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COMMONWEALTH PENNSYLVANIA v. NORMAN MICHAEL MARTINEZ (12/01/77)

decided: December 1, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
NORMAN MICHAEL MARTINEZ, APPELLANT



COUNSEL

Allen H. Smith, York, for appellant.

Donald L. Reihart, Dist. Atty., Floyd P. Jones, York, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., concurs in the result. Pomeroy, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion in which Nix, J., joins.

Author: Roberts

[ 475 Pa. Page 333]

OPINION

On January 16, 1975, following a trial by jury, appellant was found guilty of murder of the third degree and aggravated

[ 475 Pa. Page 334]

    assault. Post-verdict motions were filed and denied, and concurrent sentences of seven and one-half to fifteen years on the murder charge, and two and one-half to five years on the aggravated assault charge, were imposed. This appeal followed. We affirm.

I

We deal initially with appellant's objections to the trial court's pre-trial rulings. First, appellant argues that the trial court erred in denying his motion to strike the array of petit jurors. Appellant alleged that the jurors were selected only from voter lists, that such a method of selection tends to under-represent the poor, and that therefore the petit jury would not represent a fair cross-section of the community.

It is, of course, clear that the sixth amendment to the United States Constitution requires state petit juries to reflect a fair cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). And it may very well be that voter lists as a general matter significantly under-represent certain identifiable segments of the community, including poor people. See Kairys, Kadane & Lehoczky, Jury Representativeness: A Mandate for Multiple Source Lists, 65 Cal.L.Rev. 776, 805-809 (1977). But we have no idea whether this general proposition was true in York County at the time of trial. No proof was submitted to demonstrate the extent to which the poor were not present on the voter rolls. Appellant simply did not show that an unrepresentative array in fact resulted from using voter registration lists.

This case is therefore governed by our recent decision in Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976). There appellant challenged an array of jurors chosen solely from voter registration lists on the theory that such a method of selection resulted in systematic racial discrimination. We found, however, that appellant had not shown that "the list itself reflects discriminatory practices." Id. 465 Pa. at 480, 350 A.2d at 866. Similarly, although the motivation

[ 475 Pa. Page 335]

    of those who chose to use voter lists was not relevant to appellant's claim of unrepresentativeness, appellant here was at least required to show the extent to which the voter list reflected exclusion of the poor. This he has not done and accordingly his claim must fail.

Appellant next asserts that it was error for the trial court to grant the Commonwealth's motion to amend the indictment so that it would charge murder of the third degree, rather than murder of the second degree. The indictment charged appellant with "intentionally, knowingly, recklessly or negligently" causing the death of another human being, but the indictment indicated that such conduct violated sections 2502(a) and (b) of the Crimes Code (first and second degree murder), rather than 2502(a) and (c) (first and third degree). It is clear, however, that the words used encompass the charge of third degree murder. It was thus within the power of the trial court to allow the amendment, which corrected a "defect in form" and did not "charge an additional or different offense." Pa.R.Crim.P. 220.

Nor did the trial court deny appellant the right to argue against the motion. The court asked appellant's counsel, prior to granting the motion, whether he had any additional arguments not contained in ...


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