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COMMONWEALTH PENNSYLVANIA v. LINN W. MOSLEY (12/21/78)

decided: December 21, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
LINN W. MOSLEY, APPELLANT



No. 283 March Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Dauphin County at No. 1431 Criminal Division, 1975.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurred in the result. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 261 Pa. Super. Page 200]

Appeal is taken from judgment of sentence rendered following jury trial and verdict of guilty of aggravated assault. "Crimes Code", Act of 1972, Dec. 6, No. 334, 18 Pa.C.S. § 2702. Trial was held on October 27, 1975, and counsel timely filed post-trial motions, alleging inter alia that the lower court erred in limiting defense counsel's questioning of prospective jurors and in failing to allow admission of a letter purporting to be an offer on behalf of the victim to refuse to testify for the consideration of a compromise monetary settlement. Post-trial motions were denied, and no appeal was taken. The record next shows the pro se filing of a petition pursuant to the Post Conviction Hearing Act (P.C.H.A.), Act of 1966, Jan. 25, P.L. 1580, 19 P.S. § 1180-1 et seq. Counsel was appointed and caused to be filed a more-detailed P.C.H.A. petition, alleging inter alia ineffectiveness of trial counsel for failing to take a direct appeal. Apparently without hearing, the lower court granted the relief of an allowance to appeal nunc pro tunc,

[ 261 Pa. Super. Page 201]

    and otherwise denied relief.*fn1 Counsel thereupon appealed and presents for our consideration the two questions referred to hereinabove and preserved by their inclusion in post-trial motions, as well as an allegation of ineffective trial counsel for failure to move to suppress statements of defendant to the police for the reason that they had been unknowingly given.*fn2

Factually, appellant and one Willa Mae Ervin had been friends for several years. On May 10, 1975, appellant confronted her at her apartment, and an argument, with blows struck, ensued. This session ended with appellant's removing himself from the premises. Later in the evening, Ervin and a friend walked the short distance to appellant's house, and stood in the street shouting to appellant, inside. Appellant appeared at the door, but refused to go out. From there he saw Ervin waving a pistol in the air and striking his car with a baseball bat. Thereupon he grabbed a high-powered rifle and retreated to a second-floor window. The damage having been wrought to the vehicle, Ervin turned and walked a short distance away from the house. By his own admission an expert shot, appellant took aim and fired at Ervin's right leg. The bullet struck the victim's right leg with such an impact as to sever the lower leg from the upper part, necessitating amputation of the lower leg.

Appellant argues error in that the lower court refused his counsel's proposed question to jurors regarding whether they had ever been the victim of any crime. "The court limited the inquiry to whether any juror had been the victim of a crime in the nature of an assault, i. e., like the

[ 261 Pa. Super. Page 202]

    offense being tried."*fn3 The purpose of voir dire is to ferret out bias or prejudice on the part of prospective jurors. Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1975). "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. England, 474 Pa. 1, 7, 375 A.2d 1292, 1295 (1977), quoting Commonwealth v. Lopinson, 427 Pa. 284, 298, 234 A.2d 552, 561 (1967), other citations omitted. Questions to venirepersons are under the guidance of the court and the exercise of discretion will be overturned only for palpable abuse of discretion. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975). We find no such abuse here. Whether or not a venireperson would be biased against a defendant charged with aggravated assault of the type involved in this case is the issue. The trial judge allowed a question relating to this issue. We agree with the lower court in that a question dealing with being the victim of any crime is overbroad and irrelevant. Such a broad question could be and was narrowed into an acceptably limited and pertinent question. The question proposed by appellant's counsel was not sufficiently limited, and it was not abuse of discretion to disallow it.

During cross-examination of the victim Mrs. Ervin, she related as how appellant had telephoned her numerous times during her hospitalization to inquire whether she would "drop the charges" or "settle it between us." She had discussed with appellant a monetary settlement and denied ...


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