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COMMONWEALTH v. FISHER (04/20/72)

decided: April 20, 1972.

COMMONWEALTH
v.
FISHER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 1105, in case of Commonwealth of Pennsylvania v. Adolphus Fisher.

COUNSEL

Anthony J. Caiazzo, with him Melvin L. Fuhrman, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 447 Pa. Page 408]

Appellant Adolphus Fisher was tried before a jury and found guilty of second degree murder and sentenced to serve a term of imprisonment of not less than ten years nor more than twenty years. In this appeal he raises questions concerning the selection of the jury, rulings of the court during trial, and the jury charge. We find no error in the jury selection or in the charge of the court. We also conclude that the errors complained of during trial are not reversible error. Accordingly, we affirm the judgment of sentence.

Jury Selection

Appellant's first contention is that it was an abuse of discretion for the trial court to deny him the opportunity to examine prospective jurors as to their ability to apply the law of self-defense. He attempts to create an analogy between the Commonwealth's right to ask prospective jurors whether under certain circumstances they could impose the death penalty and this defendant's claimed right to ascertain whether a juror could apply the law of self-defense. Cf. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770 (1968).

The trial court specifically inquired of every prospective juror whether if selected as a juror that in dividual could abide by the court's instructions as to the law on every aspect of the case. Appellant's asserted symmetry between the permitted voir dire examination involving the death penalty and his requested voir dire on the subject of self-defense has no legal or factual

[ 447 Pa. Page 409]

    basis. There has been no showing of a widespread public concern with a juror's ability to impartially and fairly apply the law of self-defense similar to that involving the imposition of the death penalty. Cf. Witherspoon v. Illinois, 391 U.S. at 519, 88 S. Ct. at 1775-76. Absent such a showing or any reasonable basis for the requested extension of the present permissible limits of voir dire we cannot say that the trial court abused its discretion in refusing to allow defense counsel to probe into this area. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, § 2.4 (Approved Draft, 1968) ("The judge should then [on voir dire] put to the prospective jurors any questions which he thinks necessary. . . .")

Appellant next challenges the propriety of the trial court's sua sponte exclusion of two prospective jurors after they had been accepted by both counsel. After the Commonwealth objected to defense counsel's initial inquiry into a prospective juror's nationality and race the trial court warned counsel to refrain from asking such questions. Nevertheless, defense counsel persisted and during the very early stages of the jury selection two prospective jurors were so questioned. The trial court initially separated these two jurors from the rest of the prospective jurors pending trial selection of the jury, but then recalled them and, over defense counsel's objection, dismissed those two veniremen.

The court indicated that its action was predicated on the belief that such questions were irrelevant to a juror's qualifications,*fn1 and such inquiries might potentially

[ 447 Pa. Page 410]

    mislead a juror and thus make such prospective juror subject to a challenge for cause. See the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, § 2.5 (Approved Draft, 1968) which provides that: "[i]f the judge after examination of any juror is of the opinion that grounds for challenge for cause are present, the judge should excuse that juror from the trial of the case."*fn2 In addition, here defense counsel fully participated in the selection of the ultimate jury, and there has been no demonstration or even suggestion that defendant was harmed by the trial court's action. Moreover, "[t]he defendant is not entitled to the services of any particular juror but only as to twelve unprejudiced jurors." Commonwealth v. Moon, 389 Pa. 304, 308, 132 A.2d 224, 226 (1957). We conclude that on this record the trial court did not abuse its discretion. The ...


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