J -E02007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                 1    IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                              Appellee

                         v.

DAVID WIGGINS

                              Appellant              No. 1668 EDA 2015

         Appeal from the Judgment of Sentence Entered May 1, 2015
             In the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0007117-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
        LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
        McLAUGHLIN, J.

DISSENTING MEMORANDUM BY STABILE, J.:                  FILED JULY 19, 2019
      The Learned Majority concludes that the trial court did not abuse its
discretion in this case when it denied the defense's motion to strike for cause

prospective juror 56 ("PJ 56") whom the defense claimed displayed hesitation

and equivocation in his ability to act fairly and impartially. I respectfully
disagree with the Majority's conclusion. Based on my review of the record, I

conclude that the defense's for -cause challenge had merit and that Appellant

subsequently suffered sufficient prejudice when he was compelled to use one

of his peremptory challenges on PJ 56 and subsequently exhausted all of his

peremptories. I find this conclusion to be well supported by prior precedent

of this Court. Accordingly, I would vacate and remand this matter to the trial

court for a new trial.
J -E02007-18



      As the Majority observes, we need not recount the background of this

case because the issue on appeal is discrete insofar as it pertains only to the

jury selection process. As a result, I will provide only a brief summation of
the facts. In connection with an armed robbery of a Rite Aid store in Chester,

Pennsylvania, that resulted in the death of Jason McClay (the "victim"),
Appellant along with two other individuals ("co-defendants") was charged with

a   number of offenses, including second-degree murder, robbery and
conspiracy. Appellant and co-defendants proceeded to a joint trial.

      During jury   selection,   PJ   56   attracted the   defense's   attention.

Specifically, during the group voir dire, PJ 56 did not either stand or respond

when the court asked the following two questions. First, "[i]s there anything

about the nature of the charges themselves that would prevent you from being

a fair and impartial juror in this case?" Second, "[i]s there anyone among you

for any reason that I may not have touched upon who could not serve as a
fair and impartial juror in this case?"    N.T. Trial, 1/28/15, at 35, 38.     In

addition, PJ 56 responded affirmatively (by standing) to three other questions.

First, "[h]ave any of you read, seen, or heard anything about this case in the

news media or from some other source?" Second, "[h]ave you or has any
member of your family or a close friend ever been the victim of or accused of

a crime similar to those with which the [d]efendants are charged?" Third,
"[i]s there anyone here who lives or works in the vicinity of 2722 West 9th
Street in Chester, Pennsylvania?" Id. at 32, 34, 38.



                                      -2
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      During individual voir dire, the trial court followed up on the foregoing

areas with PJ 56:

     THE COURT: Sir, you gave a "yes" response to three of my
     questions, one was having known something or heard about the
     case, a victim of a similar crime, and either living or working in
     the vicinity?
     JURY PANELIST #56: Yes.

     THE COURT: So could you elaborate on all those, why you gave a
     "yes" response to those?
     JURY PANELIST #56: The first one was?

     THE COURT: The first one was hearing about the case or reading
     about the case.
     JURY PANELIST #56: Oh, I read the newspaper constantly. I am
      a subscriber to the Wilmington Journal and I read the Sunday
     Daily Times every day -- every Sunday.
     THE COURT: So when's the last time you heard about this case or
     read about it?
     JURY PANELIST #56: Last time, when it was active, a couple --
     what's it, two years?
     THE COURT: Pardon?

     JURY PANELIST #56: When it was active, when they were --
     THE COURT: Which would have been, what --
     JURY PANELIST #56: Two years --

     THE COURT: Okay.

     JURY PANELIST #56: -- I've heard this.
     THE COURT: So the last time you read anything about the case or
     heard anything about the case?
     JURY PANELIST #56: Yes. Um -hum.


                                     -3
J -E02007-18


     THE COURT: Okay. Someone you knew --
     JURY PANELIST #56: My wife --

     THE COURT: -- victim of a similar crime?
     JURY PANELIST #56: Yes, my wife was robbed while she was
     working in a supermarket, and we work midnights. I work at
     another store but that -- but a fellow came up with his couple
     groceries. As soon as the register[] opened, he picked up his
     shirt, showed her a pistol, said empty the register, and so that
     was - I thought that was pretty similar.
     THE COURT: Okay. All right. And you live or work in the vicinity
     of --
     JURY PANELIST #56: I'm about three miles directly down Market
     Street.



     THE COURT: And have you ever been in that particular Rite Aid?
     JURY PANELIST #56: In it? No, sir.

     THE COURT: Okay.      Anyone else have any questions for juror
     #56?

     [Appellant's counsel]: Sir, does the fact that your wife was robbed
     similar as you say in a grocery store, does that impact your ability
     to be fair in this particular case? Are you going to be thinking
     about that?
     JURY PANELIST #56: Probably not. It happened 25 years ago.
     [Appellant's counsel]: Okay.
     JURY PANELIST #56: Probably not.
     [Appellant's counsel]: But you're not sure; that's why you're
     saying "probably"?
     JURY PANELIST #56: Can I tell you what's in the back of my mind?
     I was going to say (inaudible) --
     [Appellant's counsel]: Okay.


                                    -4
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     JURY PANELIST #56: -- leaning towards like 51 percent not
     but --
     [Appellant's counsel]: Thank you for being honest.
     THE COURT: All right. Any other -- anyone else?


     MR. WISMER [co-defendant Pultro's counsel]: What do you
     remember reading about the case?
     JURY PANELIST #56: Just the fellow got killed, he was the store
     manager. I forget what -- he was helping somebody or something
     and he -- oh, he was -- he covered for a day off for somebody so
     he shouldn't even have been there that day and it struck me as
     no good deeds go unpunished. I say that all the time.
     MR. WISMER: Is that all you remember reading?
     JURY PANELIST #56: Pretty -- for the most part. That's the
     highlights, yeah. I mean I don't remember exactly how many
     people were involved, you know, or how -- too much of the details.
     MR. WISMER: And it was tragic, certainly, but does that -- is that
     going to affect your ability to be a fair and impartial juror knowing
     what you know about what happened to this man?
     JURY PANELIST #56: Probably not. Again, I'm going to say
     probably 51 percent on it.
     THE COURT: Let me phrase the question a little differently.
     JURY PANELIST #56: Please.

     THE COURT: Is there a doubt in your mind about your ability to
     be fair and impartial?
     JURY PANELIST #56: No. I can do it. I can do it.
     THE COURT: All right. Anyone else?

     MR. TINARI [co-defendant Mahmud's counsel]: May I just follow
     that up briefly?
     THE COURT: Yes.


                                     -5
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     MR. TINARI: It seems as though you're hesitating. There's no
     right or wrong answer even to the Judge's question. We're just
     trying to find out --
     JURY PANELIST #56: I -
     MR. TINARI: -- what's in your heart and your mind, and when --
     as lawyers especially for Defendants who are accused of crimes,
     we hear probably or 51 percent, that makes us nervous. So we're
     just asking you --
     JURY PANELIST #56: Absolutely.

     MR. TINARI: -- just as the Court did, it seems as though there's a
     little bit of hesitation, and if there is, just tell us. It's okay. No
     one's going to --
     JURY PANELIST #56: And I realize --
     MR. TINARI: -- thinking negatively of you --
     JURY PANELIST #56: -- you've got 120 -- 18 other people --
     MR. TINARI: -- you know what I mean? We're --
     JURY PANELIST #56: -- that you can use.
     MR. TINARI: -- just trying to proceed in accordance with what
     we're required to ask.
     JURY PANELIST #56: Yes.

     MR. TINARI: And if your answer is you have some doubt, just tell
     us.

     JURY PANELIST #56: I'd have to be saying I was kidding you
     if there was absolutely nothing because I experienced it.
     MR. TINARI: Understood.
     JURY PANELIST #56: But I still think I could probably be fair.
     I mean I understand --
     MR. TINARI: You still think you can be? See, that's what's making
     us --
     JURY PANELIST #56: I'm --

                                     -6
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     MR. TINARI: You know what I'm saying? If you were in our shoes
     JURY PANELIST #56: I can --

     MR. TINARI: -- you wouldn't want to hear someone say --
     JURY PANELIST #56: I see.

     MR. TINARI: -- well, I think I could be fair, I'm hoping I could be
     fair.

     JURY PANELIST #56: I can appreciate your -- you on that. I think
     I can -- okay. So --
     MR. TINARI: All right. I won't ask any more times.
     JURY PANELIST #56: I --

     MR. TINARI: That's -- I think --
     JURY PANELIST #56: I believe I can.
     MR. TINARI: Okay. Thank you, sir.
     JURY PANELIST #56: I believe I can and I --
     THE COURT: Mr. DiRosato?

     MR. DIROSATO [for the Commonwealth]: Sir, the role of a juror
     is to hear the evidence --
     JURY PANELIST #56: Exactly.

     MR. DIROSATO: -- to weigh the evidence per the instructions
     given by the Court.
     JURY PANELIST #56: Exactly.

     MR. DIROSATO: And --

     JURY PANELIST #56: I'm not trying to be rude.
     MR. DIROSATO: -- the Court will give you the instructions on the
     law, take whatever facts as you find true along with your fellow
     jurors and apply that to the law to determine whether the
     Commonwealth has met its burden beyond a reasonable doubt to


                                    -7
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        prove these Defendants guilty of the crimes they're facing - have
        been charged with.
        JURY PANELIST #56: Exactly.

        MR. DIROSATO: And knowing that, can you put aside your past
        experience and follow the Court's instruction and render a verdict
        based upon a fair and impartial weighing of the evidence?
        JURY PANELIST #56: I think I can. I'm saying -- I said -- okay.
        I can. Putting it in context, you show me evidence, it is or it isn't.
        MR. DIROSATO: If the Commonwealth fails to meet your - meet
        its burden, would you hesitate and acquit these Defendants?
        JURY PANELIST #56: If you didn't prove they did it, I will.
        THE COURT: You understand that it has to be proven beyond a
        reasonable doubt. It's not a 51 percent.      It's beyond a
        reasonable doubt. Do you understand that?
        JURY PANELIST #56: Yes, sir.

        THE COURT: And you could follow that standard, correct?
        JURY PANELIST #56: Yes, sir. I'm sure I could.

N.T. Trial, 1/28/15 (Vol. II), at 280-88 (emphasis added). As the Majority
notes, counsel for one of the co-defendants then moved to strike for cause PJ

56 based on PJ 56's equivocation and hesitation in his responses to the
questions relating to fairness and impartiality. Id. at 288. Appellant's counsel

joined the motion, asserting that PJ 56 gave two different responses. Id. at
289 ("There's two [answers]. Either you can be or you can't be. I mean it
shouldn't matter the wording of the question. The meaning is still the same,

and based on that, I think the [trial court] should grant the challenge."). The
trial   court denied    the   defense's    for -cause   motion   to   strike   PJ   56.

Subsequently, as my review of the strike list reveals, Appellant's counsel

                                          -8-
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exercised a peremptory challenge, Appellant's second out of three such
challenges,' to strike PJ 56. As a result, PJ 56 was neither selected nor seated

as a juror in this case.

      On appeal, Appellant principally argues that the trial court abused its
discretion in denying the defense's motion to strike for cause PJ 56 and, as a

result, Appellant was prejudiced by exercising one of his three peremptory
challenges to strike PJ 56. Unlike the Majority, I agree.

      It is well -settled that we apply an abuse of discretion standard       in

reviewing a trial court's decision to grant or deny a for -cause challenge.
Commonwealth v. Cox, 983 A.2d 666, 682 (Pa. 2009). In Commonwealth
v. Briggs, 12 A.3d 291 (Pa. 2011), our High Court explained:

      A trial court's decision regarding whether to disqualify a juror for
      cause is within its sound discretion and will not be reversed in the
      absence of a palpable abuse of discretion. In determining if a
      motion to strike a prospective juror for cause was properly denied
      our Court is guided by the following precepts:
            The test for determining whether a prospective juror
            should be disqualified is whether he is willing and able
            to eliminate the influence of any scruples and render
            a verdict according to the evidence, and this is to be
            determined on the basis of answers to questions and
            demeanor.      .  It must be determined whether any
                               .   .


             biases or prejudices can be put aside on proper
             instruction of the court. . A challenge for cause
                                           .   .


             should be granted when the prospective juror has
             such a close relationship, familial, financial, or



' I observe that each of the three defendants here received three peremptory
challenges for an aggregate of nine peremptories. The defendants in their
sole discretion were free to use, or not use, their respective challenges. The
Commonwealth also received nine such strikes.
                                       -9-
J -E02007-18


            situational, with the parties, counsel, victims, or
            witnesses that the court will presume a likelihood of
            prejudice or demonstrates a likelihood of prejudice by
            his or her conduct or answers to questions.

Id. at 332-33 (citations omitted).
      "[T]he jury selection process is crucial to the preservation of the right
to an impartial jury as guaranteed by Article I, § 9 of the Pennsylvania
Constitution." Commonwealth v. Buford, 101 A.3d 1182, 1191 (Pa. Super.
2014) (citation omitted), appeal denied, 114 A.3d 415 (Pa. 2015). Indeed,
"[t]he 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." Commonwealth v. Noel, 104 A.3d 1156, 1168 (Pa. 2014) (citations
omitted). We long have explained:

      There are two types of situations in which challenges for cause
      should be granted: (1) when the potential juror has such a close
      relationship, be it familial, financial or situational, with parties,
      counsel, victims, or witnesses, that the court will presume the
      likelihood of prejudice; and (2) when the potential juror's
      likelihood of prejudice is exhibited by his conduct and answers to
      questions at voir dire. In the former situation, the determination
      is practically one of law and as such is subject to ordinary review.
      In the latter situation, much depends upon the answers and
      demeanor of the potential juror as observed by the trial judge and
      therefore reversal is appropriate only in case of palpable error.

Commonwealth v. Kelly, 134 A.3d 59, 61-62 (Pa. Super. 2016) (citations
omitted), appeal denied, 158 A.3d 75 (Pa. 2016). Moreover, the law

      recognizes that it would be unrealistic to expect jurors to be free
      from all prejudices, a failing common to all human beings. We
      can only attempt to have them put aside those prejudices in the
      performance of their duty, the determination of guilt or innocence.
      We therefore do not expect a tabula rasa but merely a mind

                                     - 10 -
J -E02007-18


       sufficiently conscious of its sworn responsibility and willing to
       attempt to reach a decision solely on the facts presented,
       assiduously avoiding the influence of irrelevant facts.

Commonwealth v. Pittman, 466 A.2d 1370, 1373 (Pa. Super. 1983)
(citations omitted). Finally, a new trial will be granted when "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." Commonwealth v. Johnson, 445 A.2d 509, 514
(Pa. Super. 1982); accord Commonwealth v. Penn, 132 A.3d 498, 505 (Pa.

Super. 2016).

       In Johnson, during voir dire, a prospective juror indicated by his
answers that he would not be impartial and the questioning revealed that the

reason for his attitude was a situational relationship. Johnson, 445 A.2d at
512.   In particular, he stated that his daughter was the victim of a robbery
and rape with facts similar to the case in that matter. The prospective juror
became distressed to the point where he practically broke down.          Id.   He

repeatedly acknowledged that he was surprised at how he was reacting and

how strongly he felt.    Id. As a result, the prospective juror wavered on
whether he could be fair and impartial in Johnson's case. When questioned
about whether he could be fair, the prospective juror remarked, inter a/ia, "I
think it would be difficult[,]" and "I'm wondering if I am able to do it." Id. at
512-13 (record citations omitted). Given his strong emotional reactions, the
prospective juror indicated that he might not have "full control" when following

the court's instructions in the case.   Id. at 513. The trial court ultimately
J -E02007-18



denied the appellant's for -cause challenge to strike prospective juror.    The

appellant exercised a peremptory challenge to strike the prospective juror and

subsequently exhausted his peremptory strikes.

      On appeal, and based on the foregoing record, a panel of this Court
concluded that the trial court erred in denying the appellant's for -cause
challenge. In so doing, we reasoned the prospective juror

     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 (emphasis added). We also concluded that the prospective 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 explained:

     This is particularly so in view of the court's questions, which [the
     prospective 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 doubts expressed, and explained, as earnestly as [this
      prospective juror's] were.

Id. We, therefore, held in Johnson that the trial court abused its discretion
in denying the appellant's motion to strike for cause the prospective juror and

that the error was not harmless because the appellant was "forced to use one

of his peremptory challenges to excuse" the prospective juror, and he
"exhaust[ed] his peremptories before the jury was seated." Id. Accordingly,

                                    - 12 -
J -E02007-18



we vacated the appellant's judgment of sentence and granted him a new trial.

Id.
      Relying upon Johnson, we arrived at the same outcome in Penn.
There, a prospective juror, R.Z., conveyed to the court during voir dire that
she previously had worked in law enforcement, and that her boyfriend was a

police officer. Penn, 132 A.3d at 500.
      [[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....
      [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.




                                       - 13 -
J -E02007-18


     [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.

     [[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.

Id. at 500-01(sonne brackets added) (emphasis added).

                                    - 14 -
J -E02007-18



      In determining that the trial court should have stricken for cause R.Z.,
we stressed that, like the juror in Johnson, R.Z. "initially indicated that she
was incapable of 'rendering a fair, impartial and unbiased verdict.' Penn,
132 A.3d 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. As an additional similarity to 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 Court 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.[FN1] Johnson, 445
      A.2d at 514.
            [FN1.] 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.

Id. (emphasis in original). Thus, 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.




                                      - 15 -
J -E02007-18


         In light of and consistent with Johnson and Penn, two cases that are
virtually indistinguishable from this case, I conclude that Appellant is entitled

to a new trial because the trial court abused its discretion in denying the
defense's for -cause challenge to strike P3 56.        My record review confirms
Appellant's    contention that   P3   56   displayed   sustained   hesitation and

equivocation in answering whether he would be fair and impartial. As detailed

earlier, in responding to specific questions about fairness and impartiality by

a counsel for one of Appellant's co-defendants, PJ 56 remarked thrice
"probably not," and twice "leaning towards like 51 percent" or
"probably 51 percent." Thereafter, the trial court asked P3 56 whether
there was "a doubt in [his] mind about [his] ability to be fair and impartial[.]"
P3 56 responded, "No.     I can do it. I can do it." Immediately, thereafter,
counsel for another co-defendant inquired further about P3 56's ability to act

fairly and impartially.   In response, P3 56 again expressed hesitation and
equivocation and seemingly questioned why the parties did not select another

prospective juror. Indeed, P3 56 stated, "I'd have to be saying I was kidding

you if there was absolutely nothing because I experienced it" and "But I still
think I could probably be fair." P3 56 repeatedly vacillated and qualified his
responses using the phrases "I believe" or "I think." Toward the end of P3
56's individual voir dire, the trial court once again participated in questioning

P3 56.    In so doing, however, the trial court altered the line of questioning.
Instead of inquiring about P3 56's ability to be fair and impartial, the trial court

shifted the focus away from P3 56's ability to act fairly and asked P3 56 about

                                      - 16 -
J -E02007-18



his ability to apply the correct standard of proof, i.e., the beyond a reasonable

doubt standard.    This question, of course, was irrelevant to the issue of
fairness and impartiality. Given the foregoing and under the circumstances of

this case, I am constrained to conclude that the trial court abused its discretion

in denying the defense's motion to strike for cause PJ 56 who could not
separate the incident involving his wife from the instant case and expressed

sustained equivocation and hesitation.

      Moreover, like the appellants in Johnson and Penn, Appellant was also

forced to use a peremptory challenge to strike a prospective juror whom the
trial court refused to excuse for cause.2 Upon reviewing the certified record,

in particular the strike list sub judice, it is apparent that Appellant exercised
his second of three peremptory challenges to strike PJ 56.            Thereafter,

Appellant exhausted his peremptories.          Thus, as we held in Johnson and
reaffirmed in Penn, I must conclude that the error of not striking for cause PJ

56 was not harmless "[w]here, as here, a defendant is forced to use one of
his peremptory challenge 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 (quotation and


2 Based upon the outcome herein, which is premised on a conclusion that
Appellant in fact exercised to his detriment one of his three peremptory
challenges to strike PJ 56, I decline to address Appellant's argument that he
shared a common interest with his co-defendants in the selection of the jury.
In particular, I decline to entertain the argument that in a joint trial,
irrespective of which defendant uses a peremptory to strike a prospective juror
following the denial of a for -cause challenge, all defendants are presumed to
have suffered prejudice.
                                      - 17 -
J -E02007-18


citation omitted).   I, therefore, respectfully dissent and would vacate and
remand this case to the trial court for a new trial.




                                      - 18 -
