"In the case of attempt the act must go beyond preparation because the attempt is deemed a punishable segment of the crime intended." R. Perkins, Criminal Law 618 (2d ed. 1969), quoted in Commonwealth v. Boone, 286 Pa. Super. 384, 395 n. 4, 428 A.2d 1382 (1981). A "substantial step" is required in the attempt context to prevent the imposition of punishment based on intent alone.
The trial judge is not required to put the question in any particular form, or to ask any specific questions on the subject, merely because requested to do so by the defendant. Commonwealth v. Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981). Nevertheless, appellant insists that the lower court erred because it did not propound a question to the potential jurors in the exact form submitted by the defense.
Accord Commonwealth v. Hughes, 865 A.2d 761, 801-802 (Pa. 2004) (holding remarks must be viewed in the context of the entire proceeding); Commonwealth v. Boone, 428 A.2d 1382 (Pa.Super. 1981) (holding allegedly prejudicial remarks must be read in context of entire case, with particular view to evidence presented and reasonable inferences drawn therefrom, to determine whether they are prejudicial). "A prosecutor may not express his personal opinion regarding a defendant's guilt or credibility and, in doing so, clearly and improperly intrudes upon the jury's exclusive function of evaluating the credibility of the witness."
The trial judge has broad discretion regarding the scope of voir dire examination; absent a showing that the court abused its discretion, its rulings will not be reversed. Commonwealth v.Futch, supra 469 Pa. at 427, 366 A.2d at 248; Commonwealth v.Layman, 290 Pa. Super. 244, 253, 434 A.2d 735, 739 (1981); Commonwealth v. Boone, 286 Pa. Super. 384, 388, 428 A.2d 1382, 1384 (1981). Moreover, voir dire questions encompassing legal principles and the jury's understanding thereof are improper.
The Commonwealth is correct in stating that detailed voir dire on racial prejudice is not required merely because the defendant is black and the victim is white. Commonwealth v.Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981). Each case must be considered in light of the factual circumstances of the particular criminal episode.
Furthermore, allegedly prejudicial remarks must be read in the context of the case as a whole, with a particular view to the evidence presented and reasonable inferences drawn therefrom, in order to determine whether they are indeed prejudicial. SeeCommonwealth v. Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981), Commonwealth v. Bullock, 284 Pa. Super. 601, 426 A.2d 657 (1981). Viewed in context, the isolated reference of the prosecutor to a "co-defendant" appears to have been a mere slip of the tongue, not necessarily referable to Robert Dennis from a juror's view point.
Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977). In Commonwealth v. Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981), our court was faced with a similar allegation concerning a defective Kloiber charge. In that case, the court upheld the lower court charge which, when viewed on a whole, substantially, covered the substantive provisions of Kloiber.
The conduct of voir dire examination rests in the sound discretion of the trial judge, so long as it is done within the applicable procedural rules, and his decision will not be reversed absent palpable error. Com. v.Fulton, 271 Pa. Super. 430, 432, 413 A.2d 742, 743 (1979); Com.v. Stanton, 269 Pa. Super. 305, 308, 409 A.2d 901, 903 (1979); Com. v. Boone, 286 Pa. Super. 384, 388, 428 A.2d 1382, 1384 (1981). Here, we find that appellant has failed to show that the trial judge abused his discretion in the manner of voir dire, or that any prejudice resulted from the manner of the individual examinations.
It is equally clear, however, that a second focus of the defense was to point out the poor opportunity that Duld had to observe the three men leaving the bar. It is well-established that where there is evidence of record upon which a jury could find that the opportunity for positive identification was not good, a defendant is entitled to a Kloiber instruction. E.g., Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974); Commonwealth v. Johnson, 433 Pa. 34, 248 A.2d 840 (1969); Commonwealth v. Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981). We find that appellant's trial counsel could have had no reasonable basis for failing to request an instruction that Mr. Duld's identification testimony should be evaluated with caution.
Furthermore, allegedly prejudicial remarks must be read in the context of the case as a whole, with a particular view to the evidence presented and reasonable inferences drawn therefrom, in order to determine whether they are indeed prejudicial. See Commonwealth v. Boone, 286 Pa. Super. 384, 428 A.2d 1382 (1981); Commonwealth v. Bullock, 284 Pa. Super. 601, 426 A.2d 657 (1981) (Opinion per Cercone, P.J.). Taken alone we might be able to say that this remark or that one is not prejudicial, but we must view them together and in the context of the entire case.