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COMMONWEALTH PENNSYLVANIA v. TYRONE OGLESBY (01/25/80)

filed: January 25, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
TYRONE OGLESBY, APPELLANT



No. 305 Special Transfer Docket, No. 306 Special Transfer Docket, Appeal from Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Nos. 344 & 346 July Term, 1977.

COUNSEL

Lewis S. Small, Philadelphia, for appellant.

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

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

Author: Roberts

[ 274 Pa. Super. Page 588]

On December 10, 1977, a jury convicted appellant of murder of the third degree and possession of an instrument of crime. After denying post-verdict motions, the trial court sentenced appellant to consecutive terms of imprisonment of 10 to 20 years for murder and 2 1/2 to 5 years on the weapons charge. Appellant contends that (1) the trial court erred in seating 8 jurors who stated that they were not opposed to imposing a sentence of death, when, after selection of the jurors, the Pennsylvania Supreme Court struck down the state death penalty provision; (2) the trial court improperly allowed a Commonwealth witness to testify that another

[ 274 Pa. Super. Page 589]

    witness had selected appellant's photograph from an array; (3) the trial court erred in allowing the Commonwealth to introduced the photograph the witness allegedly selected; (4) the trial court erred in prohibiting him from impeaching a witness by establishing the circumstances of a crime for which he had been convicted; (5) the Commonwealth introduced evidence indicating that appellant had a criminal record; and (6) the prosecutor improperly expressed his opinion that appellant was guilty. We affirm.

Appellant contends that the trial court should have excused 8 jurors because they had stated that they were not opposed to imposition of a death penalty in all circumstances. When appellant was charged with murder, in June, 1977, capital punishment was a possible sentence for conviction of murder of the first degree. During voir dire, veniremen were asked if they were unalterably opposed to capital punishment in all circumstances and the trial court excused those who stated that they were so opposed. After 8 jurors were selected through such questioning, the Supreme Court decided Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914 (1978), declaring unconstitutional the state death penalty provision. Appellant requested the trial court to discharge the 8 jurors selected and start voir dire anew. The trial court denied the request.

Appellant contends that the presence of the 8 jurors on his panel produced a jury prone to conviction. Appellant's 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). Accordingly, it is irrelevant that the Supreme Court decided Commonwealth v. Moody, supra, during voir dire in appellant's trial.*fn1

Appellant argues that the trial court improperly allowed a Commonwealth witness to testify that another witness had

[ 274 Pa. Super. Page 590]

    selected appellant's photograph from an array and to permit the jurors to see the photograph the witness allegedly selected. Shortly after the crime, the police showed an array of photographs to Karl Mercer, an eyewitness, and asked him if he saw one of the killer. He selected appellant's picture. Later, he also picked appellant out of a lineup. At the suppression hearing, Detective Lamont Anderson, who conducted the array, stated that a certain picture of appellant was the one he had shown. The picture, however, was dated several days subsequent to the array and, therefore, could not have been available for the display. When the suppression hearing resumed the next day, Anderson produced a second picture of appellant taken a year and a ...


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