No. 2589 October Term, 1978, Appeal from the Judgment of Sentence from the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 990-992, 994 December Term, 1977.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 286 Pa. Super. Page 387]
Following a jury trial, appellant was convicted of possession of an instrument of crime, simple assault, robbery, and attempted rape. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of eight to twenty years. This appeal is taken from the judgment of sentence imposed.
The case arose out of an incident that occurred on December 2, 1977. While the victim stood in the foyer of her apartment, she was threatened by appellant, who was wielding a knife. Appellant took several items of property from her, felt under her blouse and skirt, ordered her to lie down, and revealed his intention to rape her. The victim maneuvered
[ 286 Pa. Super. Page 388]
herself next to the buzzer of her neighbor's apartment and activated the intercom. When the neighbor responded to the call, appellant fled. The police who had been summoned by a neighbor stopped two men, appellant and a passerby, a short distance from the victim's apartment. The passerby was released when the victim identified him as a man who tried to help her, and appellant was arrested when the victim identified him as her assailant.
Appellant's first argument claims that the lower court erred when it refused to ask a question on voir dire which was designed to probe the potential racial bias of prospective jurors. Appellant, who is black, submitted the following two voir dire questions to the trial judge:
1. Do you get upset or take special note when you see a person of a different race in your neighborhood or when you see people of different races walking or talking together or holding hands?
2. The defendant in this case, Johnnie Boone, is black. Would this fact concerning his race in any way interfere with your ability to give him a fair trial?
Although the trial judge asked the second question of the jurors, he denied the defense request that the first be asked.
[ 286 Pa. Super. Page 389]
Instantly, the prosecution involved a confrontation between a black defendant and a white victim. It is true, of course, that in a proper case defendants have the right to inquire into possible racial prejudice that a venireman may have. This right, however, is not boundless. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975). As the United States Supreme Court stated in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973): "The trial judge was not required to put the question [as to racial bias] in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner." Id. at 527, 93 S.Ct. at 850. Accordingly, the permissible scope of voir dire questions remains within the sole discretion of the trial judge and his decision will only be reversed for palpable error. Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976); Commonwealth v. Page 389} Garnett, 267 Pa. Super. 41, 405 A.2d 1293 (1979). The present record demonstrates that the trial judge did not exceed his discretion, for the second question submitted by appellant and asked by the trial judge was adequately designed to disclose any possible racial prejudices that the veniremen might have. See generally Commonwealth v. Rice, 477 Pa. 221, 383 A.2d 903 (1978). Moreover, this second question was asked in a context which permitted discovery of racial prejudice among potential jurors. In point of fact, after the panel had just been told that the defendant was a black man and that one charge in the case was attempted rape, the trial court asked whether the nature of the charges would make it impossible for the juror to give the defendant a fair trial.*fn1
Finally, it should be noted that the question appellant sought to ask jurors, concerning fraternization between blacks and whites, had nothing whatever to do with the factual posture of the case, thus distinguishing the case from Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978), and Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1976). In both Christian and Brown, fraternization between a black male and a white female became an issue at trial,*fn2 and the Pennsylvania Supreme Court required inquiries into bias against such fraternization be made upon appellant's request. Here, however, the crime was simply a violent attack by a stranger upon the victim, and the only defense proffered was that appellant had been misidentified as the attacker. After reviewing the record in detail and realizing that voir dire requests concerning racial bias are to be closely evaluated in light of the facts of each case, Commonwealth v. Futch, supra, 469 Pa. at 428, 366 A.2d 246,
[ 286 Pa. Super. Page 390]
we conclude that the trial court did not err in denying the voir dire question in issue.
In his second argument, appellant objects to the jury charge concerning the prosecutrix's identification testimony; he specifically claims that the charge favored the prosecution and failed to instruct the jurors that identification testimony must be received with caution. The Pennsylvania Supreme Court established the proper rules for formulating a jury charge on identification testimony in Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820, 826 (1954):
"Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution -- indeed the cases say that 'his [positive] testimony as to identity may be treated as the statement of fact.' (citations omitted) For example, a positive, unqualified identification of a defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi. (citations omitted).
"On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the court ...