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COMMONWEALTH PENNSYLVANIA v. LEROY MYERS (03/21/88)

submitted: March 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
LEROY MYERS, APPELLANT



Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 85-03-645, 651 and 652.

COUNSEL

John Packel, Assistant Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Montgomery and Hester, JJ.

Author: Wieand

[ 376 Pa. Super. Page 42]

Leroy Myers was tried by jury and was found guilty of kidnapping,*fn1 false imprisonment,*fn2 rape,*fn3 simple and aggravated

[ 376 Pa. Super. Page 43]

    assault,*fn4 and possession of an instrument of crime.*fn5 Post-trial motions were denied,*fn6 and Myers was sentenced to serve consecutive terms of imprisonment of ten to twenty years for rape, seven and one-half to fifteen years for kidnapping, and two and one-half to five years for possession of an instrument of crime.*fn7 On direct appeal from the judgment of sentence, Myers argues that the trial court (1) abused its discretion by refusing a defense request to ask potential jurors if they were members of Women Organized Against Rape or a similar group; and (2) committed error by instructing the jury that a pair of scissors could be found to be an instrument of crime.

On Thursday afternoon, April 12, 1984, at or about 3:00 p.m., appellant persuaded Mrs. Rosemary Brown, who had been his girlfriend and who earlier had lived with him, to accompany him to his residence at 3531 Aspen Street in Philadelphia. Upon arriving at appellant's residence, Mrs. Brown was asked to go upstairs to the bedroom so that she and appellant could talk. In the bedroom an argument erupted, and during the course thereof appellant picked up a pair of scissors and struck Mrs. Brown in the face, breaking her nose. After further struggle, appellant directed Mrs. Brown to undress and lie down on the bed. She complied. Appellant then tied Mrs. Brown's hands and feet to the bed and began to make threats on her life. At one point he displayed a knife, which he held close to her throat, and threatened to puncture her lungs with it. Appellant also beat Mrs. Brown about the body with a wooden club. After she had been beaten and while still tied to the bed, Mrs. Brown was raped. According to her testimony, she

[ 376 Pa. Super. Page 44]

    was held captive until the morning of Sunday, April 14, 1984, when she was able to escape. At trial, appellant admitted that he had had a fight with Mrs. Brown, but he denied raping her, contending that the sexual acts had been consensual.

In Commonwealth v. Clark, 280 Pa. Super. 1, 421 A.2d 374 (1980), aff'd, 501 Pa. 393, 461 A.2d 794 (1983), this Court reviewed the applicable law as follows:

The scope of our review of the voir dire questioning is limited since the extent of the examination is within the sound discretion of the trial judge, and we will not reverse absent palpable error. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). The scope of voir dire should be limited to questions attempting to disclose lack of qualification and whether the juror has formed a fixed opinion as to the accused's guilt or innocence. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Legree, 256 Pa. Super. 128, 389 A.2d 634 (1978). It is not designed to provide a basis for peremptory challenge, and thus, "generally speaking, the ordinary prejudices of veniremen are beyond the pale of exploration on voir dire." Commonwealth v. Legree, supra, 256 Pa. Superior Ct. at 133, 389 A.2d at 634 (recognized exception for racial prejudice). We are conscious that it would be unrealistic to expect jurors to be free from all prejudices, and therefore, we require only that jurors be conscious of their sworn responsibility and attempt to reach a decision solely on the facts presented. Commonwealth v. England, supra; Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973).

Id., 280 Pa. Superior Ct. at 13, 421 A.2d at 380. See also: Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983); Commonwealth v. Hathaway, 347 Pa. Super. 134, 500 A.2d 443 (1985); Commonwealth v. DeMarco, 332 Pa. Super. 315, 481 A.2d 632 (1984); Commonwealth v. Legree, 256 Pa. Super. 128, 389 A.2d 634 (1978). "The sole purpose of voir

[ 376 Pa. Super. Page 45]

    dire is to provide the accused with a competent, fair, impartial and unprejudiced jury." Commonwealth v. Robbins, 358 Pa. Super. 225, 232, 516 A.2d 1266, 1270 (1986). See also: Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Richmond, 316 Pa. Super. 304, 462 A.2d 1362 (1983); Commonwealth v. Holland, 298 Pa. Super. 289, 444 A.2d 1179 (1982); Commonwealth v. Davis, 282 Pa. Super. 51, 422 A.2d 671 (1980).

Appellant in this case requested the trial court to ask prospective jurors whether they or close relatives or friends had ever been a member of Women Organized Against Rape or a similar group. The trial court refused the request. Appellant argues that the court's refusal denied him the opportunity to explore potential prejudice on the part of the jury and, as such, was an abuse of discretion entitling him to a new trial. In support of this argument, appellant asserts that membership in a group such as Women Organized Against Rape may establish an affinity between juror and rape victim sufficient to support a challenge for cause. We disagree.

With respect to challenging a juror for cause the Supreme Court has said:

The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrate a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa. Super. 202, 299 A.2d 326

[ 376 Pa. Super. Page 46]

(1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

A remote relationship to an involved party is not a basis for disqualification where a prospective juror indicates during voir dire ...


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