April 26, 1985
COMMONWEALTH OF PENNSYLVANIA
DWAYNE KEITH HICKS A/K/A DWAYNE HICKS, APPELLANT
No. 366 Pittsburgh 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Allegheny County at No. 8100007A/8008681A.
Before Cavanaugh, Wickersham and Hoffman, JJ.
This Opinion will supplement our earlier Opinion Per Curiam filed June 1, 1984.
We have now thoroughly reviewed the trial record, briefs submitted by counsel, applicable law and the Opinion of the Honorable Samuel Strauss filed December 14, 1984.
We agree with Judge Strauss that there is no merit whatsoever to any of the issues raised in this appeal.
Judgment of sentence affirmed.
Defendant was found guilty of the murder of Robert Karcz while in the course of stealing his wallet, credit cards and, ultimately, his automobile. Post trial motions were timely filed, submitted by briefs in lieu of oral argument, and denied by this Court. We thereafter sentenced defendant to a life term of imprisonment, the jury having been unable to agree upon an appropriate sentence. Additionally, we imposed consecutive ten to twenty and five to ten year terms of imprisonment resulting from his theft and conspiracy convictions.
A review of the record reveals that the defendant's post trial motions and the brief supporting said motions were nonspecific in nature. Nowhere are references made to the record in support of the assignments of error. So, too, we find that defendant's statement of matters complained of on appeal fails to reflect with any specificity the errors complained of. Though thusly handicapped, we have independently reviewed the transcripts in hopes of determining for ourselves what the defendant may be objecting to and, thereafter, ruling upon them.
Error is assigned in our limiting defense counsel's voir dire. We believe our rulings to have been a proper exercise of the discretion granted us and, absent any specific assignments of error, sustain our original position.
Defendant contends that we, in permitting the Commonwealth's pre-emptory challenges, denied him a jury of peers. No evidence has been offered to even suggest systematic exclusion by the District Attorney's office of prospective black jurors and the Court therefore finds that defendant has not met his burden. See Com. v. Jones, 246 Pa. Super. 521, 371 A.2d 957 (1977).
Did pre-trial publicity require our sequestration of the jury. Again, a bald-faced assertion since it has not been supported by evidence that "undue" publicity was existent. This was a homicide case, of reasonable importance and interest in the community, but not one of the unusual notoriety. It has been neither alleged, argued nor proven, however, that pre-trial publicity may have created a preconceived or fixed opinion upon the jury.
We are charged with error in our failure to recuse ourself from conducting the trial. While allegations of trial misconduct are advanced, no evidence is presented which bears on the issue of our bias or prejudice. The burden is the defendant's, and our review of the record fails to sustain his position. Nor should we have declared a mistrial for our "misconduct". No specific comments are cited and our independent review fails to support his claim of judicial misconduct.
It is alleged that Com. v. Wright has been violated, 456 Pa. 511, 321 A.2d 625 (1974). It is argued that an out of Court statement by a co-defendant cannot be admitted where the cases are not joined for trial. The argument is inapplicable and inappropriate. The so-called reference was made by the District Attorney in his opening statement. No content or substance of the statement was given to the jury. It cannot, therefore, be of the nature of hearsay reflecting on its truth. Wright, supra, is, therefore, inapplicable and a new trial was properly denied.
It is argued that we permitted "irrelevant" and inflamatory questioning by the District Attorney. Irrelevent they were not, since the relationship between the panderer and his girl was material and its background important in establishing this relationship and the motive of the crime. We do not deem it so inflamatory as to unavoidably fix bias and hostility in the minds of the jury and, accordingly, we believe our decisions appropriate. For the foregoing reasons his post trial motions were denied.
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