J-A16019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LUKE FRAWLEY

                            Appellant                   No. 702 WDA 2013


            Appeal from the Judgment of Sentence March 28, 2013
                In the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001409-2011


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED SEPTEMBER 09, 2014

       Luke Frawley appeals from the judgment of sentence imposed on him

on March 28, 2013, in the Court of Common Pleas of Butler County following

his conviction by a jury on a variety of drug related charges.1 In this appeal,

Frawley raises two issues.         First, he claims the trial court erred when it

refused to grant a challenge for cause for a juror who stated he would give

more weight to the police over an ordinary citizen. Second, he claims the

trial court erred in refusing to allow him to cross-examine a Commonwealth

witness on the witness’s entire criminal history. Following a thorough review

of the submissions by the parties, relevant law, and the certified record, we

agree that it was error not to strike the juror in question for cause.
____________________________________________


1
 Given our disposition of this appeal, we need not relate the specific charges
or sentence imposed.
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Accordingly, we vacate the judgment of sentence and remand for a new

trial.

         After three controlled purchases by a confidential informant, Frawley

was arrested and charged with a variety of drug offenses.          Frawley was

scheduled to go to trial on Monday, December 10, 2012 and a jury was

selected on Friday, December 7, 2012. During jury selection, venire person

number 1 stated,2 “I believe the police officers are sworn to protect us and

to be honest so I would give more weight to what they said.” See N.T. Jury

Selection, 12/7/2012, at 41. Subsequently, defense counsel moved to strike

Juror No. 1 for cause, but the motion was denied. Frawley exercised one of

his seven peremptory challenges to remove Juror No. 1. He used all of his

peremptory challenges in the selection process.

         Our standards of review are as follows:

         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. Commonwealth v.
         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, 1103 (Pa. 1987).
____________________________________________


2
    Hereafter, “Juror No. 1”.



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     Additionally, we are cognizant 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. Commonwealth v. 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); Commonwealth v. Lopinson,
        supra; Commonwealth v. 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. Commonwealth v.
        Johnson, supra; Commonwealth v. Lopinson, supra;
        Commonwealth v. 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); Commonwealth v. Johnson, supra.

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

Id. at 1102-03.

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        Relevant to this appeal, the following exchange took place during voir

dire.

        THE COURT: We are going to start with the questionnaires now.
        Juror number one, stand up. We’ll run down these.              You
        checked yes to the question that states would you be more likely
        to believe the testimony of a police officer because of his or her
        job.   Now, you were upstairs when I went over the basic
        principles of law with you this morning, correct?

        JUROR NO. 1: Yes.

        THE COURT: And I told you that your job as a juror is to
        determine who you’re going to believe and who you don’t
        believe, correct?

        JUROR NO. 1: Yes.

        THE COURT: And I told you that you are to evaluate the
        credibility, that is, the believability of witnesses in the same
        manner and not give any different standard for different
        witnesses, do you recall that?

        JUROR NO. 1: Yes, I do.

        THE COURT: Do you recall me telling you that you are not to
        believe a police officer simply because they’re a police officer
        and you are not to disbelieve a police officer simply because
        they’re a police officer? Do you recall that?

        JUROR NO. 1: Yes, I do.

        THE COURT: So, if you were selected to be a juror in this case,
        would you be able to accept and follow my instructions that you
        are to evaluate the credibility of police officer[s’] testimony in
        the same way and to the same extent as you do a civilian?

        JUROR NO. 1: I would have trouble with it at times depending on
        the situation.

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     THE COURT: Okay. That’s all the questions I have.               Mr.
     Gettleman [defense counsel], any follow up?

     MR. GETTLEMAN: No thank you, sir.

     THE COURT: How about you, Miss Sheehan [Deputy Attorney
     General]?

     MS. SHEEHAN: Just briefly, sir. Juror number one you indicated
     at times are there specific instances?

     JUROR NO. 1: I believe the police officers are sworn to protect
     us and to be honest so I would give more weight to what they
     said.

     MS. SHEEHAN: Thank you, sir.

     THE COURT: Any other questions you want to ask number one
     anyone?

     MR. GETTLEMAN: I have none.

N.T. Jury Selection, 12/7/2012, at 40-42.

     At the end of voir dire, and just prior to the actual selection of jurors,

the court inquired if there were any more challenges. At that time, Juror No.

1 was challenged for cause and the challenge was denied.

     In the Pa.R.A.P. 1925(a) Opinion, the Honorable William R. Shaffer,

cited the above quoted exchange with Juror No. 1 and stated,

     [Commonwealth v.] Ingber involved a denial of a challenge
     for cause where a prospective juror answered “I would” to the
     question, posed during jury selection, “Is there anyone who
     would give greater weight to the testimony of a police officer
     merely because the witness was in fact a police officer?” Id.
     The Supreme Court found the trial court’s denial of the

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      challenges for cause to be reversible error. A new trial was
      granted because of the effective deprivation of the use of
      peremptory challenges. To the extent Ingber is controlling, the
      same outcome is warranted in this case.

Trial Court Opinion, 7/30/2013, at 7.

      We have reviewed Commonwealth v. Ingber, supra, and believe it

represents controlling law. Therefore, we agree with the trial court that a

new trial is warranted.    As noted, in Ingber, the potential juror gave a

similar answer to Juror No. 1. Our Supreme Court reversed both the trial

court and Superior Court, finding the failure to dismiss the potential juror

was error and that the wrongful deprivation of a peremptory challenge

constituted reversible error. Specifically, the Supreme Court stated:

      Wrongful deprivation of one or more of the number of
      peremptory challenges provided for by statute or rule of court is
      clearly an impairment of the defendant’s exercise of his right to
      peremptory challenges. See Harrison, v. United States, 163
      U.S. 140, 16 S.Ct. 961, 41 L.Ed. 104 (1896). The trial court’s
      rulings on the challenges for cause discussed above, which had
      the effect of denying appellant of two of his seven peremptories,
      was therefore reversible error.

Ingber, 531 A.2d at 1105.

      Additionally, we note that two years after Ingber, our Supreme Court

reiterated this position in Commonwealth v. Lane, 555 A.2d 1246 (Pa.

1989).   In Lane, the trial court erroneously sustained an objection for

cause, thereby improperly striking a juror.      Our Supreme Court stated,

directly, that such errors are inherently harmful.




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      Having concluded that the trial court was in error in sustaining
      the challenge for cause, it must be determined whether the error
      was harmless. The Commonwealth claims that the discharge of
      Mr. Mellen did not constitute prejudice to the defendant. This is
      merely another way of stating that, if the ruling was error, the
      error would have been harmless. We are also constrained to
      disagree with this contention. As we have previously noted, it is
      foreign to our concept of justice to permit the trial judge, who
      serves in the role of the impartial arbiter, to intrude into the jury
      selection process in such a manner as would favor one side to
      the contest. Such a departure from our jurisprudence could
      never be condoned and therefore could never be treated as
      harmless. In effect, the trial judge in this case peremptorily
      excluded a juror. That is the function of the advocate, not the
      jurist.

Lane, 555 A.2d at 1252 (Pa. 1989).

      Finally, we note that the Commonwealth has argued that Ingber is

distinguishable from the instant case in that Juror No. 1 was equivocal in his

answer and police credibility was not at issue.      We find these arguments

unavailing.

      The Commonwealth attempted to limit the impact of Juror No. 1’s

statement by questioning what circumstances would lead to the Juror finding

a police officer to be more credible. At that point, Juror No. 1 gave a blanket

statement that police officers are “sworn to protect us and to be honest so I

would give more weight to what they said.” N.T. Jury Selection, 12/7/2014

at 41. We find nothing equivocal about this statement.

      Regarding the testimony of the police witnesses, we note that at voir

dire six of the nine potential prosecution witnesses were law enforcement

officers - either police officers, agents of the Attorney General’s Office or

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crime lab technicians.        At trial, three of those six testified as well as a

detective from the District Attorney’s Office, who testified as an expert

witness.3 Our review of the notes of testimony of the trial indicates police

credibility   was   at   issue.      Therefore,    we   reject   this   aspect   of   the

Commonwealth’s argument.

        Given our disposition of this issue, we need not address Frawley’s

evidentiary issue, which was specific to the prior trial.

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

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




____________________________________________


3
    This witness was not identified to the potential jurors at voir dire.



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