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November 20, 1997


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Entered December 6, 1993, at Nos. 9209-342-352. JUDGE BELOW: Hon. Carolyn Engel Temin.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ.

The opinion of the court was delivered by: Zappala


DECIDED: November 20, 1997

This is a direct appeal pursuant to 42 Pa.C.S. §§ 722(4) and 9711(h) from the imposition of a sentence of death by the Philadelphia County Common Pleas Court. Appellant, John Harris, was convicted by a jury of first degree murder, robbery, criminal conspiracy, two counts of recklessly endangering another person and possessing an instrument of crime. *fn1 Following the penalty phase, the jury found that the aggravating circumstance that Appellant committed the killing while in perpetration of a felony, 42 Pa.C.S. § 9711(d)(6), outweighed the mitigating circumstance of no significant history of prior convictions, 42 Pa.C.S. § 9711(e)(1). *fn2 For the reasons set forth herein, we affirm the judgment of sentence.

The record establishes that on August 3, 1992, Appellant and his codefendant, Ahmeen Mustafa, *fn3 entered R's Variety Store in Philadelphia. In addition to selling soda and candy, the store sold marijuana. Owen Edwards, the store owner, and employees Ronald Caison and Steven Parrish were about to exit the store when Appellant and Mustafa entered. Appellant immediately shot Edwards with a .357 revolver. Edwards collapsed and fell onto Parrish, pinning him against the wall. Caison fell to the floor and crawled away from the line of fire. Appellant then fired at Edwards five more times, killing him. Parrish was not injured. Appellant spit on Edwards and he and Mustafa stole money from his pockets. The two men then fled.

At the time of the murder, the victim was carrying a .380 handgun in his waistband. Officer Alan Jackson, a police firearms examiner, inspected the gun and testified that it had not been fired on the day of the killing because lint was present in its barrel. *fn4 Officer Jackson further concluded that the bullet specimens found at the murder scene were most likely fired from a .357 handgun.

Caison, who knew Appellant by his first name, identified him at trial as the shooter. Appellant did not testify at trial. His only defense was a stipulation that four persons would testify to his reputation as a law-abiding citizen.

Appellant first contends that the evidence was insufficient to support his conviction for first degree murder. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to support all the elements of the offense beyond a reasonable doubt. Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178 (1996). To prove murder in the first degree, the Commonwealth must establish that a human being was unlawfully killed, that the accused committed the killing and that the killing was done in an intentional, deliberate and premeditated manner. 18 Pa.C.S. § 2502(a); Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991).

Specifically, Appellant contends that the Commonwealth failed to present evidence of premeditation and deliberation. Without any citation to the record, Appellant asserts that the evidence established that the shooting might have occurred due to the victim's initial attack against Appellant. As the only evidence presented on behalf of Appellant at trial was a stipulation of character testimony, his new found theory of self defense is meritless. Furthermore, viewing the evidence in the light most favorable to the Commonwealth, eyewitness testimony established that Appellant entered the store and shot the victim six times at close range during the course of a robbery. This evidence is sufficient to support a conviction of murder in the first degree.

Appellant's next three issues concern voir dire. He first contends that the trial court violated his right to a public trial guaranteed by the Pennsylvania Constitution and by the First, Sixth, and Fourteenth Amendments to the United States Constitution. *fn5 To better utilize time and space available at city hall, the trial court completed collective voir dire in the courtroom and then questioned each prospective juror individually in the anteroom, outside the hearing of the venire panel. The court noted that the alternative procedure would have been to place the panel in a room far removed from the courtroom and then have each juror separately brought in to be questioned.

In determining whether this procedure violated Appellant's right to a public trial, we keep in mind that such right serves two general purposes: (1) to prevent an accused from being subject to a star chamber proceeding; and (2) to assure the public that standards of fairness are being observed. Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985). Confidence in our system of jurisprudence is enhanced by the openness of judicial proceedings. Id. at 129, 501 A.2d at 232. Although the right to a public trial is applicable to voir dire proceedings, Press-Enterprise Company v. Superior Court, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984), a trial Judge may, in the interest of the fair administration of Justice, impose reasonable limitations on access to a trial. Id.

The flaw in Appellant's argument is that he has not asserted that any member of the public was denied access to the questioning that occurred in the anteroom. No exclusionary order was entered and the record does not establish that the court prohibited the public from observing the individualized voir dire. Defense counsel did not object or request that the individualized voir dire take place in the courtroom. The procedure was employed merely as a way to efficiently utilize judicial resources. A court reporter was present and the transcript of the proceedings is of public record.

As there is no evidence that the public was excluded, Appellant's right to a public trial was not violated. See Commonwealth v. Johnson, 347 Pa. Super. 93, 500 A.2d 173 (1985) (practice of conducting voir dire in separate room in advance of taking testimony in the courtroom does not violate defendant's right to a public trial). Compare Commonwealth v. Johnson, 309 Pa. Super. 367, 455 A.2d 654 (1983) (court's exclusion of public from courtroom during jury selection violates defendant's right to a public trial). *fn6

Appellant also argues that the trial court deprived him of his right to a fair and impartial jury by automatically excluding jurors merely because of their answers to specific questions on the juror questionnaire. *fn7 The questions included whether moral, religious or conscientious scruples would prevent the venireman from imposing a death sentence in a proper case; whether moral, religious or conscientious scruples would prevent the venireman from imposing a sentence of life imprisonment in a proper case; whether the venireman would always vote for the death penalty; and whether the venireman would always vote for a life sentence. The court informed the parties that at the end of collective voir dire, it would determine which prospective jurors responded in the affirmative to these questions and would not individually voir dire those persons unless the parties did not select a jury from the remaining veniremen. By agreement of all counsel, the veniremen responding in the affirmative were dismissed.

Appellant argues that the trial court's procedure excluded prospective jurors who might have indicated through further questioning that they could impose the death penalty in a proper case. Relying on Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), Appellant asserts that "the jury that adjudicated guilt and sentenced [him] to death 'fell woefully short of that impartiality to which [he] was entitled.'" Appellant's Brief at 38. The Witherspoon standard, as described by our Court in Commonwealth v. Jasper, 531 Pa. 1, 8, 610 A.2d 949, 953 (1992), provides that venirepersons who are unable to perform their duties impartially and faithfully at the sentencing stage of the trial may be excused for cause. *fn8

This rule was not violated since the dismissed jurors indicated that they had personal views that prevented them from imposing a sentence of death or life imprisonment when the law and facts required the same. As a trial Judge has wide latitude in supervising the manner in which voir dire is conducted, including the power to prevent further voir dire when responses to death qualification questions prove that additional inquiry will be fruitless, Id. at 9, 610 A.2d at 953, the trial court did not err by dismissing the jurors. Furthermore, Appellant makes no specific claim as to how the jury was biased or partial.

In his final voir dire claim, Appellant contends that the trial court precluded effective use of his peremptory challenges by requiring him to state his reasons for striking a white venireman. *fn9 This claim is meritless. In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause prohibits a prosecutor from exercising peremptory challenges to exclude jurors solely on account of their race. This holding was expanded in Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), to apply to the intentional discriminatory use of peremptory challenges by a criminal defendant. The Court held that if the ...

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