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COMMONWEALTH v. HOWARD (03/21/68)

decided: March 21, 1968.

COMMONWEALTH
v.
HOWARD, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, March T., 1967, Nos. 940 to 943, inclusive, in case of Commonwealth of Pennsylvania v. Larry Howard.

COUNSEL

Dennis Eisman, Assistant Defender, with him Melvin M. Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Montgomery, J. Concurring Opinion by Hoffman, J.

Author: Montgomery

[ 212 Pa. Super. Page 103]

Appellant-defendant Larry R. Howard was convicted by a jury on charges of conspiracy, possession of burglary tools, loitering and prowling, and attempted burglary. Motions for a new trial and in arrest of judgment having been overruled, judgment of sentence was imposed from which this appeal was taken.

Since the reasons now being asserted for the reversal of the judgment relate to matters of procedure and the conduct of the trial, we deem it unnecessary to review the evidence relating to the crimes.

Appellant complains that the lower court erred in refusing his counsel permission to examine prospective jurors after they were seated in the jury box and to peremptorily challenge certain jurors before the jury was sworn. Our examination of the record fails to disclose any merit in these complaints. Appellant's counsel was afforded full opportunity to examine the prospective jury as it was assembled collectively, and individually if any one indicated any causal reason for challenge after being interrogated generally. Since the manner of voir dire examination is within the sound discretion of the trial judge, Commonwealth v. DiFilippo, 176 Pa. Superior Ct. 608, 109 A.2d 224 (1954), his exercise of that discretion will not be disturbed in the absence of abuse. No such abuse is indicated by the record. Likewise, the order of challenging jurors is also within the sound discretion of the trial judge. Commonwealth v. Conroy, 207 Pa. 212, 56 A. 427 (1903); Wright v. Scranton, 128 Pa. Superior Ct. 185, 194 A. 10 (1937). We find no prejudicial abuse of discretion in this particular. After the voir dire examination,

[ 212 Pa. Super. Page 104]

    and after the first twelve jurors were seated, the court asked defense counsel whether he wished to challenge any peremptorily. He declined to do so because "I honestly don't know enough about them to do it." The trial court rightfully considered this a waiver of his right to exercise such right, and considered the selection of the jury completed, after adding two alternates to it. It was not until later, just before the jury was to be sworn, that appellant's counsel renewed his request for peremptory challenge. Although we would not rule out the possibility of allowing a belated challenge for cause after the jury had been selected if the reason was a valid one, we will not disturb the ruling of the trial judge in this case since the challenge was a peremptory one.

Appellant's next complaint is that his counsel was refused permission by the court to consult with him before he was arraigned and entered his plea of not guilty. Our review of the record on this point shows no error in the action of the lower court and we do not believe this complaint merits discussion.

The next assignment of error relates to the manner in which the trial judge conducted a "Jackson" hearing on appellant's motion to quash as evidence a statement given by him to a police officer. This motion was made during the trial and the hearing was conducted in the absence of the jury but without clearing the courtroom of fifteen spectators, members of the general public, who were present during the trial. ...


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