Commonwealth v. Brown

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, 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) “. . . 4. Would you, or do you, get upset or take special note when you see a white girl and a black man walking together; talking together; holding hands?”

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. Superior Ct. 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. Superior Ct. 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. Lop-inson, 427 Pa. 284, 234 A. 2d 552 (1967).

The questions as framed leave 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 Coukt: 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 guidelines that the Court will lay down for you as 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 basis 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)

“Can every one of you be fair, just and impartial to both, sides, that is, both the Commonwealth and the defense? If your answer is yes, you believe that you can be fair and impartial kindly raise your hand.”

In Commonwealth v. Foster, 221 Pa. Superior Ct. 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 eir-cumstances 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 of sentence affirmed.