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filed: October 4, 1985.


Appeal from the Judgment of Sentence of July 13, 1982, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 2396 of 1981.


John Alden, Wayne, for appellant.

Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.

Spaeth, President Judge, and Beck and Tamilia, JJ. Spaeth, President Judge, concurs in the result.

Author: Beck

[ 347 Pa. Super. Page 141]

After a five day jury trial appellant Byron Hathaway was convicted on December 11, 1981 of the first degree murder of his wife, Bernadette, and possession of firearms without a license. Appellant timely filed motions for a New Trial and in Arrest of Judgment which the trial court overruled. Appellant subsequently filed a writ of Habeas Corpus alleging ineffectiveness of counsel and the trial court deferred the holding of a hearing on the Writ until the appellate court disposed of appellant's direct appeal. Upon review of appellant's post-verdict motions and the record, we find that the trial court properly denied his motions and that appellant's allegations of ineffectiveness of counsel are meritless. We deny his request to remand for a hearing.

[ 347 Pa. Super. Page 142]

After a brief description of the facts, we will turn to the discussion of appellant's post-verdict motions, and then his allegations of ineffectiveness of counsel.

On April 28, 1981, at approximately 8:45 a.m. at the Church of the Holy Apostle on Remington Road in Haverford Township, appellant met his estranged wife as she was leaving the Martessan School, conducted by the Church, having dropped off her and the defendant's son. After appellant and his wife talked for a short period of time appellant pulled out a .32 caliber pistol. Mrs. Hathaway attempted to run away, but the defendant pursued her and fired several shots at her, causing her to fall to the ground. Appellant walked over to the wife's body, reloaded the gun, placed the gun at her head and fired several more shots. Appellant returned to his car and drove several blocks until the police apprehended him.

At trial the issue of whether appellant shot his estranged wife was not in dispute. Rather, the issue of appellant's mental state at the time of the killing was contested. Appellant presented extensive psychiatric testimony to support his defense that as a result of intoxication and mental disturbances, he had a diminished capacity and thus, the inability to form the specific intent to commit first degree murder. The jury rejected his defense, and found him guilty of first degree murder.

Appellant's post-verdict motions consist of six trial court errors. We find them all to be baseless.

Appellant's first contention is that the trial court erred in denying his requests to voir dire prospective jurors about their possible bias concerning psychiatrists and psychiatric defenses, the use of handguns, prior service as jurors or witnesses in criminal trials and about a married or separated daughter who was the victim of violence at the hands of her spouse.

[ 347 Pa. Super. Page 143]

The single goal in permitting questioning of prospective jurors is to provide the accused with a competent, fair, impartial and unprejudiced jury. Commonwealth v. Page 143} England, 474 Pa. 1, 375 A.2d 1292 (1977). However, it is not intended to provide appellant with a better basis upon which to utilize his peremptory challenges. The inquiry should be strictly confined to disclosing qualifications or lack of qualifications and should focus on whether a juror has formed a fixed opinion as to an accused's guilt or innocence. Id. Furthermore, the scope of voir dire rests in the sound discretion of the trial judge and his or her decisions will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

More specifically, appellant argues that the trial court erred in not permitting appellant to voir dire the jury on the subject of psychiatrists, psychiatric testimony, insanity or diminished capacity defense, state of mind, and psychological testing. It is in the trial judge's discretion to preclude questions probative of prospective juror's attitude toward the insanity defense, Commonwealth v. Biebighauses, 450 Pa. 336, 300 A.2d 70 (1973) and psychiatric testimony. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). The trial court did ask the jurors questions concerning their biases against psychiatrists and psychiatric testimony. He inquired into whether they could follow the law on the application of psychiatric testimony. Since the court found that the jurors indicated they would not be biased in this regard, the court did not abuse its discretion in refusing to ask the more specific questions requested by appellant.

Appellant next argues that the trial court erred in refusing to permit voir dire regarding the prospective jurors' ownership of handguns or membership in an organization opposed to the ownership of handguns. A trial court's ruling on the scope of voir dire must always be considered in light of the factual circumstances of the particular case. Commonwealth v. Fulton, 271 Pa. Super. 430, 413 A.2d 742 (1979). Since appellant admitted he killed his wife with a handgun these issues were not in dispute and thus not to be decided by the jury. Therefore, the potential biases which

[ 347 Pa. Super. Page 144]

    the defendant alleges he was unable to ascertain as a result of the trial court's refusal were not significant in this case. The alleged bias could potentially only affect the jurors' decision on appellant's guilt or innocence and since the jurors did not have to decide whether appellant shot his wife, the trial judge's refusal did not prejudice appellant.

Appellant's voir dire questioning regarding previous service on a jury panel was also properly rejected. It is well established that there is no reasonable correlation between the juror's prior jury service and his ability to render a fair and just verdict. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973). Furthermore, the trial court properly found no logical relationship and we find no cases holding that a relationship exists, between a juror's prior participation in a criminal case as a witness and potential bias concerning appellant's guilt or innocence.

Appellant's claim that the trial court erred in refusing to voir dire prospective jurors if they had a married or separated daughter who had been the victim of violence by her husband is equally meritless. The trial court asked whether any juror or member of his family or close friend had ever been a victim of violence (N.T.Vol. I 312a). This question is broader in scope than the question requested by appellant and obviously covers his concern about this type of bias or prejudice. Since the trial court then queried those jurors who answered positively to identify the victim's relationship to the juror, and none of the jurors responded that it was his or her daughter, the court did not need to ask the question requested by appellant.

Appellant's second contention deals with the manner in which the trial judge conducted the voir dire examination. He asked questions to the vernirepersons collectively after both counsel submitted proposed questions to him. Appellant complains that he was entitled to individualized voir dire to have his counsel, rather than the trial judge, ask the questions. Since the ...

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