Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 1444, in case of Commonwealth of Pennsylvania v. Rhodolphus Brown.
Henry J. Lunardi, for appellant.
David Richman and James T. Ranney, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
[ 228 Pa. Super. Page 167]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, by the appellant-defendant, Rhodolphus Brown, after conviction by a jury of forcible rape and corrupting the morals of a minor; and from the denial of post-trial motions. The appeal raises several reasons for a new trial: (1) insufficient evidence to convict him of the charges; (2) consent; and (3) that the court below abused its discretion in refusing to permit certain questions on voir dire examination.
As to contentions (1) and (2), the matter was for the jury to resolve the credibility of the witnesses and they are without merit. The jury was selected on January 11th and testimony was completed on January 12th. The record indicates that the trial judge became ill so that closing arguments, the charge of the court and the deliberation of the jury took place on January 17th. There was no prejudice to the appellant by this delay.
The questions requested at voir dire are as follows:
(1) ". . . 2. Have you (or anyone you know) ever been involved in a rape or attempted rape?
[ 228 Pa. Super. Page 168]
(2) ". . . 4. Would you, or do you, get upset or take special note when you see a white girl and a black man walking together; talking together; holding hands?"
The scope of voir dire examination and the manner and procedure of such examination rests within the discretion of the trial judge. Commonwealth v. Cephas, 213 Pa. Superior Ct. 278, 247 A.2d 662 (1968). Examination under voir dire is limited to determining if a juror is subject to disqualification for cause, for lack of qualifications, or for a fixed opinion. Commonwealth v. Cephas, supra. Nothing short of palpable abuse of discretion justifies a reversal in passing on a challenge for cause. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973); Commonwealth v. Colon, 223 Pa. Superior Ct. 202, 299 A.2d 326 (1972); Commonwealth v. Corbin, 426 Pa. 24, 231 A.2d 138 (1967). It is equally true that the scope of the voir dire examination is not to provide the defense with a basis upon which he utilizes his peremptory challenges. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967).
The questions as framed leave much to be desired if their purpose was to disclose racial prejudice and knowledge of former sexual offenses and the refusal of the trial court to permit them could not fall within the definition of palpable abuse of discretion.
The court below carefully questioned the prospective jurors about their knowledge of the case, their relationship to police officers and went into detail as to their responsibility as jurors. Among the many ...