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COMMONWEALTH PENNSYLVANIA v. EUGENE COLE (10/25/79)

submitted: October 25, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE COLE, APPELLANT



No. 330 Special Transfer Docket, No. 331 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Nos. 82, 83 & 85 March Term, 1977.

COUNSEL

Ronald M. McCaskill, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Roberts, and Lipez, JJ.*fn*

Author: Per Curiam

[ 274 Pa. Super. Page 108]

On July 28, 1977, a jury convicted appellant of murder of the first degree and kidnapping and imposed capital punishment for murder and a consecutive term of imprisonment of 10 to 20 years for kidnapping. The trial court denied post-verdict motions. Following decision of Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978), declaring

[ 274 Pa. Super. Page 109]

    unconstitutional the state death penalty provision, the trial court vacated the death sentence and imposed a sentence of life imprisonment. Appellant contends that (1) systematic exclusion of veniremen opposed to the death penalty denied him his right to trial by a jury of his peers; (2) the trial court's questioning at voir dire indicated its desire that the jurors return a verdict of guilty and the death penalty; (3) the questions the Commonwealth and the trial court asked at voir dire did not reveal whether veniremen would refuse to impose a death penalty under any circumstances and removal for cause of veniremen based on their answers to these questions was improper; (4) an inculpatory statement he gave should have been suppressed; (5) the trial court improperly instructed the jury that the facts of the case did not warrant a verdict of guilty of voluntary manslaughter; and (6) the prosecutor improperly commented on appellant's silence at trial. We affirm.

Appellant and a co-defendant robbed the victim at gunpoint, beat him about the head with a pistol, drove him to an isolated area, ordered him to kneel and shot him three times in the back. Appellant admitted these facts in a statement he gave police which was introduced at trial.

Appellant argues that voir dire produced a jury prone to convict because veniremen opposed to the death penalty under all circumstances were excluded. This argument is without merit. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971). Appellant also argues that the jury was prone to impose the death penalty. Because the trial court vacated appellant's capital sentence and imposed a life sentence, we need not determine whether the jurors were prone to impose capital punishment. See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975).

Appellant contends that the court's questioning at voir dire indicated its opinion that he was guilty and deserved the death penalty. Our review of the record reveals that the trial court was impartial and restrained in its

[ 274 Pa. Super. Page 110]

    questioning and did not indicate any opinion on guilt. Appellant also asserts that the questions the Commonwealth and the court asked at voir dire were improper. The Commonwealth and the court asked the veniremen if they had a moral or philosophical objection to imposing the death penalty under any circumstances and whether they could impose the death penalty in a murder case such as this one. ...


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