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COMMONWEALTH v. CEPHAS (11/14/68)

decided: November 14, 1968.

COMMONWEALTH
v.
CEPHAS, APPELLANT



Appeals from judgment of sentence of Court of Quarter Sessions of Philadelphia County, Aug. T., 1966, Nos. 2057 to 2066, inclusive, in case of Commonwealth of Pennsylvania v. Harold Cephas.

COUNSEL

John W. Packel and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

John M. Phelan and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 213 Pa. Super. Page 279]

Appellant was charged with forgery and related offenses. He went to trial on August 14, 1967 before the Honorable Kendall H. Shoyer and a jury. Prior to selecting a jury appellant's trial counsel was invited by the trial judge to question the jury panel. Counsel declined and instead moved for an individual voir dire of the jury panel. The judge refused because counsel gave no reason, but again gave permission to counsel to put such questions as he thought necessary to the jury panel. Again counsel declined. Twelve jurors were placed in the jury box, two were challenged by the Commonwealth and two other jurors were chosen to replace them. Counsel for appellant stated that he could not challenge for cause unless the judge permitted individual voir dire. The judge insisted that counsel address his questions to the jury as a group and counsel waived all challenges, either for cause or peremptorily.

What did appellant mean when he moved for individual voir dire of the jury panel? Apparently this was a request that each prospective juror be placed under oath and examined individually before being accepted or rejected, a practice that has existed in capital cases for many years. This appeal raises the question of whether a defendant in a non-capital criminal case tried before August 1, 1968, had a right to individual voir dire of each prospective juror.*fn1

In Commonwealth v. Exler, 61 Pa. Superior Ct. 423 (1915), we held that this procedure in capital cases

[ 213 Pa. Super. Page 280]

    was irregular in other criminal cases, and sanctioned the practice of calling the jurors into the box before examining them. In Commonwealth v. DiFilippo, 176 Pa. Superior Ct. 608, 109 A.2d 224 (1954), we again approved the practice of the trial court in non-capital cases of calling twelve jurors and seating them in the box before the challenging began. We are satisfied that appellant had no right in this case to have the jurors called singly as in a homicide case and sustain the lower court in refusing such a request.

The sole question presented in this case, as stated by appellant in his brief, is whether the court erred in denying defense counsel the right to address the prospective jurors individually in order to establish possible bases for challenges for cause.

As appellant concedes, he had no right to examine the prospective jurors for the purpose of determining the exercise of his peremptory challenges. "The examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury." Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953). The inquiry is limited to determining if a juror is subject to disqualification for cause for lack of qualifications or a fixed opinion. Commonwealth v. McGrew, supra.

A defendant has a right to insist on a voir dire of prospective jurors. Commonwealth v. Grauman, 52 Pa. Superior Ct. 215 (1912). However, the scope of voir dire examination rests on the sound discretion of the trial judge. Commonwealth v. McGrew, supra. So also does the manner and procedure of such ...


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