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decided: July 8, 1977.



R. Barclay Surrick, Asst. Public Defender, David E. Auerbach, Media, for appellant.

John M. Kenney, John G. Siegle, Asst. Dist. Attys., Media, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts and Manderino, JJ., filed dissenting opinions.

Author: Nix

[ 474 Pa. Page 5]


In February, 1973, appellant was convicted of murder of the first degree in connection with the death of William Ricky Green in the City of Chester on January 24,

[ 474 Pa. Page 61971]

. Motions for a new trial and in arrest of judgment were argued, denied and appellant was sentenced to life imprisonment. This appeal followed.*fn1

Our attention is directed to several assignments of error which appellant contends compel the award of a new trial. Finding no merit in the issues advanced we now affirm the judgment of sentence.

Initially, appellant maintains that the trial court erred in refusing to permit defense counsel on voir dire to ask prospective jurors the following question: "Do you agree with the legal principal [sic] that the defendant has no obligation to prove, or disprove, any fact, but may remain silent." Appellant argues that since he chose not to take the witness stand in his own behalf it was of particular importance that the venirepersons be examined as to their personal agreement with the constitutional right to remain silent and their willingness to apply it in this case.

The single goal in permitting the questioning of prospective jurors is to provide the accused with a "competent, fair, impartial and unprejudiced jury." Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953); see also, Commonwealth v. Dukes, 460 Pa. 180, 186, 331 A.2d 478, 481 (1975); Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973); U.S.Const. amends., VI, XIV; Pa.Const. art. I, ยงยง 6, 9. Voir dire examination is not intended to provide a defendant with a better basis upon which to utilize his peremptory challenges:

Lopinson also contends that the scope of his voir dire examination of the prospective jurors was unduly limited. An examination of the record disclosing the extent of the examination allowed completely refutes this position. Moreover, it is manifestly premised

[ 474 Pa. Page 7]

    upon the mistaken belief that the purpose of the voir dire examination is to provide a defendant with a better basis upon which to utilize his peremptory challenges. This is not so. As stated by President Judge Rice in Commonwealth v. Brown, 23 Pa. Super. 470, at 498 (1903): "[T]he right of peremptory challenge is not of itself a right to select but a right to reject jurors." Accord Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953); and Commonwealth v. Morgan, 280 Pa. 67, 71, 124 A. 339, 340 (1924). Commonwealth v. Lopinson, 427 Pa. 284, 297, 234 A.2d 552, 560 (1967), cert. den., 411 U.S. 986, 93 S.Ct. 2269, 36 L.Ed.2d 963 (1973) (footnote omitted).

See also, Commonwealth v. Biebighauser, supra, 450 Pa. at 347, 300 A.2d at 75.

Thus, although latitude should be permitted on a voir dire, the inquiry should be strictly confined to disclosing qualifications or lack of qualifications and "whether or not the juror had formed a fixed opinion in the case as to the accused's guilt or innocence." Commonwealth v. Lopinson, supra 427 Pa. at 298, 234 A.2d at 561; see also Commonwealth v. Martin, 465 Pa. 134, 158, 348 A.2d 391, 403 (1975); Commonwealth v. Ravenell, 448 Pa. 162, 175, 292 A.2d 365, 371-72 (1972); Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 63 (1971). In ascertaining whether the juror has a "fixed opinion" as to guilt or innocence or whether he or she can be fair and impartial and set aside any harmful prejudices, Commonwealth v. Martinolich, 456 Pa. 136, 147-48, 318 A.2d 680, 686-87 (1974), we have considered certain types of questions irrelevant:

". . . Counsel . . . should [not] be permitted . . . to ask direct or hypothetical questions designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the

[ 474 Pa. Page 8]

    trial of the case . . ." Commonwealth v. McGrew, supra 375 Pa. at 525-26, 100 A.2d at 470-71.

A trial court's refusal to permit certain hypothetical questions on voir dire will not be disturbed absent a palpable abuse of discretion. Commonwealth v. Segers, 460 Pa. 149, 156, 331 A.2d 462, 466 (1975); Commonwealth v. McGrew, supra 375 Pa. at 526-27, 100 A.2d at 471. We are satisfied that no abuse of discretion occurred in this case.

The question proposed by defense counsel was, it appears, designed to advise counsel in advance what a venireperson's personal reaction might be when, and if, the appellant elected not to take the stand in his own behalf. The inappropriateness of the question is further compounded by the fact that it was framed in terms of whether the venirepersons privately agreed with two fundamental concepts in the criminal law: the burden of the Commonwealth to prove guilt beyond a reasonable doubt and the right of an accused to remain silent. A prospective juror's personal views are of no moment absent a showing that these opinions are so deeply embedded as to render that person incapable of accepting and applying the law as given by the court. So long as the juror is able to, intends to, and eventually does, adhere to the instructions on the law as propounded by the trial court, he or she is capable of performing the juror's function. In this regard, it may safely be inferred that a juror will not violate his or her oath in the absence of any expression or other indications to the contrary.

"The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can only attempt to have them put aside those prejudices in the performance of their duty, the determination of guilt or innocence. We therefore do not expect a tabula rosa but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision

[ 474 Pa. Page 9]

    solely on the facts presented, assiduously avoiding the influences of irrelevant factors." Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973).

The trial court's instructions on both the failure of appellant to testify in his own defense and on the Commonwealth's burden of proof beyond a reasonable doubt of every material portion of the crime charged were accurate, definitive and comprehensive. In addition, prior to the selection of the jury, the court had informed the entire panel from which the jury was drawn that the defendant had no obligation to offer evidence nor to testify himself and that the burden to prove the conduct charged remained with the Commonwealth. After the jury was actually empanelled the court once again, in preliminary remarks, advised them of these constitutional mandates. There is not a scintilla of evidence in this record to suggest that any of the jurors harbored a reservation that would prevent the discharging of their duty in accordance with their oath. We therefore find that, under these circumstances, the failure to permit the requested question was not an abuse of discretion.

Appellant's next assignment of error is that the lower court wrongfully permitted into evidence certain rifle parts found in the appellant's closet at the time of his arrest. The foundation of this argument is the belief that the arrest was illegal because it was effectuated beyond the territorial jurisdiction of the arresting officer and that the evidence obtained in a search incidental to that arrest was thereby tainted by that illegality.

The facts surrounding the arrest in this case are as follows: Two days subsequent to the killing of William Ricky Green, Sergeant Lastowka, a Chester city policeman, went to the family home of appellant in the Borough of Parkside, Delaware County, and, pursuant to an arrest warrant issued by a Chester city magistrate, ...

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