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holding that the plaintiffs waived appellate review of issue of trial judge's lack of personal observation of demeanor of prospective juror during voir dire
Summary of this case from Berg v. Nationwide Mut. Ins. Co.Opinion
No. 3 WAP 2019
04-22-2020
Mendy TRIGG, individually and Smithfield Trust, Inc., as the Guardian of the Estate of J. T., a Minor, Appellees v. CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellant
OPINION
In this case, a medical negligence suit brought by Appellees against Appellant Children's Hospital of Pittsburgh ("Hospital"), we accepted review to consider, inter alia , Appellees' argument that the trial court erred by not personally observing the demeanor of prospective jurors they challenged for-cause during voir dire . The Superior Court granted Appellees a new trial on this basis. After careful consideration, we conclude Appellees waived their argument for appellate review, and, thus, that the Superior Court erred in considering it. Accordingly, we vacate the judgment of the Superior Court and remand to that tribunal for further proceedings.
Voir dire is a term of French legal origin which means "to speak the truth," and it generally describes the pretrial process of examining prospective jurors in order to obtain "a competent, fair, impartial and unprejudiced jury." 2 West's Pa. Forms, Civil Procedure § 54:0 at 1.
I. Facts and Procedural History
Appellee Mendy Trigg is the parent of J.T., who, in 2011, was age 4 and afflicted with craniosynostosis, a medical condition which results when, during an infant's growth and development process, his or her skull closes prematurely and exerts increased pressure on the brain. Trial Court Opinion, 9/7/17, at 2. On May 19, 2011, J.T. underwent surgery at the Hospital to correct this condition. Afterward, J.T. was transferred for post-operative care to one of the Hospital's intensive care units. While recovering there, J.T. fell out of the hospital bed, and, as a result, suffered damage to the surgically repaired cranial area, necessitating immediate ameliorative surgery. Id.
Subsequently, Appellees filed suit against the Hospital in the Allegheny County Court of Common Pleas alleging, inter alia , that the Hospital was negligent in placing J.T. in a regular adult size hospital bed, due to the large spaces between the vertical side rails, which they alleged enabled J.T.'s fall. The Hospital denied negligence, and, after discovery was completed, the case was listed for trial during the March 2017 civil trial term.
Appellee, Smithfield Trust, was appointed guardian of J.T.'s estate for purposes of this litigation.
By way of background, in accordance with the Allegheny County Local Rules of Civil Procedure ("A.C.L.R.C.P."), all members of the pool of prospective jurors summoned to serve during a civil trial term are required to fill out a written questionnaire in which they provide, inter alia , general personal information about their age, occupation, family members, prior involvement with any civil or criminal court cases, and relationships they have with individuals employed by the court system, or by insurance or health care professions. See Juror Questionnaire, A.C.L.R.C.P. 220.1. Pursuant to A.C.L.R.C.P. 212.2(b), prior to the commencement of voir dire , counsel for the plaintiff and defendant are both required to prepare pretrial statements in which counsel must include any statements which they wish to give to the entire group of prospective jurors at the outset of voir dire , as well as any proposed additional questions to be asked of individual prospective jurors. As required by A.C.L.R.C.P. 212.2(c), disputes between parties regarding the content of such statements or questions are submitted to the calendar control judge for resolution. Notably, however, although available to rule on objections, neither the calendar control judge, nor the trial judge is ordinarily present during the voir dire process. Rather, the process is normally managed by a court clerk.
Allegheny County recently amended Rule 212.2, adding subsection (d), to allow any party or the calendar control judge to request that a judge of the Allegheny County Court of Common Pleas preside over Civil Division voir dire and the jury selection process, and affording the presiding judge discretion over the voir dire and jury selection process. See A.C.L.R.C.P. 212.2(d) (effective Feb. 18, 2020) ("Should a party, parties, or the Calendar Control Judge request that a Judge preside over the voir dire and jury selection, the Judge presiding over the voir dire and jury selection shall have complete discretion over the voir dire and jury selection process, notwithstanding the preceding subsections of this local rule.").
Under Rule 212.2(c), a group of prospective jurors is summoned to the "Jury Assignment Room" on the seventh floor of the City County Building in downtown Pittsburgh. For medical malpractice cases, the voir dire process proceeds in the manner specified in A.C.L.R.C.P. 220.1(c) and (d). Under Rule 220.1(c), a court clerk first asks the group of prospective jurors general questions enumerated in this rule regarding whether their service constitutes a hardship; whether they have any social, business, or professional contact with the attorneys in the case; and whether they have a social, business, professional, or employment relationship with any of the parties in the case. After the clerk describes the broad nature of the case, i.e. medical malpractice, and furnishes brief background details about the case, the attorney for the plaintiff and the attorney for the defendant give their respective voir dire statements, indicating what each believes the evidence will show at trial. At the conclusion of those statements, the clerk asks the jurors, as a group, whether they have any knowledge about the case. The witnesses in the case are then introduced by the attorneys, and the clerk again inquires of the prospective jurors, as a group, whether they have any personal or familial association with those witnesses.
As described by one veteran Pennsylvania civil practitioner, Thomas Cooper, "[t]he Assignment Room is a large cavernous room designed to accommodate the selection of four jury panels simultaneously. Clerks and counsel sit at a table facing the jury panel, and the individual jurors move in sequence to the table where they are interrogated individually." Jury Selection in Pennsylvania , 70 Pa. Bar Association Quarterly 47.
By contrast, Rule 220.1(a) and (b) enumerate questions to be asked of jurors in general civil cases, and Rule 220.1(e) and (f) mandate questions to be asked in asbestos cases.
Once this group questioning is complete, pursuant to Rule 220.1(d) the court clerk questions each of the prospective jurors individually regarding: feelings or opinions they have about personal injury and medical malpractice cases generally; whether they have any feelings about medical malpractice cases or the parties in the case they are about to hear which would cause them to favor either the patient or the medical care provider; whether they believe it is improper to sue a medical care provider, even if the provider was careless; whether they believe there is a maximum or minimum amount of money which should be awarded to an injured party; whether they have any feelings or opinions about the effect of medical malpractice suits on the cost and availability of medical services; and whether they believe that the mere fact that a party suffers a complication after receiving medical care indicates that the medical provider must have done something wrong, which entitles the patient or the patient's family to compensation. If one or more of the jurors indicate that they possess such feelings or opinions, then the clerk inquires further of those jurors as to whether those feelings or opinions would affect their judgment, such that they could not render a fair and impartial verdict.
After these standard questions have been asked of each individual juror, Rule 220.1(g) requires that the court clerk ask each individual juror the additional voir dire questions propounded by the parties. Once this process of asking the prospective jurors all of these questions is complete, counsel for either party may ask reasonable follow-up questions to individual jurors to further explore their answers.
In the instant case, 40 prospective jurors were summoned to the Jury Assignment Room on March 17, 2017 for the trial of this case, and voir dire was conducted in accordance with the aforementioned procedures. Of relevance to the case at bar, when prospective juror number 29 was asked whether she had any feelings about medical malpractice cases which would cause her to favor one party over the other, she answered that her sister and brother-in-law were doctors, and her mother-in-law was a nurse. N.T., 3/17/17, at 143. Under follow-up questioning by the court clerk as to whether she could be fair and impartial, she replied "I would like to think I would be fair and impartial, but I mean, it just depends on the facts and everything presented." Id. at 144. The juror elaborated that she could follow the judge's instructions in arriving at a verdict and determining damages and that she could decide the case based on the facts and the law. Id. at 146-47.
Appellees' counsel questioned this juror further:
[Appellees' counsel] : Because of your family members, do you think in a close call you would tend to favor the medical profession?
Prospective Juror No. 29 : Probably, yes.
[Appellees' counsel] : And why is that?
Prospective Juror No. 29 : Just I see what they go through and I know how much they care about their patients and I know they would never do anything wrong.
Obviously I realize there are people out there who aren't my siblings. So
obviously they might not be as fair and clear in judgment.
Id. at 148-49.
Prospective juror 29 was subjected to follow-up questioning by the court clerk in which she affirmed that she would be able to listen to the law as presented by the judge, and that her family members' professions would not influence her judgment such that she could not render a fair and impartial verdict. Id. at 149. At the conclusion of voir dire , Appellees' counsel challenged prospective jurors 28, 29, and 37 for cause. These challenges were noted by the court clerk. Id. at 201.
As discussed at greater length herein, the Superior Court reversed and remanded for a new trial based on what it viewed as the trial court's improper denial of Appellees' for-cause challenge to prospective juror 29, which, in turn, caused them to exhaust their preemptory challenges. Accordingly, further discussion of Appellees' for-cause challenges to jurors 28 and 37 is not necessary for purposes of this appeal.
Under the standard practice in Allegheny County, as noted, a judge is available during voir dire to rule on objections raised by the parties. Starr v. Allegheny General Hospital , 305 Pa.Super. 215, 451 A.2d 499, 501 (1982). In this case, the judge tasked with this responsibility was the calendar control judge — the Honorable Ronald W. Folino. At the conclusion of voir dire , the parties moved to Judge Folino's courtroom, where he asked the objecting party — Appellees — to proceed. N.T., 3/17/17, at 201. Appellees' counsel asked if Judge Folino would like to read the transcripts of the prospective jurors' questioning. Judge Folino replied: "Whatever you would want to do to make your record on your objection, go right ahead." Id. Counsel for Appellees then stated: "I think it would be easier because some of them they talked about their biases and whether or not they could be fair. Some of them — like 28 doesn't believe in lawsuits, and just to read it would probably be quicker." Id. at 201-02. Thus, Judge Folino evaluated the for-cause objections by reading the transcript of the questioning of the prospective jurors by the court clerk and counsel for Appellees and the Hospital. At the conclusion of his evaluation of the transcript, and after hearing arguments from the parties, Judge Folino denied Appellees' motion to strike for-cause prospective jurors 28, 29, and 37. Appellees then used three of their four allotted preemptory challenges to exclude these jurors from service. Appellees subsequently used their final preemptory challenge to exclude another juror, thereby exhausting those challenges.
After a jury was seated, the case proceeded to trial. At the conclusion of the five-day case, during which plaintiff and defendant presented competing evidence on the issue of negligence, the jury returned a verdict in the Hospital's favor.
Appellees filed a post-trial motion alleging, inter alia , that Judge Folino erred in denying their for-cause challenge to the prospective jurors. Specifically, Appellees alleged:
There was no opportunity for the trial court to observe the demeanor or tenor of the challenged venireman's answers. At a minimum, the court must assume the challenged venireman exhibited extreme bias in demeanor and error (sic) in favor of granting a challenge. Any other form of review would deprive litigants in Allegheny County of the same Constitutional rights of litigants in all other counties where a judge can assess demeanor and tenor so as to identify and eliminate biased or prejudiced jurors.
Motion for Post-Trial Relief, 4/3/17, ¶ 36.
Judge Folino denied the motion. In his opinion prepared pursuant to Pa.R.A.P. 1925(a), he addressed the issue of his alleged error in not observing the demeanor of the prospective jurors before ruling on Appellees' for-cause challenges:
I do not see anywhere in the record provided, however, where Plaintiff requested that I view the prospective jurors' demeanor before ruling on the Motions to Strike for Cause. In fact, counsel simply requested that I review the transcript of the questions and answers before ruling. ... I would have been happy to meet with the subject prospective jurors had such a request been made. In fact, I frequently do so when requested by counsel or where I believe the transcript is insufficient.
Trial Court Opinion, 9/7/17, at 9.
Appellees filed a timely appeal to the Superior Court raising a panoply of issues, including that the trial court erred by not excluding prospective jurors 28, 29, and 37 for bias and prejudice, and by not observing the demeanor and tenor of these prospective jurors before denying their motion to strike them. Appellees asserted that, because the trial court erred in refusing to exclude these jurors, Appellees were required to use three of their four allotted preemptory challenges, causing them prejudice.
Appellees also raised claims that the trial court erred by: denying their request to ask voir dire questions about the Hospital and its relationship in the community; denying their request to ask jurors questions on their understanding of the concept of unintentional harm, as it related to the plaintiff's burden of proof in civil cases; erred by restricting their right to ask additional voir dire questions that did not include facts and law of the case; erred by instructing the court clerk and having the clerk engage in rehabilitative questioning following a juror's alleged expression of bias, rather than the court exploring the bias itself; and erred by limiting Appellees' ability to ask follow-up questions after a potential juror purportedly exhibited bias during the initial questioning by the court clerk.
The Superior Court reversed in a published opinion. Trigg v. Children's Hospital of Pittsburgh of UPMC , 187 A.3d 1013 (Pa. Super. 2018). In its opinion, the court focused its analysis on the trial court's denial of Appellees' for-cause challenge to prospective juror 29, and to the trial court's lack of personal observation of this juror's demeanor during voir dire . The court found that its resolution of this question was dispositive of the appeal. Id. at 1016.
The opinion was authored by Judge Deborah Kunselman and joined by Judges Mary Jane Bowes and Judith Olson.
The court noted that, in Shinal v. Toms , 640 Pa. 295, 162 A.3d 429 (2017), this Court endorsed a highly deferential standard of review of a trial court's ruling on a for-cause challenge to a particular juror, because we attached great significance to the fact that the trial court has the opportunity to personally observe the juror during the voir dire process. Therefore, because the trial judge may assess the prospective juror's credibility firsthand, and due to the fact that such assessment cannot be replicated from a printed transcript, appellate courts cannot easily reevaluate the trial court's credibility assessment. The Superior Court found that, in the instant case, such deference would be inappropriate, however, as the trial court did not witness the original questioning of the jurors by the court clerk.
The court observed that, because of the juror selection process used in Allegheny County, judges never view the demeanor of prospective jurors unless counsel requests the juror appear before the judge to "recreate the initial voir dire ." Trigg , 187 A.3d at 1017. The court rejected the Hospital's contention that, because, during arguments before Judge Folino, Appellees did not object to the trial court's lack of personal observation of prospective juror 29's demeanor during voir dire , nor did they request that Judge Folino individually question this juror, they waived this issue for appellate review. The court reasoned that such a re-questioning "could never reproduce the authentic reactions that [the juror] displayed when the questions were originally asked." Id. The court additionally concluded that the extra time which elapsed between the jurors' original questioning and the follow-up questioning by the judge would give the jurors time to "rethink" their original answers and correct what they may have perceived to be errors in giving them. Id. Consequently, the court held that "[a] judge personally witnessing the original voir dire is essential, because it justifies our — and a losing party's — faith in the trial court's rulings on challenges for cause." Id. at 1018.
Because the trial court did not observe the voir dire process in this matter, the court refused to apply the deferential standard of review utilized in Shinal , and it reviewed, de novo , the trial court's decision to reject Appellees' for-cause challenge to prospective juror 29. The court determined that the trial court erred in denying this challenge, as, in its view, this juror exhibited bias in favor of medical professionals due to her familial relationships, which would have influenced her deliberations. Further, the court determined that the error was not harmless given that it caused Appellees to utilize a peremptory challenge to exclude prospective juror 29, and thereby "forced [Appellees] to exhaust all of their peremptory challenges." Id. at 1019. As a result, the court vacated the judgment and remanded the case to the trial court for further proceedings. The court did not address Appellees' remaining issues.
Judge Bowes, while joining the majority opinion, authored a separate concurrence, joined by Judge Olson, expressing her concern as to whether the process utilized by Allegheny County for selection of jurors in civil matters "results in sound disqualification determinations." Trigg , 187 A.3d at 1020 (Bowes, J., concurring). In her view, the opportunity for a trial judge to view a prospective juror's demeanor firsthand while he or she is being questioned is critical in close cases where the juror's potential bias is not apparent from the record. She considers the trial judge's lack of opportunity to observe the jurors as they were being questioned as undercutting the judge's ability to make a well-founded decision, and hampers further appellate review of the judge's ruling.
Thereafter, the Hospital filed a petition for allowance of appeal, which we granted, raising four issues, of which we find the following to be dispositive: "[w]hether the Superior Court improperly considered arguments regarding juror demeanor when those arguments were waived." Trigg v. Children's Hospital of Pittsburgh of UPMC, ––– Pa. ––––, 201 A.3d 145 (2019) (order).
II. Arguments of the Parties
Because we conclude the Hospital's waiver issue is dispositive, we begin by addressing the parties' arguments with respect thereto. In the Hospital's view, the issue for the Superior Court's consideration was whether the answers provided by the prospective jurors during voir dire provided a specific basis for disqualifying them based on actual prejudice or bias, and it should have confined its analysis accordingly. The Hospital contends that the Superior Court erred, however, by instead considering arguments related to the conduct and demeanor of the prospective jurors, and the lack of the presence of a judge at voir dire , because those arguments were waived for purposes of appellate review, having never been properly raised in the trial court. The Hospital considers the Superior Court to have committed clear error in basing its decision on these waived arguments and, in so doing, contravened years of precedent governing the voir dire process by deeming it "essential" for a trial judge to have personally witnessed the original voir dire in order to rule on a for-cause challenge to a juror. Hospital Brief at 22. The Hospital rejects the proposition that only an original interrogation of a prospective juror in the presence of the trial court is sufficient to assess the prospective juror's candor. In its view, such a contention discounts the fact that many witnesses at trial, who have their credibility assessed by the fact-finder, have been previously questioned prior to trial via deposition or other means; hence, the Hospital propounds that original interrogation is manifestly not the only acceptable way to gauge credibility.
The parties filed redacted briefs in this matter to protect the identity of J.T., and our references herein are to these redacted briefs.
The Hospital emphasizes that Appellees, at no time before or during trial, "raised any arguments or made any record as to how the demeanor of the challenged jurors was relevant to Judge Folino's analysis or revealed purported bias." Id. The Hospital adds that, when Appellees made their for-cause challenge, they did not present Judge Folino with these arguments. Rather, Appellees merely asked Judge Folino to read the transcript to assess whether the jurors were biased as they contended, and Appellees declined to question the challenged jurors before Judge Folino, even though they had the opportunity to do so. Consequently, the Hospital concludes that, because of this waiver, issues relating to the propriety of the Allegheny County Civil Division juror selection process are not properly before this Court, and, in any event, nothing in those jury selection procedures precludes an in-person examination of a prospective juror by a trial judge.
Appellees respond by asserting that they could not have objected to the demeanor of the challenged jurors during voir dire for the simple fact that the trial judge was not present to rule on such an objection, and there was no way to record the objection for appellate review. Appellees highlight that, in Shinal , our Court stressed the importance of the trial judge's ability to view a prospective juror's demeanor when answering questions in voir dire , and, thus, only if the judge has the opportunity to observe the juror's demeanor will appellate courts apply a highly deferential standard of review.
Appellees aver that, when prospective juror 29 made her initial statements during voir dire reflecting her potential bias, these statements were made in such a fashion that her demeanor reflected her bias, yet the trial judge did not observe that demeanor, as he was not present at that time. Appellees claim that, when they made an argument regarding the alleged bias of prospective juror 29, implicit in that argument was a commentary on her demeanor, and, thus, they preserved the present issue for appellate review. See Appellees' Brief at 22 (discussing their argument to trial court that prospective juror's answer – that she would tend to favor the medical profession in a close call – indicated that she was "on the fence," and that her subsequent answers indicated a willingness to engage in "open defiance" of the trial court's directives (quoting N.T., 3/17/17, at 204)).
Appellees deny that they should have challenged the jury selection process at the outset of the trial, inasmuch as they assert that they were not challenging that process, but only the prejudice which ensued. Appellees claim that they were merely following the established procedures in Allegheny County and that they utilized the "only legitimate recourse" available to them which was to have the trial judge read the transcript and rule on their objection. Id. at 24. Lastly, Appellees argue that they properly preserved the issue of the trial court's lack of firsthand assessment of the jurors' demeanor during voir dire in their post-trial motions.
III. Analysis
The issue of waiver presents a question of law, and, as such, our standard of review is de novo and our scope of review is plenary. Stapas v. Giant Eagle , ––– Pa. ––––, 198 A.3d 1033, 1037 (2018). As a general matter, it is axiomatic that issues not raised in lower courts are waived for purposes of appellate review, and they cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). This is because, as our Court has oft reminded, "issue preservation is foundational to proper appellate review." In re F.C. III , 607 Pa. 45, 2 A.3d 1201, 1211 (2010). Requiring issues to be properly raised first in the trial court ensures that trial judges have the opportunity to consider a potential appellate issue and correct any error at the first available opportunity. Id. at 1212. It also promotes the orderly and efficient use of judicial resources, ensures fundamental fairness to the parties, and accounts for the expense attendant to appellate litigation. Id.
In the case at bar, we are constrained to conclude that Appellees waived their argument that the trial court erred by not observing the demeanor and tenor of prospective juror 29 during voir dire . Our review of the record indicates that Appellees made no objection in pretrial motions to the trial judge's absence from the Jury Assignment Room during voir dire . Likewise, when Appellees made their challenge for-cause to the seating of prospective juror 29, they did not contemporaneously object to the trial judge's absence from the room during voir dire . Moreover, review of the transcript of the argument before Judge Folino regarding the challenge to this juror indicates that Appellees' challenge was predicated on the substance of the answers which she gave during voir dire , i.e. , that her familial relationship with members of the medical profession indicated her potential bias:
[Appellees' Counsel] : The argument is that she's the one who brought up her relatives when asked about potential bias. I asked her, "In a close call, would you favor the doctors?" She said "yes."
THE COURT : What did you mean by a close call?
[Appellees' Counsel] : I meant -
THE COURT : 50-50?
[Appellees' Counsel] : I didn't quantify it for her.
THE COURT : But what is that though?
[Appellees' Counsel] : I thought that she understood that I meant that, you know, "If you were on the fence one way or another, as you sit here today, do you think you would favor, the doctor?" And she said "yes." And then again, I think we went from there into really open defiance, and she said, No, I wouldn't defy it.
Would you try to be fair? And they were leading questions that were permitted to be asked to rehabilitate her, and I don't -- I suggest that the -- that in trying to elicit bias, that cross-examination for rehabilitation is inappropriate.
THE COURT : Well, your questions were leading, too.
[Appellees' Counsel] : I respectfully disagree about the question where I said if it's a close case. Maybe it was, yeah.
N.T., 3/17/17, at 203-05. This record does not support Appellees' claim that, as part of their challenge for-cause, they implicitly raised issues concerning the inability of the trial judge to assess the demeanor of prospective juror 29 as she gave her answers.
The fact that Appellees alleged, in post-trial motions, that the trial court erred in not striking this juror for-cause because the trial court did not have the opportunity to observe the demeanor and tenor of her answers does not preserve this issue for review. Pennsylvania Rule of Civil Procedure 227.1 requires a party to raise an objection at trial, inter alia , by motion, or by a specific, on the record objection in order to obtain post-trial relief:
(b) Except as otherwise provided by Pa.R.E. 103(a) [governing the admissibility or exclusion of trial evidence], post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
Note: If no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief.
Pa.R.E. 103(a) provides that the specific ground for an overruled objection, or the substance of excluded evidence, need not be stated at or prior to trial, or without having made an offer of proof, if the ground of the objection, or the substance of the evidence sought to be introduced, was apparent from the context.
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b).
In Stapas , a personal injury action, our Court held that, because of these requirements, the defendant's failure to raise an objection to an alleged error in the jury's computation of damages prior to the jury's dismissal resulted in waiver of that issue on appeal, notwithstanding the fact that the defendant raised the issue in post-trial motions. Our Court reasoned that the failure to object deprived the trial court of the opportunity to have the trial judge order the jury to take curative action and properly compute the damages before they were dismissed. We concluded that the rationale discussed above — requiring timely objections to be made at trial so that the trial judge can take immediate curative action — compelled a finding of waiver under such circumstances.
Likewise, in the case at bar, Appellees, in making their for-cause challenge to prospective juror 29, failed to raise with the trial judge any issue relating to his lack of observation of this juror's demeanor in answering voir dire questions, nor did they request that he personally interview the juror. As a result, the trial judge was deprived of any opportunity to address and resolve this issue before the jury was finally empaneled.
Indeed, in his Rule 1925(a) opinion, the trial judge indicated his express willingness to conduct in-person interviews of prospective juror 29, had Appellees asked that he do so, as it was his customary practice to grant such requests. However, Appellees made no request for such individualized follow-up questioning, nor raised any claim that such an ameliorative measure would be inadequate to cure the alleged harm they now assert was caused by the trial court's absence during voir dire , even though the trial court left the question of the specific method it should use to address Appellees' for-cause challenges entirely up to them. N.T., 3/17/17, at 201. Because Appellees ultimately failed to make either a timely objection to the trial court's absence during voir dire , or request that the trial court take other curative action for that absence, and, instead, gave their express assent to having the trial court resolve their for-cause challenges solely on the basis of the transcript of the voir dire process, they have waived for appellate review any challenge to the use of this methodology.
The Superior Court therefore erred when it rejected the Hospital's claim before that tribunal that the issue of the trial court's lack of personal observation of the demeanor of prospective juror 29 during voir dire was waived. The court did not analyze this waiver claim in accordance with the well-established requirements for issue preservation discussed supra . Rather, it essentially addressed the merits of the claim, deeming follow-up in-person questioning by a trial judge of a prospective juror – the avenue Appellees chose not to pursue or challenge – to be an insufficient means of discerning a juror's potential bias, thereby relieving Appellees of their obligation to raise the issue before the trial court. This was improper.
Because of the nature of our disposition of this appeal, we express no opinion on the Superior Court's merits-based conclusion in this regard.
For this reason, we vacate the Superior Court's order reversing the trial court. However, as the Superior Court did not address Appellees' other arguments regarding the denial of their motion to exclude the prospective jurors, we remand this matter to that tribunal so that it may consider those remaining issues.
The Order of the Superior Court is vacated, and this case is remanded to that court for further proceedings consistent with this opinion. Jurisdiction relinquished.
Chief Justice Saylor and Justices Dougherty and Mundy join the opinion.
Justice Donohue files a concurring opinion in which Justices Baer, Dougherty, Wecht and Mundy join.
Justice Wecht files a concurring opinion in which Justice Dougherty joins.
JUSTICE DONOHUE, concurring
Pursuant to the procedure for civil case voir dire in the Allegheny County Court of Common Pleas in place at the time of the underlying proceedings, the voir dire in this matter was conducted by a court clerk. See A.C.L.R.C.P. 220.1. During that process, Appellees asserted for-cause challenges to particular jurors, including Juror 29, but did not request the presence of, or object to the absence of, a judge for the questioning of the potential veniremen. The record confirms that at no point prior to the commencement of voir dire or during voir dire did Appellees sound an objection to the absence of a judge from the process. Subsequently, in their post-trial motion, Appellees argued that it was error for the calendar control judge, the Honorable Ronald W. Folino, to deny their challenge for cause as to Juror 29 because Judge Folino did not have the opportunity to "observe the demeanor or tenor of the challenged venireman's answers[,]" and therefore should have presumed that the challenged venireman exhibited extreme bias. Post-Trial Motion, 4/3/2017, ¶ 36. Even if we are to assume that this pointed claim encompasses a challenge to the voir dire procedure generally, pursuant to Rule of Civil Procedure 227.1(b), Appellees were required to raise the objection during the voir dire proceedings in order to preserve it as a basis for post-trial relief. See Pa.R.C.P. 227.1(b). Thus, I reluctantly agree with the Majority's conclusion that Appellees waived their challenge to Allegheny County's civil voir dire procedure.
The Allegheny County Local Rules of Civil Procedure have since been amended to provide that a party or parties may request that a judge preside over the voir dire proceedings. See A.C.L.R.C.P. 212.2(d) (effective February 18, 2020).
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 263-64, 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.
Pursuant to our issue preservation requirements, Appellees should have objected to the judge's absence at the outset of voir dire even though, as the local rule provided that the judge would not be present for questioning of the jury pool, an objection at that point would likely have been futile. Moreover, as Appellees explained, they had no need to object to the absence of a judge until Juror 29 gave a response that caused Appellees to question her impartiality. Although they were offered the option of calling Juror 29 before Judge Folino to recreate the voir dire questioning, see Maj. Op. at 264-65, Appellees elected to resolve their dispute on the basis of a transcript instead. In my opinion, it cannot be disputed by anyone who has ever picked a jury that summoning Juror 29 to Judge Folino's courtroom for questioning would have yielded responses that differed in demeanor, if not content, from her initial responses. The prospective juror would have been singled out, removed from the jury assignment room, and taken to a courtroom to appear before a judge (who, it must be remembered, has not appeared at any point in the proceedings) for examination. Given the gravity of these circumstances, even the most forthcoming prospective juror would second guess her initial answers. At the very least, her comportment when responding, for a second time, to the same questions would be altered. In my view, being afforded the option to have Juror 29 appear before Judge Folino at that point in the proceedings is not functionally equivalent to the judge's presence during the initial questioning.
This problem strikes at the heart of my reservations about voir dire procedures that permit questioning potential jurors outside of the presence of a trial judge. Voir dire is an essential component of our constitutional right to trial by jury. Article 1, Section 6 of the Pennsylvania Constitution provides the citizens of this Commonwealth with the right to a trial by an impartial jury. PA. CONST. art.1, § 6; see also Bruckshaw v. Frankford Hosp. of City of Philadelphia , 619 Pa. 135, 58 A.3d 102, 108–09 (2012) ("[T]he right to a trial by an impartial jury is enshrined in the Pennsylvania Constitution, which guarantees that ‘trial by jury shall be as heretofore, and the right thereof remain inviolate.’ "). This constitutional right extends to both criminal and civil trials, and accordingly, the fairness and impartiality requirements for juries "are as scrupulously protected in a civil case as in a criminal case." Bruckshaw , 58 A.3d at 109. Indeed, we have recognized the fair and impartial jury as the "keystone" of our legal system. Colosimo v. Pennsylvania Elec. Co. , 513 Pa. 155, 518 A.2d 1206, 1209 (1986) ; see also Bruckshaw , 58 A.3d at 109 ("One of the most essential elements of a successful jury trial is an impartial jury.").
Voir dire is the process by which trial courts secure the fair and impartial juries required by our Constitution. See, e.g., Shinal v. Toms, 640 Pa. 295, 162 A.3d 429, 438 (2017) ; Commonwealth v. Smith , 635 Pa. 38, 131 A.3d 467, 477 (2015) ; Commonwealth v. Paolello , 542 Pa. 47, 665 A.2d 439, 450 (1995) ; Bentivoglio v. Ralston , 447 Pa. 24, 288 A.2d 745, 749 (1972). Through questioning, trial courts screen potential jurors for "bias or relationships to the parties, lawyers, or matters involved. Importantly, it is not simply the fact of partiality, but also the appearance of partiality or bias, that the trial court must consider." Shinal , 162 A.3d at 438. As we have explained in the context of criminal proceedings:
[t]he role of the trial judge during voir dire is as arbiter of a mixed question of fact and law, and that the canvassing of prospective jurors for the possibility of a hardened opinion in derogation of the constitutional imperative of trial by "impartial, ‘indifferent’ jurors," Irvin v. Dowd , [ ] 366 U.S. 717, 722 [81 S.Ct. 1639, 6 L.Ed.2d 751] [(1961)], is to be performed before the trial judge is not an empty requirement. The opportunity to observe the demeanor of the prospective juror and the tenor of the juror's answers is indispensable to the judge in determining whether a fair trial can be had in the community. Claims of impartiality by prospective jurors are subject to scrutiny for credibility and reliability as is any testimony and the judgment of the trial court is necessarily accorded great weight. As stated in United States v. Wood : "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." [ United States v. Wood , 299 U.S. 133 [123], 145-46 [57 S.Ct. 177, 81 L.Ed. 78] (1936).]
Commonwealth v. Bachert , 499 Pa. 398, 453 A.2d 931, 936–37 (1982). Trial judges enforce the right to an impartial jury, as it is they who determine whether a prospective juror must be disqualified or whether she is able to put aside biases or prejudices upon proper instruction from the court. Shinal , 162 A.3d at 440. We recently expounded on the importance of the trial judge's ability to observe a prospective juror for the purposes of making these critical credibility determinations in situations involving allegations of actual prejudice in a civil case. Where a potential juror's conduct or answers to questions reveal a likelihood of prejudice, we explained that "much depends upon the answers and demeanor of the potential juror as observed by the trial judge[,]" as it is the trial judge who
"Actual prejudice" in the context of voir dire refers to situations in which "a juror's prejudice is revealed through his or her conduct or answers." Shinal v. Toms , 640 Pa. 295, 162 A.3d 429, 441 (2017).
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 , 640 Pa. 295, 162 A.3d 429, 438 (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.
sees [the potential juror] 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.
Id. at 441-42. In recognition of the significance of the trial judge's contemporaneous observations, appellate courts defer to the trial judge's determination absent palpable error when reviewing rulings involving claims of actual prejudice. Id. Considering the great importance placed on the requirement for a fair and impartial jury, and the role of the trial judge in the seating of such juries, it cannot be contested that the empaneling of a jury is critical to assuring a fair and impartial jury. Because the right to an impartial jury is guaranteed for both criminal and civil jury trials, Bruckshaw , 58 A.3d at 109, a judge's role in voir dire is no less crucial in a civil case than in a criminal case. Inexplicably, this is not duly reflected in our rules. In the criminal context, the judge's presence is required. See Pa.R.Crim.P. 631(A) ("Voir dire of prospective trial jurors and prospective alternate jurors shall be conducted ... in the presence of a judge" unless the parties and the judge agree to waive the judge's presence). The analogous rule in the civil context "does not dictate the mechanics of voir dire, but leaves the method ... to the local courts of common pleas." Pa.R.C.P. 220.3, Explanatory Comment -1997. As the constitutional right to a fair and impartial jury extends to civil and criminal matters, see Bruckshaw, 58 A.3d at 109, I see no principled reason for this disparate treatment and I believe that rectification of this disparity should be referred to our Civil Procedural Rules Committee.
This kind of conduct that is not capable of capture on a cold record is the same conduct that cannot be replicated when a juror is summoned to the calendar control judge's courtroom after initial questioning, pursuant to the Allegheny County civil voir dire procedure.
As we can see from the case presently before us, this unequal treatment in our procedural rules can, and has, led to the promulgation of local rules for voir dire in civil cases that operate without the express oversight of a trial judge. These procedures, in my view, improperly ignore the critical function performed by a trial judge in voir dire proceedings.
Thus, I am encouraged by Allegheny County's recent revision of its local rule to permit parties in civil cases to request the participation of a trial judge in voir dire, see note 1, supra, which works to eliminate the unequal treatment that has been given to voir dire, the mechanism by which we ensure the constitutional right to trial by an impartial jury, in civil and criminal cases.
Justices Baer, Dougherty, Wecht and Mundy join this concurring opinion.
JUSTICE WECHT, concurring
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 263-64. Once the general questions have concluded, the clerk asks questions of each prospective juror individually. Id . at 263-64. 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 265 (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-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 269-70. 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. , 613 Pa. 371, 34 A.3d 1, 45 (2011) ; Straub v. Cherne Indus. , 583 Pa. 608, 880 A.2d 561, 566 (2005) ; Dilliplaine v. Lehigh Valley Trust Co. , 457 Pa. 255, 322 A.2d 114, 116-17 (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, 58 S.Ct. 1019, 82 L.Ed. 1461 (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. , 548 Pa. 92, 695 A.2d 397, 400 (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 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. , 640 Pa. 169, 162 A.3d 353, 365 (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 , 648 Pa. 76, 191 A.3d 782, 788 (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 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 272.1 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. , 619 Pa. 135, 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 , 640 Pa. 295, 162 A.3d 429, 441-42 (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 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 , 282 Pa. 434, 128 A. 77, 79 (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 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, 128 S.Ct. 1203, 170 L.Ed.2d 175 (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 , 581 Pa. 154, 864 A.2d 460, 490 (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 , 242 Pa. 406, 89 A. 564, 565 (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 271-72. Knowing 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 271-73.
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.