Commonwealth v. Fuller

MONTGOMERY, Judge:

On January 16, 1982, appellant Michael John Fuller, a Waynesburg police officer, shot and killed Celia JoAnn McGilton while responding to a complaint of “a crazy man ... running around with a deer rifle.” Subsequently, he was convicted of involuntary manslaughter following a jury trial before the Honorable Glenn Toothman. Post-trial motions were denied, appellant was sentenced and this direct appeal was filed. Three issues are raised herein:

1. Whether the entire jury panel should have been excused prior to trial.

2. Whether defense counsel should have been permitted to cross-examine a Commonwealth witness regarding prior incidents of violence to impeach the witness’s credibility.

3. Whether the court should have permitted ¿ppellant to present evidence to show that the jury considered or received knowledge of a prior police brutality case in which appellant was involved.

We reject appellant’s first two contentions; however, for the reasons that follow, we remand for an evidentiary hearing on the third issue.

Appellant’s- first argument, that the entire jury panel should have been excused, is based on the following exchange between the court and a prospective juror:

BY THE COURT: Do any of you have any knowledge of any previous case involving any of the parties in this case, that case occurring in this courtroom in this county?

DAVID HUNTLEY [Prospective juror]: I know that Fuller was just on trial here.

(Tr. 13)

No objection or motion to excuse the jury panel appears in the record.¹ Appellant has therefore not preserved this claim for appellate review since it was not properly raised in the court below. Commonwealth v. Reid, 475 Pa. 54, 379 A.2d 572 (1977); Commonwealth v. Presbury, 475 Pa. 48, 379 A.2d 569 (1977); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant has not preserved his second issue for review either. After' a side bar on whether counsel would be permitted to question the witness about prior violent incidents, appellant’s counsel conferred with appellant and withdrew the question. Further, it is without merit because a witness’s credibility may not be impeached by prior acts of misconduct which have not lead to convictions, Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977), and then only if the convictions involve crimes of dishonesty or false statements. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Appellant’s final argument is not totally without merit. Appellant alleged, and offered to prove through testimony of a juror, that the jury at least had knowledge, and possibly considered, the fact that appellant had been involved in a prior police brutality case. This was despite the fact that the court excused all prospective jurors who admitted to such knowledge on voir dire. No evidentiary hearing was ever held. As a general rule, a juror may not impeach his or her own verdict after the jury has been discharged. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). The exception to this rule, however, permits discharged jurors to testify as to the existence of outside influences during their deliberation. Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). Thus, appellant should be afforded a hearing at which he may present evidence of extraneous influences that might have affected the jury during their deliberation. Commonwealth v. Sero, supra.

Case remanded for an evidentiary hearing with respect to the existence of outside influences on the jury during deliberation. Jurisdiction is retained.

DEL SOLE, J., filed a dissenting opinion.

1 . Appellant argues that counsel made such a motion at side bar which was not recorded and that the court refused. We cannot, however, consider what is not in the record. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981).