Com. v. Myers

• Decision Date: 18 August 1988
• Citation: 376 Pa.Super. 41,545 A.2d 309
• Parties: COMMONWEALTH of Pennsylvania v. Leroy MYERS, Appellant.
• Court: Pennsylvania Superior Court

Page 309

545 A.2d 309

376 Pa.Super. 41

COMMONWEALTH of Pennsylvania v. Leroy MYERS, Appellant.

Superior Court of Pennsylvania.

Submitted March 21, 1988.

Filed July 1, 1988.

Reargument Denied Aug. 18, 1988.

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

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, MONTGOMERY and HESTER, JJ.

WIEAND, Judge:

Leroy Myers was tried by jury and was found guilty of kidnapping, ¹ false imprisonment, ² rape, ³ simple and aggravated assault, ⁴ and possession of an instrument of crime. ⁵ Post-trial motions were denied, ⁶ 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. ⁷ 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 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, 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. 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 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 (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 that he or she will not be prejudiced.

Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also: Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986); Commonwealth v. Hashem, 363 Pa.Super. 111, 525 A.2d 744 (1987); Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980).

In United States v. Salamone, 800 F.2d 1216 (3rd Cir.1986), the United States Court of Appeals for the Third Circuit held that a district court had abused its discretion in a trial involving alleged violations of gun control laws by systematically excluding prospective jurors who were members of the National Rifle Association. In reaching this conclusion, the Court of Appeals reasoned as follows:

"Jury competence is an individual rather than a group or class matter." Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 986, 90 L.Ed. 1181 (1946). Challenges for cause "permit rejection of jurors on narrowly specified, provable and legally cognizable bases of partiality." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965). The central inquiry in the determination whether a juror should be excused for cause is whether the juror holds a particular belief or opinion that will "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See also Patton v. Yount, 467 U.S. 1025, 1036-37, [& n. 12], 104 S.Ct. 2885, 2891-92 & n. 12, 81 L.Ed.2d 847 (1984) (noting that the constitutional standard for juror impartiality rests on the determination whether "he can lay aside his opinion and render a verdict based on the evidence presented in court"). Juror bias need not be established with "unmistakable clarity." Witt, 105 S.Ct. at 852. Thus, the factual determination by the trial court whether a juror can in fact serve impartially is entitled to "special deference" by the reviewing court. Yount, 104 S.Ct. at 2892. In the instant appeal, however, at no time were the excluded jurors questioned as to their ability to faithfully and impartially apply the law. Indeed, no inquiries whatsoever were directed to the excluded jurors to determine the nature and extent of their commitment to any principles that might have impaired their ability to serve impartially. While we recognize that the scope and content of voir dire is committed to the sound discretion of the trial court, that discretion will "include[ ] the decision as to what questions should be asked when the court itself decides to examine the prospective jurors so long as inquiries relevant to the discovery of actual bias are not omitted." United States v. Dansker, 537 F.2d 40, 56 (3d Cir.1976) (emphasis added). Where the appropriate inquiries have been made and the district court has made a judgment on the basis of the jurors' responses, normally, that judgment will not be disturbed. The usual factors cautioning restraint in appellate review, i.e., credibility and demeanor evidence, however, are simply absent from this record. Thus, the "factual determination" by the district court in the instant appeal, being totally devoid of any foundation, leaves us with the single conclusion that the voir dire was inadequate to preserve and protect the rights of the accused. Se...