*4 J., O’BRIEN, Bеfore EAGEN, ROB- JONES, C. ERTS, POMEROY, MANDERINO, JJ. NIX
OPINION NIX, Justice.
*5 In February, 1978, appellant of murder was convicted degree the death of Wil- the first in connection with January 24, Ricky City liam on Green of Chester [6] judgment in
1971. Motions for new trial and arrest appellant to life were was sentenced argued, denied and imprisonment. appeal This followed.1 assignments
Our attention er- is to directed several ror compel of a new contends the award Finding trial. no merit in the issues we now advanced judgment affirm the of sentence.
Initially, appellant erred maintains that the trial court in refusing permit to defense counsel on voir dire to ask prospective jurors following you agree question: “Do legal with principal no the-defendant has [sic] obligation prove, any to fact, re- disprove, but argues mаin Appellant silent.” chose not since he to take the par- witness stand his it own behalf was importance ticular venirepersons that the be examined as personal agreement to their right with the constitutional to willingness remain silent apply their it in this case. single goal permitting questioning
of prospective jurors provide is the accused with fair, impartial “competent, unprejudiced jury.” McGrew, 518, 525, Commonwealth Pa. A.2d 100 467, (1953); also, Dukes, see Commonwealth 180, 186, Pa. (1975); 478, A.2d v. Biebighauser, 345, 70, A.2d U.S.Const, I, XIV; VI, amends., art. Pa.Const. provide 9. Voir dire §§ examination is intended to a defendant with upon a better which to utilize his basis peremptory challenges:
Lopinson scope also contends that voir unduly jurors dire prospective examination of the disclosing An limited. exаmination of the record extent of the completely examination refutes allowed position. Moreover, manifestly premised is Appellate appeal pursuant Court brought 1. This direct is II, July P.L. art. Act of Jurisdiction Act 202(1), § 211.202(1) (Supp.1976-77). 17 P.S. purpose the voir upon belief that the mistaken a bet provide defendant with dire examination *6 peremptory chal upon utilize his ter which to basis Judge by lenges. President This not As stated so. 470, Pa.Super. at 23 Brown, in v. Rice Commonwealth challenge is peremptory right of (1903): 498 “[T]he reject ju right right a to a select but not of itself McGrew, 375 Pa. v. rors.” Accord Commonwealth 525, (1953); and Common 467, 100 470 518, A.2d 339, 67, 71, 340 Morgan, 124 A. wealth v. 280 Pa. 284, 297, (1924). Lopinson, v. 427 Pa. Commonwealth 986, 93 552, 411 den., 234 A.2d cert. U.S. (1967), 560 omitted). (1973) (footnote 2269, 36 963 S.Ct. L.Ed.2d supra, 450 Pa. also, Biebighauser, See v. Commonwealth 347, 300 at A.2d at 75. althоugh permitted on
Thus, latitude should be strictly to dis dire, voir confined inquiry should be closing qualifications and qualifications lack of or opinion in juror fixed not had formed a “whether or guilt or innocence.” Com case to the as accused’s 298, supra 234 A.2d Lopinson, Pa. monwealth v. 427 at 134, 561; at also 465 Pa. Martin, see v. Commonwealth v. Rave 158, (1975); 391, Commonwealth 348 A.2d (1972); 365, 162, 175, 371-72 nell, Pa. A.2d 58, 63 Hoss, 283 A.2d v. 445 Pa. Commonwealth juror “fixed (1971). ascertaining has In whether guilt he or she opinion” or whether or innocence prej any impartial fair set aside harmful can be 136, 147- Martinolich, Pa. udices, v. Commonwealth (1974), considered cer we have A.2d 686-87 questions irrelevant: types of tain permitted be should . . . . . [not]
“. Counsel designed hypothetical questions or . . . to ask direct opin- present impression or juror’s to disclosе what a likely may or will attitude decision ion be what his developed certain be be under facts McGrew, . v. of the case . .” Commonwealth 525-26, 100 supra A.2d at 470-71. Pa. at hypo permit certain refusal A trial court’s ab disturbed questions thetical on voir dire will be palpable Commonwealth sent a abuse of discretion. 462, 466 Segers, 331 A.2d 526-27, 100 supra McGrew, Pa. at of discretion no abuse A.2d at 471. We are satisfied that occurred this case. was, it counsel question proposed defense what designed in advance
appears, advise counsel if, when, and venireperson’s might personal reaction be in his own stand to take the elected not *7 further is inappropriateness question half. of the of in terms compounded framed by the fact that it was two privately agreed with venirepersons whether the of the burden concepts the criminal law: fundamental in beyond reasonable prove guilt the Commonwealth to A silent. right to remain the of an accused doubt and ab prospective no moment juror’s personal views of are deeply embed showing opinions so that these are sent a incapable accepting and person of to render that ded as long the given by the So applying court. the law as to does, eventually adhere juror to, and to, is able intends propounded the on the law as the instructions juror’s performing capable court, of he or she is that a regard, may safely inferred this In function. juror in the absence not his or her oath will violate contrаry. any expression indications to the or other to recognizes unrealistic it would be “The that law failing prejudices, expect jurors free from all to be attempt to only beings. We can common to human all perform- prejudices in the put have them aside those inno- guilt or duty, ance of their the determination but expect rosa not a tabula cence. We therefore do re- merely sufficiently its sworn conscious of a mind willing attempt a decision sponsibility to to reach avoiding assiduously presented, solely on the facts of irrelevant factors.” influences (1973). 130, 136, Johnson, A.2d 8 452Pa. the failure on both court’s instructions
The trial testify on the Com his defense and own to beyond proof doubt reasonable monwealth’s burden charged portion every ac were of the crime material prior comprehensive. addition, In curate, definitive jury, informed had of the the court the selection to jury panel that de was drawn from which the entire testify obligation nor no offer fendant had evidence charged prove the conduct the burden to himself and that jury was After the remained the Commonwealth. with again, preliminary actually empanelled court once mandates. these constitutional remarks, them of advised sug record not evidence in There is a scintilla of gest any jurors that a reservation harbored duty discharging prevent in accord of their would that, under find ance therefore with their We oath. requested permit circumstances, the failure these question оf discretion. was an abuse assignment
Appellant’s of error next wrongfully permitted certain lower into evidence court parts time closet rifle found in at argument is the belief The foundation of this arrest. illegal be effectuated arrest it was that the because *8 arresting yond jurisdiction officer of the the territorial in incidental that the a search evidence obtained illegality. thereby by arrest was tainted surrounding in case are The the as facts arrest killing days subsequent of Two to the William follows: police- Sergeant city Ricky Green, Lastowka, a Chester family man, in Bor- went to the the home of ough pursuant County, and, to an Parkside, of Delaware ap- city magistrate, by arrest warrant issued a Chester prehended question appellаnt. parts in The rifle the were seizedat that time.
10
The exact
legal
presented
same factual and
issue was
to this
102,
Court
in
v. Davis,
466 Pa.
(1976).
351
642
A.2d
There a
for
for
warrant
arrest
robbery
Chester,
was also issued in
where
crime oc
the
curred,
city police
the
Chester
The
officers.
accused
apartment
Borough
arrested in an
in the
of Marcus
Hook. At the time of the arrest numerous items were
found, including weapon,
subsequently
which were
in
against
as
troduced
evidence
him
Davis,
at trial.2 In
as
here,
August 6,
it was claimed that
Act
P.L.
1963,
of
109,
511, 1,
amended,
2,
Act
November No.
1973,
as
of
§
(hereinafter
(Supp.1976-77)
P.S. 11
referred to as
19
§
11)
city
power
police
limited the
officers
Chester
city
they
make an
were
arrest within the
limits unless
argu
pursuit”
fleeing
advancing
“hot
of a
felon.3 In
ment, appellant
ignored
provisions
of the
Act
1860, March
3,
1899,
3,
427,
amended;
as
Act of
P.L.
§
May 2,
73, 1,
(Supp.1976-77)
(herein
P.L.
19 P.S.
§
§
3)4
after
provide:
referred to as
found,
2. As a result of the items
Davis was linked to another rob-
issued,
bery, apart
for
from
one
which the warrant had been
appeal
where a death had resulted. The
was from the murder
conviction.
arrest,
3. At the time of
Section 11
as
read
follows:
“Any police
city borough,
employ
county,
officer in of a
arrest,
township
warrant,
any
town or
with or without a
beyond
political
felon
the territorial
limits
subdivision
employing
felony
by
such
officer
committed
the felon
political
police
within the
employing
if
subdivision
officer
pursuit
such officer
continues
felon after commission
felony.”
subsequent
summary
amendment included misdemеanors and
grounds
offenses
tional
jurisdic
for warrantless arrests outside the
pursuit
limits if done in
of the
States v.
offender. United
Getz,
971,
F.Supp.
Cir.,
(E.D.
Pa.1974),
510 F.2d
affirm 3
den.,
cert.
U.S.
95 S.Ct.
L.Ed.2d
Robb,
Pa.Super.
Commonwealth
n. at 517
n. 1 at
352 A.2d
(1975).
suspended
4. This
by
159(d)
Pennsylvania
section was
Rule
Procedure,
1, 1974,
January
Rules of Criminal
inconsistent with Rules 61 and
as it is
eff.
insofar
the same Rules. The
123 of
change brought
procedures
about
Rule concerned the
pow-
followed in these instances but did
alter
substantive
ers
Levesque,
conferred under Section 3.
Commonwealth v.
Cf.
(1976).
In that Section Davis we held jurisdic beyond the legal efficacy of warrant the the ed empow authority it also issuing but limit the tional pro charged the duty to execute with the оfficer ered political boundary subdivision cess to cross in even absence employed him to the arrest make which Davis, pursuit. element Commomvealth of the See illegali Having rejected appellant’s claim supra.5 ty arrest, suppression of the tan his claim for the gible illegality premised supposed upon this evidence must also fail.6 only in the
5. While this writer concurred result Davis, complete (1976), ac- Pa. portion I was A.2d opinion. cord with this of the provision controlling A second ar- 6. cites as is as rest follows: city, and shall Policemen shall be ex-officio constables of the may, upon city property and within or owned or controlled city by municipality authority city or of the within view, Commonwealth, upon warrant arrest without hеaring any persons guilty commit for and all of breach drunkenness, peace, vagrancy, disorderly or riotous or conduct engaged any act or who unlawful in the commission endanger prop- tending imperil personal security *10 assignment The third of error relates to the trial post-arrest extra-judicial court’s refusal to allow certain allegedly by appellant statements made to intro- be jury by support duced before the the defense in of its in- sanity setting claim. The factual in which this claim significant. Approximately arises is four months after appellant crime, his arrest for this was ordered commit- upon finding Hospital appel- ted to Farview State a incompetent point lant was trial at that stand time. He remained in that institution from his on commitment May September (18 1971, 13, 27, until 1972 months after arrest) compe- his when was ascertained that he was participate appellant’s tent to in a trial. At trial sole de- insanity fense was his asserted at the time of the com- mission of the offense. The statements form objection supposedly during basis for this were his made confinement in Farview.
Specially, permit appellant’s court would not testify father to as to statements made to him his son concerning preoccupation the son’s with the belief that his fellow inmates at Farview intended to kill him. Dr. psychiatrist, permitted testify Ivins, a was not toas by appellant the contents of two letters sent to him while prevent- he was incarcerated at Farview. The court also psychologist, еd a Farview, who treated at relating appellant during from conversations with period. appellant places particular emphasis on the psychologist exclusion of those conversations with the appellant’s that revealed belief that the victim was con- trolling through drugs ap- life the sale of citizens, erty violating any of said or of the ordinances city penalty imposed. for the is violation of which fine 23, 1931, 932, 2005, amended, XX, § ofAct June Act P.L. art. 28, (Supp.1976-77). § June P.L. 53 P.S. however, provision, specifically solely This concerns itself with arrests for lim certain misdemeanors made within the territorial jurisdiction its the officer’s do not and without a warrant. We appeal, applicable believe is “ex that it does it instant nor clude alternative authorizations for arrest.”
Davis, supra 466 Pa. at n. 351 A.2d at n. 2. testimony- pellant’s wife. The trial court excluded this grounds of remoteness. on long
It in this Commonwealth has been law persons of third accused’s statements to that an where to indicate mental accused fered state sanity is in issue. bearing state mind be Evidence on defendant’s crime, at, fore, the commission of and after on showing insanity, properly admissible basis usually insanity. con plea evidence While such indicating un acts, yet others an sists of statements to hearsay *11 may forms mind be The rule sound received. parties objection third since the no statements the they to the truth of without reference are received statement, merely mind. being of a state of indicative 144, Williams, A. Pa. 160 Commonwеalth v. 602, 605 (Emphasis (1932). added) also, Wright, 480, 486, Pa. See Commonwealth v. Ryman’s Pa.Super. (1974); Case, A.2d Evidence, McCormick, 11 A.2d § Evidence, 249, pp. (2d Wigmore, 1972); 590-91 ed. § 1714, pp. (Chadbourn 1976). 90-91 rev. may
In this evaluat- context the accused’s comments be ed in the as same manner as his nonverbal behavior Recogniz- being reflective of condition of mind. illuminating ing may just that one’s conduct as verbal be upon the state of the as his nonverbal of mind declarant conduct, recognized of ex- text writers have the wisdom cluding expressions show offered to irrational which are regardless form, incompetence, their from mental of Evidence, McCormick, hearsay constraints rule. pp.592-93 (2d 1972). ed. competency proof of the sources of of mental “One main person ques- in incompetency or of the is conduct response to the tion, showing his normal or abnormal every test, By this circumstances of his environment. limits subject’s life, of the reasonable act within time, be inquiry. would relevant to the toAs nonver- problem bal conduct hearsay no is involved .... may argued that, While be since abnormal conduct significance be simulated, can may of such acts in degree dependent upon some be deceptive the want of intent, admissibility no doubt exists as to the ev- idence, subject practical to the limitations relevan- cy. approach adopted same receiving is in evi- dence of conduct, expressions verbal .... These are treated as conduct, evidence of irrational rather hearsay as than statements belief offered to show the declarant does entertain the he belief which (Emphasis asserts.” Id. at added). 593.
However, suggests quotation as above there is a period, whether the nonverbal, act is or verbal when conduct become so removed in time from the critical period probative its minimis, value is if de not ab- sent, layperson. at least to the mind of a by person may
“A statement made out of court re- peated by court, witness as a verbal act sub- ject hearsay rule, purpose if of such evi- mind, dence is to show declarant’s state of threat, sanity. intent, case to or show his or his It matters not whether such a statement oral *12 written, or it prior whether the was made to after or charged, provided crime it to that is not so remote as probative Wharton, lose its value.” Evi- Criminal dence, II, (13th 1976) (Emphasis Vol. 26-28 ed. added). evaluating
In the court’s exercise of its discre excluding tion in this evidence on the basis of remoteness it important to note that the entire defense was based appellant’s insanity on asserted at the time of the act. However, the record demonstrates that the defense was permitted testimony concerning appellant’s extensive including mental from witnesses, condition numerous the appellant’s wife, father, brother, friends, mother, a medi- psychologist. The trial psychiatrist doctor, and a cal by to made permit others did statements court Further the commission the crime. before the date which parties the crime to third after made statements “shortly or “reasona- after” deemed to be trial court the permitted. to the bly also Even as time” were close in excluded, nevertheless were court that statements psychologist psychiatrist permitted by and their use experts upon these to part relied as of the data sanity. respective opinions to their as form appellant’s lay permitted to ex- Also, witnesses the court sanity press opinions concerning his their without at- during period tempting of observation to restrict Lastly, opinions it is which these were formed. suggested it is that the excluded utter- noted that trait different ances reflected behavior character by already displayed jury quality before the from that admittеd, only these but that other evidence which was testimony cumulatively that bolster statements would in- presented. all these circumstances been had Under testimony cluding related that the excluded the fact long statements, months after as 18 that were made testimony ap- on crime, the fact that extensive pe- pellant’s prior to, for a reasonable state of mind hold cannot that after, event, was introduced we riod ruling an abuse constituted trial court’s discretion.7 several complaint made
The next is that the court thereby allegedly defense counsel prejudicial remarks impartial depriving appellant trial.8 of a fair and experts were allowed Appellant points 7. to the fact that opinions forming as indicа- their use the excluded statements contrary, we be- ruling. To the tive the arbitrariness of the to conclude quite the court reasonable for lieve equipped to expertise they be better would lapse of their virtue and the act between the equate significance of time utterance. 1) “We complained don’t of were as follows: 8. The comments you permitted have any speeches ... I Mr. Evans. need *13 (following enough” gone great have far now. I think we latitude It ais maxim of trial jurisprudence our a judge occupies dignified position an exalted-and and that impartiality expect absolute in the conduct of the trial is ed of him. judge occupies dignified position;
“The an exalted and person he is the jury, one to whom the . . . looks guidance, litigants expect for and from whom the ab impartiality. expression solute An indicative of favor or quickly jury condemnation is box reflected in the ” Myma, 505, 508, . Commonwealth v. Pa. 486, 487 (1924). 123 A. Stallone, 43-44,
In Commonwealth A. Pa. (1924), commenting ill-feeling on the obvious which emanated at trial in that case between defense court, counsel and the we stated: responsible Whether court or counsel was for the unfor- printed tunate situation from the cannot determined Regardless fault, any display record. who at partiality prejudice part judge or on of the trial against attorney necessarily party a or his must jury. per- judge is tend influence trial jurors guidance son whom the look for in whom they expect right impartial an have a to find atti- tudе.
Despite exacting requirements equanimity we these have often held that:
Every unwise or irrelevant remark made in course by judge, witness, trial a or counsel not com- does pel granting re- A new new trial. is, quired prejudicial; when when remark is sustaining objections of several to the defense’s use of lead- ing questions) 2) trying “We are January events of prison not the entire system, (following Mr. Evans.” the sustain- ing of a objection question to a posed ap- to the pellant’s father as to what told him how about he felt and how being he was treated prison), 3) “That clock won’t help you there, back Mr. Evans. It is (follow- about 3:12 now.” ing glance at a clock in counsel). courtroom defense
17
a
in such
or delivered
such a nature
substance
is of
reasonably
de-
mаy
to have
be said
it
manner
that
(Ci-
impartial
trial.
prived
a
fair
defendant of
611,
609,
omitted)
Goosby, 450 Pa.
Comm. v.
tations
Phil-
673,
(1973), quoting from Comm. v.
301 A.2d
674
(1957).
382,
733,
Pa.Super.
A.2d
736
lips,
132
183
35-36,
Palmer,
also,
463 Pa.
v.
See
Commonwealth
original).
(Emphasis
(1975).
387, 392
342 A.2d
display
impa
a
we do not condone
While
may
pro
he
have been
by
judge,
where
even
tience
a
recognize
tactics,
that
dilatory
by
we
voked
counsel’s
beings
failings of
judges
subject
human
to the
are also
in the
expected
of emotion
be
devoid
and cannot
be
upon
they may
vexing
be called
trying or
situations
record be
Here,
of the
after a careful review
confront.
comments,
us,
that
these isolated
fore
we are satisfied
client,
solely
not his
to counsel and
which were directed
reasonably con
it
reach the level where
could
did not
impar
appellant
deprived of a fair and
that
was
cluded
extended, aggres
complains
Appellant
no
tial trial.
himself,
partisan
Commonwealth
sive or
examination
Com
Williams,
(1976);
A.2d
v.
281
468 Pa.
(1960),
McCoy,
100,
19
389,
384
A.2d
Cannon,
Pa.
309
453
Commonwealth v.
468,
A.2d
Davis,
297
449 Pa.
(1973); Commonwealth v.
cert,
183, 38
836,
(1972)
94 S.Ct.
;
denied,
817
414 U.S.
Dews, Commonwealth
(1973);
v.
L.Ed.2d 72
v.
(1968);
558,
382,
Commonwealth
239 A.2d
384
(1955); Common-
LaRue,
362
Pa.
112 A.2d
(1938); Com-
Flax,
Pa.
In the alternative
effect that he was an
to the
dence was introduced at trial
actually
imbib
he
been
drug user
had
habitual
evening
He
ing
beverages
the crime.
on the
alcoholic
charge
testimony justified
on volun
contends that
theory
manslaughter
his intoxication
tary
under
voluntary manslaughter.
po
This
reduced the crime to
in this
clearly
letter
It is black
law
sition
meritless.
voluntary
exon
neither
intoxication
Commonwealth that
nor
criminal conduct.
erates
excuses
*16
Brabham,
491,
(1969); Common
433
Accordingly, judgment of sentence is affirmed. JONES, J., former did not in the participate C. deci- sion of this case. MANDERINO,
ROBERTS and JJ., dissenting filed opinions.
ROBERTS, Justice, dissenting. Appellаnt, whose entire defense was that he insane at crime, permitted the time of the was not to introduce into prove evidence a in- statement tended to his sanity. psychologist This statement, made to a who was treating appellant, belief that revealed wife and friends under the vic- had been control of the majority tim. The err holds that the trial court did excluding agree.1 this evidence as too I remote. cannot by Statements made the accused reveal his mental condition. McCormick, (2d J. Evidence at ed. 1972). by Statements made the accused before or after 1. Several other statements made were also ex concerning ap cluded as too remote. These included statements pellant’s preoccupation him, trying others were to kill *17 by appellant two psychiatrist. letters sent to a I Because believe appellant’s it was reversible error to exclude the statement that friends, victim controlling unnecessary wife is any decide whether the exclusion of re these statements also quires granted. that a new trial be
21
insanity
time
the
at
issue
the crime are relevant
the
Wigmore,
592-93,
Evidence §
2 J.
crime.
Id. at
Wigmore
(3d
1940).
reasons:
233
ed.
Professor
always
more
is
a
“A
of mental disease
condition
in
tendency or
in latent
one, either
less continuous
proper, in order
operation.
It
therefore
is
manifest
time, to
certain
its
existence at
ascertain
fact
subsequent
time.”
prior or
its existence at a
consider
(3d
1940).
25
ed.
Wigmore, Evidence
at
2 J.
§
is too
may
if it
such evidence
court
exclude
trial
at
insane
the accused was
the issue whether
remote to
(3d
Wigmore,
233
Evidence
of the crime.
the time
J.
however,
1940).
discretion,
this
In
ed.
the exercise
lati
by
principle that broad
guided
must be
the court
presentation of evidence
given to
be
allow
tude must
bearing
sanity
of the accused.
have
on
Pope v.
Justice)
Judge (now
Blackmun stated
As
Mr.
(8th
1967):
States,
372 F.2d
Cir.
“[W]e
United
respon
involving
expect
judge, in a
criminal
a trial
case
possibly rele
sibility,
to be
in his
of all
free
admission
Hart
Accord,
.
.
..”
United States v.
vant evidence
(9th
v.
field,
1975) ; United States
F.2d
Cir.
(1972).
U.S.App.D.C.
Brawner,
Boyle,
being
for his mental condition,
While
treated
con-
psychologist that
believed the victim was
told his
he
statement,
trolling his wife
From this
and friends.
at
clear inference
this was
belief
arises
I
erred
time of
believe
court
crime.
eighteen
excluding
statement,
made
months after
killing,
as too remote. Cf. Robinson
United
States,
(6th
1944), aff’d,
F.2d
324 U.S.
Cir.
*18
(letter
(1945)
the
S.Ct.
accused two after crime was ad- sanity issue.) mitted when is was at Remoteness simply question long of how after the crime state- the Rather, ment was made. remoteness determi- involves a probative nation whether various make the value factors insanity of the evidence to the the at issue of accused’s speculative. unduly only the time of the crime the Not lapse of time between the crime and must the statement considered, also the but nature of the evidence offered possible intervening and Here, the effect of the events. appellant’s excludedstatement dealt with beliefs concern- ing existing crime, the circumstances at of the time the committing and his for reasons the crime. This evidence appellant’s bears a close to relation state of when mind he victim, killed the and there little reason to fear that appellant’s beliefs reflect events occurred after killing, his rather than state of mind at the time of the killing.2 It was an abuse of discretion for the to court keep jury. this evidencefrom the appellant’s part
Moreover, statement was of offerеd as testimony psychologist. psychologist’s of his explain ability of the relevance the is- statement to appellant’s insanity sue of the time re- at crime any danger moves that the relation the evidence between insanity spec- offered issue was too remote or ulative. particularly important appellant
It was that this ev- appellant idence be admitted at trial, exercised privilege against self-incrimination thus testi- did not Indeed, 2. if explicitly had stated this was his belief crime, at the time problem there would be no remoteness Instead, statement, at all. question would be whether this dealing appellant’s mind, past with state of was admissible under exception an hearsay generally Meany rule. See United States, (2d (pеr Hand, 1941) J.) (hearsay excep- F.2d Cir. tion treating physician statements made to state- includes relating past ments condition); 803(4); Mc- Fed.R.Evid. J. Cormick, (2d 1972). Evidence ed. kill- the time of mind at fy to his state trial as at belief relation ing. of the close Because controlling his state bears on his wife victim other victim, the admission he killed the mind when cumu- insanity does not render evidence evidence lative. psychologist who that, I conclude because
Nor can *19 testify as to appellant’s was allowed on statement relied to exclude error appellant’s sanity, it harmless was to reject the con- jury to the this That we allow statement. him expert plain to have makes the need clusions of this explain opinion of : basis testimony in this field expert’s of
“The chief vаlue an opinion which his upon from . . . rests the material progresses reasoning by which he is fashioned and the it does conclusion; ... from his material to his expression lie in his mere of conclusion.” F.2d States, U.S.App.D.C. 227, Carter v. United F.2d Smith, see United States Precisely appellant’s state- (4th 1974). because Cir. it expert, opinion this ment formed the for the of basis important evi- into was that this statement be admitted testify psychologist to dence. was Unless allowed ap- explain that evidence, why it indicated about and pellant hope persuad- of had little insane, ing jury adopt expert. to the conclusions of this agree majority reasons,
For these I with cannot exclud- that the trial court did not abuse its discretion ing insanity, evidence relevant to the issue only grant appellant a new I defense. dissent and would trial.
MANDERINO, dissenting. Justice, erroneously is- majority Because the decides two of presented appeal by appellant sues in this —each to trial —I dissent. entitles him a new
Initially, majority concludes that the trial court committed no abuse of discretion when it refused to al- questioning prospective jurors low as to their views of right testify criminal defendant’s constitutional not to in his prosecution’s own behalf burden prove guilt beyond disagree. a reasonable doubt. I As majority correctly jurors notes, we seek minds whose are sufficiently “. . . conscious sworn re- [their] sponsibilit willing attempt [ies] reach [who are] solely assiduously decision presented, on the facts avoiding the (At p. influences irrelevant factors.” quoting from Johnson, 130, 136, 305 A.2d (1973)). majority, ac- knowledging impermissible ju- that would be to seat a ror who believed required accused should be testify on his defense, states, own then is not a “[t]here scintilla suggest any of evidence in this record to jurors harbored a reservation to the defendant’s [as right to remain prevent discharg- that would silent] ing duty of their in accordance with their oath.” Of *20 course there is no evidence! The trial court to refused allow any might defense counsel questions to ask have uncovered the any existence of such “reservations.” That refusal was an abuse of discretion, and on ba- sis given should be a new trial.
The voir dire examination should be conducted in a manner calculated “. . . to the state discover of mind juror of the respect with to any the matter at or col hand lateral reasonably matter unduly liable to influence him . . .” 47 Jury, Am.Jur.2d, generally, 201. See Am.Jur.2d, Jury, 195, 200, 201. §§ racial, reasons,
For these the courts held that re- have social, political ligious, economic, prejudice prospec- of jurors proper subjects inquiry tive of dire ex- are on voir Annotation, generally, in amination criminal cases. See Likewise, be- A.L.R.2d and cases cited therein. regarding penalty proper subjects liefs are death Annotation, 48 A.L.R.2d See cases. capital inquiry therein. cases cited and proof in criminal cases of the burden The allocation face right remain silent an accused to and the misunderstood charges the most two of of criminal are Being in the untrained law. concepts in the criminal these difficulty comprehending jurors only law, have process jury selection principles, often come to the but concepts misconceptions these to what saddled with as g., Rolison, mean. See e. (dissenting opinion of (filed 1977)
374 A.2d June J.). revealed a The record in Rolison Manderino, jurors ques- percentage prospective of the substantial understanding of these fundamental as their tioned misconceptions lay concepts were unable to aside their judge accept the trial about them the instructions of Certainly, proper application as their case. principles those whose with these beliefs are at odds challenged properly cause, for and the refusal would be grant challenge such be an discretion would abuse challenge error. But for cause cannot reversible prospective opportunity if made there is no to discover allowing ques- juror’s Furthermore, misconception. fixed give requested here would defense those tions such neces- the information opportunity to obtain counsel right perempto- sary intelligent for an exercise challenges that ry peremptory challenge. The numerous practical val- of little is allowed are criminal defendant knowledge sufficient ue if counsel to obtain is unable intelligent exer- prospective jurors to enable an about challenges. See, Project on Minimum cise those ABA Rеlating to Justice, Standards Standards Criminal *21 Jury, Approved by Draft, 2.4: Trial for the be conducted “A voir dire examination should challenge discovering for cause purpose of for bases knowledge in- gaining purpose enable for the and challenges.” (empha- telligent peremptory exercise of added). sis
Secondly,
appellant’s judgment
I
of sen
would reverse
grant
tence
court should
a new trial because
granted
request
jury
in
have'
voluntary
on
structed
the elements of the crime
man
slaughter.
Hilliard,
See Commonwealth v.
471 Pa.
(1977) (opinion by Roberts, J.)
Submitted 1977. Aug. 17,
Decided 1977. Foreman, Bruce D. Harrisburg, for appellant. Zimmerman, LeRoy S. Dist. Atty., Marion E. MacIntyre, Second Asst. Atty., Dist. Harrisburg, appellee. EAGEN, J.,
Before O’BRIEN, C. ROBERTS, POM- EROY, NIX, MANDERINO and PACKEL, JJ.
OPINION PER CURIAM.
Judgment affirmed.