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COMMONWEALTH PENNSYLVANIA v. JOHN LARK (02/12/86)

filed: February 12, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN LARK, APPELLANT



Appeal from the Judgment of Sentence of March 4, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 2986 August Term, 1983

COUNSEL

William T. Cannon, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Cercone and Roberts, JJ.

Author: Cercone

[ 350 Pa. Super. Page 562]

This is a direct appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following a jury verdict finding appellant guilty of third degree murder. A sentence of life imprisonment was imposed and this appeal followed.

Appellant was charged in the court below with the murder of his infant daughter. On August 17, 1983, police responded to a call at 1926 North 18th Street in Philadelphia. Upon arrival the police were met by Lee Paul, the mother of the child, who resided at that location with appellant. She told the police that appellant was beating the baby. The police entered the home, confronted the appellant, subdued him after a brief struggle, and found in the upstairs bedroom the lifeless body of appellant's baby daughter who had sustained massive head trauma. Lee Paul testified at trial that she and appellant were in bed,

[ 350 Pa. Super. Page 563]

    about to fall asleep, when appellant snatched the child from her crib, held her aloft, refused to release the baby, and bit down on the baby's head while professing his love for the baby. Dr. Paul J. Hoyer, Assistant Medical Examiner for Philadelphia, who pronounced the baby dead at the crime scene, testified that the baby died of acute head injuries inflicted probably in two stages.

The defense offered numerous fact witnesses at trial who testified that for the thirty-six hour period before the crime the appellant had ingested a large amount of the drug PCP. A drug expert testified to the hallucinatory effects of PCP and a psychiatrist, Dr. Jon Bjornson, testified that in his opinion, based on several psychiatric interviews, appellant was incapable of formulating the willful intent to kill at the time of his overt acts. The jury returned a verdict of guilty of murder in the third degree.

Appellant first claims that the lower court's refusal to allow defense counsel to ask certain questions of prospective jurors individually constitutes reversible error. Rule 1106(d), Pennsylvania Rule of Criminal Procedure, provides:

The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the Court shall permit the defense and the prosecution to supplement the examination by such further inquiry as it deems proper.

Appellant claims that the scope of the voir dire as conducted by the trial court fell far short of the full examination to which the defendant was entitled. In support of this allegation, he lists four questions which the court should have posed or should have allowed him to ask each juror individually.*fn1 He first claims that the court erred in not asking the jurors if they had ever been the "victim" of a crime of violence, rather than, as the court

[ 350 Pa. Super. Page 564]

    did, whether they had been "involved" in a crime of violence. In Commonwealth v. Fulton, 271 Pa. Superior Ct. 430, 432-33, 413 A.2d 742 (1979), this court held that the term "involved" was broad enough to include the concept of "victimization" so as to protect the defendant in jury selection. See also Commonwealth v. Davis, 282 Pa. Superior Ct. 51, 54, 422 A.2d 671 (1980). Appellant also claims that prospective jurors should have been asked whether they believed that a police officer was capable of telling a lie under oath like any other witness. The court did ask the following questions which sufficiently dealt with the issue:

THE COURT: If during the course of this testimony there was presented a police officer or law enforcement personnel who testified as to a certain thing, whatever it might be, and at another point in the trial a civilian testified to the same thing, but in an opposite way from what the police officer did, would you believe the police officer's testimony just because he is a police officer? (no response)

THE COURT: Now I reverse that question: Is there any among you that wouldn't believe a police officer's testimony just because he or she is a police officer?

N.T., January 10, 1984, 34-35. Finally, appellant claims that the court erred by not allowing him to ask prospective jurors whether they were so offended by the gruesome nature of the accusations against him that they could not give him a fair trial. The court's general questions and instructions during voir dire were adequate to expose possible prejudice or bias. Consider the following:

THE COURT: I am now going to review [certain basic principles of criminal law]. [Y]ou now understand that the jury that is chosen . . . has the sole responsibility of determining the facts in this case from the evidence and that the jury so chosen must take the law as the Court gives it to the jury and in the instructions to the jury. The jury must then apply the law as the Court gives it to the facts as the jury finds it, and then determine the case.

[ 350 Pa. Super. Page 565]

In other words, . . . a juror cannot say that he or she doesn't like the law, or disagrees with the law. But a juror is bound by his or her oath to accept the law from the Court and apply it to the evidence.

Having told you that, I pose the following question to all of you: Is there any among you that would not follow that portion of the law as I have just given ...


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