Commonwealth v. Clark

PRICE, Judge:

On February 24, 1978, a jury found appellant guilty of rape1 and aggravated assault.2 Post-trial motions were denied, and appellant received a sentence of four to fifteen years imprisonment for the rape conviction and a suspended sentence for the aggravated assault conviction. He brings this appeal alleging errors by the trial judge in conducting the voir dire, admitting evidence, instructing the jury, and overruling his objection to the prosecutor’s closing argument. We find these contentions lack merit, and therefore, we affirm the judgment of sentence.

*5Briefly stated, the testimony at trial revealed the following facts. At approximately 2:00 a. m. on the morning of May 22, 1977, the victim was walking home from a local bar when she was approached from behind by a man who grabbed her, punched her almost knocking her unconscious, and forced her to walk to a nearby vacant garage. Although it was dark and the victim could not see, she felt a sharp instrument pressed to her throat. The man forced her to have intercourse with him and then left the garage. As he was standing outside the garage in the illumination from nearby street lights, he turned to face the victim, who was also leaving the garage, and told her he was sorry, at which point she saw his face for the first time. She recognized him from having seen him once or twice in a nearby bar. After the attack, the victim walked to a nearby gas station from which she summoned the police and gave them a description of her assailant.

On June 26, 1977, while the victim was outside the bar in which she had previously seen her attacker, she spotted appellant and began shouting that he was the one who had raped her. The police arrived at the scene, and Officer William Sammons placed appellant under arrest. Upon searching him, the officer recovered an eight inch folding pocket-type knife.

Appellant’s first complaint concerns the admission of testimony of Officer Sammons regarding his discovery of the knife in appellant’s pocket and the display of the knife to the jury during the Commonwealth’s closing argument. He objects that this evidence was irrelevant and prejudicial because the circumstances were insufficient to justify an inference that the knife taken from him at the time of arrest was the same weapon that had been used in the commission of the crime. We disagree.

It is well established in Pennsylvania that all that is demanded before a weapon may be introduced into evidence is a sufficient foundation revealing circumstances justifying an inference of the likelihood that the weapon was used in *6the course of the crime charged. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); Commonwealth v. Mangus, 229 Pa.Super. 29, 323 A.2d 398 (1974). The Commonwealth is not required to establish before introduction that the particular instrument was the weapon actually used in the attack. Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976). Appellant argues that the likelihood of the use of the knife, and hence its relevance, was not established because it was seized five weeks after the crime occurred and the victim was unable to testify that the instrument used to force her submission had been a knife.

In testing the relevance of evidence, the courts of this Commonwealth have cited with approval the following definition: “Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.” Commonwealth v. Shoatz, 469 Pa. 545, 564, 366 A.2d 1216, 1225 (1976); Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976) (both quoting C. McCormick, Evidence § 185 at 437-38 (2d ed. 1972)). The accused’s possession of an implement or weapon giving him the means to carry out the crime constitutes some evidence of the probability that he committed the crime and is a relevant part of the Commonwealth’s case. Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d 181 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) (citing with approval, 1 Wharton’s Criminal Evidence § 157 at 289-90 (13th ed. C. Torcia 1972)). As the interval of time between the possession of the instrument of crime and the criminal event lengthens, the probative value of the evidence may become more tenuous, but that consideration is one for the jury to resolve in evaluating the weight of the evidence; the competency of the evidence is not affected. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978); Commonwealth v. Shoatz, supra. The lack of positive identification that the knife was the actual weapon used likewise affects the weight of the evidence and not its admissibility. Commonwealth v. Ford, supra. A pocketknife is of such a size and character that one may carry it as a matter of *7course. This strengthens the likelihood that appellant would have been carrying the knife at the time of the crime five weeks earlier and supports its relevance.

Of course, the prejudicial impact of the evidence may outweigh its probative value, and the court may be moved to exclude the evidence on this basis. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Quarles, 230 Pa.Super. 231, 326 A.2d 640 (1974). In determining whether evidence is so remote that the prejudicial effect outweighs the probative value, the court has no fixed standard on which to rely, but must instead consider the nature of the crime, the evidence being offered, and all attendant circumstances. Commonwealth v. Kinnard, 230 Pa.Super. 134, 326 A.2d 541 (1974). The trial judge’s determination that evidence is not too remote to be admissible is within his sound discretion and will not be overturned absent an abuse. Id.

Possession of a pocketknife is not such an unusual or damning circumstance that the jury is likely to be inflamed and prejudiced by its proof. It is apparent that many people carry such knives and that appellant’s possession, of itself, was not any direct evidence of his guilt. Furthermore, testimony concerning the knife was not emphasized during the course of the four day trial and the knife itself was not even formally introduced into evidence.3 We decline to find that the possible prejudice so outweighed the probative value of this evidence that its exclusion was mandated. No abuse of the trial judge’s discretion is indicated on this record.

Appellant’s second assignment of error concerns the admission, for impeachment purposes, of his prior conviction for burglary. He claims that the trial judge refused to consider all the factors enunciated in Commonwealth v. *8Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and, thus, employed an improper standard in admitting this testimony. This contention is refuted by the record.

Admitting testimony of a prior conviction for the purpose of impeachment is a matter within the sound discretion of the trial judge. Commonwealth v. Cobb, 258 Pa.Super. 91, 392 A.2d 698 (1978); Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366 (1977). Our supreme court set forth guidelines for the exercise of that discretion in Commonwealth v. Bighum, supra, and recently clarified them in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).4 In Bighum, the court stated the considerations as follows:

“the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Commonwealth v. Bighum, supra, 452 Pa. at 567, 307 A.2d at 263.

In Roots, the court explained that these factors are to be used in an attempt to strike a balance between the competing interests of the Commonwealth in showing the defendant-witness’ veracity, and of the defendant in avoiding prejudice that may result from jurors assuming that testimony of prior convictions demonstrates predisposition to commit the crime charged. Moreover, the court explicitly stated that the list was not exhaustive or exclusive, but merely illustrative of considerations that should influence the decision.

The instant record reflects that the trial judge was aware of the factors set forth in Bighum. He had a copy of the *9Bighum decision before him at the hearing and, indeed, read portions of it to counsel, including part of the paragraph in which the above-cited factors appeared. (N.T. 2.154—55). Counsel also pointed out the factors and argued them before the court. The record does indicate that the judge considered as central the issue whether appellant had other means to defend himself besides his own testimony, but the importance laid on this issue was not misplaced since Big-hum states that this consideration is of “critical importance.” 452 Pa. at 567, 307 A.2d at 263. See also Commonwealth v. Cobb, supra; Commonwealth v. Flores, supra.

Contrary to appellant’s assertions, the trial judge correctly evaluated the facts of this case to find that this latter consideration weighed in favor of permitting the testimony. Appellant had several other witnesses by which to defend himself. The testimony of Malcomb Ruffin was introduced to dispute the identification testimony of the victim. He testified that he knew appellant and had seen him leaving the area earlier, but he later saw another man that he did not recognize running from the scene of the crime. Ethel Clark testified for appellant and also threw doubt upon the victim’s identification. She testified that on the date of the crime, appellant had a mustache and the beginnings of a beard, contrary to the victim’s description of her assailant as clean-shaven. Appellant also introduced the testimony of Monique Wooden that she had been seated on a stoop on Uber Street early that morning, and had seen no unusual activity at the garage. She further stated that it took her about twenty minutes to drive home from the area and that appellant, her mother’s common-law husband, arrived home about ten to fifteen minutes later. Thus, she gave some evidence of an alibi since her testimony indicates that the rape occurred after she left the area, but that had appellant been involved, he would not have been able to make it home within the time she testified he arrived. Although appellant contends that if he had been able to testify to the events the evidence would have been stronger, this is not the standard by which we are to judge. The concern is that he not be *10entirely deprived of a defense, and in the instant circumstances, appellant was not denied this.

Furthermore, the conviction was crucial to the Commonwealth’s case as a means of ¿ttacking appellant’s credibility. Appellant claims that his signed statement made at the time of his arrest, which had already been introduced, was an available and more effective method of impeachment. Due to the exculpatory nature of this statement, we disagree. The prior conviction, although it was over eight years old, was not so old as to bear no reflection on appellant’s veracity. Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978) (7 year-old guilty plea allowed in for impeachment); Commonwealth v. Rompilla, 250 Pa.Super. 139, 378 A.2d 865 (1977) (6 year-old conviction admitted).

Appellant next objects to remarks made by the prosecutor during closing argument, claiming that they so inflamed and diverted the jury from proper considerations that a new trial is merited. The remarks appellant finds offensive consist of the following:

“We talked about rights of Americans and this lady came to you and said-T have been violated.’ This is a lady who has a right to live in peace. You have a right to go across the street to the gas station and buy cigarettes-[objection-overruled]
You have a right to go to a neighborhood bar and get yourself a six pack, and a lady forty years old has a right not to be a captive of darkness and have to stay in her house. We are talking about rights of an American.” (N.T. 4.84-85).

We find the cumulative effect of the statements was not so prejudicial that appellant was denied a fair trial, and hence, a new trial is not warranted. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).

The prosecutor has an obligation during closing argument to present facts in a manner that will lead the jury to a dispassionate and objective evaluation and will produce a *11judgment warranted by the evidence. Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978). The jury should not be diverted from this duty by the injection of issues broader than the guilt or innocence of the accused. Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974); ABA Standards Relating to the Prosecution Function § 5.8(c) and (d) (Approved Draft, 1971). We are mindful of other cases, bearing some similarity to the present case, in which the remarks were found prejudicial. In Commonwealth v. Harvell, supra, the supreme court found that statements such as “[m]en are afraid to walk the streets themselves,” “[pjeople don’t want to go out at night,” and “it might be you next time,” deprived the defendant of a fair trial. Likewise, in Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), a plea to “tell the people of Philadelphia . . . that you are not going to put up with shootings on the street like the wild west” was held objectionable as an impassioning appeal to the jury’s emotions. See also Commonwealth v. Lark, 460 Pa. 399, 333 A.2d 786 (1975). Unlike the present case, however, the remarks in those cases were part of a much longer harangue by the prosecutor which blatantly appealed to the passions of the jury and attempted to make an example of the defendant or invoke improper sympathy for the victim. The statements to which appellant objects were of very limited duration and were not part of an apparent attempt to focus the jury’s attention on issues not before them or to invite them to render an unreasoned verdict.

Although in Commonwealth v. Reynolds, 254 Pa.Super. 454, 386 A.2d 37 (1978), this court pointed out the undesirability of engaging in evaluations of the comparative rights of the defendant and the victim, the prosecutor’s argument in that case attempted to elevate the rights of the victim above the due process rights of “robbers” and “rapists,” as the accused was characterized throughout the argument, offsetting the rights of the latter. We, of course, emphasized that a criminal defendant’s rights remain constant and are defined in the constitutions of the United States and Pennsylvania. The present remarks merely point out that *12the victim had rights too and made no attempt to denigrate those of appellant or cast aspersions on him. Viewing the atmosphere at trial, as we should to determine the effect upon the jury of the prosecutor’s remarks, Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977), we find that any error in these statements was harmless.

Appellant next complains that the trial judge erred in failing to charge the jury in accord with Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), to receive the victim’s identification testimony with caution, especially since he included an instruction that if the identification testimony was positive and unqualified it may be treated as a statement of fact. We reject this contention.

The transcript of the charge indicates that the judge clearly instructed the jury that they should accept the testimony with caution and approach it carefully. (N.T. at 4.100-101). Although not in the exact language of Commonwealth v. Kloiber, supra, the instruction was correct and adequate. We disagree with appellant’s argument that this case is similar to Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973), because it is the “flip side” of Pitts, and that we should employ its reasoning to find error in the instant case. In Pitts, the defendant complained because only the cautionary part of the Kloiber charge had been given, and the jury had not been instructed as to the conditions for accepting the testimony as a statement of fact. The supreme court found this was an error because the jury was told the weight to accord the testimony, a question that is properly left for their decision. In contrast to Pitts, the instant charge instructed the jury of the different weights they could accord the testimony and properly left this matter within their discretion.

Appellant’s fifth, and final, assignment of error is that the trial judge, who conducted the entire voir dire, improperly limited the scope of examination by failing to ask prospective jurors several questions submitted by his counsel. Specifically, the submitted questions were as follows:

*13“2. Mr. Clark is charged with rape and aggravated and simple assault. Would you be able to give a fairer trial to someone charged with something other than rape and assault?
a. Is there anything in the nature of these charges which would make it difficult for you to act fairly?
3. If the alleged rape victim testified is it possible that appearance would so upset you or influence you, that you could not give Mr. Clark a fair trial?”5

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, 256 Pa.Super. 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).

*14We note, initially, that defense counsel’s purpose in requesting that these questions be asked was improper since he stated that they were designed to aid in exercising the peremptory challenge. (N.T. at 1.56). The question concerning the amount of influence the victim’s testimony might have upon the juror was obviously designed to determine the juror’s reaction to certain evidence in advance of its presentation, which is clearly irrelevant to the purposes of voir dire. See Commonwealth v. VanHorn, 188 Pa. 143, 41 A. 469 (1898). Moreover, the court adequately explored possible biases and prejudices of the prospective jurors through its other questions and specifically asked if they had any personal reasons that might interfere with giving appellant fair treatment. We find no error in the refusal of the submitted questions.

In accord with the foregoing reasoning, the judgment of sentence is affirmed.

SPAETH, J., filed a dissenting opinion.

. 18 Pa.C.S. § 3121.

. 18 Pa.C.S. § 2702.

. Although appellant claims that the prejudicial impact of Officer Sammons’ testimony was enhanced by the prosecutor’s exhibition of the knife during his closing argument, it is entirely likely that this display may have convinced the jury that anyone might have such a knife in their possession.

. The cases identify a threshold determination that must be made as to the type of conviction sought to be used. Only convictions for crimes involving dishonesty or false statement are proper impeachment tools. Burglary is clearly a crime connoting dishonesty. Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976); Commonwealth v. Bryant, 247 Pa.Super. 386, 372 A.2d 880 (1977). Thus, the threshold has been passed, and we move to a consideration of the Bighum factors.

. Appellant also complains that the judge did not inquire, as per his request, about any physical problems the jurors might have that would interfere with their functioning as a juror. Both the court and defense counsel were able to observe the jurors’ ability to sit and listen during the voir dire and no challenges were raised on this basis. Furthermore, during the rest of the trial the record gives no indication that any such problems were observed. We find that appellant suffered no prejudice from the lack of this questioning.