted); see also Commonwealth v. Briggs, 12 A.3d 291, 333 (Pa.),

cert. denied, 565 U.S. 889 (2011); Commonwealth v. Cox, 983 A.2d

666, 682 (Pa. 2009).

        Here, the trial court explained to the jury panel the relevant law and

meaning of the question, “Would you be more likely to believe the testimony

of a police officer or any other law enforcement officer because of his or her

job?”     The trial court’s explanation was clear and accurate, and it

appropriately told the venirepersons that they should not make credibility

determinations solely on the basis of a witness’ status as a police officer.

Appellant did not object to the trial court’s elucidation during voir dire and


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does not now contend that the trial court erred in giving the explanation. 7

After receiving the explanation, none of the venirepersons said that he or

she did not understand it or was unable to follow it. See N.T., 1/13/16, at

8-10.    That fact made any individual interrogation of the members of the

venire unnecessary.

        Additionally, Appellant does not contend that any of the venireperons

who originally gave affirmative answers to Question 8 were ultimately

selected for his jury.      In the absence of such evidence, Appellant cannot

demonstrate a likelihood of prejudice.           And because Appellant cannot

demonstrate that the voir dire process deprived him of a fair and impartial

jury, we cannot conclude that he suffered actual prejudice. See Noel, 104

A.3d at 1172; see also Briggs, 12 A.3d at 333; Cox, 983 A.2d at 682;

Penn, 132 A.3d at 502.


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7
  In his Rule 1925(b) Statement, Appellant claimed that the trial court’s
explanation was inaccurate because there is a “substantial and material
difference” between what was asked in Question 8 — “would you more likely
to believe the testimony of a police officer or any other law enforcement
officer because of his or her job ?” — and the trial court’s explanation that
the question asked, “Would you believe a police officer just because he is a
police officer?” Appellant has not included that issue in this appeal, and
therefore has waived it, but his brief nevertheless repeats the contention
that the trial court’s explanation was inaccurate. See Appellant’s Brief at 3.
We see no material inaccuracy in the trial court’s explanation. The court
made clear that Question 8 was intended to ensure that jurors did not base
credibility determinations on whether a witness was a police officer.
Because Appellant did not object to the trial court’s explanation when it was
made, Appellant may not raise this objection now.



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     Thus, the trial court did not abuse its discretion in denying Appellant’s

request to individually question members of the venire, and Appellant has

failed to show that his jury was not fair and impartial. See Noel, 104 A.3d

at 1168.

     Judgment of sentence affirmed.

     Judge Lazarus joins the memorandum.

     Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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