No. 1583 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Berks County, Criminal Division, No. 77023101.
Lois B. Anderson, Assistant Public Defender, Reading, for appellant.
J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.
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Following a jury trial commenced on July 12, 1977, appellant was found guilty of rape,*fn1 indecent assault,*fn2 aggravated assault,*fn3 and involuntary deviate sexual intercourse.*fn4 Post-trial motions were denied and the following sentences were imposed by the Berks County Court of Common Pleas: costs of prosecution, a fine of $500, and a prison term of four (4) to twelve (12) years on the rape count; costs of prosecution, a fine of $100, and a concurrent prison term of four (4) to twelve (12) years on the involuntary deviate sexual intercourse count; and costs of prosecution, five (5) years of special probation consecutive to the previously imposed prison terms, and a fine of $500 in the first twenty-three months of probation on the aggravated assault count. The indecent assault count was dismissed. Appellant now alleges several instances of error in the trial court. Because we agree with one of these contentions, the case is remanded for resentencing.
Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978), the following facts were adduced at trial. Miss Geri Lynn Styk testified that on the morning of February 12, 1977, she was present in a basement apartment which she occupied with her daughter and a roommate, Patty Snyder. At approximately 3:00 a. m., appellant telephoned and asked Miss Styk if she knew of Miss Snyder's whereabouts. Miss Styk answered in the negative and appellant informed her that he would be
[ 272 Pa. Super. Page 119]
coming to the apartment. Some ten minutes later, appellant arrived with a companion, but both were denied entrance when Miss Styk again insisted that she was ignorant of Miss Snyder's location. Appellant nevertheless opened the door and stepped into the apartment with his companion. After the two intruders were seated for some moments, Miss Styk accused them of taking her wallet and demanded that they leave. Appellant then grabbed Miss Styk by the hand and forcibly led her to the kitchen. There, he pulled a six inch long steak knife out of the dish rack, placed it to the victim's throat, and said, "Do you know what I do to people that accuse me of doing things that I don't do? . . . I kill them." (N.T. 11). Appellant proceeded to scratch some letters on the victim's chest with the knife. No blood was drawn, and the marks disappeared later that evening.
Following this incident, appellant opened Miss Styk's robe, walked her into the bedroom, and there raped her. Appellant's companion, who was not further identified during trial, then repeated the act, and the two continued to alternate imposing themselves on the victim. Both miscreants finally left the apartment at approximately 6:00 a. m.
We will first address those contentions of appellant which we determine to be without merit. He argues initially that the trial court erred in refusing counsel's request for individual voir dire. It is fundamental that the examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial, and unprejudiced jury. Commonwealth v. Hoffman, 263 Pa. Super. 442, 398 A.2d 658 (1979); Commonwealth v. Perea, 252 Pa. Super. 272, 381 A.2d 494 (1977). So as to obtain such a panel, the trial judge may grant, within his sound discretion,*fn5 the right to conduct individual voir dire of the prospective jurors. Commonwealth v. Howard, 248 Pa. Super. 246, 375 A.2d 79 (1977); Commonwealth v. Herron, 243 Pa. Super. 319, 365 A.2d 871
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(1976). Appellant claims that individual voir dire was here necessary because he is black and the jury panel was composed exclusively of whites.
We addressed this same argument in Commonwealth v. Howard, supra. There, we observed that the single circumstance of a defendant's being black, while the prospective jurors are uniformly white, does not raise such a likelihood of prejudice as to render a trial judge's decision to conduct collective voir dire an abuse of discretion. Of course, a defendant is entitled to question prospective jurors on matters of racial bias and discrimination, Commonwealth v. Foster, 221 Pa. Super. 426, 293 A.2d 94 (1972), and the trial judge permitted appellant's counsel to question the jurors collectively in this area. Since appellant advances no additional facts which might indicate a necessity for individual voir dire, the prospective jurors were adequately queried and the trial court did not abuse its discretion in refusing the request.
Appellant's next contention is predicated on the following comment made by the trial judge to the jury after it had returned a guilty verdict and been polled:
"The jury has been polled and responded in accordance with their written verdict. I wish to thank you. Although it is of no concern, had I been trying the case as both judge and jury, I would have arrived at the same conclusion." (N.T. 93).
A timely objection was made, and appellant argues that the remark indicated the judge's settled opinion, an opinion which denied him the right to have his ...