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COMMONWEALTH PENNSYLVANIA v. BARRY WHITE (09/28/87)

filed: September 28, 1987.

COMMONWEALTH OF PENNSYLVANIA,
v.
BARRY WHITE, APPELLANT



Appeal from the Judgment of Sentence of April 29, 1985 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 8403416, OTN 8103302-3.

COUNSEL

Paul D. Boas, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Popovich, Cercone and Hester, JJ.

Author: Cercone

[ 366 Pa. Super. Page 541]

Appellant, Barry White, was convicted by a jury of third degree murder and sentenced to five (5) to ten (10) years imprisonment. Appellant's conviction arose out of his discharging a shotgun out of a car window in the early morning in downtown Pittsburgh, resulting in the death of the victim who was standing in an alley.

Appellant contends that the trial court committed reversible error in allowing the Commonwealth to ask two voir dire questions which he alleges improperly informed the prospective jurors of the penalty for first degree murder. Appellant further contends that the trial court committed reversible error in allowing two veniremen to be struck for cause on the basis of their answers to those voir dire questions. Appellant also asserts four claims of ineffectiveness of counsel. We find no error justifying reversal of the judgment of sentence and we find that trial counsel was not ineffective. Judgment of sentence is affirmed.

We note at the outset that the scope of voir dire rests in the sound discretion of the trial judge and his decision will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Hathaway, 347 Pa. Super. 134, 500 A.2d 443 (1985).

Voir dire questions # 9 and # 10 read as follows:

9. The mandatory sentence for First-degree Murder is life imprisonment. Do you have any moral or conscientious scruples which would automatically prevent you from returning with a finding which would result in life imprisonment regardless of the law or the evidence?

10. Do you have any moral or conscientious scruples against imposing a verdict of First-degree Murder when the defendant was nineteen years old at the time of the crime?

Appellant's first argument is that these questions improperly informed the veniremen of the penalty for first degree murder, in contravention of the established principle that the function of the jury is to determine guilt or innocence

[ 366 Pa. Super. Page 542]

    and not to consider the question of penalty. Appellant argues that the mere asking of those questions was highly prejudicial as it caused the jurors to become preoccupied with first degree murder and its penalties.

The numerous cases cited by appellant hold that jurors ought not be instructed by the court or advised by counsel in their closing arguments of the probable result of the verdict. See Commonwealth v. Lucier, 424 Pa. 47, 225 A.2d 890 (1967) (trial court erred in instructing the jury as to the penalties for voluntary manslaughter, second degree murder and first degree murder); Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572 (1944) (instructions to a jury concerning defendant's eligibility for parole or pardon constituted reversible error); Commonwealth v. White, 350 Pa. Super. 457, 504 A.2d 930 (1986) (trial court was correct in refusing to instruct the jury that a mandatory sentence would be imposed if appellant were found guilty); ...


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