Com. v. Sarvis, W.

J-S03010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WALTER JOHN SARVIS,
Appellant No. 2717 EDA 2016
Appeal from the Judgment of Sentence Entered July 7, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004990-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 04, 2018
Appellant, Walter John Sarvis, appeals from the judgment of sentence
of an aggregate term of 17½ to 35 years’ incarceration, imposed after he
was convicted of aggravated indecent assault of a child and related offenses.
On appeal, Appellant alleges, inter alia, that the trial court erred by denying
his motion to strike a prospective juror for cause, thus forcing him to use a
preemptory challenge to remove that individual from the jury pool. After
careful review, we vacate Appellant’s judgment of sentence and remand for
a new trial.
The trial court summarized the facts and procedural history of this
case, as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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This case stems from [Appellant’s] sexual abuse of a 10-
year-old girl (“Victim”) that occurred on an ongoing basis for
over a year. [Appellant] was previously in a relationship with
[V]ictim’s mother. During this time, and beyond the termination
of the relationship, [Appellant] resided in the house with mother,
her two sons[,] and [Victim]. When … [V]ictim was in fourth and
fifth grade, her mother would leave for work very early in the
morning before the children went to school. … [V]ictim’s two
brothers would then leave for school, as the middle school
started earlier than … [V]ictim’s elementary school. [Appellant]
would then be alone in the house with Victim and would require
her to go down to his bedroom in the basement and undress.
[Appellant] sexually abused … [V]ictim, as he fondled …
[V]ictim’s chest and genitals, penetrated … [V]ictim’s vagina with
his fingers and made … [V]ictim fondle his penis.
In May of 2015, when [V]ictim was in fifth grade, her class
was shown a video on inappropriate touching and related
matters. Victim became visibly upset during this video, at which
point she left the room and her teacher saw her in the hall and
took her to the counselor’s office. Victim explained what
[Appellant] had been doing to her, and the proper school
reporting methods for suspected abuse were initiated. At that
point, a criminal investigation began as well as investigations by
Children and Youth Services (“CYS”) and the Child Advocacy
Center. Victim made statements [that] consistently detailed the
sexual abuse she endured at the hands of [Appellant].
On February 11, 2016, [Appellant] was found guilty by a
jury of three counts of Aggravated Indecent Assault of a Child,
three counts of Indecent Assault of a Person Less than 13 years
of age, one count of Corruption of Minors, and one count of
Endangering Welfare of Children. On July 7, 2016, following [a
Sexually Violent Predator (SVP)] Hearing o[n] June 16, 2016, []
Appellant was sentenced to an aggregate term of confinement of
17.5 to 35 years, Tier III Megan’s Law Registration and was
deemed a[n] [SVP]. On July 14, 2016, [] Appellant filed a
“Motion for Reconsideration of Sentence[.”] On July 27, 2016,
the [c]ourt issued an [o]rder [d]enying [Appellant’s] Motion for
Reconsideration of Sentence. On August 25, 2016, [] Appellant
filed a timely Notice of Appeal. This [c]ourt directed [] Appellant
to file a Concise Statement of [Errors] Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b). Following a request for [an]
extension and the filing of a Statement of Matters Complained of
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on Appeal, on December 14, 2016, Appellant filed an Amended
Concise Statement of Matters Complained of on Appeal….
Trial Court Opinion (TCO), 7/19/17, at 1-2 (footnotes omitted).
Herein, Appellant presents two issues for our review:
[I.] Did the [t]rial court err in denying the motion of defense
counsel to strike for cause Juror #17 at [j]ury selection who
reported to the court that he was a coworker of two of the
witnesses to be called to testify and that he would have a
predisposition to believe them?
[II.] Did the [t]rial court err in finding [Appellant] to be a[n]
[SVP] as defined at 42 Pa.C.S.[] § 9799.12 because the
Commonwealth failed to establish by clear and convincing
evidence that due to a mental abnormality or personality
disorder he is likely to engage in predatory[,] sexually violent
offense[s] pursuant to 42 Pa.C.S.[] § 9799.24?
Appellant’s Brief at 5.
Appellant first challenges the trial court’s denial of his motion to strike
a prospective juror (hereinafter “Juror 17”) for cause, after that juror
informed the court that he knew two witnesses who would be testifying for
the Commonwealth. Juror 17 testified, upon further questioning, that he
believed those two witnesses were ‘trustworthy,’ and he could not be certain
that he would not give greater weight to their testimony, as compared to
witnesses he did not know. After this testimony, Appellant moved to strike
Juror 17, which the court denied, thus forcing Appellant to use a peremptory
challenge to excuse Juror 17. Appellant then exhausted his remaining
peremptory challenges. He now argues that he was wrongfully deprived of
the peremptory challenge used to strike Juror 17 and, thus, he was denied
his right to a fair and impartial jury.
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After careful consideration of Appellant’s arguments, the record before
us, and the case law on which Appellant relies, we are constrained to agree
that Appellant is entitled to a new trial. We begin by recognizing that
[a] criminal defendant’s right to an impartial jury is explicitly
guaranteed by Article I, section 9 of the Pennsylvania
Constitution, Pa. Const. Art. I, § 9. The jury selection process is
crucial to the preservation of that right. The relevant principles
governing the examination of veniremen to assess their
impartiality are set forth in this Court’s decision in
Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983):
It must be remembered the purpose of the voir dire
examination is to provide an opportunity to counsel to
assess the qualifications of prospective jurors to serve.
Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5(1973); Commonwealth v. Lopinson, 427 Pa. 284, 234
A.2d 552 (1967), vacated and remanded 392 U.S. 647, 88
S.Ct. 2277, 20 L.Ed.2d 1344, appeal after remand, 449 Pa.
3, 296 A.2d 524, cert. denied, 411 U.S. 986, 93 S.Ct.
2269, 36 L.Ed.2d 963 (1973); Commonwealth v.
McGrew, 375 Pa. 518, 100 A.2d 467 (1953). It is
therefore appropriate to use such an examination to
disclose fixed opinions or to expose other reasons for
disqualification. [] Johnson, supra; Commonwealth v.
Swanson, 432 Pa. 293, 248 A.2d 12 (1968), cert. denied
394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); []
Lopinson, supra; [] McGrew, supra. Thus the inquiry
must be directed at ascertaining whether the venireperson
is competent and capable of rendering a fair, impartial and
unbiased verdict. [] Johnson, supra; [] Lopinson,
supra; [] McGrew, supra. The law also recognizes that
prospective jurors were not cultivated in hermetically
sealed environments free of all beliefs, conceptions and
views. The question relevant to a determination of
qualification is whether any biases or prejudices can be put
aside upon the proper instruction of the court.
Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292(1977); [] Johnson, supra.Id. at 588, 459 A.2d at 320.
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A challenge for cause to service by a prospective juror
should be sustained and that juror excused where that juror
demonstrates through his conduct and answers a likelihood of
prejudice. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d
811 (1985). The decision whether to disqualify a venireman is
within the discretion of the trial court and will not be disturbed
on appeal absent a palpable abuse of that discretion. [] Colson,
supra; Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d
255 (1973); Commonwealth ex rel. Fletcher v. Cavell, 395
Pa. 134, 149 A.2d 434 (1959); Commonwealth v. Pasco, 332
Pa. 439, 2 A.2d 736 (1938); Commonwealth v. Gelfi, 282 Pa.
434, 128 A. 77 (1925).
Commonwealth v. Ingber, 531 A.2d 1101, 1102–03 (Pa. 1987).
In this case, Juror 17 indicated that he knew two of the
Commonwealth’s witnesses in this case, Tom Sherbinko, a teacher, and
Catherine Mallam, a guidance counselor.1 N.T. Jury Voir Dire, 2/8/16, at 68.
Juror 17 explained that he had worked with Mr. Sherbinko and Ms. Mallam at
the school where they taught. Id. Juror 17 was thereafter questioned, and
answered, in pertinent part, as follows:
THE COURT: Regarding the witnesses you knew, these teachers
you just mentioned, do you have any social experience with
____________________________________________
1 At trial, Tom Sherbinko testified that he is Victim’s teacher, and he
observed her sobbing in the hallway after seeing a classroom video about
inappropriate touching. See N.T. Trial, 2/9/16, at 157. When Mr. Sherbinko
asked Victim what was wrong, she said, “that’s what my stepdad does to
me.” Id. at 158. Mr. Sherbinko then notified Catherine Mallam, the school
guidance counselor, about Victim’s remark. Id. at 166. Ms. Mallam testified
that she spoke with Victim privately and Victim told her that her ‘stepdad,’
whom she identified as Appellant, “touches her in a way that makes [her]
feel uncomfortable.” Id. at 179. Victim elaborated that Appellant touches
“her chest area and her crotch.” Id. Ms. Mallam then notified the school
principal and the school social worker. Id.
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them in a positive or negative way that would affect your ability
to be fair and impartial?
[Juror 17]: Not that I know of. I[] don’t believe so, no.
THE COURT: So you’d be able to evaluate their testimony if they
testified either way fairly and if they didn’t prove their case you’d
be able to return a verdict of not guilty, and if they did prove
their case --
[Juror 17]: Yeah. I mean, I know them to be trustworthy
individuals, and as I said, as long [as] I’ve known them so --
…
THE COURT: And you had answered that you knew them to be
trustworthy. Would you be able to give that not any greater
weight because you know them, that you would treat them as
any other witness?
[Juror 17]: It’s hard to say. It’s hard to say, because, again, I
do know them and other witnesses I would not know so I would
hope that I could be impartial but I mean, it’s up to you guys to
decide. I mean, I do know them, known them for many years.
THE COURT: Okay. So you’d give them the same test of
credibility that you’d give any other witness on the stand?
[Juror 17]: I would like to think I would.
THE COURT: All right. Any other questions?
…
[Defense Counsel]: So how long have you known Tom
[Sherbinko]?
[Juror 17]: I’ve known them both for I’d say maybe 15 to 20
years.
…
[The Commonwealth]: You mentioned that you find the
witnesses to be trustworthy and it’s hard to say whether you
would give their testimony greater weight, right?
[Juror 17]: As a witness I would not know.
[The Commonwealth]: That’s your honest opinion?
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[Juror 17]: Yes.
…
THE COURT: Let me make sure I understand your final answer.
You’re not going to give them any greater weight as a witness?
[Juror 17]: I would think I would not but again, because I know
them and I believe them to be trustworthy --
[The Commonwealth]: But is it correct to say you don’t know
whether you can or cant?
[Juror 17]: I would say – I can’t say I’m sure that I wouldn’t.
[The Commonwealth]: That’s your honest answer?
[Juror 17]: Yes.
THE COURT: Do me a favor. Just stand over there for a second.
Juror 17: Sure.
[Sidebar discussion outside Juror 17’s presence.]
THE COURT: What’s your feeling on [Juror 17]?
…
[Defense Co-Counsel]: Judge, he said he doesn’t know if he can
be fair and impartial. He said --
THE COURT: I heard him say that he would try and be fair and
impartial.
[Defense Counsel]: Well, I’m sure he would try. Of course he
would try.
[Defense Co-Counsel]: He said his final answer was, he wasn’t
sure.
[Juror 17 recalled to the stand.]
THE COURT: … We’re having [a] little [inaudible], because you
know the witnesses --
[Juror 17]: I’m wavering in my answers.
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THE COURT: I asked you a number of questions, and I asked
you do you socialize [with the witnesses], and you told me you
don’t socialize with them?
[Juror 17]: Right. I have not socialized with them.
THE COURT: Now, the real question is, are you going to give
them greater weight because you think they’re trustworthy
because they’re teachers, because you know them. You don’t
know them personally, you don’t socialize with them. You have
to be able to, if somebody cross-examines them, you doubt their
credibility, would you be able to say you know, I don’t quite
believe you, and that’s really where we’re at, okay? Their
testimony may be fine but it may be subject to cross-
examination or [it] might not be. For the defense attorneys,
they have to be able to be sure that if they have proven their
testimony to be unworthy, not credible, that you’d be able to not
believe their testimony. If that was the case, you wouldn’t
believe them just because they were teachers --
[Juror 17]: Right. That’s correct. Yes, I would not believe them
just because they’re teachers and I worked with them, but the
question you asked me was, would I give them more weight
than, you know, somebody that I know, that I believe them to
be trustworthy from my experience with them. I think I would
probably give them more weight than someone I didn’t know.
[Defense Counsel]: Sure. You have a predisposition to believe
them.
[Juror 17]: Right. I would base my belief on the testimony.
[The Commonwealth]: Would you be able to put all of your prior
experiences with them out of your mind and just think about
how they testified, what they said, how they said it, were they
believable on the stand in this trial?
[Juror 17]: Yes, I believe I would.
THE COURT: You know, just similar to the police question I ask
people, a lot of people like police, a lot of people don’t like
police, but the people that like police, we always ask that
[inaudible] the fact that someone is a police officer, we give
them no greater weight nor less weight, and that’s really the
question here. Do you think that again you would evaluate them
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fairly and not give them more credibility just because they’re in
the teaching profession and you think that [inaudible]?
[Juror 17]: I think I would evaluate them fairly. I think I could.
I believe I would.
N.T. Trial at 69-76.
At the conclusion of this questioning, defense counsel moved to strike
Juror 17 for cause, stressing that “[t]he big issue is that [Juror 17] said that
he would give [the two witnesses’] testimony more weight.” Id. at 78. The
court replied, “No, he didn’t. No, he didn’t. We questioned that and went
over that. You’re going to have to use a peremptory [strike]. I note your
objection.” Id. Appellant ultimately used a peremptory strike to remove
Juror 17 from the jury pool, and he also utilized all of his remaining
peremptory strikes in formulating the final jury panel.
Appellant now claims on appeal that the trial court abused its
discretion by denying his motion to strike Juror 17. Appellant stresses that
the juror informed the court that he believed two of the Commonwealth
witnesses were trustworthy, and indicated “that he would be likely to find
them more credible than other witnesses.” Appellant’s Brief at 10.
Appellant argues that this case is comparable to Commonwealth v. Penn,
132 A.3d 498 (Pa. Super. 2016), where this Court remanded for a new trial
after the trial court refused to strike a juror who exhibited a predisposition to
believe a police officer. After reviewing Penn, and the case on which Penn
relies, Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982), we
are compelled to agree with Appellant.
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We begin with Johnson, where during voir dire, a prospective juror
exhibited emotional distress and wavered on whether he could be fair and
impartial, because his daughter had been the victim of a rape and robbery
that had similar facts as in Johnson’s case. When questioned about whether
he could be fair, the juror made remarks like, “I think it would be difficult[,]”
and “I’m wondering if I am able to do it.” Johnson, 445 A.2d at 512-13
(citation to the record and emphasis omitted). The juror also repeatedly
stated that he was surprised by his strong emotional reaction, and he
indicated that he might not have “full control” when following the court’s
instructions in the case. Id. at 513.
Based on this record, the Johnson panel concluded that the juror
should have been excused for cause. We stressed that the juror
vividly demonstrated during voir dire that he would … likely not
… be an impartial juror. He not only visibly manifested
emotional distress but specifically expressed substantial doubts
about his ability to be impartial at least five times. Although he
acknowledged that “logically” he could separate the robbery and
rape of his daughter from the robbery of [Johnson’s] victims, he
added at once that “emotionally, I can see that I don’t have full
control.”
Id. at 514. We also concluded in Johnson that the juror’s “eventual
assurance to the court that he would ‘[b]e fair’ did not dispel the force of
these admissions.” Id. (citation omitted). We added:
This is particularly so in view of the court’s questions, which [the
juror] may well have understood as suggesting that his proper
response, and the response desired by the court, was to say,
despite his doubts, that he would be an impartial juror. It is not
the court’s function to persuade a prospective juror to put aside
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doubts expressed, and explained, as earnestly as [this juror’s]
were.
Id. Thus, we held in Johnson that the trial court abused its discretion by
not striking the juror, and that the error was not harmless, given that
Johnson was “forced to use one of his peremptory challenges to excuse” the
juror, and he “exhaust[ed] his peremptories before the jury was seated….”
Id. Accordingly, we awarded Johnson a new trial. Id.
Relying on Johnson, we reached the same outcome in Penn. There,
a prospective juror, R.Z., conveyed to the court during voir dire that she had
previously worked in law enforcement, and that her boyfriend was a police
officer. Penn, 132 A.3d at 500. Accordingly, the following questioning of
R.Z. took place:
[[Penn’s] Attorney]: So you’re pretty steeped in law
enforcement?
A: Yes.
[[Penn’s] Attorney]: You would be more likely to believe the
testimony of a police officer?
A: Yes.
…
[[Penn’s] Attorney]: So you're going to have to hear from two or
three police officers in this case. And you—because of your own
personal experience in working in law enforcement, you would
give them credibility, extra credibility simply because they are
police. And there are no right or wrong answers. Would it be
hard for you not to believe them?
A: I feel like I would be more inclined to believe them, yes.
[[Penn’s] Attorney]: I have nothing else….
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[The Commonwealth]: What it comes down to though, the Judge
would tell you that you can't give them any more weight or
credibility. You would be instructed to do that. Do you think you
could follow the instruction and not raise them up because of
their position?
A: Yes.
...
[The Commonwealth]: Obviously your relationship with your
boyfriend, would that—and the testimony of there being police
officers in this case, would you be able to be fair and impartial?
A: I would think so, yes.
[The Commonwealth]: Follow up?
[[Penn’s] Attorney]: Well, when you—well, when you say you
think so, I mean, basically the entire Commonwealth case is
going to be testimony from the police officers. Would it be
difficult for you to just not believe them because of your
experience? I mean, you’ve been a police officer, you’ve worked
with police, you're dating a police officer. I presume you have a
certain attachment to this profession.
A: Correct.
[[Penn’s] Attorney]: I'm not going to offend you in any way if I
am—I apologize, but would it be difficult to not—kinship to the
police to cause for you not to be able—
A: I think it all comes down to evidence, testimony. So as long
as I’d—
[[Penn’s] Attorney]: If they got up there and said, we don't
know anything and we didn't see anything, I would understand,
but if they testify to facts which you believe would be enough to
convict, would it be hard for you not to believe them because of
your experience? Would you, as you said before, you would be
inclined to believe them?
A: (Nods head [in the affirmative].)
[[Penn’s] Attorney]: I know it’s based on the evidence.
A: Right.
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[[Penn’s] Attorney]: But there would be an inclination on your
part, because of your experience, to be more likely to credit their
testimony?
A: I mean—again, I think it comes down to the evidence though.
Penn, 132 A.3d at 500-01 (some brackets added).
In holding that R.Z. should have been stricken for cause, we stressed
that, like the juror in Johnson, R.Z. “initially indicated that she was
incapable of ‘rendering a fair, impartial and unbiased verdict.’” Id. at 504.
We also relied on the fact that R.Z. “unequivocally testified during voir dire
that she ‘would be more likely to believe the testimony of a police officer,’
thus indicating that [she] was biased in favor of the police and the
Commonwealth.” Id. Also similar to the juror in Johnson, “R.Z.’s admitted
bias in favor of the police rested on a firm bedrock,” given R.Z.’s prior
employment in law enforcement, and that her boyfriend was a police officer.
Id. at 505. Finally, the Penn panel concluded that,
as in Johnson, R.Z. eventually testified that she would be able
to follow the trial court’s instructions and render a “fair and
impartial” decision. However, in the case at bar, almost
immediately after R.Z. testified that she would be able to “be fair
and impartial,” R.Z. again testified that, “because of [her]
experience[,] ... [she] would be inclined to believe” the police.
Therefore, as we held in Johnson, we hold in the case at bar
that “[R.Z.’s] eventual assurance to the [trial] court that [she]
would ‘be fair’ did not dispel the force of [her] admissions” of
bias.5 Johnson, 445 A.2d at 514.
5 R.Z.’s declaration that “it comes down to the evidence”
also did not dispel her admissions of bias, given that R.Z.’s
admitted view of the evidence was that police officers were
entitled to more credibility.
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Id. (emphasis in original). Given that Penn had used a peremptory strike to
excuse R.Z., and then exhausted his remaining peremptory challenges, the
Penn panel granted him a new trial. Id.In light of Johnson and Penn, we are compelled to likewise grant
Appellant a new trial in this case. Here, Juror 17 repeatedly stated that he
believed that Mr. Sherbinko and Ms. Callam were trustworthy, and he
indicated at least four times that he would be likely to give their testimony
greater weight than other witnesses he did not know. He also explicitly
confirmed that he had a “predisposition to believe them.” N.T. Jury Voir Dire
at 75. As in Johnson and Penn, Juror 17 exhibited a clear bias in favor of
these Commonwealth witnesses. The testimony of these witnesses was an
important piece of the Commonwealth’s case, as it involved Victim’s first
reports of abuse by Appellant. Also similar to Johnson and Penn, Juror
17’s bias in favor of the Commonwealth rested on a ‘firm bedrock’ of his 15
to 20 year relationship with Mr. Sherbinko and Ms. Callam.
Moreover, as in Johnson, the court’s questioning of Juror 17 was
inappropriate in this case. The court effectively cross-examined Juror 17 in
an attempt to elicit the court’s desired answers. It continuously disregarded
Juror 17’s wavering about whether he could be fair and impartial, and it
refused to accept the juror’s statements that he would give greater weight to
the testimony of the two Commonwealth witnesses. As set forth supra, “[i]t
is not the court’s function to persuade a prospective juror to put aside
doubts expressed, and explained, as earnestly as [this juror’s] were.”
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Johnson, 445 A.2d at 514. Because here, the court did just that, we
conclude that any remarks by Juror 17 that suggested he could be fair and
impartial “did not dispel the force of [his] admissions” that he was
predisposed to believing the testimony of these two Commonwealth
witnesses.2
Finally, as we held in Johnson and reiterated in Penn, “we must
conclude that the error [of not striking Juror 17 for cause] was not harmless:
‘[w]here, as here, a defendant is forced to use one of his peremptory
challenges to excuse a prospective juror who should have been excused for
cause, and then exhausts his peremptories before the jury is seated, a new
trial will be granted.’” Penn, 132 A.3d at 505 (quoting Johnson, 445 A.2d
____________________________________________
2 We point out that in the trial court’s Rule 1925(a) opinion, it cursorily
states, without any discussion, that Johnson, and our Supreme Court’s
decision in Ingber, “differ[] greatly” from the present case. TCO at 6. The
court then declares that Appellant’s case “is more akin to [Commonwealth]
v. W.P., 691 WDA 2016, 2017 WL 1380759, at *1 (Pa. Super. Apr. 17,
2017)[,] wherein our Superior Court affirmed the trial court’s decision to
deny Defendant’s motion to strike potential jurors for cause where
Defendant was on trial for charges relating to sexual assault of a child.” TCO
at 6. While our review of W.P. demonstrates that it is clearly distinguishable
from the present case, even if it were not, W.P. is an unpublished
memorandum decision. “An unpublished memorandum decision shall not be
relied upon or cited by a Court or a party in any other action or proceeding,
except that such a memorandum decision may be relied upon or cited (1)
when it is relevant under the doctrine of law of the case, res judicata, or
collateral estoppel, and (2) when the memorandum is relevant to a criminal
action or proceeding because it recites issues raised and reasons for a
decision affecting the same defendant in a prior action or proceeding.”
Superior Court Internal Operating Procedures, § 65.37(A).
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at 514). Therefore, we are compelled to vacate Appellant’s judgment of
sentence and remand for a new trial.3
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judge Panella joins this memorandum.
President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/18
____________________________________________
3In light of our disposition, we need not address Appellant’s challenge to his
SVP designation, as that sentence is now vacated.
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