HomeMy WebLinkAboutCP-21-CR-2256-2006
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
ROGER WAYNE ELLIS : CP-21-CRIMINAL 2256-2006
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., January , 2008
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After a trial by jury appellant was found guilty of simple assault. He has filed
this timely appeal in which he alleges that we erred in 1) refusing his motion to dismiss
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the jury panel; and 2) allowing photographs of the victim’s injuries into evidence. We
will address each issue.
Dismissal of Jury Panel
The trial term at issue commenced on Monday, April 23, 2007. Defendant’s trial
was scheduled for the first day. Immediately prior to picking the jury defendant’s
counsel made a motion to dismiss the entire panel.
The motion was based upon a flyer that had been posted throughout the
courthouse. The flyer advertised a “CUMBERLAND COUNTY CRIME VICTIMS’
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RIGHTS RALLY” to be held at the local community center on the evening of April 26,
2007. The flyer indicated that the event was sponsored by the following organizations:
Domestic Violence Services of Cumberland & Perry Counties.
Victim Services of the Cumberland County District Attorney’s Office.
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18 Pa. C.S.A. 2701 (a)(1).
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See “Concise Statement of Matters Complained of on Appeal.”
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Defendant’s Exhibit 1.
NO. CP-21-CRIMINAL 2256-2006
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Sexual Assault/Rape Crisis of Cumberland County.
The event was part of a National Crime Victims’ Rights Week and was widely advertised
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in the local media.
Defense counsel alleged that the entire panel had been tainted by the flyer.
However, he offered no evidence of actual taint. Rather he expected us to assume that an
impartial jury could not be impaneled. Since we were not prepared to make such an
assumption, we ruled as follows:
Let me take this under advisement.
Let’s get the jury lined up. We’ll
start with the following order:
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“AND NOW, this 23 day of April 2007, the Defendant’s request to
dismiss the jury panel is DENIED.”
You may properly address that on voir dire if you wish, Mr. Halkias.
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(emphasis added). Defendant’s counsel elected not to pursue the matter on voir dire.
See Commonwealth v. Palm, 903 A.2d 1244 (Pa.Super 2006).
Photographs
Over defendant’s objection we allowed the Commonwealth to introduce several
photographs depicting the injuries sustained by the victim. Defendant’s objection was
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based upon the pictures being “inflammatory and prejudicial.” We reviewed the
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photographs which show the various cuts, scrapes and bruises the victim received. They
were not so gruesome as to be inflammatory. Even if they were, we were satisfied that
the evidentiary value of the photographs outweighed the likelihood that they would
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Defendant’s Exhibit 1.
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There was even a banner announcing the event hanging across the main street of town, one-half block
from the Courthouse.
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Transcript of Proceedings, April 23, 2007, p. 11.
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Transcript of Proceedings, April 23, 2007, p. 7.
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See Commonwealth Exhibits 1(a)-6(a).
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NO. CP-21-CRIMINAL 2256-2006
“inflame the minds and passions of the jury.” Commonwealth v. Solano, 588 Pa. 716 at
736, 906 A.2d 1180 at 1192 (2006).
___________________ ______________________________
DATE Edward E. Guido, J.
Derek R. Clepper, Esquire
For the Commonwealth
Michael J. Halkias, Esquire
For the Defendant
:sld
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