No. 2462 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Nos. 7708-0041-46.
Willis W. Berry, Jr., Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo,*fn* JJ.
[ 285 Pa. Super. Page 461]
Appellant was convicted of robbery, possession of instruments of a crime and conspiracy. Post-trial motions alleged that certain questions asked veniremen at voir dire were improper. Smith requested the trial notes of testimony and record of jury voir dire. He was granted the former but denied the latter. On May 26, 1978, after trial, appellant filed an application of supersedeas and writ of prohibition or mandamus with the Superior Court requesting we order the notes of voir dire transcribed. We denied that request. Appellant was sentenced to ten (10) to twenty (20) years for robbery and other lesser concurrent periods of imprisonment on the other charges. Appellant appeals from the denial of the notes of voir dire. We agree with the appellant and reverse the trial court's decision.
Our Supreme Court stated in Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976).
Additionally, he contends the Court improperly refused defense counsel permission to ask certain questions on voir dire. In fact, a reading of this portion of the record indicates that most of these questions had already been
[ 285 Pa. Super. Page 462]
covered by the Court and those which were excluded were not the proper subject of voir dire examination.
"It is well-settled that '[t]he examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury . . . . Neither counsel for the defendant nor for the Commonwealth should be permitted to . . . ask direct or hypothetical questions designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case. While considerable latitude should be permitted on a voir dire, the inquiry should be strictly confined to disclosing qualifications of a juror and whether a juror has formed a fixed opinion or may be otherwise subject to disqualifications for cause.' Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953) (emphasis added). See, Commonwealth v. Biebighauser, 450 Pa. 336, 346, 300 A.2d 70, 75 (1973); Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 63, 64 (1971); Commonwealth v. Lopinson, 427 Pa. 284, 297-98, 234 A.2d 552, 560-61 (1967). The scope of voir dire examination rests in the sound discretion of the trial judge, see, e. g., Commonwealth v. Biebighauser, supra; Commonwealth v. Lopinson, supra, and we are satisfied that the record before us fails to demonstrate any abuse of that discretion." Commonwealth v. Johnson, 452 Pa. 130, 134-135, 305 A.2d 5, 7 (1973).
Id., 467 Pa. at 289, 356 A.2d at 754.
The Supreme Court has also ...