Commonwealth v. Pittman

466 A.2d 1370, 320 Pa. Super. 166, 1983 Pa. Super. LEXIS 4167
CourtSupreme Court of Pennsylvania
DecidedOctober 14, 1983
Docket1813
StatusPublished
Cited by41 cases

This text of 466 A.2d 1370 (Commonwealth v. Pittman) is published on Counsel Stack Legal Research, covering Supreme 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. Pittman, 466 A.2d 1370, 320 Pa. Super. 166, 1983 Pa. Super. LEXIS 4167 (Pa. 1983).

Opinions

[170]*170ROWLEY, Judge:

This is a direct appeal from the judgment of sentence imposed upon appellant after a jury returned its verdict finding him guilty of criminal conspiracy, criminal trespass, and attempted theft in connection with an early morning break-in on September 10, 1980, of the Mission Church in South Philadelphia. Post-verdict motions were filed and denied on June 17, 1981. This appeal followed. We conclude that the trial court committed no error and, accordingly, the judgment of sentence will be affirmed.

Appellant makes several arguments.1 However, except for one, they have been waived. In his post-verdict motions, appellant assigned numerous errors. Appellant’s counsel filed no brief in support of the motions. When the motions were called for argument, counsel at first stated that he had no argument but then he asked leave to present argument in support of the sixth assignment of error, which reads:

6. That Defendant was denied his Constitutional, legal, and procedural rights as set forth by Rule 1106 by the Attorney for the Commonwealth’s exercise of a peremptory challenge of a juror after said juror had been accepted by both sides.

Leave was granted and argument was heard, after which the lower court denied the motions.

Appellant has waived the assignments of error that he neither briefed nor argued. See Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979) cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979), (issues raised in post-verdict motions but not presented orally or in a brief to lower court are waived); Commonwealth v. [171]*171Holzer, 480 Pa. 93, 100-101, 389 A.2d 101, 105 (1978) (“failure to either brief or orally argue 102 issues ... deprived [lower court] of any meaningful opportunity to consider them”). Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509-510 (1978) (“requirement that counsel either brief or argue points of error raised in the written post-trial motions ... furthers the policies underpinning [Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) ]”). Therefore, we will discuss only the single claim presented to the trial court.

The single claim which appellant has preserved is that the trial court erred in permitting the Commonwealth to peremptorily excuse prospective Juror No. 10. Appellant argues that the Commonwealth had “accepted” Juror No. 10 within the meaning of Pa.R.Crim.P. 1106(e)(1)(B).2 Because [172]*172this juror was “accepted,” appellant contends, he could not be removed because Rule 1106(e)(1)(B) specifically states that “[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge.” Although the assistant district attorney had written “acceptable” next to Juror No. 10’s name, he informed the court very shortly thereafter that he had made a “mistake” and actually intended to peremptorily dismiss Juror No. 10. The record is not clear as to which jurors the Commonwealth had accepted or whether the parties were in fact alternating in casting the initial vote to retain or dismiss a given juror. The only record of what transpired is in a partial transcript of the voir dire and discussion in chambers. The relevant portion of that transcript is reproduced in an Appendix to this opinion. It shows only that defense counsel had “accepted” Juror No. 10; that the assistant district attorney then “accepted” No. 10 and, nearly simultaneously thereafter, defense counsel accepted No. 11 and the assistant district attorney discovered that he had made a mistake: he had intended to excuse Juror No. 10. The record indicates that this was the first peremptory challenge utilized by the Commonwealth. The trial court accepted the prosecutor’s explanation and permitted the challenge to be exercised.

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are [173]*173committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). Likewise, the process of selecting a jury is committed to the sound discretion of the trial judge. The principles of law, including our scope of review, concerning claims regarding the erroneous grant or denial of a challenge of a prospective juror for cause were aptly set forth by Judge Price in Commonwealth v. Short, 278 Pa.Super. 581, 590-591, 420 A.2d 694, 698-699 (1980):

The sole purpose of voir dire examination is to provide the accused with a “competent, fair, impartial and unprejudiced jury.” Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973). See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975). Nevertheless, voir dire is not designed to provide a defendant with twelve persons devoid of emotion or opinion.
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 rosa [rasa] but merely a mind 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. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973)
Thus, “[t]he test of disqualification is the juror’s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence____” Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255, 259 (1973), quoting, Commonwealth v. Gelfi, 282 Pa. 434, 437, 128 A. 77, 79 (1925). Moreover, this determination is to be made by the trial judge based upon the juror’s answers and demeanor, and we will not reverse a judge’s ruling on a challenge for cause absent a palpable [174]*174abuse of discretion, Commonwealth v. Bighum, supra. (Emphasis supplied.)

Furthermore, in determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that “the law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused.” Commonwealth v. Niemetz, 282 Pa.Super. at 445 n. 12, 422 A.2d at 1376 n. 12, quoting, Man O’War Racing Association Inc. v. State Horse Racing Commission, 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969), quoting, Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

In reviewing the trial court’s allowance of a peremptory challenge, our standard should be the same.

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Bluebook (online)
466 A.2d 1370, 320 Pa. Super. 166, 1983 Pa. Super. LEXIS 4167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pittman-pa-1983.