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filed: April 29, 1983.




Kalvin Kahn, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Wickersham and Cirillo, JJ. Spaeth, J., files a dissenting opinion.

Author: Cirillo

[ 314 Pa. Super. Page 114]

This is an appeal from the judgment of sentence imposed on the appellant, Henry Hayes, on June 10, 1981, in the Court of Common Pleas of Philadelphia County. A jury

[ 314 Pa. Super. Page 115]

    convicted appellant of burglary,*fn1 and the court, after denying appellant's post-trial motions, sentenced him to three to twelve years imprisonment. We affirm.

On October 29, 1980, at approximately 6:20 a.m., the doorbell rang at 1910 Harlan Street in Philadelphia, the home of 80 year old Addie Brooks. When Ms. Brooks answered the door, the man at the door told her he had come to read the meter in the basement. Ms. Brooks commented that it was "mighty early," but the man responded "we are coming early now." Ms. Brooks let him in to read the meter. He went down to the basement, then came back up and asked if he could see Kenny Myers, Ms. Brooks's tenant at the time. Ms. Brooks replied, "No, Kenny is not up," but the man went up to the second floor. While he was upstairs, Ms. Brooks called the police on the downstairs phone. The man then returned to the first floor carrying a bucket of pennies, and asked Ms. Brooks where her money was. He stayed a few minutes longer, then exited.

In the meantime, Officers Edward Sawicki and Thomas Newbert had received a radio call to proceed to 1910 Harlan Street. Within thirty seconds of the call, they arrived on the scene. Officer Sawicki spotted the appellant on the doorstep in front of 1910 Harlan, whereupon the appellant ran across the street into a blind alley. Officer Newbert, along with Officer Michael Janda, who had also responded to the call, gave chase on foot. During the chase, appellant dropped the bucket taken from Ms. Brooks's residence. Moments later, the officers apprehended him. Officer Newbert had never lost sight of the appellant from the time he started to run from the doorstep.

Officer Sawicki, seeing that his colleagues had captured the appellant, returned to 1910 Harlan Street, where Ms. Brooks told him she had been robbed. Officers Newbert and Janda brought the appellant before Ms. Brooks, who identified him as the intruder. Less than one minute had elapsed from the time the police first arrived on the scene.

[ 314 Pa. Super. Page 116]

Officer Newbert examined Ms. Brooks's second floor bedroom and observed that the closet and drawers had been rummaged through.

At trial, appellant denied this version of the facts. He also testified that he was a long-time drug user; that, after buying drugs on the morning in question, he was going to visit a friend with whom he would every now and then "take off on drugs"; that he was stepping into the yard of his friend's residence at 1911 Harlan Street, across the street from 1910 Harlan, when police arrested him; and that he told the arresting officer that he (appellant) was "getting ready to take off on drugs."

Appellant's first assignment of error is that the court refused to pose appellant's requested voir dire question whether prospective jurors could participate as fair and impartial jurors upon hearing that the defendant in the case was a drug user. The same issue was treated in Commonwealth v. Werts, 483 Pa. 222, 224-25, 395 A.2d 1316, 1317 (1978), in which the Supreme Court said:

Appellant's first contention is that the trial court erred in not allowing defense counsel to ask the following questions during the voir dire of prospective jurors:

If you were to hear evidence about a person having used drugs, would you be more inclined to give his testimony less weight than any other witness that you did hear?

If you were to hear testimony concerning drug addiction or use of drugs, do you think, deep down inside of you, you would be inclined to reject any evidence offered by parties indicating that they have used drugs?

This Court has held that "the 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 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

[ 314 Pa. Super. Page 117]

    developed in the trial of the case." Commonwealth v. Johnson, 452 Pa. 130, 134, 305 A.2d 5, 7 (1973). "A trial court's refusal to permit certain hypothetical questions on voir dire will not be disturbed absent a palpable abuse of discretion." Commonwealth v. England, 474 Pa. 1, 8, 375 A.2d 1292, 1295 (1977).

At the beginning of voir dire, defense counsel stated during a sidebar conference that he wanted to ascertain whether the prospective jurors had "any prejudice or bias that would gravitate against the interest of my client if there is any evidence presented by us to show that my client, perhaps, was using drugs at the time he was arrested, and this may have some effect upon whether he intelligently waived his right to counsel". The trial court did not abuse its discretion in not permitting the aforementioned line of inquiry because defense counsel was improperly trying to determine what the prospective juror's reaction might be when and if defense counsel presented evidence that appellant was under the influence of narcotics when he waived his Miranda rights.

We fail to see any relevant distinction between the purpose of the proposed voir dire questions in Werts and the purpose of the proposed voir dire question in this case. In both cases, the questions were "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." Therefore, we hold that the trial court did not abuse its discretion in refusing to ask appellant's proposed voir dire question, and there was no error.

Appellant next assigns four errors in the trial court's jury charge. First, appellant contends that the court charged improperly on the issue of inconsistent witness identification statements. At trial, Ms. Brooks testified positively under both direct and cross-examination that appellant was the man who had entered her home. However, defense counsel brought out on cross-examination that at the preliminary and suppression hearings, Ms. Brooks had also

[ 314 Pa. Super. Page 118]

    said, "I think he is the one," and, "Looks like that's the man." Based on this prior testimony, defense counsel requested the following jury charge:

According to the evidence, Mrs. Brooks gave testimony on another occasion which appears to conflict with the -- contradict part of the testimony given at this trial.

You may accept her other testimony as being true, you may accept her testimony as replacing the testimony which she gave in this trial.

The court's charge was as follows:

Now, there was argument, you will recall, and discussion by both Mr. Barbieri and Mr. DeMarco as to whether Mrs. Brooks made an inconsistent statement, and in particular the inconsistent statement they were talking about, whether at a prior hearing she had indicated some reservation or hesitancy about whether, "This is the man," as distinguished from "I think this is the man," and you heard their arguments from both of them as to whether this did show ...

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