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COMMONWEALTH PENNSYLVANIA v. LAMONT C. BULLOCK (03/21/89)

filed: March 21, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
LAMONT C. BULLOCK, APPELLANT



Appeal from the Judgment of Sentence Entered June 29, 1988, in the Court of common Pleas of Philadelphia County, Criminal Division, at Nos. 329, 330, 332 DEC 1987.

COUNSEL

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

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

Cirillo, President Judge, and Watkins and Hester, JJ.

Author: Hester

[ 384 Pa. Super. Page 270]

This is an appeal by Lamont Bullock, appellant, from the judgment of sentence imposed following his conviction by a jury of involuntary deviate sexual intercourse (IDSI), simple assault, and possessing an instrument of crime. Following the denial of post-verdict motions, the court sentenced appellant

[ 384 Pa. Super. Page 271]

    to ten to twenty years imprisonment for IDSI with a consecutive two-to-five-year term for possessing an instrument of crime.*fn1

The record establishes the following facts. On September 28, 1987, at about 9:30 p.m., Donna Johnson walked one-half block to a neighborhood store to buy disposable diapers for her son. As she entered the store, she encountered appellant, whom she knew as "Pippie," and another man in front of the store. Appellant asked her for money; Ms. Johnson retorted that she had none. Upon exiting the store, Donna Johnson gave appellant's mother, who was sitting on the steps of her home near the store, a few cigarettes in response to her request. Appellant then crossed the street and asked Ms. Johnson to step into the vestibule of his mother's house. When Ms. Johnson complied, appellant put a knife to her throat and forced her to a third-floor bedroom.

Appellant ordered the victim to disrobe, while threatening her with the knife. He removed his clothing also and ordered the victim to lay on top of him on the bed. Appellant forced the victim to engage in oral sex four times. He then ordered her onto the floor and began fondling her. When Ms. Johnson continued to resist, appellant punched the victim in the right eye, causing it to bleed. Thereafter, in an attempt to distract appellant, the victim told him she had money in her pocket which he could have to buy drugs.*fn2

Appellant then began searching the victim's clothes for money; when she dressed, he searched the bedroom and bathroom. During this time, Ms. Johnson moved toward the stairway, but the position of the bathroom door prevented her escape. When appellant returned to the bedroom to

[ 384 Pa. Super. Page 272]

    continue his search, the victim ran down the steps and out the front door past appellant's mother in search of police. N.T., 3/9/88, at 55-81.

Police Officer Richard O'Neill testified that while on patrol in a marked automobile in appellant's neighborhood on September 28, 1987, at approximately 10:30 p.m., the victim waved him down. She was crying hysterically and bleeding from the right eye. Through her sobs, Officer O'Neill learned she had been forced to perform oral sex on appellant several times, and he had punched her in the face. Ms. Johnson described appellant and referred to him by his nickname, Pippie. This information was broadcast over police radio. Id. at 156-58.

Meanwhile, appellant left his mother's home and approached two police officers in the neighborhood. Id. at 81, 167. Police Officer Kenneth Rossiter testified that appellant told Rossiter and his partner that he had been in a fight with a "bitch" and that she had fallen down the stairs. Officer Rossiter testified that appellant appeared to be "high" but did not smell of alcohol. Appellant then walked away. Id. at 166-68. Shortly thereafter, upon hearing the radio broadcast, the officers questioned appellant and detained him. The victim subsequently identified appellant as her attacker, and he was arrested. Id. at 171-72.

Appellant presents the following issues for our review: (1) whether the trial court erred in refusing to ask prospective jurors if they could read and write; (2) whether the trial court erred in denying evidence of prior sexual conduct between appellant and the victim; (3) whether the prosecutor engaged in misconduct during his closing argument to the jury; and (4) whether the trial court's decision to restrict access to the courtroom during the charge to the jury denied appellant his constitutional right to a public trial. We affirm.

Appellant first asserts that the trial court erred in failing to inquire whether prospective jurors could read and write. As the record reflects the selection of a competent and impartial jury, we reject appellant's claim.

[ 384 Pa. Super. Page 273]

Counsel for appellant requested, inter alia, that the court ask the jurors if they could read and write. The trial court refused to specifically ask that question, but advised counsel he would inquire as to the extent of their education and what schools they attended. The court further advised counsel to request a sidebar following voir dire if any pertinent questions were not asked. N.T., 3/8/88, at 7-9.

Appellant's argument is premised upon 42 Pa.C.S. § 4502(1), which provides,

§ 4502. Qualifications of jurors

Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:

(1) is unable to read, write, speak and understand the English language[.]

He contends, notwithstanding each juror's ability to engage in an extensive colloquy with the court and to give understandable responsive answers to the questions posed, the court's failure to ask whether each juror could read and write English denied him the opportunity to eliminate jurors who he claims may not have complied with the requirements for service specified in the above statute.

A review of the record reveals that the trial court, following an outline of the pertinent legal principles and the salient facts of the crime, posed a number of questions to the panel as a whole. The court asked the panel members whether they could apply the law as given by the court; if they would give greater weight to testimony offered by a police officer; if they had a fixed opinion as to appellant's guilt; and whether they could be fair. The court also asked if any panel member lacked sufficient command of the English language to enable him to participate, and if any member had a physical or mental disability which would prevent him from performing his duty as a juror.

The court further asked the panel members whether they, a member of their family or a close friend had been the victim of a crime, or was employed in law enforcement;

[ 384 Pa. Super. Page 274]

    whether they had any religious scruples which prevented them from passing judgment on another; whether they were acquainted with any of the parties or witnesses; whether they could be fair to both the Commonwealth and appellant; and ...


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