J-A07044-21
2021 PA Super 85
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ANDREW DELMONICO :
:
Appellant : No. 1080 MDA 2020
Appeal from the Judgment of Sentence Entered July 23, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003573-2019
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 04, 2021
Appellant, Mark Andrew Delmonico, appeals from the judgment of
sentence entered in the Court of Common Pleas of Berks County following his
conviction by a jury on the charges of delivery of a controlled substance,
possession with the intent to deliver a controlled substance, possession of a
controlled substance, possession of drug paraphernalia, and criminal
conspiracy.1 Appellant contends the jury’s verdict is against the weight of the
evidence, and the trial court erred in requiring the prospective jurors to wear
masks and socially distance during voir dire.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (30), (16), (32), and 18 Pa.C.S.A. § 903,
respectively.
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After a careful review, we find no merit to Appellant’s weight of the
evidence claim. Further, we find the masking and social distancing of the
prospective jurors did not interfere with the sole purpose of voir dire: the
“empaneling of a competent, fair, impartial, and unprejudiced jury capable of
following the instructions of the trial court.” Commonwealth v. Knight, ___
Pa. ___, 241 A.3d 620, 640 (2020) (quotation omitted). Accordingly, we
affirm.
The trial court has set forth the relevant facts and procedural history as
follows:
Appellant was charged [with various drug and conspiracy
offenses]. Appellant filed an omnibus pretrial motion on October
16, 2019, which was thereafter denied. The case was thereafter
scheduled for trial during the trial term beginning [on] March 11,
2020. Due to circumstances surrounding the health restrictions
and public safety orders, the matter was continued for trail [sic]
during the trial term beginning on July 1, 2020. On June 25, 2020,
Appellant filed a Habeas Corpus/Motion to Review Motion to
Dismiss. The motion was denied on June 27, 2020. The matter
proceeded to trial on July 8, 2020.
On the day of the trial, prior to voir dire, Defense Counsel
placed on the record her objection to the potential jurors wearing
masks because she was “concerned about [her] ability to be able
to gauge the jury’s reaction to certain things.” Notes of Testimony
of July 8-9, 2020, Jury Trial “Trial N.T.”, at 3. Th[e] [trial] court
overruled Defense Counsel’s objection. Id. at 4.
At trial, the Commonwealth first called Christopher
Zukowsky (“Trooper Zukowsky”), a thirteen-year veteran with the
PSP assigned to the Drug Law Enforcement Division Northeast
Strike Force of the Bureau of Criminal Investigation (“Northeast
Strike Force”).6 Id. at 71. Trooper Zukowsky testified that, on July
17, 2018, the C.I.7 met with Trooper Zukowsky and other officers
6 Trooper Zukowsky described the Northeast Strike Force as essentially
an undercover unit similar to a vice unit operating across twelve
counties in the northeast that investigates strictly drug and firearm
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crimes. [Id. at] 71-72. Trooper Zukowsky further testified that while
Berks County is within the area assigned to the Southeast Strike Force
based out of Norristown and Philadelphia, it is not unusual for the
Northeast Strike Force Team to perform operations in Berks County or
to assist the Southeast Strike Team therein. [Id. at] 72.
7 Trooper Zukowsky testified that the C.I. was an individual facing
charges in Lehigh County, who expressed an interest in cooperating with
law enforcement regarding his supplier. [Id. at] 74-75.
of the Northeast Strike Force at a prearranged location in
Hamburg, Berks County, during which the officers searched the
C.I.’s person and vehicle to ensure that the C.I. was not in
possession of any contraband, including illegal drugs, firearms, or
uncontrolled currency, of which none were found. [Id. at] 73-74,
81-82.
The C.I. indicated that he would be purchasing
methamphetamine from an individual named West, but the C.I.
understood that West was being supplied through a larger scale
dealer. Id. at 83. The troopers then provided the C.I. with $1,000
in recorded currency [for] the controlled buy. Id. The C.I. then
drove his vehicle to West’s residence while troopers maintained
surveillance on the vehicle. Id. at 84. Once at West’s residence,
the C.I. learned that West did not possess any methamphetamine
and West relayed to the C.I. that they needed to go pick the drugs
up. Id. at 85.
The C.I., West, and West’s girlfriend, Wyatt, then traveled
in the C.I.’s vehicle to Appellant’s residence at […] Eisenhauer
Boulevard, whereupon West exit[ed] the vehicle and enter[ed]
Appellant’s residence. Id. The C.I. and Wyatt then proceed[ed]
to a nearby Turkey Hill gas station. Id. at 86. Shortly thereafter,
a white Ford F-250 pickup truck operated by Appellant with West
as a passenger arrive[d] at the Turkey Hill. Id. at 87. West and
Appellant briefly entered the Turkey Hill store, and upon
reemerging, Appellant approached the passenger-side window of
the C.I.’s vehicle. Id. at 88. At the request of West and Wyatt,
the C.I. stopped at a restaurant and both West and Wyatt exited
the vehicle. Id. The C.I. then returned to the prearranged
meeting location in Hamburg, where he voluntarily relinquished a
clear plastic bag containing approximately one ounce of
methamphetamine. Id. at 88-89. The C.I. and his vehicle were
again searched and no other contraband was found, nor was any
portion of the $1,000 previously provided to the C.I. found. Id.
at 89-90. Trooper Zukowsky confirmed that surveillance of the
C.I. was maintained throughout the events described and there
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appeared no opportunity for the C.I. to obtain the recovered drugs
other than through the controlled buy. Id. at 90.
Trooper Zukowsky then testified that, on July 23, 2018, he
again met with the C.I. at the prearranged location in Hamburg.
Id. at 91. The C.I. and his vehicle were searched, during which
no contraband, currency, or weapons were found, and he was
provided with $1,000 in recorded currency to conduct a controlled
buy of methamphetamine. Id. at 93. The C.I. traveled under
surveillance to West’s residence where he picked up West and a
small dog, and [he] proceeded to Appellant’s residence. Id. While
Trooper Zukowsky did not personally observe what occurred at
Appellant’s residence, he testified that the C.I. returned to the
prearranged location and relinquished another ounce of
methamphetamine, which was wrapped in a yellow and white
money wrapper. Id. at 94.
On cross-examination, Trooper Zukowsky explained that the
C.I. and West met through their job as landscapers and West was
identified as an individual with access to a source for illegal
narcotics. Id. at 107. Furthermore, while the controlled buys
were occurring, West had no knowledge of the PSP investigation,
or his involvement in the investigation. Id. at 107-08. Trooper
Zukowsky admitted that West and Wyatt were not searched prior
to entering the C.I.’s vehicle and that he had no personal
knowledge as to whether either possessed contraband at that
time. Id. at 108-09. However, Trooper Zukowsky posited that if
either West or Wyatt had provided the drugs, then it would be
inconsistent with the conversations between West and the C.I. and
with the actions of both in traveling to Appellant’s residence in
order to obtain the methamphetamine. Id. Trooper Zukowsky
also admitted that he did not directly observe any of the activity
that occurred in Appellant’s residence, and that he did not witness
any actual transaction between West and Appellant. Id. at 112-
13.
Francis Carito (“Trooper Carito”), who has been a trooper
with the PSP since 2011, testified that on July 17, 2018, he was
assisting his partner, Trooper Zukowsky, in handling the C.I.
during the investigation. Id. at 122. Trooper Carito helped search
the C.I.’s vehicle prior to the controlled buy and he found no
controlled substances, weapons, or currency during the search.
Id. at 123. Trooper Carito also participate[d] in the surveillance
of the C.I. traveling in his vehicle. Id. at 123-24. Trooper Carito
further testified that he observed the C.I. pick up two individuals
in Shoemakersville, and that he later saw Appellant approach the
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C.I.’s vehicle as it was parked in the Turkey Hill parking lot. Id.
at 124-25. Trooper Carito continued to assist Trooper Zukowsky
on the C.I.’s return to the prearranged meeting location,
whereupon the C.I. provided the clear plastic baggy containing the
methamphetamine[,] and [he] subsequent[ly] search[ed] the C.I.
and his vehicle. Id. at 126-27.
On July 23, 2018, Trooper Carito again participated in the
controlled buy with Trooper Zukowsky and the same C.I. Id. at
128. Trooper Carito again participated in the search of the C.I.
and his vehicle, during which no illegal weapons, contraband, or
currency were found. Id. at 128-29. Similarly, Trooper Carito
joined in the subsequent surveillance of the C.I., who picked up a
male with a dog. Id. at 130. Upon completion of the controlled
buy, and the return of the C.I. to the prearranged location,
Trooper Carito again assisted in the search of the C.I. and his
vehicle whereupon no contraband or currency was discovered,
other than the purchased methamphetamine that the C.I.
surrendered. Id. at 130-32.
Corporal Javier Garcia (“Corporal Garcia”), a seventeenyear veteran of the PSP and a member of the Southeast Strike
Force, testified that on July 17, 2018, as he was part of the
surveillance detail, he observed Appellant park and exit his pickup
truck in his driveway on Eisenhauer Drive. Id. at 136-37.
Corporal Garcia then saw Appellant meet up with a man in front
of the house and the two entered the residence. Id. at 137.
Approximately ten minutes later, both men exit[ed] the residence,
[got] into the pickup truck, and [drove] to the Turkey Hill. Id. at
138-39. Corporal Garcia indicated that he was also part of the
surveillance team following the C.I.’s vehicle as it traveled from
the prearranged location to the Turkey Hill and back again, and
he confirmed that he did not see anyone approach the vehicle or
throw anything into the vehicle during those trips. Id. [at] 139.
Additionally, Corporal Garcia participated in the surveillance
of the July 23, 2018, controlled buy. Id. [at] 140-41. During the
second controlled buy, Corporal Garcia surveilled Appellant’s
residence where he observed Appellant, the C.I., and West looking
at Appellant’s pickup truck. Id. at 141. Corporal Garcia observed
an exchange occur between the C.I. and Appellant in the driveway
of Appellant’s residence, though he admitted that he did not see
exactly what was exchanged between the two. Id. at 142-43,
146.
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Trooper Sean Taylor (“Trooper Taylor”), who has been with
the PSP for twenty-two years, next testified that he participated
in the surveillance of both controlled buys involving Appellant. Id.
at 147-48. Trooper Taylor described watching the C.I. pick up
West and Wyatt on July 17, 2018, and [he] confirmed that he did
not see anyone else enter the vehicle or place anything inside the
vehicle. Id. at 149. During the second controlled buy on July 23,
2018, Trooper Taylor assisted in surveillance and the search of the
C.I.’s vehicle both prior to, and subsequent to, the controlled buy.
Id. at 150. Trooper Taylor testified that no contraband, weapons,
or currency were found pursuant to the search. Id. at 150-51.
While surveilling the C.I.’s vehicle during the second controlled
buy, Trooper Taylor did not observe anyone other than the C.I.
and West enter the C.I.’s vehicle, or place anything else inside the
vehicle. Id. at 151. On cross-examination, Trooper Taylor
admitted that he did not search West, Wyatt, or the dog that
accompanied the C.I. during the controlled buy. Id. at 152.
Joshua West next testified that he was facing various drugrelated charges in Berks County related to the July 17 and July 23
controlled buys, and that no one had forced, threatened, or
promised him anything concrete in return for his testimony, but
that he was hoping for consideration. Id. at 154-56. West stated
that he met Appellant two years prior at a gas station while he
was filling his tires with air. Id. at 156-57. Appellant told West
that he had tires to sell and the two met up again approximately
two weeks later when West purchased the tires from Appellant.
Id. at 157. During the second meeting, West and Appellant used
methamphetamine together. Id. Subsequently, West began to
obtain methamphetamine from Appellant on a regular basis of at
least once a week. Id. at 158-59.
West continued that, approximately one week prior to July
17, 2018, Appellant asked West to help find a buyer for an ounce
of methamphetamine. Id. at 160-61. West knew the C.I. through
a long-time friend, and West and Appellant facilitated the drug
purchase. Id. at 161. On July 17, 2018, West and the C.I. were
communicating via text message and the C.I. then picked West
and Wyatt up at West’s residence. Id. at 161-62. During the car
ride, the C.I. gave West $1,000 in cash. Id. at 164. Appellant
had previously instructed West not to allow the C.I. to pull up
directly in front of his home, so West directed the C.I. to stop
about a block away, where West alighted [from] the vehicle. Id.
at 163. The C.I. then proceeded with Wyatt to the Turkey Hill.
Id.
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West then walked the short distance to Appellant’s
residence, knocked on the door, and Appellant let West into the
house. Id. Once inside the house, West gave the $1,000 to
Appellant who proceeded downstairs and returned with a clear bag
containing methamphetamine. Id. at 165-66. West testified that
he planned on walking back to the Turkey Hill to meet with the
C.I. and Wyatt, but Appellant insisted on driving West. Id. at 166.
Appellant and West then drove in Appellant’s pickup truck to the
Turkey Hill, where they both exited the truck. Id. at 167. West
stated that Appellant then approached the driver’s side of the
C.I.’s vehicle and introduced himself to the C.I. Id. As the two
engaged in a brief conversation, Appellant made a hand-to-hand
exchange of the bag containing the methamphetamine to the C.I.
Id. Appellant then went into the store and West left in the C.I.’s
vehicle with the C.I. and Wyatt. Id. at 168-69. The C.I. later
dropped West and Wyatt off at a diner. Id. at 169.
On July 23, 2018, the C.I. arrived at West’s residence and
picked up West and his dog and then proceeded to Appellant’s
home. Id. at 171. During the car ride, the C.I. gave West the
$1,000 in cash. Id. at 172-73. Upon arriving at Appellant’s home,
West testified that Appellant came out of the house and the two
began to look at Appellant’s pickup truck. Id. at 172. According
to West, Appellant had orchestrated the deal, which was an
exchange of $1,000 for an ounce of methamphetamine. Id. After
looking at the pickup truck, both West and Appellant proceeded
into Appellant’s home. Id. at 173. Once again, West gave
Appellant the $1,000 in cash, Appellant walked downstairs, and
reemerged with the drugs in hand. Id. West and Appellant then
continued back outside, where Appellant converse[d] with the
C.I., during which Appellant hand[ed] off the drugs to the C.I. Id.
at 174. Although West admitted that he did not actually see the
hand off occur, he testified that the C.I. showed him the drugs on
the way home. Id. at 175.
On cross-examination, Defense Counsel noted that West’s
recall events from July 17, 2018, differed from his earlier
testimony at the preliminary hearing in that he earlier testified
that Appellant approached the passenger side of the C.I.’s vehicle
and talked with Wyatt. Id. at 180. West clarified that Appellant
first approached the driver side of the C.I.’s vehicle, prior to
entering the Turkey Hill, gave the C.I. the drugs, and then
Appellant approached the passenger side upon exiting the Turkey
Hill, whereupon Appellant [had] the conversation with Wyatt[.]
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Id. at 180-81. West also admitted that Appellant had helped him
by loaning West money and tools. Id. at 181-84.
Both parties stipulated that the substance obtained both on
July 17, 2018, and July 23, 2018, were tested by Rebecca Patrick,
a Forensic Scientist with the PSP Laboratory, who has previously
testified as an expert witness in Pennsylvania courts. Id. at 186-
87. Furthermore, the parties stipulated that the results of the
testing indicated that the substances from both dates were, in
fact, methamphetamine, a controlled substance under
Pennsylvania law. Id.
At the conclusion of the trial on July 9, 2020, the jury found
Appellant guilty of [the] charges [indicated supra]. Sentencing
was deferred on request of Appellant. On July 23, 2020, th[e]
[trial] court sentenced Appellant to an aggregate term of
imprisonment of two and one-half (2½) years to eight (8) years,
with four years of probation to follow.
On [Monday,] August 3, 2020, Appellant, through new
counsel, filed timely post-sentence motions, which were denied by
order dated August 5, 2020. Appellant filed his Notice of Appeal
on August 13, 2020. On August 18, 2020, [the trial court] issued
an order directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed his concise statement on September 8, 2020[,] [and the trial
court filed an] opinion pursuant to Pa.R.A.P. 1925(a)[.]
Trial Court Opinion, filed 10/14/20, at 2-8 (footnotes in original).
In his first issue, Appellant contends the jury’s verdict is against the
weight of the evidence. Specifically, Appellant avers Joshua West’s testimony
regarding Appellant’s participation in the controlled buys is purely self-serving,
and thus unreliable, since West gave the testimony solely in the hopes of
receiving favorable treatment from the Commonwealth for his role in the
controlled buys. He further argues West’s testimony is replete with
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inconsistencies, and absent any supporting proof, the jury’s verdict based
thereon is against the weight of the evidence.2
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
omitted). Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins,
747 A.2d 910,
917 (Pa.Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact.
Talbert, supra.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
____________________________________________
2 Appellant adequately preserved his weight claim in the lower court. See
Pa.R.Crim.P. 607.
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Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.”
Id. (quotation marks and quotation omitted).
Here, in rejecting Appellant’s weight of the evidence claim, the trial court
relevantly indicated the following:
At trial, the Commonwealth presented the testimony [of]
four separate members of the PSP who participated in the
operation, including those who surveilled both the C.I. and
Appellant throughout the controlled buys. The Commonwealth
also presented Joshua West who testified that he participated,
though unwittingly at the time, in the controlled buys, confirming
the testimony of law enforcement officers.
[The trial court’s] recall of the testimony at trial, and [the
court’s] observation of the record notes of testimony, belie the
allegations of Appellant. While it is true that West sought leniency
in testifying on behalf of the Commonwealth, no agreement was
promised or assured to West. Moreover, [the trial court] fail[s] to
find demonstrable inconsistencies as alleged. There was no
indication that West demonstrated any personal vendetta or
animosity toward Appellant. In fact, upon cross-examination, it
was revealed that West and Appellant had a fairly convivial
relationship, with Appellant having helped West out with money
and tools. Defense Counsel likewise attempted, through cross-examination, to point out inconsistencies in West’s testimony,
[but] no material inconsistency was demonstrated.
Moreover, the jury was free to afford the weight and
credibility it saw fit to the testimony and evidence presented at
trial. It is clear from the verdicts rendered that the jury found the
testimony of West to be credible. [The trial court] find[s] nothing
in the jury’s verdict that shocks the conscience of th[e] court or
that is so contrary to the evidence as to characterize a miscarriage
of justice. As such, we find that Appellant’s [claim] lacks merit.
Trial Court Opinion, filed 10/14/20, at 9-10.
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We conclude the trial court did not abuse its discretion in denying
Appellant’s challenge to the weight of the evidence. Talbert, supra. We note
the jury was free to determine the weight to be given to West’s testimony.
Moreover, West specifically advised the jury that he was testifying because he
was hoping for “some understanding and some lenience” from the
Commonwealth in exchange for his testimony against Appellant. N.T., 7/9/20,
at 155. The jury was free to weigh what effect, if any, West’s desire for
leniency had on his testimony implicating Appellant in the controlled buys.
Furthermore, to the extent Appellant points to an alleged inconsistency
between West’s preliminary hearing and trial testimony regarding whether
Appellant approached the passenger side or driver side of the car at the Turkey
Hill, we note Defense Counsel extensively cross-examined West on this issue.
Id. at 180-81. The jury was free to weigh the alleged inconsistencies in West’s
testimony and judge the credibility of West’s trial testimony. Talbert, supra.
To the extent Appellant requests that we re-weigh the evidence and assess
the credibility of the witnesses presented at trial, we decline to do so as it is
a task that is beyond our scope of review. See Commonwealth v. Collins,
70 A.3d 1245, 1251 (Pa.Super. 2013) (stating that “[a]n appellate court
cannot substitute its judgment for that of the finder of fact”) (quotation
omitted)). Accordingly, we find no merit to Appellant’s weight of the evidence
claim.
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In his final issue, Appellant contends the trial court erred in the manner
in which it conducted voir dire. He contends there was a “breakdown in the
standard process for selecting a jury for trial[,]” id. at 20, and, thus, the jury
selection process violated his right to an impartial jury, as well as notions of
due process.3
“The Sixth and Fourteenth Amendments guarantee a defendant the right
to, inter alia, an impartial jury, and this right extends to both the guilt and
sentencing phases of trial.” Commonwealth v. Le, 652 Pa. 425,
208 A.3d
960, 972 (2019) (citation omitted). Thus, the jury selection process is crucial
to the preservation of a criminal defendant’s constitutional right to an impartial
jury. See Commonwealth v. Hunsberger,
619 Pa. 53,
58 A.3d 32 (2012).
Voir dire plays a critical function in assuring the criminal
defendant that his right to an impartial jury will be honored.
Without an adequate voir dire, the trial judge’s responsibility to
remove prospective jurors who will not be able impartially to
follow the court’s instructions and evaluate the evidence cannot
be fulfilled.
While this Court has explained that the scope of voir dire is
within the sound discretion of the trial court, the United States
Supreme Court has stated that the exercise of the trial court’s
discretion,…[is] subject to the essential demands of fairness.
Le, supra,
208 A.3d at 972-73 (quotation marks, quotations, and citation
omitted). See Commonwealth v. Impellizzeri,
661 A.2d 422, 427
____________________________________________
3 We note Appellant preserved his challenge to the jury selection process.
N.T., 7/8/20, at 3-4.
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(Pa.Super. 1995) (holding that, in reviewing a trial court’s ruling on a
challenge to the empaneling of a jury, “we employ a standard of review which
affords great deference to the trial judge”) (citation omitted)).
[Moreover,] [t]he purpose of voir dire is solely to ensure the
empaneling of a competent, fair, impartial, and unprejudiced jury
capable of following the instructions of the trial court….Voir dire is
not to be utilized as a tool for the attorneys to ascertain the
effectiveness of potential trial strategies.
Knight, supra, 241 A.3d at 640 (quotation marks and quotation omitted).
The decision whether to disqualify a prospective juror is to
be made by the trial judge based on the juror’s answers and
demeanor and will not be reversed absent a palpable abuse of
discretion. Appellate courts defer to the trial court’s assessment
of a prospective juror’s answers during voir dire because the trial
court is in the best position to assess the [prospective juror’s]
credibility and fitness to serve[.]
Most importantly, we should give great weight to the trial
court judge’s decision about striking jurors because the trial court
judge not only hears the words that the potential juror speaks,
but also the manner in which the juror says those words and is in
a better position than an appellate court to evaluate the
significance of any hesitancy of a potential juror:
The juror appears before the trial judge, who sees him
and hears what is said; and is able to form his opinion
as much from the proposed juror’s conduct as from
the words which he utters, printed in the record.
Hesitation, doubt, and nervousness indicating an
unsettled frame of mind, with other matters, within
the judge’s view and hearing, but which it is
impossible to place in the record, must be considered.
As it is not possible to bring these matters to our
attention, the trial judge’s view should be given great
weight in determining the matters before him.
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Shinal v. Toms, 640 Pa. 295,
162 A.3d 429, 442 (2017) (citing
Commonwealth v. Gelfi,
282 Pa. 434,
128 A. 77, 79 (1925)) (quotation
marks, quotations, and citations omitted).
Instantly, Appellant contends the voir dire was inadequate, and thus,
the trial judge’s responsibility to remove prospective jurors who would not be
able impartially to follow the court’s instructions and evaluate the evidence
was not fulfilled. Specifically, Appellant complains that “[t]he members of the
entire venire were required to wear face coverings and were then spread out
over a vast distance, far more spread out than is standard practice for voir
dire, a minimum of six feet apart, for social distancing purposes.” Appellant’s
Brief at 20-21. He contends that, because of these restrictions, the trial court
was unable to fully examine the prospective jurors’ conduct and demeanor in
determining their credibility and fitness to serve, and consequently, Appellant
was not ensured the empaneling of a competent, fair, impartial, and
unprejudiced jury.
In its opinion, the trial court set forth the following reasons for denying
Appellant’s objection and requiring the prospective jurors to wear masks, as
well as socially distance themselves, during voir dire:
In December of 2019, a novel coronavirus began infecting
humans in China, which by March of 2020, had spread throughout
144 countries, including the United States. Friends of Danny
DeVito v. Wolf, 227 A.3d 872 (Pa. 2020)[.] On March 16, 2020,
in response thereto, and upon request of the Commonwealth’s
Secretary of Health, the Pennsylvania Supreme Court declared a
general, statewide judicial emergency because of the coronavirus
that causes COVID-19.
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In its March 16, 2020, declaration and in its subsequent
extensions, the [Supreme] Court authorized the President Judges
of each judicial district to likewise declare a judicial emergency
within their district, and further “[t]o take any action permitted
pursuant to Rule of Judicial Administration 1952(B)(2).” In re
Gen. Statewide Judicial Emergency, 228 A.3d 1281 (Pa. 2020)
[(per curiam order)]. Rule 1952(B)(2)(d) grants to the President
Judge of a judicial district, in the event of an emergency, and upon
authorization of our Supreme Court, to “take necessary action to
provide for (i) the safety of court personnel, court users, and the
public, and (ii) the security of court facilities, financial, and cash
operations, equipment, and records[.]” PA ST J ADMIN
1952(B)(2)(d). Moreover, the Supreme Court’s declaration
likewise provided that “[t]o the degree practicable in light of the
necessity for some in-person appearances and proceedings,
safety measures should be employed that are as consistent as
possible with the federal and state executive guidance associated
with countering the spread of the COVID-19 virus.” In re Gen.
Statewide Judicial Emergency, 230 A.3d 1015, 1016 (Pa.
2020) [(per curiam order)]. On June 1, 2020, President Judge
Parisi issued a Supplemental Emergency Order indicating that jury
trials in the Court of Common Pleas of Berks County would resume
“on or after June 15[, 2020], consistent with prevailing health and
safety norms.” In Re: 23rd Judicial District, Emergency Judicial
Order No. 20-3264 (Berks C.P. June 1, 2020). The June 1, 2020,
Supplemental Order also required [that] “[a]ll persons entering
county buildings for court business will wear a mask covering their
nose and mouth at all times, unless otherwise specifically
permitted or directed by a judge.” Id.
In accordance with the June 1, 2020, Supplemental
Emergency Order, individuals reporting for the venire in
Appellant’s trial on July 8 and 9, 2020, were required to wear a
mask upon entering, and throughout the duration of their
presence in county buildings. While [the trial court] permitted
counsel to remove their masks during voir dire, and permitted
both counsel and witnesses to remove their masks during trial
testimony, we granted no such exception for potential jurors who
were socially distanced during voir dire, but were still congregated
into a single auditorium. This decision reflected our understanding
of policies in effect both in the Commonwealth generally, in
accordance with the Centers for Disease Control and Prevention
guidelines, and pursuant to the June 1, 2020, Supplemental
Emergency Order from the President Judge.
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…
In the matter sub judice, the prospective jurors completed
and submitted questionnaires pursuant to [Pa.R.Crim.P.] 631,[4]
which were then provided to both the Commonwealth and Defense
Counsel for review. During voir dire, Defense Counsel was neither
prohibited nor prevented from presenting questions to the
potential jury members. Similarly, neither Appellant nor Defense
Counsel was sequestered away from the venireperson during the
process and both were able to hear the responses to questions
posed during the process of voir dire. Moreover, Appellant was
not prejudiced by the health requirement that potential jurors,
along with all other individuals admitted to the courthouse, were
required to wear a mask, as the Commonwealth was subject to
the same restriction.
The trial court makes the determination of whether to strike
a juror for cause based on the prospective juror’s answers to
questions and demeanor. Our Supreme Court has held that “[t]he
opportunity to observe the demeanor of the prospective juror and
the tenor of the juror’s answers is indispensable to the judge in
determining whether a fair trial can be had in the community.”
Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa. 1982)[.]
Moreover, “the scope and form of voir dire examination rests in
the sound discretion of the trial judge, whose decisions will not be
reversed absent a palpable abuse of discretion.”
Commonwealth v. Croll, 480 A.2d 266, 272 (Pa.Super. 1984).
“The purpose of voir dire is to draw out any bias or prejudice, and
thereby facilitate the removal of jurors with predisposed
opinions.” Id. at 273. [In the case sub judice,] [b]ased on [the
____________________________________________
4Relevantly, Pa.R.Crim.P. 631 provides the following:
(E) Prior to voir dire, each prospective juror shall complete the
standard, confidential juror information questionnaire as provided
in Rule 632. The judge may require the parties to submit in writing
a list of proposed questions to be asked of the jurors regarding
their qualifications. The judge may permit the defense and the
prosecution to conduct the examination of prospective jurors or
the judge may conduct the examination. In the latter event, the
judge shall permit the defense and the prosecution to supplement
the examination by such further inquiry as the judge deems
proper.
Pa.R.Crim.P. 631(E).
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trial] court’s observations and the responses provided by the
potential jurors, [the trial court] finds that this objective was
achieved and Appellant was afforded a jury free of bias or
prejudice. As such, we find no merit in Appellant’s allegation of
error.
Trial Court Opinion, filed 10/14/20, at 10-13 (citations omitted) (footnote
added).
We agree with the trial court’s sound reasoning. We conclude the trial
court did not abuse its discretion as to the scope or form of the voir dire
examination and abided by the “essential demands of fairness.” See Le,
supra,
208 A.3d at 973. There is no indication the trial court was unable to
adequately view the prospective jurors, examine their conduct, or perceive
any factors indicating an “unsettled frame of mind[.]”
Shinal, supra,
162
A.3d at 442. In fact, the trial court indicated in its opinion that it was able to
adequately assess the prospective jurors’ answers during voir dire so as to
determine, inter alia, whether to disqualify a prospective juror.
Moreover, we note the trial court did not arbitrarily require the
prospective jurors to wear masks and socially distance during voir dire.
Rather, faced with the COVID-19 pandemic, the trial court reasonably imposed
these requirements and complied with governing safety measures employed
by federal and state agencies, as well as our Supreme Court’s emergency
judicial orders. Simply put, we agree with the trial court that the masking and
social distancing of the prospective jurors did not interfere with the sole
purpose of voir dire: the “empaneling of a competent, fair, impartial, and
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unprejudiced jury capable of following the instructions of the trial court.”
Knight, supra, 241 A.3d at 640 (quotation omitted). Accordingly, we find no
merit to Appellant’s issue.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/04/2021
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