Commonwealth v. Penn

132 A.3d 498, 2016 Pa. Super. 19, 2016 Pa. Super. LEXIS 58
CourtSuperior Court of Pennsylvania
DecidedFebruary 1, 2016
StatusPublished
Cited by37 cases

This text of 132 A.3d 498 (Commonwealth v. Penn) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Penn, 132 A.3d 498, 2016 Pa. Super. 19, 2016 Pa. Super. LEXIS 58 (Pa. Ct. App. 2016).

Opinion

OPINION BY

OLSON, J.:

Appellant, Daniel Penn, appeals from the judgment of sentence entered on August 27, 2014. After careful consideration, we vacate the judgment of sentence and remand for a new trial.

On January 28, 2012, City of Pittsburgh Police Detective Brian Burgunder was on-duty and patrolling the Hill District of Pittsburgh in an unmarked police car with two fellow detectives. N.T. Trial, 5/6/14, at 65. At approximately 5:00 p.m. that night, Detective Burgunder witnessed Appellant drive a vehicle through a clearly posted stop sign, without coming to a complete stop. Id. at 68. The detective initiated a traffic stop of Appellant’s vehicle and, during the stop, Detective Burgunder saw, in the center console of Appellant’s vehicle, “clear plastic baggies containing a tan powder substance which [the detective] immediately recognized as heroin.” Id. at 74. Detective Burgunder arrested Appellant and the Commonwealth later charged Appellant with a variety of crimes, including possession of a controlled substance with the intent to deliver (hereinafter “PWID”).

[500]*500Jury selection for Appellant’s trial began on May 5; 2014. During the selection process, Prospective Juror Number 10 — who was named R.Z. — answered “yes” to the following questions on the written juror information questionnaire: 1) “[h]ave you or anyone close to you ever worked in law enforcement or the justice system?” and 2) “[wjould you be more likely to believe the testimony of a police officer or any other law enforcement officer because of his or her job?” N.T. Jury Selection, 5/5/14, at 36; see also Pa.R.Crim.P. 632.

During voir dire, R.Z. testified that: she currently works as a security officer for a casino; she previously worked in the California University of Pennsylvania Police Department for two years, while she was a student in college; she previously served two years in the United States Marshals’ apprenticeship program; ■ she previously completed an internship with the Bethel Park Police Department; and, her boyfriend is a police officer in a borough that surrounds the City .of Pittsburgh. N.T. Jury Selection, 5/5/14, at 36-38. As is relevant to the current appeal, R.Z. also testified to the following during voir dire:

[Appellant’s Attorney]: So you’re pretty steeped in law enforcement?
A: Yes.
[Appellant’s Attorney]: You would be more likely to believe the testimony of a police officer?
A: Yes.
[Appellant’s Attorney]: Do you. think they would be—
A: No. It wouldn’t be impossible. I worked for a lawyer, too.
[Appellant’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.
[Appellant’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.
[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 ánd impartial?
A: I would think so, yes.
[The Commonwealth]: Follow up?
[Appellant’s Attorney]: Well, when you — well, when1 you say you think so, I mean, basically the entire Common.wealth 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.
[Appellant’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— [Appellant’s- Attorney]: If they got up there and said, we don’t know ’anything [501]*501and 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].) [Appellant’s Attorney]: I know1 it’s based on the evidence,.
A: Right.
[Appellant’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 36-40.

The trial court denied Appellant’s challenge to excuse R.Z. for cause and Appellant was forced to use one of his peremptory challenges to strike R.Z. as a juror. Id. at 138. Appellant eventually-exhausted all of his peremptory challenges,1 Id. at 138— 141 and 176.

Appellant proceeded to a jury trial, where the Commonwealth presented two witnesses: Detective Burgunder and City of Pittsburgh Police Detective Edward Fallert. The jury found Appellant guilty of PWID and possession of heroin2 and, on August 27, 2014, the trial court sentenced Appellant to serve a term of seven to 14 years in prison.

Appellant filed a timely notice of appeal from his judgment of sentence and Appellant now raises the following claims to this Court:3

[1.] Whether the [trial] court erred in failing, to grant Appellant’s cause challenge to Prospective Juror Number 10, [R.Z.], who answered “yes” on the juror questionnaire and during voir dire that she would be more likely to believe the police?

[2.] Whether the [trial] court erred in .failing to sustain .counsel’s objection to the district attorney’s improper comments in the form of vouching and bolstering during its opening statement when the district attorney told the jury that he .and the police know that [ ] Appellant is a drug dealer and in failing to properly .correct .this improper conduct by the Commonwealth?
[3.] Whether the [trial] court erred in failing to dismiss the case on Appellant’s motion for judgment of acquittal as the Commonwealth failed to prove that the ■ drugs tested by the crime lab [were] in fact the material seized by the police?

Appellant’s Brief at 4 (some internal ‘capitalization omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Luperi, M.
Superior Court of Pennsylvania, 2025
Com. v. Ray, T.
Superior Court of Pennsylvania, 2025
Com. v. Abdur-Rahim, M.
Superior Court of Pennsylvania, 2024
Com. v. Abdur-Rahim, A.
Superior Court of Pennsylvania, 2024
Com. v. Santiago, R.
Superior Court of Pennsylvania, 2024
Com. v. Mahmud, T.
Superior Court of Pennsylvania, 2024
Com. v. Bey, T.
Superior Court of Pennsylvania, 2023
Com. v. Bright, A.
Superior Court of Pennsylvania, 2023
Com. v. Vargas-Rivera, J.
Superior Court of Pennsylvania, 2021
Benjamin, E. & L. v. Henderson, C.
Superior Court of Pennsylvania, 2021
Com. v. Wesley, G.
Superior Court of Pennsylvania, 2021
Com. v. Vincent, D.
Superior Court of Pennsylvania, 2020
Com. v. Smith, R.
Superior Court of Pennsylvania, 2020
Com. v. Morley, P.
Superior Court of Pennsylvania, 2020
Com. v. Robinson, S.
Superior Court of Pennsylvania, 2019
Com. v. Wiggins, D.
Superior Court of Pennsylvania, 2019
Smith, A. v. Cordero, M.
Superior Court of Pennsylvania, 2019
Com. v. Summers, R.
Superior Court of Pennsylvania, 2018
Trigg v. Children's Hosp. of Pittsburgh of UPMC
187 A.3d 1013 (Superior Court of Pennsylvania, 2018)
Com. v. Sarvis, W.
Superior Court of Pennsylvania, 2018

Cite This Page — Counsel Stack

Bluebook (online)
132 A.3d 498, 2016 Pa. Super. 19, 2016 Pa. Super. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-penn-pasuperct-2016.