Commonwealth v. Davis
422 A.2d 671
Pa. Super. Ct.
1980
Check Treatment

*1 permanent body, domicile. Bars confine the but not his mind. as to whether making the factual determination court in prisoner domiciliary, is a bona fide Stifel recom mended that such facts be considered as the possibility the manner in parole, prisoner which the has ordered his transactions, personal and business other factors might which corroborate his statements of intent.1 viewed, the reflects only

So record herein unsubstan declarations by appellant domiciliary tiated as his change intent. The burden of proving domicile rests person asserting change. Liscio, Liscio v. 198 A.2d 645 We therefore remand to evidentiary hearing lower court for a full to acquire concerning appellant’s additional information in domiciliary tent.

Reversed and remanded for further proceedings consistent opinion. with this Pennsylvania,

COMMONWEALTH of DAVIS, Appellant. Jerome Superior Pennsylvania.

Argued Nov. 1979.

Filed Oct. 1980. Appeal Petition for Allowance of Denied Jan. 1981. Stifel, herein, prisoner serving 1. In as also a life sentence. In intent, explaining domiciliary his he stated that his crime was so community outraged, heinous return his was so that he never would original accepted by to his domicile. This was the court as a persuasive change reason for a of domicile. *3 Sharon, Murdoch, appellant. for A. David Mercer, for Douds, Attorney, District Assistant David B. Commonwealth, appellee. PRICE, CERCONE, Judge, and President

Before CAVANAUGH, and SPAETH, HESTER, MONTGOMERY HOFFMAN, JJ.

HESTER, Judge: in a trial of jury was convicted Jerome Davis

Appellant of Common the Court robbery conspiracy charges argued Post trial motions were Pleas, County. Mercer imprisonment years four to ten and a sentence of denied this Court three-judge panel of appeal, On imposed. granted appellant of sentence and judgment reversed (1979). We 574, 400 A.2d 1320 264 new trial. reargument application the Commonwealth’s granted en banc. before to the selection, counsel submitted defense jury

Prior to question: voir dire following proposed court ever family immediate your member you Have crime? victim of been the 54

The court refused to pose question, thereof, this or any form to the agree veniremen. We with appellant that this consti tuted reversible error.1

Our courts have often stated that the single goal of fair, voir dire is to secure a competent, impartial, and unprejudiced jury. England, 1, Commonwealth v. 474 Pa. 375 (1977); Futch, A.2d 1292 Commonwealth 422, v. 469 Pa. end, 366 (1976). A.2d 246 To this an accused is normally accorded considerable latitude in inquiring into bias or any subject other which bears on impartiality prospec of a juror. tive Commonwealth v. Lopinson, 284, 427 Pa. 234 (1967), A.2d 552 cert. den. 411 986 (1973). U.S. The inquiry, however, should be confined disclosing qualifications or lack of qualifications and whether or not the juror had formed a opinion fixed in the case as to the guilt accused’s or innocence. Brown, Commonwealth v. 625, 464 Pa. (1975); A.2d 716 Johnson, 130, Commonwealth v. 452 Pa. (1973); Biebighauser, Commonwealth v. 336, 450 Pa. 300 A.2d (1973). Traditionally, scope and extent of voir dire examination rests with the discretion of the trial court, subject to “essential demands of fairness”. Ham v. Carolina, 524, 526, South 848, 409 U.S. 93 S.Ct. 35 L.Ed.2d 46 (1972); Ralston, Bentivoglio 24, 31, 447 Pa. 288 A.2d (1972); McGrew, Commonwealth v. 375 Pa. 100 A.2d Where the trial judge discretion, has abused this we have See, not hesitated to reverse. g., e. Commonwealth Christian, 389 A.2d (1978); A.L.R.3d 1 Brown, Commonwealth supra; Foster, Commonwealth v. *4 221 426, Pa.Super. (1972).

We had occasion recently to consider the significance of questions victimization on voir dire with regard to the accused’s to right select a fair and impartial jury: disposition, 1. In view of our we do not consider the other issues presented by appellant: whether certain evidence should have been suppressed; testimony by whether certain a defense witness was excluded; improperly granted; whether a mistrial should have been charge concerning proof whether the court’s burden of was errone- ous.

55 adjunct to the accused’s that a natural think it clear We to right inquire the into prejudice to for is right probe of crimes to among jurors similar victimization past Thus, a stands accused. the defendant those with which right to ask the robbery with has charged defendant of or member their families they veniremen whether Poole, U.S. v. 450 robbery. victim of ever been the have accused, 1971). on trial (3d Similarly, F.2d 1082 Cir. jurors if assault, ask aggravated for of an of a crime in nature been the victim have Pa.Super. 395 261 Mosley, Commonwealth assault. (1978). 1384 A.2d 413 Fulton, A.2d

Commonwealth Fulton, and prosecution rape attempted a (1979). murder, counsel’s to request court refused defense or family members inquire any potential jurors whether rape a or crime. previously been involved sexual trial, noting: a granted We new victim, or close relative of a is not rape,

The victim of forgive forget lightly and treat similar conduct likely Thus, juror rape of such a in a presence of others. severly compromise right trial could an accused’s valued fair, by “competent, impartial, unprejudiced tried a be Futch, Singletary, cf. jury.” supra; State v. 156 N.J.Su 303, 383 “If we were per. to assume juror of a arguendo presence the demonstrated who had victim, [rape] it would be difficult to hold that such been Poole, supra F.2d juror capable objectivity.” of at 1083-4. also, Thompson, (Mo.App.

Id. See State v. 541 S.W.2d trial, 1976) hearing of who (presence, jury robbery juror on Virgin robbery); had been victim of Govt. Islands v. Cir., Bodle, (3 1970), (presence, hearing 427 F.2d 532 jury trial, juror whose sister had been victim of rape rape McCorkle, (3 Cir., murder); U.S. rel. DeVita F.2d 1 ex 121, 2 1957), cert. den. 355 U.S. 78 S.Ct. L.Ed.2d robbery on murder and recent (presence robbery are thus rele- victim). questions clearly Such victimization *5 and, indeed, seem be a would exposing in bias vant proceeding.2 in criminal query standard voir dire contends, however, that the ques The Commonwealth counsel, was too broad and was tion, properly as drafted by court, discretion, may The in its by the trial court. rejected inquiry overly that the was broad and indeed have decided robbery to one aimed at victimization of question limited the See, Jones, Mosley, supra; violent crime. U.S. or of a However, Cir., narrow (4 1979).3 the court did not F.2d 1004 counsel from inquiry effectively precluded area of but with victimization of any questions dealing propounding believe, Thus, an abuse of discretion as such crime. we “essential demands of fairness.” prohibition transgressed a Ham, supra. Commonwealth, reargument, has labelled as

The that the trial court should mold “specious” suggestion our contending imposi that the overly questions, broad voir dire the court would invite sloth tion of such burden defense counsel. We are not so among abuse situation, the analogous Supreme In an persuaded. judges points has trial to redraft for the required counsel, has erroneous requested points, where in his charge law: ly applicable stated erroneous, point, although party requested whose

[A] case, judge important to an issue in the alerts complaint cause for if the law to which that just does have correctly is not otherwise stated in the point pertains charge. question in that such a is included

2. The Third Circuit Poole observed Judges, prepared in Bench Book for U.S. District under Rice, auspices of the Federal Judicial Center. Cf. Commonwealth v. 221, 226, 477 Pa. 383 A.2d drafted, simply posed as then 3. If the court had response by juror undoubtedly prompted affirmative would follow-up questions designed juror’s to unearth in more detail See, Shavers, Cir., g., (5 1980). experience. e. U.S. F.2d Shavers, the Court found reversible error the refusal of the probe past to allow counsel victimization of crime among the veniremen. Sisak, 262, 269-70, Commonwealth v. n. 259 A.2d *6 428, 432, Thus, 5 (1969). n. once being put on notice of the substance of the charge, the trial court include must in his an instruction accurate statement of the subject law on the See, matter raised in the points. Commonwealth v. Motley, 421, 472 (1977); Hilliard, Pa. 372 A.2d 764 Commonwealth v. 318, (1977) J., Pa. (Eagen, dissenting); Coach, 389, 397, Commonwealth v. 370 A.2d J., (Pomeroy, concurring); Mitchell, Commonwealth v. Pa.

Similarly, simply because counsel included in a question voir dire some broad overly legally collateral matter, the court should not totally reject an entire line of Indeed, otherwise inquiry. relevant Supreme Court Christian, Commonwealth v. supra, suggested that such a response by the trial court is inappropriate and not in accord with the court’s traditional assuring role of the accused a Christian, fair trial. proposed voir inquiries dire were held to be relevant in exploring prejudices, racial but con tained some superfluous and immaterial language. The Court held that judge the trial had abused his discretion in rejecting the proposed questions merely because they were not precisely drafted: does not follow legitimate that need to explore

[I]t specific and prejudices, relevant having been brought court, attention of the should have been stricken in toto simply framed, because the question, as contained superfluous matter. The purpose of voir dire is to secure a “competent, fair, impartial and unprejudicial jury.” Futch, Commonwealth v. 469 Pa. at 366 A.2d at 248. That responsibility must be shared by the trial court and respective counsel in the interests of vindicating the public interest in assuring a fair proper trial. The response to such a legitimate concern, even though itself might constructed, be improperly is to permissi- fashion a ble inquiry so that the possible prejudice or bias may be exposed. Christian, 139-40, 480 Pa. at 389 A.2d at 549 (footnote omitted, emphasis added). imposed an with that compared obligation

The such drafted, submits an judge erroneously when counsel relevant, and concluded: “Both voir point charge, but have identical charge and the to the dire examination is or innocence of a defendant guilt see that the purposes-to in accordance objective manner and considered in a fair and 10.4 Id. at fn. applicable law.” “sloth or abuse” on will not invite holding Our it remains their task to attorneys for part of defense which alert proposed questions draft carefully will inquiry. Failure to do to a relevant level See, Hilliard, 471 g., e. Commonwealth v. constitute waiver. J., 318, 342, (1977) (Eagen, C. dissent- Pa. 370 A.2d *7 ing). instantly dire proposed question think the void

We important potential to an area of sufficient to alert the court to as pose the court refused prejudice. Since form, limited acceptably or to mold it into an drafted must receive a new trial. appellant granted. and new trial of sentence reversed Judgment in PRICE, J., dissenting opinion files a which CAVA- NAUGH, J., joins.

PRICE, Judge, dissenting: holding extends the of Common majority opinion The Brown, (1975), as well as A.2d wealth Fulton, 271 our own recent cases Commonwealth (1979) 413 A.2d 742 and Commonwealth Pa.Super. I am Mosley, previ case that has Pennsylvania to any prior unable find permitted must be as to query held that voir dire ously today general question allows a majority opinion crime. The in have no my opinion results that produce which will joined by Pomeroy’s opinion Justice lead in Christian was 4. Justice Manderino, by concurring opinion joined Jus- in Justice O’Brien. trial, Nix, joined grant of a new but he the Court’s tice would also arrest noted that insufficiency judgment evi- of the because Eagen Roberts dissented. dence. Justices general in relevancy focusing upon precise of the area Further, law inquiry criminal involved. such will have to tendency potential jurors harass in that it require will reveal insignificant them to matters that hap- pened ago in years absolutely situations that would have no on the be tried bearing case to before them. been, majority notes,

It has as the vested in traditionally judge’s discretion to rule upon scope and extent of the dire voir examination. In my judgment it is grievous error label the judge’s trial action in this case as an abuse of that traditional discretion.

I also register my complete wish disagreement with the majority further imposing additional duty upon judges of an molding unacceptable and improper voir dire question into an “acceptable (p. 674). limited form” agree I appellee such a will duty that invite “sloth part abuse” on the attorneys. defense Addition- imposes ally, it an unnecessary unwarranted duty new judge. Further, Wieand, Judge writing for the panel in the original disposition of this case Super. at 264 Pa. (1979), majority and the in this en disposi banc tion, noted that the trial not failed only to narrow the inquiry area of but “effectively precluded” from counsel *8 propounding any questions dealing with of victimization crime. do I not find such action the part of the trial judge in the I record have examined. It is of my view the record that judge’s refusal allow crime, concerning any appellant’s made no attorney request.1 further I interpret do not action such as effective ly precluding any questions dealing of victimization crimes. relevant page Transcript

1. three partial On of the refused the question. objection exception by appellant’s No noted coun- page appellant’s transcript sel. On four of the same counsel was asked, questions ask, you “Are there other want Mr. Mur- “No, doch? Mr. Murdoch answered. Your Honor.” appeal other issues raised in this that There are seven judgment of sentence. have no merit. I would affirm CAVANAUGH, J., joins dissenting opinion. this Ciarrocca,

Eugene CIARROCCA and Jennie H/W Ciarrocca, Eugene John CAMPBELL and Additional Defendant. CIARROCCA, Appeal Eugene Additional Defendant. Ciarrocca, H/W, Appellants, Eugene CIARROCCA Jennie Eugene John P. CAMPBELL and Ciarrocca. Ciarrocca, Eugene and Jennie H/W CIARROCCA Eugene Ciarrocca, John P. CAMPBELL Additional Defendant. CIARROCCA, Appeal Eugene Defendant. Additional Superior Pennsylvania.

Argued Dec. 1979. Filed Oct. 1980.