Commonwealth v. Noel

OPINION BY

SHOGAN, J.

Appellant, Harold Winston Noel, Jr., appeals from the judgment of sentence entered on April 16, 2010, in the Philadelphia County Court of Common Pleas. On appeal, Appellant challenges, inter alia, the trial court’s application of Pa.R.Crim.P. 631(E)(2) in that he was required to exercise peremptory challenges before the exercise of all his challenges for cause. For the reasons set forth below, we affirm.

The relevant facts of this matter may be briefly summarized as follows. At a jury trial held on February 16, 2010 through February 18, 2010, Mr. Zachary Willis (‘Willis”) testified as a witness for the Commonwealth. Willis stated that on June 29, 2008, while walking to a gas station at Aramingo Avenue and Somerset Street in Philadelphia, a man later identified as Appellant approached him. N.T., Trial, 2/16/10, at 17. Appellant said ‘To, let me get your wallet.” Id. Willis thought it was a joke at first, but he realized that it was not when he saw Appellant was pointing a gun at him. Id. at 18. Willis gave his wallet to Appellant, and Appellant fled towards Somerset and Memphis Streets. Id. Willis subsequently identified Appellant in a line-up as the man who robbed him. Id. at 66.

Next, Mr. Eugene McPeak (“McPeak”) testified and stated that on June 29, 2008, as he was placing his groceries into his vehicle, a man approached him and demanded the cash McPeak had in his hand. N.T., Trial, 2/17/10, at 22. The man then lifted his shirt and removed a gun. Id. at 23. With the gun drawn, the man pushed McPeak down and ran north towards Ar-amingo Avenue. Id. at 23. McPeak, however, was unable to identify the person who attempted to rob him. Id. at 29.

Next, a co-conspirator, Steven Reiner (“Reiner”), who is also known as Michael Reiter, testified for the Commonwealth. He testified that he was involved in the robberies involving Willis and McPeak, and that he pled guilty to these crimes and was currently incarcerated. N.T., Trial, 2/17/10, at 89. He testified that he and Appellant conspired to engage in these robberies in an effort to obtain cash so that they could buy drugs. Id. at 70-74. Reiner corroborated the testimony of Willis and McPeak. Id.

At the conclusion of the trial, on February 19, 2010, the jury returned a verdict of guilty as to criminal conspiracy to commit robbery, possession of an instrument of crime, and possession of a firearm with the manufacturer number altered with respect to McPeak. The jury further found Appellant guilty of robbery, criminal conspiracy to commit robbery, firearms not to be carried without a license, possession of an instrument of crime, possession of a firearm by a prohibited person, and possession of a firearm with the manufacturer number altered with respect to Willis.

On April 16, 2010, the trial court sentenced Appellant to an aggregate term of 29 to 58 years of incarceration. Appellant timely appealed.

On appeal, Appellant raises two issues for this Court’s consideration:

Did not the trial court violate Pa. R.Crim. P. 631(E)(2) by requiring the defense and prosecution to exercise peremptory challenges before the exercise of all challenges for cause?

Whether Appellant was deprived of his right to a fair trial under the United States and Pennsylvania Constitutions by the prosecutor’s accusation in closing argument that defense counsel “insulted” and “excoriated” complainant Zachary Willis and “dragged (him) through the mud, in court”, and by implicitly injecting a claim of entitlement to special consideration for the complainant by expressing personal outrage at alleged mistreatment of “victims in my prosecutions, victims in my cases”?

Appellant’s Brief at 2. We will address these issues in the order in which they were presented.

In his first issue, Appellant claims the trial court violated Pa.R.Crim.P. 631 and erred in requiring the parties to exercise peremptory challenges before the exercise of challenges for cause. Because this argument'requires us to interpret a procedural rule, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Dowling, 598 Pa. 611, 616, 959 A.2d 910, 913 (2008). The rule at issue is set forth below:

Examination and Challenges of Trial Jurors

(A) Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by the attorney for the Commonwealth, the defense attorney, and the defendant, with the judge’s consent.

(B) This oath shall be administered individually or collectively to the prospective jurors:

“You do solemnly swear by Almighty God (or do declare and affirm) that you will answer truthfully all questions that may be put to you concerning your qualifications for service as a juror.”

(C) Voir dire, including the judge’s ruling on all proposed questions, shall be recorded in full unless the recording is waived. The record will be transcribed only upon written request of either party or order of the judge.

(D) 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.

(E) In capital cases, the individual voir dire method must be used, unless the defendant waives that alternative. In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:

(1) Individual Voir Dire and Challenge System

(a) Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.

(b) Challenges, both peremptory and for cause, shall be exercised alternately, beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to Rule 641.

(2) List System of Challenges

(a) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least 12, plus the number of alternates to be selected, plus the total number of peremptory challenges (including alternates).

(b) Prospective jurors may be examined collectively or individually regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.

(c) Challenges for cause shall be exercised orally as soon as the cause is determined.

(d) When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.

(e) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (E)(2)(b).

(f) 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. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated. No one shall disclose which party peremptorily struck any juror.

Comment: This rule applies to all cases, regardless of potential sentence. Formerly there were separate rules for capital and non-capital cases.

If Alternative (E)(1) is used, examination continues until all peremptory challenges are exhausted or until 12 jurors and 2 alternates are accepted. Challenges must be exercised immediately after the prospective juror is questioned. In capital cases, only Alternative (E)(1) may be used unless affirmatively waived by all defendants and the Commonwealth, with the approval of the trial judge.

If Alternative (E)(2) is used, sufficient jurors are assembled to total 12, plus the number of alternates, plus at least the permitted number of peremptory challenges (including alternates). It may be advisable to assemble additional jurors to encompass challenges for cause. Prospective jurors may be questioned individually, out of the presence of other prospective jurors, as in Alternative (E)(1); or prospective jurors may be questioned in the presence of each other. Jurors may be challenged only for cause, as the cause arises. If the challenges for cause reduce the number of prospective jurors below 12, plus alternates, plus peremptory challenges (including alternates), new prospective jurors are called and they are similarly examined. When the examination is completed, the list is reduced, leaving only 12 jurors to be selected, plus the number of peremptories to be exercised; and sufficient additional names to total the number of alternates, plus the per-emptories to be exercised in selecting alternates. The parties then exercise the peremptory challenges by passing the list back and forth and by striking names from the list alternately, beginning with counsel for the prosecution. Under this system, all peremptory challenges must be utilized. Alternates are selected from the remaining names in the same manner. Jurors are not advised by whom each peremptory challenge was exercised. Also, under Alternative (E)(2), prospective jurors will not know whether they have been chosen until the challenging process is complete and the roll is called....

Pa.R.Crim.P. 631 (and selected comments).

Jury selection in this case spanned two days, February 8 and 9, 2010. At the outset, the trial court made clear that it intended to proceed pursuant to the “list method” of jury selection (N.T., 2/8/2010, at 19; Trial Court Opinion, 5/9/11, at 12), which, as noted above, is prescribed by Rule 631(E)(2). The record reveals confusion among the court and the parties regarding the gravamen of that rule generally, and its application in this case specifically. Appellant’s counsel repeatedly requested that the parties not be asked to exercise peremptory strikes until the jury pool had been reduced to the Rule 631-speeified number of eligible jurors. The designation of eligible jurors was to be: 12 jurors; plus 2 alternates; plus 14 additional jurors resulting in a total of 28 eligible jurors, and it ensured a jury of fourteen (12 jurors and 2 alternates), would remain following the exercise by the parties of their fourteen combined peremptory strikes).¹ N.T., 2/8/2010, at 17.

In response to various concerns, the trial court ensured that the entire rule, as well as the commentary, was read into the record. N.T., 2/8/2010, at 21-27. The trial court disagreed with the view that Rule 631(E)(2) required the exercise of both parties’ peremptory challenges in their entirety only upon the assembling of an eligible venire of twenty-eight jurors. N.T., 2/8/10, at 26-29. Specifically, with regard to Rule 631(E)(2)(d) (“When a challenge for cause has been sustained, which brings the total number on the list below the number of twelve plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.”), the court explained its view at the end of the first day of jury selection as follows:

[The rule says:] When a challenge for cause has been sustained, which brings the total number on the list below the number of 12 plus alternates, plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list. It doesn’t tell you when.

It just says it shall be added. So, I’m adding them tomorrow. I’m going to add the additional jurors tomorrow, because the list now only has 24 total, which is six short, of the 30 that we need [sic].

So I’m going to add them tomorrow.

N.T., 2/8/2010, at 29 (emphasis added).²

In the meantime, however, all for-cause challenges having been addressed and the original pool of forty-two prospective jurors having been reduced to only twenty-three eligible jurors, the court directed the parties to “pass the list” and exercise their peremptory challenges at the end of the first day of jury selection. N.T., 2/8/2010, at 32.

The transcript lacks any detail regarding the process by which peremptory strikes were exercised following the above discussions, and the trial court provides no further detail in its opinion. Accordingly, we review the record, the trial court opinion, and the briefs of the parties to glean the effects of the trial court’s ruling. The Commonwealth asserts, and Appellant does not dispute, that all but one of the combined fourteen peremptory strikes were exercised on the evening of February 8, 2010. Appellant used all seven of his peremptory challenges that evening, while the Commonwealth exercised six, retaining one that it used to strike a juror on February 9, 2010, which was day two of jury selection. Brief for Commonwealth at 6-7. That is, on the evening of February 8, the parties began “passing the list” with a venire of only twenty-three, and, after the collective exercise of thirteen peremptory strikes, ended the evening with ten accepted and eligible jurors and four seats remaining to be filled. Id.

Notably, the trial court at least implied that the parties had the prerogative not to exercise all of their respective peremptory strikes, an inference borne out by the fact that the Commonwealth appears to have retained one peremptory challenge that it exercised on February 9. N.T., 2/8/2010, at 30 (“The prosecution goes first, they exercise — they either accept or strike the first one, and then the next one, all and then alternating thereafter, until all preemptory [sic ] challenges have been exhausted. And obviously they won’t be exhausted until tomorrow because we’re going to add the additional ... prospective jurors tomorrow.” (emphasis added)). However, on the evening of February 8, 2010, the court evidently presented the parties with their only opportunity to exercise peremptory strikes against the twenty-three eligible jurors who comprised the remainder of that day’s jury pool — a premise the Commonwealth does not dispute, and which is consistent with the trial court’s discussion of the issue.

With this background established, we address the jury selection issue raised by Appellant. Resolving the issue requires us first to determine whether the trial court erred as a matter of law in its application of the “list method” described by Rule 631(E)(2). If we determine that the court erred, we then must address the question of whether Appellant must show actual prejudice to obtain relief, and, if so, whether Appellant sustained such prejudice in this case.

We find no difficulty disposing of the first question. In this regard, Appellant argues that the plain language of Rule 631(E)(2) requires that peremptory strikes be reserved until the court has assembled a panel of eligible prospective jurors equal to the number of jurors to serve as such (here, twelve), the alternates to serve (here, two), and the total number of peremptory strikes collectively afforded the parties (here, fourteen).

In addition to the plain language of Rule 631(E)(2), Appellant calls our attention to this Court’s comments on the implementation of that rule in Commonwealth v. Clark, 802 A.2d 658 (Pa.Super.2002), where we noted as follows:

Appellant also asserts that the court erred in allowing the jury to be selected in violation of Pa.R.Crim.P. 681(E)(2) in that his attorney was forced to exercise peremptory challenges prior to exercising all “for cause” challenges. In the present case, a pool of jurors was first selected and subjected to a group voir dire. They had also filled out the jury questionnaires, as required by the rule. After the group examination, the jurors were individually called up to the counsel table and subjected to individual questioning. After the individual questioning, counsel were required to express a challenge for cause if they believed one existed. Barring the striking of a juror for cause, counsel were then required to either exercise a peremptory challenge or “accept” the juror. Once accepted, the juror could not be later stricken with a peremptory challenge. In this respect, the system employed was a combination or hybrid of the “individual voir dire and challenge system” and the “list system of challenges.” See Pa.R.Crim.P. 631(E)(1) & (2) [respectively].

It is clear that the system of jury selection employed in the present case violates the strict wording of Pa. R.Crim.P. 631. As a review of that rule bears out, if the “list system” of challenges is employed, then peremptory challenges are not to be exercised until after all challenges for cause have been exercised. The primary characteristic of this approach is that each attorney has the opportunity to exercise his peremptory challenges on a priority basis after all prospective jurors have been examined. So employed, each attorney may strike off the jurors he or she least prefers to hear the case.

Given our disposition of the other issues, it is unnecessary for us to reach this issue and we express no opinion on whether the violation that occurred would have warranted the granting of a new trial. Nevertheless, the Rules of Criminal procedure are not merely advisory. They were drafted with the intention that they would be faithfully applied. We see no reason that Pa. R.Crim.P. 631 should be ignored upon retrial.

Id. at 663 n. 3.

The Commonwealth does not materially dispute — although it does not concede— that the trial court’s reading and consequent application of Rule 631(E)(2) was in error. The Commonwealth proceeds instead to the question of entitlement to relief arising from any such violation. However, regarding the Rule itself, the Commonwealth observes correctly that the Clark footnote was dictum, and hence does not bind this Court as a matter of stare decisis. See Brief for Commonwealth at 8 n. 8. Nevertheless, we agree with the dictum in Clark to the extent that the method of voir dire in the instant case was flawed.

When we interpret our Rules of Criminal Procedure, we employ the same principles employed in the interpretation of statutes. Pa.R.Crim.P. 101(C); Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d 994, 1003 (2011). The object of interpretation of the criminal rules “is to ascertain and effectuate the intention” of our Supreme Court, as the rule-issuing body. “Every [rule] shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). “When the words of a [rule] are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). Because the words of Rule 631(E)(2) are “clear and free from all ambiguity,” we need not delve further into the applicable rules of construction.³

The trial court’s suggestion that the list method does not prescribe when the jury pool must be replenished, or when the parties must exercise their peremptory challenges, reflects an erroneous reading of Rule 631. To the contrary, the rule provides in relevant part, “When a challenge for cause has been sustained, which brings the number [of jurors] below the [number prescribed], additional prospective jurors shall be added to the list.” Pa.R.Crim.P. 681(E)(2)(d) (emphasis added). Eliminating any doubt about the meaning of that provision, the comment adds that, immediately following the assembly of a jury pool sufficiently large to satisfy the Rule 631(E)(2)(d) requirement:

Jurors may be challenged only for cause. If the challenges for cause reduce the number of jurors [below the number prescribed], new prospective jurors are called and they are similarly examined. When the examination is completed, the number is reduced, leaving only 12 jurors to be selected, plus the number of peremptories to be exercised; and sufficient additional names to total the number of alternates.... The parties then exercise the peremptory challenges by passing the list back and forth and by striking names from the list alternately.... Under this system, all peremptory challenges must be utilized.

Pa.R.Crim.P. 631 comment (emphasis added).

As we suggested in Clark, the list system of voir dire specified in Rule 631(E)(2) requires by its terms that the exercise of peremptory challenges occur only after voir dire and challenges for cause, together, have been completed. Thereafter, the pool may be reduced to the precise sum of the number of jurors and alternates to be empaneled, plus the number of peremptories provided to each party, by removing the necessary number of jurors from the remaining list (here, twenty-eight), whereupon the list then may be passed for the exercise by the parties of all of their peremptory challenges. Alternatively, peremptory strikes may be exercised when a pool remains that consists solely of eligible, qualified jurors (ie., those as to whom no for-cause challenge will lie) exceeding the minimum number required by Rule 631(E)(2)(d). When the parties either have exhausted their peremptory challenges entirely, or have exercised as many as they wish to use, the remaining list then may be reduced by striking the appropriate number of prospective jurors from the bottom of the list to reduce the total to the designated number of jurors plus alternates required for trial (here, fourteen). The language of the rule is sufficiently plain on this point, and the comment erases any lingering doubt.

We are, thus, constrained to conclude that the trial court did not conduct jury selection in conformity with the requirements of the list system of voir dire. Instead of assembling venirepersons and performing voir dire on as many of them as necessary to create a panel of twenty-eight eligible jurors prior to the commencement of peremptory strikes, the exercise of which then would have reduced the pool of twenty-eight to the fourteen jurors required for trial, the court required the parties to exercise their peremptory challenges within the context of a then-incomplete jury pool. In so doing, the court violated the plain language of the rule and erred as a matter of law.

Having determined that the trial court erred in its implementation of the list system of voir dire, we must now consider whether Appellant is required to demonstrate prejudice to obtain relief, or whether the trial court’s error created per se prejudice.

As noted above, the method of voir dire used here required the parties to use peremptory challenges before all venire persons were known. Because such a method is available in non-capital cases and mandated in capital cases (Pa.R.Crim. 681(E)(1)), we cannot conclude that it is prejudicial per se. Because the Pennsylvania Supreme Court is the rule-making authority for the courts of this Commonwealth, it is doubtful it created a rule that is prejudicial per se. To conclude otherwise would render suspect every verdict in this Commonwealth where the list method has been employed. Because we have concluded that the process followed in the instant case was not per se prejudicial, we must now determine whether Appellant suffered actual prejudice as a result of the voir dire that occurred here.

Upon review, while we conclude that the trial court erred in its administration of jury selection, we further conclude that Appellant has failed to establish actual prejudice. As the Commonwealth notes, in the case at bar, Appellant does not argue that the jury, as seated, was unfair or unqualified, nor does he argue actual prejudice. Commonwealth’s Brief at 24 n. 9. It is this absence of actual prejudice that distinguishes this case from instances where a new trial was granted.

In Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509 (1982), the trial court erred in failing to excuse for cause a prospective juror whose impartiality was, for several reasons, subject to doubt. Johnson, 445 A.2d at 511-14. The defense was forced to use one of its peremptory challenges to rectify the trial court’s error. Id. at 514. This Court concluded that this was not harmless error.⁴ Id.

Likewise, in Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978) (plurality) and Commonwealth v. McBee, 267 Pa.Super. 49, 405 A.2d 1297 (1979), cases upon which the Johnson Court relied, there was similar actual prejudice where the defendant was forced to use a peremptory challenge to strike a potential juror who should have been removed for cause. Jones, 383 A.2d at 877; McBee, 405 A.2d at 1300.

The error in the case at bar is readily distinguishable from Johnson, Jones, and McBee. In those cases, there was a forced selection of a juror and a forced use of a peremptory challenge and such coercion was held not to be harmless error. Here, while Appellant was compelled to use peremptory strikes prematurely, there is absolutely no evidence and no argument that Appellant was forced to select a juror whom he would have stricken. Therefore, we do not find, and Appellant does not cite, any actual prejudice. Accordingly, we conclude that any error stemming from voir dire was harmless, and Appellant is entitled to no relief on this claim.

Next, Appellant argues that he was denied a fair trial because of comments made during the Commonwealth’s closing that Appellant claims amounted to prosecutorial misconduct. We disagree.

It is well settled that a prosecutor has considerable latitude during closing arguments and his or her statements are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super.2008) (citation omitted). “Further, prosecutorial misconduct does not take place unless the ‘unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding them ability to weigh the evidence objectively and render a true verdict.’ ” Id. (quoting Commonwealth v. Paddy, 569 Pa. 47, 82-83, 800 A.2d 294, 316 (2002)). Moreover, a prosecutor can fairly respond to attacks on a witness’s credibility. Id. (citation omitted). In reviewing a claim of improper prosecutorial comments, our standard of review is whether the trial court abused its discretion. Commonwealth v. Hall, 549 Pa. 269, 285, 701 A.2d 190, 198 (1997) (citation omitted). When considering such a claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one, because not every inappropriate remark by a prosecutor constitutes reversible error. Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa.Super.2012) (citation and quotation marks omitted). “A prosecutor’s statements to a jury do not occur in a vacuum, and we must view them in context.” Id. (citation omitted).

Here, Appellant argues as follows:

As noted in the Statement of Facts, supra, in the course of closing argument the prosecutor made the following statement in reference to defense counsel’s cross examination of complainant Zachary Willis

Zachary — I’m starting to shout, I’m sorry Zachary — I can’t help my self, [sic] and I can’t help myself sometimes, because when victims in my prosecutions, victims in my cases, get insulted and excoriated, and dragged through the mud, in court, gets my blood red hot.

Appellant’s Brief at 17 (citing N.T., 2/18/10, 129). Appellant argues that this statement was prejudicial and entitled him to a new trial. Id. at 20.

The trial court addressed this issue as follows:

The Court did not err in finding that no prosecutorial misconduct existed when the Commonwealth stated that when victims get “insulted and excoriated, and dragged through the mud, in Court” it caused his blood to get red hot.

[ABA Standard for Criminal Justice Rule] 3-5.8 states that it is misconduct for “the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” Additionally, “it is well settled that the prosecutor may fairly respond to points made in the defense closing.” [Commonwealth v.] Chmiel [585 Pa. 547, 618-619, 889 A.2d 501, 548 (2005) ].

Defense incorrectly asserts that the Commonwealth stated “I take it personally.” What the Commonwealth did say was:

Zachary — I’m starting to shout, I’m sorry, Zachary — I can’t help myself, and I can’t help myself sometimes, because when victims in my prosecution, victims in my cases, get insulted and excoriated, and dragged through the mud, in Court, gets my blood red hot.

Id. at 129. The Commonwealth never once expressed his personal belief as to the truth or falsity of any testimony, or the evidence, or the guilt of Defendant. Instead, he addressed the manner in which defense counsel berated and belittled Willis. He addressed the manner in which cross-examination was conducted. He addressed the manner in which defense all but stated that Willis lied about being robbed because of the fact that he knew Stayton and had one sexual encounter with her. He addressed, not the content of Willis’ testimony, but the manner in which defense counsel conducted himself. This Court did not conflate the two issues of the treatment of Willis and the testimony of Willis. This Court found that they were two separate issues, and in no way would the mention of the treatment of the victim by defense cause “the unavoidable effect of [prejudicing] the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict.” [Commonwealth v.] Judy [978 A.2d 1015, 1020 (Pa.Super.2009) ].

Trial Court Opinion, 5/9/11, at 22-23 (emphasis in original).

We agree with the trial court. As noted above, a prosecutor’s comments are not reviewed in a vacuum. Lewis, 39 A.3d at 352. The emphasis of the prosecutor’s remarks was on the fact that defense counsel had so aggressively assailed the victim and repeatedly said the victim, Zachary Willis, was never robbed, and was therefore, a liar. N.T., 2/18/10, at 95, 96, 98, 99, 102, 105-106, 113, and 121. The prosecutor never attempted to bolster the victim’s testimony or vouch for his credibility. Rather, the prosecutor reacted and fairly responded to defense counsel’s repeated attacks. Upon review, we conclude that nothing in the prosecutor’s closing created the unavoidable effect of prejudicing the jurors by forming in their minds a fixed bias and hostility toward Appellant, depriving him of a fair trial. Holley, 945 A.2d at 250. Therefore, we discern no abuse of discretion.

For the reasons set forth above, we conclude that Appellant is entitled to no relief. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

WECHT, J., files a Dissenting Opinion.

1 . During voir dire, the parties and the trial court repeatedly misstated the number of jurors required to satisfy Rule 631(E)(2), most frequently citing a putative requirement of thirty eligible jurors. Inasmuch as the record repeatedly refers' to a jury of twelve with two alternates, and the rules dictate that each party have seven peremptory strikes, we believe the correct number to be twenty-eight, and analyze the case on that basis. The precise number has no direct bearing on the broader principle at issue, inasmuch as the venire at the end of the first day of jury selection undisputedly was smaller than required by Rule 631(E)(2).

2 . Despite the trial court’s reference to twenty-four remaining jurors, it appears undisputed that the pool at that juncture, in fact, consisted of twenty-three venirepersons. See Brief for Commonwealth at 6 n. 5 (citing N.T., 2/8/2010, at 133-43 in support of the fact that of the originally denominated forty-two jurors, there were, in fact, forty-one because juror number twenty-seven was missing).

3 . We reiterate that, because this issue requires us to interpret a procedural rule, our standard of review is de novo and our scope of review is plenary. Dowling, 598 Pa. at 616, 959 A.2d at 913.

4 . "[HJarmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt.” Commonwealth v. Allshouse, - Pa. -, -, 36 A.3d 163, 182 (2012) (citation and quotation marks omitted).