Com. v. Sarvis, W. ( 2018 )


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  • J-S03010-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    v.                          :
    :
    :
    WALTER JOHN SARVIS                        :
    :
    Appellant             :    No. 2717 EDA 2016
    Appeal from the Judgment of Sentence 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.
    DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                FILED MAY 04, 2018
    The learned Majority holds that the trial court abused its discretion in
    denying Appellant’s challenge for cause where Juror 17 initially expressed
    concerns that he might accord more weight to two witnesses he had known
    professionally for 20 years and considered trustworthy. I disagree, as the
    juror’s statements during voir dire were not marked by certitude, involved no
    display of emotion, revealed no close personal relationship or allegiance to the
    witnesses, and reflected no entrenched, fixed bias suggesting a likelihood of
    prejudice.    Instead, after identifying his own comments in this regard as
    “wavering,” the juror stated his belief that he would be impartial, that he
    would hold the witnesses to the same test of credibility, and that he would
    evaluate the two witnesses fairly.
    I discern from such an evolving self-analysis a juror who demonstrated
    a capacity to set aside his potential bias in order to render a fair and impartial
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S03010-18
    verdict based on the complete body of evidence, which included far more than
    the testimonies of the two witnesses in question.       For this reason, I must
    dissent.
    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. It is therefore
    appropriate to use such an examination to disclose fixed opinions
    or to expose other reasons for disqualification. Thus the inquiry
    must be directed at ascertaining whether the venireperson is
    competent and capable of rendering a fair, impartial and unbiased
    verdict. 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.
    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. 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. Ingber, 
    531 A.2d 1101
    , 1102–1103 (Pa. 1987) (internal
    quotations   and   citations   omitted)   (emphasis    added).    “The   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.                 This
    determination is to be made by the trial judge based on the juror's answers
    and demeanor. . . .     Commonwealth v. DeHart, 
    516 A.2d 656
    , 663 (Pa.
    1986) (internal citations, quotations, and corrections omitted).      This Court
    shall not reverse the trial court’s determination in this regard absent a
    palpable abuse of discretion. 
    Id.
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    The majority relies on Commonwealth v. Johnson, 
    445 A.2d 509
     (Pa.
    Super. 1982) and Commonwealth v. Penn, 
    132 A.3d 498
     (Pa. Super. 2016)
    to conclude that the trial court should have excused Juror 17 for cause. A
    review of both decisions shows them to be distinguishable from the present
    case.
    In Johnson, a prospective juror admitted the facts of the case before
    him evoked strong emotions he believed would compromise his ability to be
    impartial at trial. Specifically, the juror explained during voir dire that his
    daughter had been the victim of a rape and robbery bearing some important
    similarities with the facts of Johnson. The juror became emotional during
    the proceeding and confided with the court “I didn’t realize how strongly I feel
    about this and that if I consider that, I’m not what I thought I was [with
    respect to] trying to be fair and consider the evidence in such a case . . . .”
    
    Id. at 512
    .
    When the court asked him if he believed he would be fair, particularly
    where the facts here did not involve a sex crime, the juror replied it would be
    difficult to be fair “because I can see how I’m reacting. I didn’t realize how
    strongly I felt about this. . . . [A]t the last moment this [the sex crime] is
    what the robbers did [to his daughter].” 
    Id.
     To the court’s follow-up question
    of whether the juror would persist in this mindset even if the court instructed
    him that it would be improper to allow such emotions to infiltrate his
    assessment of facts, the juror answered, “I realize that, logically. It should
    not be so but I could see emotionally, I can see that I don’t have full control
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    in that case, because as I said, I didn’t realize how strong it was in relating it
    to you and I didn’t expect myself to break down, practically.” 
    Id. at 513
    .
    The court continued to engage the juror in a lengthy exchange in which
    he counseled the juror on the importance of appreciating the difference
    between the two cases and committing himself to controlling emotional
    reactions to evidence so they would not impede his ability to make fair and
    impartial credibility determinations in the present case.            “That’s the
    question[,]” the court asked, “[c]an you be fair?” 
    Id.
     The juror responded
    that he could be fair, and the court later refused to excuse the juror for cause.
    On appeal, this Court reversed, given the “considerable distress” the
    juror clearly felt at the prospect of sitting in judgment over a case bearing
    similarities to a violent crime his daughter had endured.    We reasoned:
    Mr. Rubin 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
    .
    Moreover, given the juror’s deep-seated emotional reaction to the
    charges and his repeated admissions that he doubted his ability to overcome
    such emotions and deliberate impartially, his eventual assurance to the court
    that he would “‘[b]e fair’ did not dispel the force of these admissions[,]” we
    concluded.
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    J-S03010-18
    In Penn, it was undisputed that the Commonwealth’s entire case
    depended upon the testimony of two police detectives. Juror R.Z. had made
    a career in law enforcement and security, and her boyfriend was a municipal
    police officer.   When asked if she was “steeped in law enforcement” and
    whether she “would be more likely to believe the testimony of a police officer,”
    she answered a definitive “yes” to both questions. Similarly, to the question
    “Would it be hard for you not to believe [the police officers slated to testify in
    the case,]” R.Z. answered, “I feel like I would be more inclined to believe
    them, yes.” 
    Id. at 500
    .
    Later, however, R.Z. confirmed that she could follow instructions not to
    give police any more weight or credibility, and to the question of whether she
    could render a fair and impartial decision, R.Z. answered, “I would think so,
    yes.” 
    Id.
     Nevertheless, R.Z. soon reverted to her original position, nodding
    her head in the affirmative when defense counsel asked her “would it be hard
    for you not to believe them because of your experience?” She qualified her
    answer, however, saying “I mean—again, I think it comes down to the
    evidence though.” 
    Id. at 501
    . Afterward, the trial court denied the defense
    challenge to excuse R.Z. for cause.
    Critical to our decision to reverse in Penn were two features to the
    matter. First, we observed, “the Commonwealth’s entire case rested upon the
    credibility of the police officers, given that the Commonwealth’s only two
    witnesses at trial were City of Pittsburgh Police detectives.” 
    Id. at 504
    . This
    placed in sharp relief R.Z.’s assured, unequivocal answer of “yes” to the
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    J-S03010-18
    question put to her both in the written questionnaire and again in open court
    during voir dire, “[w]ould you be more likely to believe the testimony of a
    police officer or any other law enforcement officer because of his or her job?”
    We found the certitude of these answers “indicat[ed] that R.Z. was biased in
    favor of the police and the Commonwealth.” 
    Id.
    Second, “as was true in Johnson, R.Z.’s admitted bias in favor of the
    police rested on a firm bedrock, given that R.Z. testified [to an extensive work
    history in law enforcement and to a present romantic relationship with a police
    officer from a nearby municipality.]” 
    Id. at 505
    . This intrinsic partiality came
    to the fore not only in R.Z.’s initial answers during voir dire, but also in her
    testimony immediately following her assurance to the court that she could
    render a fair and impartial decision pursuant to jury instructions, when she
    again declared that “because of [her] experience[,] . . . [she] would be inclined
    to believe” the police. 
    Id.
    In contrast to Johnson and Penn, there is no indication in the case sub
    judice that Juror 17 harbored strong emotions about, or deep-seated loyalties
    to, the two prospective witnesses because they were educators. Instead, he
    stated their examples of workplace honesty over the course of many years
    carried weight with him. Unlike in Johnson, we cannot infer from the record
    that Juror 17 delivered this statement in anything other than a dispassionate
    manner, nor did he offer swift, definitive answers, as the juror did in Penn,
    that he would likely believe what they said. Indeed, he accurately described
    his own responses to questions on the issue as “wavering,” before he settled
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    J-S03010-18
    on the position that he could evaluate the witnesses fairly and render an
    impartial decision.
    As such, Juror 17’s answers during voir dire did not betray a fixed
    disposition to favor the educators’ respective testimonies at trial. Instead,
    they reflected a composed respect for two witnesses he knew to be honest
    persons, which Juror 17 tempered with his repeated assertion that he would
    nevertheless base his determinations on an even-handed assessment of all
    evidence admitted at trial.
    The governing standard of review in cases such as this accepts that
    prospective jurors may come to the court with certain biases and still be
    suitable for jury duty.    That is to say, the existence of a bias does not
    necessarily mandate removal for cause. Instead, the test is whether the juror
    exhibits an ability to set aside the bias and render a fair and impartial decision
    in the matter at hand. See Ingber, supra. In Johnson and Penn, removal
    of the jurors in question was required because they held entrenched
    predispositions that placed squarely in doubt their abilities to evaluate the
    evidence impartially. The same concerns simply do not arise from the record
    before us.
    Moreover, unlike in Penn, the Commonwealth’s entire case did not rest
    upon the testimonies of the two educators. Although they did relate the child’s
    incriminating statements made in school, many other sources of incriminating
    evidence—including the now 11 year-old victim who consistently described her
    sexual abuse throughout the investigation, her mother, two CYS caseworkers,
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    J-S03010-18
    a police detective, and a forensic interview specialist for the Child Advocacy
    Center—were expected at trial, thus alleviating concerns that Juror 17’s long-
    standing respect for the two educators would render him incapable of viewing
    the evidence impartially.
    Accordingly, I find no abuse of discretion in the trial court’s denial of
    Appellant’s challenge for cause, as the record does not support the conclusion
    that Juror 17 exhibited a fixed bias in favor of two Commonwealth witnesses
    producing a likelihood of prejudice on his part. For this reason, I respectfully
    dissent.
    -8-
    

Document Info

Docket Number: 2717 EDA 2016

Filed Date: 5/4/2018

Precedential Status: Precedential

Modified Date: 5/4/2018