Com. v. Sarvis, W.

Superior Court of Pennsylvania

Com. v. Sarvis, W.

Superior Court of Pennsylvania·Decided May 4, 2018·No. 2717 EDA 2016·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

WALTER JOHN SARVIS,

Appellant No. 2717 EDA 2016

Appeal from the Judgment of Sentence Entered 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.*

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

Appellant, Walter John Sarvis, appeals from the judgment of sentence

of an aggregate term of 17½ to 35 years’ incarceration, imposed after he

was convicted of aggravated indecent assault of a child and related offenses.

On appeal, Appellant alleges, inter alia, that the trial court erred by denying

his motion to strike a prospective juror for cause, thus forcing him to use a

preemptory challenge to remove that individual from the jury pool. After

careful review, we vacate Appellant’s judgment of sentence and remand for

a new trial.

The trial court summarized the facts and procedural history of this

case, as follows:

* Former Justice specially assigned to the Superior Court.

This case stems from [Appellant’s] sexual abuse of a 10-

year-old girl (“Victim”) that occurred on an ongoing basis for over a year. [Appellant] was previously in a relationship with [V]ictim’s mother. During this time, and beyond the termination of the relationship, [Appellant] resided in the house with mother, her two sons[,] and [Victim]. When … [V]ictim was in fourth and fifth grade, her mother would leave for work very early in the morning before the children went to school. … [V]ictim’s two brothers would then leave for school, as the middle school started earlier than … [V]ictim’s elementary school. [Appellant] would then be alone in the house with Victim and would require her to go down to his bedroom in the basement and undress. [Appellant] sexually abused … [V]ictim, as he fondled … [V]ictim’s chest and genitals, penetrated … [V]ictim’s vagina with his fingers and made … [V]ictim fondle his penis.

In May of 2015, when [V]ictim was in fifth grade, her class was shown a video on inappropriate touching and related matters. Victim became visibly upset during this video, at which point she left the room and her teacher saw her in the hall and took her to the counselor’s office. Victim explained what [Appellant] had been doing to her, and the proper school reporting methods for suspected abuse were initiated. At that point, a criminal investigation began as well as investigations by Children and Youth Services (“CYS”) and the Child Advocacy Center. Victim made statements [that] consistently detailed the sexual abuse she endured at the hands of [Appellant].

On February 11, 2016, [Appellant] was found guilty by a jury of three counts of Aggravated Indecent Assault of a Child, three counts of Indecent Assault of a Person Less than 13 years of age, one count of Corruption of Minors, and one count of Endangering Welfare of Children. On July 7, 2016, following [a Sexually Violent Predator (SVP)] Hearing o[n] June 16, 2016, [] Appellant was sentenced to an aggregate term of confinement of 17.5 to 35 years, Tier III Megan’s Law Registration and was deemed a[n] [SVP]. On July 14, 2016, [] Appellant filed a “Motion for Reconsideration of Sentence[.”] On July 27, 2016, the [c]ourt issued an [o]rder [d]enying [Appellant’s] Motion for Reconsideration of Sentence. On August 25, 2016, [] Appellant filed a timely Notice of Appeal. This [c]ourt directed [] Appellant to file a Concise Statement of [Errors] Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Following a request for [an] extension and the filing of a Statement of Matters Complained of

on Appeal, on December 14, 2016, Appellant filed an Amended Concise Statement of Matters Complained of on Appeal….

Trial Court Opinion (TCO), 7/19/17, at 1-2 (footnotes omitted).

Herein, Appellant presents two issues for our review:

[I.] Did the [t]rial court err in denying the motion of defense counsel to strike for cause Juror #17 at [j]ury selection who reported to the court that he was a coworker of two of the witnesses to be called to testify and that he would have a predisposition to believe them?

[II.] Did the [t]rial court err in finding [Appellant] to be a[n] [SVP] as defined at 42 Pa.C.S.[] § 9799.12 because the Commonwealth failed to establish by clear and convincing evidence that due to a mental abnormality or personality disorder he is likely to engage in predatory[,] sexually violent offense[s] pursuant to 42 Pa.C.S.[] § 9799.24?

Appellant’s Brief at 5.

Appellant first challenges the trial court’s denial of his motion to strike

a prospective juror (hereinafter “Juror 17”) for cause, after that juror

informed the court that he knew two witnesses who would be testifying for

the Commonwealth. Juror 17 testified, upon further questioning, that he

believed those two witnesses were ‘trustworthy,’ and he could not be certain

that he would not give greater weight to their testimony, as compared to

witnesses he did not know. After this testimony, Appellant moved to strike

Juror 17, which the court denied, thus forcing Appellant to use a peremptory

challenge to excuse Juror 17. Appellant then exhausted his remaining

peremptory challenges. He now argues that he was wrongfully deprived of

the peremptory challenge used to strike Juror 17 and, thus, he was denied

his right to a fair and impartial jury.

After careful consideration of Appellant’s arguments, the record before

us, and the case law on which Appellant relies, we are constrained to agree

that Appellant is entitled to a new trial. We begin by recognizing 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. [] 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); [] Lopinson, supra; [] 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. [] Johnson, supra; [] Lopinson, supra; [] 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); [] Johnson, supra.

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

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