# Commonwealth v. Jasper

> Supreme Court of Pennsylvania · May 21, 1992 · 531 Pa. 1

URL: https://www.frixlaw.com/law-library/cases/9694616

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Alfred JASPER, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 21, 1992
- **Citations:** 531 Pa. 1; 610 A.2d 949; 1992 Pa. LEXIS 341
- **Precedential status:** Published
- **Opinion:** Concurrence by Cappy
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694616

## How later opinions describe it (automated extraction)

- observing that it is “well-settled under common law and constitutionally as incident to a fair trial without prejudice that defendants appear free from shackles or other physical restraints” during penalty phase; concluding that the trial court took proper measures to ensure t…
- affirming the rule that in capital cases “challenges to the selection of a jury can be waived by a failure to object appropriately.”

## Opinion text

CAPPY, Justice,
concurring.
I concur in the result reached by the majority in affirming the conviction of first degree murder and the judgment of *18 sentence of death. I write separately to address two questions regarding the decision of the trial judge to shackle the defendant during the penalty phase of the proceedings.
First, I wish to note my extreme distaste for the practice of shackling, in the presence of the jury, an individual who has been accused of a crime. See, Illinois v. Allen, 397 U.S. 337 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970). However, due to the specific nature of the individual involved, the surrounding circumstances and the significant precautions taken by the trial judge to ensure that the jurors were unaware of the shackles, I cannot find that the judge abused her discretion in this particular case. In reaching her decision the trial judge made the following observations:
[W]e deemed such an action to be absolutely essential due to the fact that it was a Sunday; City Hall was closed; there were no other courtrooms operating; the building was in no sense secure and was not staffed by police or sheriffs. We were gravely concerned about the potential for an escape attempt by the defendant, especially since he had now been convicted of his second crime of murder in the first degree; he was in violation of his federal parole; and he was facing the possibility of a second sentence of death. We were well aware of Jasper’s complete criminal history, including his many episodes of violent conduct, plus the fact that the defendant had made a career of fleeing.
After finding it necessary to shackle the defendant, the court went to great lengths to ensure that the jurors were unaware of that fact. The defendant was brought into the courtroom before the jurors and the restraints were attached so that they could not be seen from any seat in the jury box. Thus, as the jury was completely unaware of the precautions taken by the court, no prejudice could possibly fall to the defendant by this action.
Second, although I concur in the majority’s finding that no prejudice occurred because of the shackles, I do not agree that the defendant waived his right to claim error on this point by failing to question the jurors or request a cautionary instruction. As I have just pointed out, the trial court went to great *19 lengths to ensure that the shackles could not be seen by the jurors. Counsel would have been creating greater prejudice to his client by bringing the shackles to the attention of the jurors and then asking if they were influenced by the presence of the defendant so shackled. It would have been equally damaging to request a cautionary instruction under the circumstances. Counsel clearly made his objection to the shackles known at the time, and that was sufficient to preserve the issue for appellate review. Commonwealth v. Lewis, 528 Pa. 440 , 598 A.2d 975 (1991).
NIX, C.J., joins this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694616. Public record. Not legal advice.