Com. v. Brown
| Decision Date | 21 June 1974 |
| Citation | 228 Pa.Super. 166,323 A.2d 281 |
| Parties | COMMONWEALTH of Pennsylvania v. Rhodolphus BROWN, Appellant. |
| Court | Pennsylvania Superior Court |
This is an appeal from the judgment of sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, by the appellant-defendant, Rhodolphus Brown, after conviction by a jury of forcible rape and corrupting the morals of a minor; and from the denial of post-trial motions. The appeal raises several reasons for a new trial: (1) insufficient evidence to convict him of the charges; (2) consent; and (3) that the court below abused its discretion in refusing to permit certain questions on voir dire examination.
As to contentions (1) and (2), the matter was for the jury to resolve the credibility of the witnesses and they are without merit. The jury was selected on January 11th and testimony was completed on January 12th. The record indicates that the trial judge became ill so that closing arguments, the charge of the court and the deliberation of the jury took place on January 17th. There was no prejudice to the appellant by this delay.
The questions requested at voir dire are as follows:
(1) '. . . 2. Have you (or anyone you know) ever been involved in a rape or attempted rape?
(2)
The scope of voir dire examination and the manner and procedure of such examination rests within the discretion of the trial judge. Commonwealth v. Cephas, 213 Pa.Super. 278, 247 A.2d 662 (1968). Examination under voir dire is limited to determining if a juror is subject to disqualification for cause, for lack of qualifications, or for a fixed opinion. Commonwealth v. Cephas, supra. Nothing short of palpable abuse of discretion justifies a reversal in passing on a challenge for cause. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973); Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972); Commonwealth v. Corbin, 426 Pa. 24, 231 A.2d 138 (1967). It is equally true that the scope of the voir dire examination is not to provide the defense with a basis upon which he utilizes his peremptory challenges. Commonwealth v. Lopinson,427 Pa. 284, 234 A.2d 552 (1967).
The questions as framed leaves much to be desired if their purpose was to disclose racial prejudice and knowledge of former sexual offenses and the refusal of the trial court to permit them could not fall within the definition of palpable abuse of discretion.
The court below carefully questioned the prospective jurors about their knowledge of the case, their relationship to police officers and went into detail as to their responsibility as jurors. Among the many questions asked by the court below were the following:
'THE COURT: Now, it will be your duty, members of the panel, throughout the course of this trial to carefully observe each and every witness who shall come before you, and to determine for yourselves by the basis of your own experience as to who is telling the truth or how much of that witness's testimony is true or reliable, and that is your function and not anyone else's. Can you bring to bear in the jury box all of your experiences in life, together with certain guildines that the Court will lay down for you aw to truthfulness, which are not difficult to follow, and appraise the truthfulness or veracity or reliability of each and every witness on an individual basis using the same standards and tests as to all of the witnesses who may come before you and without any regard to his station in life or her station in life, or occupation, or any other matter that would tend to influence you? If there is anyone among you who feels that he or she cannot do that, will you please raise your hand. (No response)
'Do any of you know of any reason whatsoever why you should not serve on this jury? There are no affirmative responses.
'Do any of you, no matter what the reason may be, presently have any bias or prejudice that in any way might tend to deprive this defendant of a fair, just and impartial trial? If so, raise your hand. (No response)
In Commonwealth v. Foster, 221 Pa.Super. 426, 293 A.2d 94 (1972), a four to three decision of this Court, the black defendant was tried by an all white jury so that racial discrimination may have been involved and relevant. But in the instant case, the situation is entirely different. The jury panel in this case consisted of both black and white jurors and the jury selected for trial was composed of nine white and three black veniremen. We believe that the court's comment, when there was a racially mixed population in the area of trial, and a racially mixed composition of the panel and the jury itself, that the court should be 'color blind', makes common sense. Under such circumstances it is difficult to see the relevance of the question posed and most certainly its refusal does not rise to palpable abuse of discretion.
Question 2 falls in the same category and in addition is entirely too broad. The determination of its asking falls well within the discretion of the court.
Judgment affirmed.
WRIGHT, President Judge, and SPAULDING, J., took no part in the determination of this case.
Appellant's primary contention is that the trial court committed palpable error in refusing a written request to pose two questions to prospective jurors on voir dire examination that the defense considered crucial to its case. 1
Appellant was tried before the Honorable Thomas M. Reed, Judge of the Common Pleas Court of Philadelphia, and a jury, on January 11--17, 1973. 2 The jury returned a verdict of guilty on the charges of forcible rape and corrupting the morals of a minor. Following the denial of post-trial motions, the instant appeal was filed. At trial, two versions of the incident were presented: The complainant testified that, on September 2, 1972, at approximately 10:30 p.m., she was at the apartment of a friend at 6124 Broad Street, and went out to buy sodas at a nearby McDonald's restaurant. As she was walking, she noticed a gold Chevrolet parked in the lot, and two black men standing by the car. She stated that one of the men asked her if she wanted to smoke a 'joint'. She refused and entered the restaurant. Upon emerging, she noticed the car was parked at the exit portion of the lot, and as she passed to return to her friend's apartment, she was grabbed and thrown into the back seat of the vehicle. She was taken to a park, and after being threatened by the two men, reluctantly submitted to acts of intercourse with each. She was returned to the restaurant, whereupon she memorized the license plate number of the automobile (later traced to the appellant) and reported the attack to the police.
Appellant offered the defense of consent. He stated that upon emerging from the restaurant, she engaged in a conversation with the appellant and his companion. She entered the vehicle and smoked a 'couple of joints'. Appellant stated that, in this amiable atmosphere, she then engaged in consensual intercourse with him and his friend. Appellant said that he noticed that immediately upon returning the complainant to the restaurant she entered another car occupied by two white men.
During jury selection, and in accordance with Pa.R.Crim.P. 1107, defense counsel submitted a list of questions to supplement those the trial judge would ask to prospective jurors. 3 Among those questions were the following two questions:
'. . . 2. Have you (or anyone you know) ever been involved in a rape or attempted rape?
The objective or voir dire examination of jurors is to secure a competent, fair impartial and unprejudiced jury. Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972); Commonwealth v. Corbin, 426 Pa. 24, 26, 231 A.2d 138 (1967). The only legitimate inquiry is confined to 'disclosing qualifications or lack of qualifications of a juror and whether a juror has formed a fixed opinion (as to the accused's guilt or innocence) or may be otherwise subjct to disqualification for cause.' Commonwealth v. Lopinson, 427 Pa. 284, 297--298, 234 A.2d 552, 561 (1967), citing with approval Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467 (1953). It is well-settled that the scope of voir dire examination rests in the sound discretion of the trial judge, and refusal to allow certain questions will not be reversed unless there has been a 'palpable abuse of discretion.' Commonwealth v. Johnson, 452 Pa. 130, 135, 305 A.2d 5 (1973); Commonwealth v. Lopinson, supra. This Court has...
To continue reading
Request your trial
-
Ross v. Ristaino, 74-1222
...forged U.S. treasury check; inquiry about racial prejudice not mandated because no racial overtones shown); Commonowealth v. Brown, 228 Pa.Super. 166, 323 A.2d 281 (1974) (conviction for forcible rape affirmed by 3 to 2 vote; requested racial question held irrelevant and overbroad).6 We obs......
- City of Phila. v. Galdo
-
Com. v. Brown
...by the desk clerk. The jury obviously resolved the credibility of the witnesses in favor to the victim. Commonwealth v. Brown, 228 Pa.Super. 166, 232 A.2d 281 (1974). As to robbery, we agree with the court below that "the victim's testimony revealed that she was being threatened and that sh......
-
Com. v. Brown
...morals of a minor. The Superior Court affirmed appellant's judgment of sentence by a three-to-two decision. See Commonwealth v. Brown, 228 Pa.Super. 166, 323 A.2d 281 (1974). We granted appellant's petition for allowance of appeal and now reverse his judgment of The facts surrounding this a......