Com. v. Drew
| Decision Date | 27 April 1983 |
| Parties | COMMONWEALTH of Pennsylvania v. Vera Mae DREW, Appellant. |
| Court | Pennsylvania Supreme Court |
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Dara DeCourcy, Asst. Dist. Attys., Pittsburgh, for appellee.
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.
On July 29, 1980 appellant was found guilty of voluntary manslaughter for the shooting death of her husband, Harry Drew. Motions for a new trial and in arrest of judgment were denied and she was sentenced to three to ten years imprisonment. This appeal followed.
Our attention is directed to several assignments of error which appellant contends compel the award of a new trial. Since we find no merit in the issues advanced, we affirm the judgment of sentence.
Initially, appellant contends that the refusal of the trial court to permit her counsel to ask certain questions on voir dire constituted reversible error. During the voir dire examination of the prospective jurors, the court refused to allow defense counsel to propound the following questions:
1. Do you think a battered woman stays with her husband because she enjoys being beaten?
2. Can you put yourself in the position of a 5'1"' black woman with limited educational background being attacked by a 5'8"' black man?
3. Do you understand or do you believe a woman might justifiably feel she would need to exert more force in repelling an attacker than a man?
4. Do you think a black woman with limited education might be less likely to call the police or an attorney than yourself?
5. Do you believe a man could frighten a woman with serious bodily injury without being armed?
6. Do you believe that a 56 year old black woman is as capable of protecting herself in a fight as you are?
It must be remembered the purpose of the voir dire examination is to provide an opportunity to counsel to assess the qualifications of prospective jurors to serve. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated and remanded 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344, appeal after remand, 449 Pa. 33, 296 A.2d 524, cert. denied, 411 U.S. 986, 93 S.Ct. 2269, 36 L.Ed.2d 963 (1973); Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953). It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. Commonwealth v. Johnson, supra; Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968), cert. denied 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); Commonwealth v. Lopinson, supra; Commonwealth v. McGrew, supra. Thus the inquiry must be directed at ascertaining whether the venireperson is competent and capable of rendering a fair, impartial and unbiased verdict. Commonwealth v. Johnson, supra; Commonwealth v. Swanson, supra; Commonwealth v. Lopinson, supra; Commonwealth v. McGrew, supra. The law also recognizes that prospective jurors were not cultivated in hermetically sealed environments free of all beliefs, conceptions and views. The question relevant to a determination of qualification is whether any biases or prejudices can be put aside upon the proper instruction of the court. Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Johnson, supra.
As we recognized above, the purpose of the voir dire examination is to disclose qualifications or lack of qualifications of a juror and in particular to determine whether a juror has formed a fixed opinion as to the accused's guilt or innocence. The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can only attempt to have them put aside those prejudices in the performance of their duty, the determination of guilt or innocence. We therefore do not expect a tabula rosa [sic] but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision solely on the facts presented, assiduously avoiding the influences of irrelevant factors.
Commonwealth v. Johnson, supra 452 Pa. at 136, 305 A.2d at 8.
It is equally well established that voir dire is not to be used to attempt to ascertain a prospective juror's present impressions or attitudes.
It is well-settled that Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953) (emphasis added). See, Commonwealth v. Biebighauser, 450 Pa. 336, 346, 300 A.2d 70, 75 (1973); Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 63, 64 (1971); Commonwealth v Swanson, 432 Pa. 293, 299, 248 A.2d 12, 15 (1968); Commonwealth v. Lopinson, 427 Pa. 284, 297-98, 234 A.2d 552, 560-61 (1967). The scope of voir dire examination rests in the sound discretion of the trial judge, see, e.g., Commonwealth v. Biebighauser, supra; Commonwealth v. Lopinson, supra. [Emphasis in original.]
Commonwealth v. Johnson, supra 452 Pa. at 134, 305 A.2d at 7 (1973)
The questions sought to be asked by appellant clearly fall within the category of questions seeking to elicit attitudes and possible preconceptions. They do not relate to whether the prospective juror could render a fair and impartial verdict based upon the evidence presented at trial. Thus the rejected questions were irrelevant to the legitimate purposes of voir dire and properly disallowed by the trial court. Commonwealth v. Johnson, supra; Commonwealth v. Swanson, supra; Commonwealth v. Lopinson, supra; Commonwealth v. McGrew, supra.
Next, appellant argues that the trial court erred in permitting the prosecutor's questions which established that she had been drinking immediately prior to the shooting. Appellant claims that the most crucial issue in this case was establishing her credibility over that of the Commonwealth's only eyewitness, Robin Blair. She argues that the jury might unfairly infer from the questions that the appellant could not recall facts and details as well as Ms. Blair could.
As stated in McCormick on Evidence,
Any deficiency of the senses, such as deafness, or color blindness or defect of other senses which would substantially lessen the ability to perceive the facts which the witness purports to have observed, should of course be provable to attack the credibility of the witness, either upon cross-examination or by producing other witnesses to prove the defect....
[Abnormality] ... is a standard ground of impeachment. One form of abnormality exists when one is under the influence of drugs or drink. If the witness was under the influence at the time of the happenings which he reports in his testimony or is so at the time he testifies, this condition is provable, on cross [examination] or by extrinsic evidence, to impeach.
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