No. 224 Special Transfer Docket, No. 225 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, No. 1221 B, C, J and K, March Term, 1976.
Malcolm W. Berkowitz, Philadelphia, for appellant.
D. Michael Emuryan, Assistant District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 221]
Appellant was charged with shooting or conspiring to shoot to death Ann Mauro, a six year old girl, during an exchange of gunfire with Ann's father at the Mauro residence. On August 12, 1976, a jury convicted appellant of voluntary manslaughter, attempt to commit voluntary manslaughter, conspiracy and hindering apprehension. After denying post-verdict motions, the trial court sentenced appellant to concurrent terms of imprisonment of 3 to 10 years for voluntary manslaughter and 1 to 2 years for hindering apprehension. Appellant contends that (1) the evidence is insufficient to prove guilt of voluntary manslaughter beyond a reasonable doubt; (2) the trial court erred in denying his motions for change of venue; (3) the court improperly restricted his questioning at voir dire; (4) prejudicial publicity tainted the jury; (5)testimony of the father of the victim was so inflammatory that it deprived him of a fair trial; (6) the trial court erred in failing to hold a hearing to determine the competency of a Commonwealth witness; (7) the Commonwealth withheld and destroyed exculpatory evidence; (8) the trial court erred in its instructions on voluntary manslaughter; (9) the trial court erred in denying motions for mistrial; and (10) the trial court erred in certain other rulings. We affirm.
Zane Browne testified that on the day of the shooting, he was at appellant's house, where appellant said that he was angry about a beating Joseph Mauro, father of the victim, had inflicted upon a friend. Appellant announced that he and some others were going to retaliate for the beating. Appellant owned a pistol and asked Browne to bring it to him. Armed with this gun, appellant and the others drove off. When they returned, appellant ordered Browne to bury his gun, another gun and some clothing, and
[ 273 Pa. Super. Page 222]
to help paint the car a different color. Appellant argues that, because neither Browne nor any other witness saw appellant at the shooting, this evidence is insufficient to prove guilt. A jury could find beyond a reasonable doubt, however, that this evidence established that appellant had either shot the victim or engaged in the conspiracy that produced her death. See Commonwealth v. Vaughn, 459 Pa. 35, 326 A.2d 393 (1974).
Appellant argues that the trial court erred in denying his motion for change of venue because publicity about the incident was inherently prejudicial. Appellant's trial was held in August, 1976, at the same time as that of his co-defendant, Edward T. Kivlin, III. In Commonwealth v. Kivlin, 267 Pa. Super. 270, 406 A.2d 799 (1979), this Court, reviewing the same news articles submitted by appellant, determined that the publicity was not inherently prejudicial. Moreover, the articles rarely mentioned appellant's name, focusing instead upon Kivlin. Therefore, we reject appellant's contention.
Appellant asserts that the trial court improperly restricted his questioning at voir dire by refusing to permit him to inquire into the extent of each venireman's knowledge of the publicity generated by the incident. Instead, the trial court permitted appellant to inquire only whether the veniremen had heard of the incident and whether they had, as a result, formed a fixed opinion as to guilt. The trial court did not abuse its discretion in this matter. Inquiry at voir dire should be strictly confined to questions disclosing whether the veniremen are unqualified or hold a fixed opinion on guilt or innocence. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Mosley, 261 Pa. Super. 198, 395 A.2d 1384 (1978). Appellant's proposed questions went beyond that inquiry. See Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971); Commonwealth v. Herron, 243 Pa. Super. 319, 365 A.2d 871 (1976). Appellant was permitted to question veniremen on all relevant matters. Further, appellant did not exhaust his peremptory
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challenges, indicating that he was satisfied with the jurors selected. See Commonwealth v. Frazier, 269 Pa. Super. 527, 410 A.2d 826 (1979). We find no error in the court's restriction.
The trial court conducted voir dire in the hearing and presence of other prospective jurors. See Pa.R.Crim.P. 1106(e)(1)(A). Appellant contends that this procedure denied him an impartial jury. Nothing in the record indicates that this procedure allowed prejudicial information to infect the jury. Each of the jurors selected stated that he had not formed an opinion about guilt and, where we have determined that the publicity about the incident was not so widespread and inflammatory that every juror must be presumed ...