A Philadelphia trial judge misapplied Pennsylvania criminal voir dire procedure when she required a man to use peremptory challenges before exhausting his challenges for cause, the Superior Court has ruled.

However, the divided panel also ruled the error was harmless, thus leaving the conviction undisturbed.

There are two methods trial judges use in empaneling a jury — individual voir dire and the so-called “list system,” where jurors are interviewed together. The latter was used in the prosecution of Harold W. Noel Jr., who is now serving a lengthy prison sentence for robbery, conspiracy and weapons charges.

Noel argued on appeal the trial court violated the Pennsylvania Rule of Criminal Procedure on the list method by having him exercise peremptory challenges before he was out of those for cause. And the court agreed.

But the 2-1 panel declined to correct the error because it found Noel did not argue the jury was unfair or unqualified, nor did he argue any actual prejudice occurred.

“Here, while [Noel] was compelled to use peremptory strikes prematurely, there is absolutely no evidence and no argument that [he] was forced to select a juror whom he would have stricken,” Judge Jacqueline O. Shogan wrote for the majority, joined by Judge Susan P. Gantman.

Per se prejudice was not present, either, the majority found, because certain criminal proceedings allow for individual voir dire (where lawyers can launch peremptory challenges before exhausting all their for-cause challenges) rather than the so-called “list method,” where for-cause challenges are exhausted first.

Because the individual method is available in noncapital cases and mandated in capital cases, Shogan said the majority could not conclude it was prejudicial per se.

“Because the Pennsylvania Supreme Court is the rulemaking authority for the courts of this commonwealth, it is doubtful it created a rule that is prejudicial per se,” Shogan said. “To conclude otherwise would render suspect every verdict in this commonwealth where the list method has been employed.”

According to the dissenting opinion, the issue appears to be one of first impression.

But Noel’s attorney said the issue on appeal in Commonwealth v. Noel mirrors one he sees often in his Philadelphia criminal practice, one which leaves criminal defense attorneys with the “worst of both worlds,” as he put it.

Solo practitioner J. Michael Farrell said when defense attorneys are forced to use peremptory strikes in list-system courtrooms and without having seen all prospective jurors, the attorneys are being denied the benefit of one-on-one questioning that comes with individual voir dire and the benefit of the list system — the ability to see the entire pool of jurors before deciding on peremptory challenges.

Despite raising the issue before the judge, Farrell said his concerns were unresolved during trial.

“This is especially important here because ultimately the trial courts, especially [their] concern with respect to timing and judicial economy, are more interested in moving cases and less interested in moving cases fairly and moving cases properly,” Farrell said. “Voir dire is being emasculated in all of our criminal courts, especially in Philadelphia.”

The rule on list systems, in relevant part, states: “When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted.”

The majority cited several opinions where an appellate court found the lower court committed reversible error by forcing defense counsel to use peremptory challenges on a juror who should have been stricken for cause.
Farrell did not agree with the court that the cases were “readily distinguishable,” as Shogan put it, in disposing of his claim. In an interview, he said they simply did not apply to his case.

“The only cases that find prejudice is when ultimately a judge has improperly denied a challenge for cause,” Farrell said. “That’s a separate and distinct issue. It’s apples and oranges.”

In a dissenting opinion that was nearly as long as the majority’s 21-page opinion, Judge David N. Wecht said the current case presented the panel with reversible error.

Wecht would not go as far as to rule that all deviations from voir dire procedural rules constitute reversible error.

However, the Superior Court’s newest jurist maintained “prejudice necessarily inheres where such errors may have compelled a defendant to exhaust his peremptory challenges differently than he would have done absent the error.”

Noel, he said, was such a case.
Wecht went on in a 17-page opinion to detail considerations he said have “animated the peremptory challenge” for as long as the trial-by-jury system has been around, landing on the U.S. Supreme Court’s 2009 holding that states are “free to decide” whether a mistaken denial of a peremptory challenge is reversible error per se.

Wecht agreed the court was bound by the cases under which the majority based its reasoning, those being the cases that dealt with forcing a party to exercise a peremptory strike in a for-cause situation. He also agreed with his fellow jurists that per se prejudice does not automatically occur each time a voir dire rule is misapplied and conceded the issue requires a case-by-case analysis.

“That being said, the common law long has recognized that ‘a right without a remedy is not a right at all but a mere abstraction,’” Wecht said. “Thus, to demand a showing of prejudice when the issue is how a criminal defendant would have used one or more of his peremptory challenges had not the trial court patently violated the rules governing jury selection is to render a right provided to criminal defendants by Pennsylvania law a ‘mere abstraction,’ and, consequently, a nullity.”

“Surely, in prescribing a detailed procedure for jury selection, our Supreme Court did not intend to deny all practicable recourse for ensuring the rule’s faithful application by the trial courts,” Wecht said.

Farrell said he and his client plan to file for an appeal with the Supreme Court.

Noel was convicted for the robbery of a man at a Philadelphia gas station June 29, 2008, and conspiracy to commit the robbery of another man that same day. At trial, a co-conspirator testified against Noel, saying the men joined together to commit the robberies in order to buy drugs.

Priya M. Travassos of the Philadelphia District Attorney’s Office represented the state and did not return a request for comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter@BPresentTLI.

(Copies of the 38-page opinion in Commonwealth v. Noel, PICS No. 12-1770, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •