Trigg, M. v. Children's Hospital of Pgh., Aplt. ( 2020 )

[J-85-2019] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
MENDY TRIGG, INDIVIDUALLY AND : No. 3 WAP 2019
SMITHFIELD TRUST, INC., AS THE :
GUARDIAN OF THE ESTATE OF J. T., A : Appeal from the Order of the
MINOR, : Superior Court dated May 14, 2018
: at No. 1041 WDA 2017, vacating the
Appellees : Judgment of the Court of Common
: Pleas of Allegheny County entered
: June 28, 2017 at No. GD 13-002322
v. : and remanding.
:
: ARGUED: October 15, 2019
CHILDREN'S HOSPITAL OF PITTSBURGH :
OF UPMC, :
:
Appellant :
CONCURRING OPINION
JUSTICE WECHT DECIDED: APRIL 22, 2020
We accepted review of this case to determine whether the court of common pleas
erred in failing to observe the demeanor of prospective jurors who were challenged for
cause during jury selection. Appellees failed to preserve their claim in the trial court.
Appellees’ waiver of their claim precluded the Superior Court from considering it. We
therefore are constrained to reverse the Superior Court. Although this Court can provide
no relief in this case, Allegheny County’s civil jury-selection process gives cause for
serious concern.
In their medical malpractice action against UPMC Children’s Hospital of Pittsburgh
(“UPMC”), Appellees filed suit in Allegheny County. Pursuant to Allegheny County Local
Rules of Civil Procedure, neither the calendar control judge nor the trial judge oversees
voir dire. Rather, jury selection occurs in the jury assignment room, presided over by a
clerk. The clerk asks the prospective jurors general questions, which are prescribed by
the local rules. Maj. Op. at 3. Once the general questions have concluded, the clerk asks
questions of each prospective juror individually. Id. at 4. Following questioning by the
clerk, counsel for both parties are afforded the opportunity to ask “reasonable” follow-up
questions. Id. In the event a challenge arises during voir dire, the parties must leave the
room and report to a judge elsewhere in the building, who will then hear and rule upon
the challenge. This is not the judge who will try the case but is instead the calendar
control judge, whose several duties include jury selection issues.
Consistent with this practice, Appellees and UPMC posed follow-up questions to
the prospective jurors under the supervision of a clerk. Appellees questioned prospective
juror number 29 regarding her feelings about medical malpractice actions. The
prospective juror indicated that she might not be able to be fair and impartial because she
had family members who were doctors and nurses. Appellees challenged this
prospective juror, and two others, for cause.
In accordance with Allegheny County practice, counsel for both parties then
departed the jury assignment room and walked to the courtroom of the calendar control
judge to present their for-cause challenges. The judge asked Appellees to proceed with
their objections. Appellees’ counsel asked whether the judge would like to read the
transcripts of the prospective jurors’ voir dire. The judge replied, “Whatever you would
want to do to make your record on your objection, go right ahead.” See Maj. Op. at 6
(citing Notes of Testimony (“N.T.”) 3/17/2017, at 201). Appellees’ counsel responded that
“it would be easier” and “quicker” if the judge read the transcripts, as opposed to bringing
the challenged jurors into the courtroom to once again subject them to questioning. Id.
(citing N.T. 3/17/2017, at 201-02). The judge read the transcripts and denied the for-
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cause challenges. Appellees then used their peremptory challenges to exclude these
jurors. Trial commenced, resulting in a defense verdict.
Like the Majority, I conclude that Appellees waived their argument that the court
erred by not observing voir dire. Maj. Op. at 13. Not only did Appellees fail to object in
pretrial motions to the judge’s absence during voir dire, they failed to make a
contemporaneous objection to the judge’s absence when advancing their for-cause
challenges. See Pa.R.C.P. 227.1(b).
Whether by strategy or inadvertence, or perhaps a sense of futility in the face of
long-standing (albeit erroneous) Allegheny County practice, Appellees’ counsel waived
the challenge to the voir dire process and to the judge’s failure to observe the prospective
jurors during voir dire. Appellees are bound by this waiver. In order to preserve an issue
for appellate review, counsel must place a timely, specific objection on the record. See
Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011); Straub v. Cherne
Indus., 880 A.2d 561, 566 (Pa. 2005); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114,
116-17 (Pa. 1974). Issues that are not preserved by specific objection in the lower court
are waived. Pa.R.A.P. 302(a); Straub, 880 A.2d at 617-18. Because Appellees failed to
make a specific objection before the trial court, the Superior Court exceeded the scope
of appellate review by considering an issue that was not preserved.
The obligation to preserve claims of error for a litigant falls upon counsel. The
classic definition of waiver is the “intentional relinquishment or abandonment of a known
right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). To preserve an objection
for appellate review, “trial counsel is required to make a timely, specific objection during
trial.” Takes v. Metro. Edison Co., 695 A.2d 397, 400 (Pa. 1997). There are two benefits
of timely preservation:
(1) a timely objection made to the trial court gives that court the opportunity
to take immediate corrective action, which promotes efficiency in the judicial
[J-85-2019] [MO: Todd, J.] - 3
process by allowing litigants to avoid incurring unnecessary expense and
delay by being forced to resort to the appellate process; and (2) it offers a
predictable and neutral standard for appellate review of claims of trial court
error which is applicable to all cases, unlike the [plain error] standard which
was inconsistently applied by appellate courts on a case by case basis.
SugarHouse HSP Gaming, L.P. v. Pa. Gaming Control Bd., 162 A.3d 353, 365 (Pa. 2017)
(citing Dilliplaine, 322 A.2d at 117).
As we have explained, “[r]equiring a specific objection on the record ‘remove[s] the
advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate
court to compensate for his trial omissions.” Jones v. Ott, 191 A.3d 782, 788 (Pa. 2018)
(quoting Dilliplaine, 322 A.2d at 117). It prevents a trial from turning into “merely a dress
rehearsal.” Id.
A timely objection affords the court the opportunity to remedy the alleged error.
Here, Appellees’ counsel deprived the court of the opportunity to remedy any defects
when he acquiesced without objection to the procedure established in Allegheny County.
By the time counsel alleged in post-trial motions that the trial court erred in not striking
prospective juror 29 for cause based upon that prospective juror’s demeanor outside of
the observation of the trial court, the damage was done and was not subject to correction
by the trial court.
Because counsel’s waiver results in the relinquishment of the client’s rights, an
attorney representing a client is obligated to invest some thought into the future
progression of the case. To succeed on appeal, counsel is obligated to take affirmative
steps to build a record. This is so even where counsel does not believe that a timely
objection will remedy the challenged conduct. But even if counsel is certain that the court
will overrule the objection, the objection is not futile. Rather, an overruled objection
becomes the basis of an appeal. One cannot succeed on appeal by wasting the
opportunity to preserve an issue at trial. Even before trial, counsel must anticipate
appellate issues and exercise forethought, laying the groundwork for appeal. It is the
[J-85-2019] [MO: Todd, J.] - 4
obligation of every attorney to keep the trial record clear, correct, and complete so that
there is an accurate history of the proceedings. Without constructing a record, the
possibility of appellate review is circumscribed by counsel’s failures.
Like Justice Donohue, I have deep misgivings about voir dire that is conducted
outside the presence of a judge. See Concurring Op. at 3.1 As Justice Donohue cogently
explains, “[v]oir dire is an essential component of our constitutional right to trial by jury.”
Id. (citing PA. CONST. art. 1, § 6; Bruckshaw v. Frankford Hosp. of Phila., 58 A.3d 102,
108-09 (Pa. 2012)). It is the process by which courts secure a fair and impartial jury.2
In Shinal v. Toms, 162 A.3d 429, 441-42 (Pa. 2017), this Court established two
standards of review applicable when an appellate court reviews the trial court’s denial of
a challenge for cause. The applicable standard will depend upon whether the prospective
juror was challenged based on presumed prejudice or actual prejudice. Presumed
prejudice arises from a juror’s close relationship to the case, while actual prejudice is
revealed through the juror’s “conduct and answers” during voir dire. Id. at 441. When a
1 In this regard, I join the Majority in noting that Allegheny County has very recently
revised its local rules to allow for the possibility of some meaningful judicial role in civil
voir dire. See Maj. Op. at 3, n.3 (citing A.C.L.R.C.P. 212.2(d) (effective Feb. 8, 2020)).
Whether this new development has ensued as a result of this litigation or rather from other
causes, it is at all events to be welcomed. But it should begin the process of reform, not
end it. It may well be that Allegheny County’s civil trial rotation list tradition should finally
yield to a modern system of individual trial judge dockets as is the rule in federal courts
and in many state courts. Detailed contemplation of such issues must be left to the
wisdom and experience of the common pleas judges of Allegheny County in the first
instance.
2 Prior to the commencement of jury selection, the calendar control judge advised
counsel of his views regarding for-cause challenges to prospective jurors. In particular,
the judge explained that he did not perceive the prospective juror’s life-experiences as
disqualifying. N.T., 3/17/17, at 14. As we have explained, “[c]hallenges for cause are
essential means by which to obtain a jury that in all respects is impartial, unbiased, free
from prejudice, and capable of judging a case based solely upon the facts presented and
the governing law.” Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017). Contrary to the
judge’s view, life experiences certainly may render a prospective juror partial, biased, or
prejudiced, incapable of deciding a case on the facts and governing law.
[J-85-2019] [MO: Todd, J.] - 5
prospective juror reveals a likelihood of prejudice through conduct and answers to
questions during jury selection, we defer to the trial court’s determination and will only
reverse upon an abuse of discretion. Id. at 443.
The reason we defer to the trial court is simple: personal observation. We defer to
the trial judge because it is the trial judge’s function to ensure the empaneling of a fair
and impartial jury and to assess the juror’s demeanor, conduct, and answers. Shinal, 162
A.3d at 442 (explaining that the reason that an appellate court will defer to the trial judge’s
assessment of a prospective juror is “because it is he or she that observes the juror’s
conduct and hears the juror’s answers”). As we explained:
[T]he 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.
Id. (quoting Commonwealth v. Gelfi, 128 A. 77, 79 (Pa. 1925)). It is the court’s
observation of the potential juror’s conduct and demeanor during voir dire that warrants
deference.
Answers, without demeanor, paint only half the picture. Demeanor and answers
together help paint for the judge a picture of the state of mind, personality, and credibility
of the prospective juror; one cannot be separated from the other. Demeanor
encompasses all of the subtle non-verbal cues that comprise communication, such as
facial expressions, body language, hesitation, nervousness, tone, inflection, and
gestures. All of these can communicate a potential bias that may not be apparent from
the words on the page. As the Superior Court in this case observed, physical and verbal
cues, such as “a juror[’s] furtive glance, a tremor of voice, a delayed reply, a change in
[J-85-2019] [MO: Todd, J.] - 6
posture, or myriads of other body language” all make up the answers to a question, and
are part of the basis for a challenge to the potential juror’s response. Trigg v. Children’s
Hosp. of Pittsburgh of UPMC, 187 A.3d 1013, 1017 (Pa. Super. 2018); see also Snyder
v. Louisiana, 552 U.S. 472, 477 (2008) (recognizing that challenges to prospective jurors
are often based upon “a juror’s demeanor (e.g., nervousness, inattention), making the
trial court’s firsthand observations of even greater importance”); Commonwealth v.
Robinson, 864 A.2d 460, 490 (Pa. 2004) (noting that it is the trial judge “who sees and
hears the juror, and, in the exercise of a wide discretion, may conclude that he is not
competent to enter the jury box for the purpose of rendering an impartial verdict”) (quoting
Commonwealth v. Sushinskie, 89 A. 564, 565 (Pa. 1913)). Because the foundation of
appellate deference to voir dire rulings is such observation, the lack of personal
observation by the judge ruling on for-cause challenges undermines the rationale for
deference quite thoroughly.
In this case, the court’s conclusion that the answers of prospective juror 29
revealed that she could be fair and impartial was limited by what the calendar control
judge was able to perceive from the record, a cold record that an appellate court is equally
equipped to view. Had the judge been in the courtroom, he also would have been able
to assess the juror’s hesitation, doubt, nervousness, or non-verbal cues that may have
indicated an unsettled frame of mind. Without personal observation, we will not defer to
the trial court’s resolution of for-cause challenges based upon actual prejudice.
Like Justice Donohue, I do not believe that calling the prospective juror in before
the judge for a second round of questioning sufficed to replicate the opportunity for
personal observation that the judge already missed. See Concurring Op. at 2-3. Knowing
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he or she is undergoing additional scrutiny, any prospective juror would consciously or
unconsciously recalibrate his or her answers during this second round of questioning.
This is not the functional equivalent of the judge’s presence during voir dire. Id. at 3.
I agree as well with Justice Donohue’s observation that the unequal treatment of
jury selection in criminal and civil trials contained within our procedural rules cannot be
justified given the critical function performed by the judge overseeing voir dire in both
species of trials. Compare Pa.R.Crim.P. 631(A), with Pa.R.C.P. 220.3. Our Civil
Procedural Rules Committee should examine and address this disparate treatment.
Justice Dougherty joins this concurring opinion.
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