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COMMONWEALTH v. ALLEN (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, Nos. 1599, 1600, and 1601, in case of Commonwealth of Pennsylvania v. Harry Allen.

COUNSEL

Reggie B. Walton and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Stephen Levin, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman, J., concurs in the result.

Author: Van Der Voort

[ 239 Pa. Super. Page 86]

The appellant, Harry Allen, files this direct appeal from his sentencing on various charges, including assault with intent to murder and aggravated robbery. He was convicted on various charges, including assault with intent to murder and aggravated robbery. He was convicted after jury trial on such charges arising out of an incident in Philadelphia in 1972, when a tailor was viciously assaulted and robbed by two men visiting his combination residence and place of business. Appellant was tried on these charges jointly with a co-defendant, and both were convicted. On appeal, Allen raises several claims of error.

First, appellant contends the trial court erred in refusing to ask potential jurors questions concerning possible prejudice against Blacks. It is alleged that defense counsel had specifically requested that such questions be asked. The record shows the following colloquy (with emphasis added where pertinent) relevant to this issue:

[ 239 Pa. Super. Page 87]

"THE COURT: No. 4, is there anything in the appearance of the accused which would bother you or upset you or which would keep you from being truly fair. Do you want that in?

DEFENSE COUNSEL: Yes. I have gotten some strange responses to that.

THE COURT: That's probably because you ask some strange questions, too.

DISTRICT ATTORNEY: I would object to that question, No. 4.

THE COURT: Would you like to rephrase that and ask whether or not -- would the fact that the accused is a black man, would that create any prejudice in your mind or preclude you from arriving at a fair and just verdict?

DEFENSE COUNSEL: That which you say is an excellent question, but mine is broader.

THE COURT: I understand it is broader and more incorrect; mine goes to the ...


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