[J-93-2024] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 13 WAP 2024 : Appellee : Appeal from the Order of the : Superior Court entered October 13, : 2023, at No. 376 WDA 2022, v. : affirming the Judgment of Sentence : of the Court of Common Pleas of : Allegheny County entered February HAROLD WALKER, : 11, 2022, at No. CP-02-CR- : 0007381-2019. Appellant : : ARGUED: November 20, 2024
OPINION
CHIEF JUSTICE TODD DECIDED: AUGUST 19, 2025 In this appeal by allowance, we consider whether the trial court erred in permitting
the Commonwealth to ask potential jurors during voir dire whether they would be able to
follow the legal principle that the testimony of an alleged victim alone, if believed, is
sufficient proof upon which to find a defendant guilty of sexual assault beyond a
reasonable doubt. For the reasons that follow, we hold that the trial court did not err in
permitting the Commonwealth to pose that question during voir dire in the instant case,
and, thus, we affirm Appellant Harold Walker’s judgment of sentence.
According to the evidence introduced at trial, in 2013, M.W. (“Victim”) lived with
her mother (“Mother”) and infant sister. Appellant, Mother’s boyfriend at the time,
occasionally would babysit Victim and her sister at night when Mother was at work. Victim
testified that, beginning when she was 10 years old, Appellant would enter her bedroom approximately every other night, remove her underwear, and insert his penis into her
vagina. When Victim was 12 years old, she told Mother and both of her grandmothers
what Appellant was doing. Victim testified that Mother did not believe her and became
angry, and that Victim then began to act out physically, punching and breaking things,
and engaging in self-harm (cutting). At some point, Victim also told her doctor, who tested
her for sexually transmitted infections; Victim tested positive. When Victim was 16 years
old, she also disclosed the abuse to one of her teachers, who contacted the police.
In August 2019, Appellant was charged with Rape of a Child,1 Statutory Sexual
Assault (11 years or older),2 Unlawful Contact with a Minor – Sexual Offenses,3 Sexual
Assault,4 Indecent Assault of Person Less than 13 Years of Age,5 Endangering the
Welfare of Children,6 and Corruption of Minors.7 Relevant to the instant appeal, on July
22, 2021, prior to trial, the Commonwealth submitted proposed voir dire questions to the
trial court, including the following:
Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law? Commonwealth v. Walker, 305 A.3d 12, 16 (Pa. Super. 2023).8
1 18 Pa.C.S. § 3121(c). 2 Id. § 3122.1(b). 3 Id. § 6318(a)(1). 4 Id. § 3124.1. 5 Id. § 3126(a)(7). 6 Id. § 4304(a)(1). 7 Id. § 6301(a)(1)(ii). 8 The Superior Court observed that, although the certified record in the instant case does
not contain a transcript of the voir dire proceedings, the Commonwealth did not dispute that the question was asked, nor did it argue that Appellant failed to raise a timely objection. Walker, 305 A.3d at 16 n.1. Thus, the court proceeded under the assumption (continued…)
[J-93-2024] - 2 Appellant filed a motion objecting to the proposed voir dire question, which the trial
court denied. Ultimately, the jury convicted Appellant of all charges, and the trial court
sentenced him to an aggregate term of 30½ to 61 years incarceration, followed by 3 years
probation. Following the denial of his post-sentence motion, Appellant appealed to the
Superior Court, alleging that, in addition to imposing a manifestly excessive sentence, the
trial court erred in permitting the Commonwealth to pose the above-quoted voir dire
question because it did not further the proper purpose of voir dire, which, as this Court
has explained, is “to ensure the [empaneling] of a competent, fair, impartial, and
unprejudiced jury capable of following the instructions of the trial court.” Commonwealth
v. Knight, 241 A.3d 620, 640 (Pa. 2020) (citation omitted). Appellant further argued that
the voir dire question failed to correctly state the law because it did not instruct that (1)
the jury must believe the victim’s testimony beyond a reasonable doubt, and (2) the
testimony must be sufficient to establish each element of the crimes charged.
The Superior Court affirmed Appellant’s judgment of sentence in a unanimous
published opinion. With respect to the voir dire question, the court first observed that the
question derives from Pennsylvania Suggested Standard Criminal Jury Instruction
(“Pa.SSJI (Crim)”) § 4.13B,9 the note to which specifically indicates that the jury instruction
is consistent with the language of 18 Pa.C.S. § 3106; Section 3106, in turn, provides:
that the trial court allowed the voir dire question, and that Appellant did not waive his challenge thereto. 9 At the time of Appellant’s trial, Pa.SSJI (Crim) § 4.13B provided:
The testimony of [name of victim] standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case. The testimony of the victim in a case such as this need not be supported by other evidence to sustain a conviction. Thus you may find the defendant guilty if the testimony of [name of victim] convinces you beyond a reasonable doubt that the defendant is guilty. Pa.SSJI (Crim) § 4.13B (April 2005 - September 2024). In 2024, the language of § 4.13B was amended to read: (continued…)
[J-93-2024] - 3 The credibility of a complainant of an offense under this chapter shall be determined by the same standard as is the credibility of a complainant of any other crime. The testimony of a complainant need not be corroborated in prosecutions under this chapter. No instructions shall be given cautioning the jury to view the complainant’s testimony in any other way than that in which all complainants’ testimony is viewed. Walker, 305 A.3d at 17 (quoting 18 Pa.C.S. § 3106) (emphasis added).
The Superior Court determined that the Commonwealth had a proper purpose in
posing the voir dire question, which was to
identify jurors who hold fixed beliefs that are untenable under Section 3106 − specifically, the belief that a defendant’s guilt cannot be established beyond a reasonable doubt in a rape case (1) without DNA or other forensic evidence or (2) when the case boils down to the word of the complainant versus the word of the defendant (a so-called “he said, she said” case). Id.
The court further noted that, in two recent unpublished decisions, it held that “voir
dire questions identical in substance to the question herein were asked for a proper
purpose.” Id. at 17-18 (citing Commonwealth v. Antill, 2019 WL 2950181 (Pa. Super. filed
July 9, 2019) (finding no error by the trial court in permitting a voir dire question that
provided: “Under Pennsylvania law, the testimony of the victim standing alone, if believed
by you, is sufficient proof upon which to find the defendant guilty if the testimony of the
The testimony of [name of reported victim] standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case, if the Commonwealth has established all of the elements of the crime beyond a reasonable doubt. The testimony of the reported victim need not be supported by other evidence to sustain a conviction. Thus, after consideration of the evidence, you may find the defendant guilty if the testimony of [name of reported victim] convinces you beyond a reasonable doubt that the defendant is guilty. Pa.SSJI (Crim) § 4.13B (2024).
[J-93-2024] - 4 victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you
be able to follow this principle of law?”); Commonwealth v. Wilson, 2020 WL 5423952
(Pa. Super. filed Sept. 10, 2020) (finding no error by the trial court in permitting the
following voir dire question: “Under Pennsylvania law, the testimony of the alleged victim
standing alone, if believed by you, is sufficient proof upon which to find the defendant
guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony
of the alleged victim convinces you beyond a reasonable doubt that the defendant is
guilty. Would you be able to follow this principle of law?”), vacated on other grounds, 272
A.3d 446 (Pa. 2022)).
The Superior Court also rejected Appellant’s argument that the voir dire question
in the case sub judice incorrectly stated the law because “it did not instruct [the jury] that
the victim’s testimony must be believed beyond a reasonable doubt and be sufficient to
establish each element of the crimes with which [he] was charged.” Walker, 305 A.3d at
19. The court initially observed that the first sentence of the voir dire question − that the
testimony of the alleged victim, standing alone, is sufficient proof upon which to find the
defendant guilty − was a correct statement of the law under 18 Pa.C.S. § 3106 and
applicable case law. The Superior Court further highlighted that the second sentence of
the voir dire question specified that the victim’s testimony that the defendant committed
the crime must convince the jury beyond a reasonable doubt, thereby accurately
informing the jury that the Commonwealth’s burden of proof is beyond a reasonable
doubt. The court held that there is “no requirement that each sentence of the voir dire
question include the phrase ‘beyond a reasonable doubt.’” Walker, 305 A.3d at 19.
Additionally, in response to Appellant’s claim that the second sentence of the voir
dire question was defective because it did not contain the phrase “You may find the
defendant guilty if the testimony of the alleged victim establishes each element of the
[J-93-2024] - 5 crime beyond a reasonable doubt,” the Superior Court held that Appellant failed to cite
any case “that requires this level of detail in a voir dire question.” Id. (emphasis original).
Moreover, the court opined that, even if the voir dire question itself “lacked sufficient detail,
the [trial] court corrected this omission by charging the jury in its closing instructions that
the Commonwealth had the burden of proving ‘each and every element of the crimes
charged’ beyond a reasonable doubt.” Id. (record citation omitted).
Appellant filed a petition for allowance of appeal, and this Court granted review to
consider whether the trial court erred in allowing the Commonwealth to pose the above-
quoted voir dire question to prospective jurors on the grounds that it “impermissibly sought
to disclose what a juror’s present opinion would have been under certain facts that were
to be developed in the case, was in the nature of a jury instruction and/or was an incorrect
statement of law.” Commonwealth v. Walker, 316 A.3d 622-23 (Pa. filed Apr. 9, 2024)
(order).
Preliminarily, the scope of voir dire examination is a matter within the discretion of
the trial court, and the court’s ruling on this issue will not be reversed absent an abuse of
that discretion. Commonwealth v. Richardson, 473 A.2d 1361, 1363 (Pa. 1984).
Furthermore, under the Sixth and Fourteenth Amendments to the United States
Constitution, a defendant has a constitutional right to an impartial jury at both the guilt
and sentencing phases of trial.10 Thus, while the scope of voir dire is within the sound
discretion of the trial court, the exercise of the trial court’s discretion, as well as the
restriction upon inquiries at the request of counsel, are “subject to the essential demands
of fairness.” Knight, 241 A.3d at 639 (quoting Morgan v. Illinois, 504 U.S. 719, 730
(1992)). In addition, a trial court’s rulings concerning the scope of voir dire must be
10 The Sixth Amendment, which is applicable to the states through the Fourteenth Amendment, provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” U.S. Const. amend. VI.
[J-93-2024] - 6 considered in light of the factual circumstances of a particular criminal episode.
Richardson, 473 A.2d at 1363; Commonwealth v. Holt, 273 A.3d 514, 546 (Pa. 2022)
(same).
The purpose of voir dire
is solely to ensure the [empaneling] of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court. Neither counsel for the defendant nor the Commonwealth should be permitted to ask direct or hypothetical questions designed to disclose what a juror’s present impression or opinion as to what his decision will likely be under certain facts which may be developed in the trial of the case. Voir dire is not to be utilized as a tool for the attorneys to ascertain the effectiveness of potential trial strategies. Commonwealth v. Bomar, 826 A.2d 831, 849 (Pa. 2003) (internal quotation marks and
citations omitted); see also Commonwealth v. Ellison, 902 A.2d 419, 423 (Pa. 2006) (the
sole purpose of examination of jurors under voir dire is to secure a competent, fair,
impartial and unprejudiced jury); Commonwealth v. Paolello, 665 A.2d 439, 451 (Pa.
1995) (voir dire is not to be utilized as a tool for the attorneys to ascertain the effectiveness
of potential trial strategies).
Appellant contends that the voir dire question posed by the Commonwealth in this
case was not designed to determine the qualifications of prospective jurors, reveal
whether they had fixed opinions, or ascertain whether they would be able to follow the
instructions of the trial judge, but, instead, was designed to probe how much evidence the
potential jurors would require in order to convict him. He further suggests that the
question was intended to elicit a basis for the Commonwealth’s exercise of preemptory
challenges, and he claims that the voir dire question was “an oblique way of asking
potential jurors, ‘[a]re you the kind of person who would convict this defendant even
though we won’t present much evidence of his guilt?’” Appellant’s Brief at 18. Along
[J-93-2024] - 7 these lines, Appellant submits that the standard juror information questionnaire11 − which
assesses whether a person is qualified to serve on a jury, whether they are capable of
following the instructions of the trial judge, and whether they can keep an open mind and
render a fair verdict − sufficiently addresses “voir dire’s purpose of securing a ‘competent,
fair, impartial and unprejudiced jury.’” Id. at 15. Accordingly, Appellant asserts that “[t]he
only conceivable reason” why the Commonwealth posed the voir dire question was “to
ascertain in advance how people might decide when there is a lack of corroborating
evidence.” Id. at 17.
Appellant additionally suggests that the reasoning of the Superior Court − that the
question was intended to identify jurors who hold fixed beliefs that conflict with Section
3106 – “opens [a] Pandora’s box,” because it would allow “virtually any proposed voir dire
question to be proper,” including such questions as “Do you believe in self-defense?”;
“Can you consider prior inconsistent statements only for impeachment purposes?”; and
“Would you be willing to accept that a person of good character would be likely to commit
a crime?” Id. at 23-24.
In further support of his argument that the trial court erred in permitting the
Commonwealth to ask the voir dire question at issue, Appellant relies on several cases,
discussed infra, in which this Court held that a proposed voir dire question was properly
excluded because the purpose of the question went beyond ensuring a competent, fair,
impartial, and unprejudiced jury.
The Commonwealth disputes Appellant’s allegation that its purpose in posing the
voir dire question was to determine the jurors’ present impressions, what their opinions
11 Rule 632 of our Rules of Criminal Procedure provides that, prior to voir dire, prospective
jurors shall complete and verify a “standard, confidential juror information questionnaire,” and any supplemental questionnaire provided by the court. Pa.R.Crim.P. 632(A)(1). Subsection (D) of Rule 632 specifies that “[j]uror information questionnaires shall be used in conjunction with the examination of the prospective jurors conducted by the judge or counsel pursuant to Rule 631(E),” which governs voir dire. Pa.R.Crim.P. 632(D).
[J-93-2024] - 8 would be if certain facts were developed at trial, or to test potential trial strategies. Rather,
the Commonwealth maintains that its purpose in posing the voir dire question was to
determine whether the potential jurors had “any fixed beliefs that conflict with section
3106,” particularly, whether a juror believes that “a defendant’s guilt can never be
established beyond a reasonable doubt in a rape case without DNA or other corroborating
forensic evidence,” or that “a defendant’s guilt can never be established beyond a
reasonable doubt in cases where the evidence consists purely of the victim’s word against
the defendant’s (so-called, he said-she said cases).” Commonwealth’s Brief at 15.
The Commonwealth further avers that the propriety of this inquiry is supported by
the specific language of Section 3106 and Pa.SSJI (Crim) § 4.13B, both of which
demonstrate the General Assembly’s recognition that “clarity as to the level of
corroboration necessary in a sex assault prosecution may be called for.”
Commonwealth’s Brief at 17. With respect to Appellant’s suggestion that the
Commonwealth posed the voir dire question in order to test potential trial strategies, the
Commonwealth responds that it would never be a matter of “strategy” to proceed to trial
with only the uncorroborated testimony of the victim; rather, when the Commonwealth
tries a case “with only the uncorroborated testimony of the victim, that is because that is
all the evidence it has.” Id.
In response to Appellant’s argument that use of the jury instruction questionnaire
is sufficient to ensure the empaneling of a competent, fair, impartial, and unprejudiced
jury, the Commonwealth emphasizes that the questionnaire is required by Pa.R.Crim.P.
632, and the comment to Rule 632 specifically states that the questionnaire is only
intended to expedite the voir dire process, and does not take the place of traditional voir
dire questioning.12
12 The Comment to Rule 632 provides:
(continued…)
[J-93-2024] - 9 Additionally, to the extent Appellant relies on specific cases to support his
argument that the trial court erred in allowing the Commonwealth to pose the voir dire
question at issue, the Commonwealth asserts that, because the scope of voir dire must
be considered in light of the factual circumstances of a particular criminal episode, see
Holt, 273 A.3d at 546, the fact that a trial court has prohibited a certain voir dire question
in one case does not mean that the question is not proper in another case. Nonetheless,
the Commonwealth contends that each of the cases relied on by Appellant is
distinguishable. Again, we discuss these cases below.
Upon review, we hold that the trial court did not abuse its discretion in allowing the
Commonwealth to pose its voir dire question in the instant case because the question
was intended to ensure the empaneling of a competent, fair, impartial, and unprejudiced
jury capable of following the trial court’s instructions, and not, as Appellant suggests, to
determine whether the jury would convict him despite not being presented with “much
evidence of his guilt.” Appellant’s Brief at 18.
Initially, we observe that Appellant’s assertion that the jury instruction
questionnaire by itself should be deemed sufficient to ensure the empaneling of a
competent, fair, impartial, and unprejudiced jury capable of following the trial court’s
instructions is specifically contradicted by the language of Rule 632(D), which provides
Paragraph (D) makes it clear that juror information questionnaires are to be used in conjunction with the oral examination of the prospective jurors, and are not to be used as a substitute for the oral examination. Juror information questionnaires facilitate and expedite the voir dire examination by providing the trial judge and attorneys with basic background information about the jurors, thereby eliminating the need for many commonly asked questions. Although nothing in this rule is intended to preclude oral questioning during voir dire, the scope of voir dire is within the discretion of the trial judge. Pa.R.Crim.P. 632 (Comment).
[J-93-2024] - 10 that “[j]uror information questionnaires shall be used in conjunction with the examination
of the prospective jurors conducted by the judge or counsel.” Pa.R.Crim.P. 632(D)
(emphasis added). The Comment to Rule 632 likewise states: “juror information
questionnaires are to be used in conjunction with the oral examination of the prospective
jurors, and are not to be used as a substitute for the oral examination.” Id. (Comment)
(emphasis added). The Comment further provides that the purpose of the juror
information questionnaires is to “facilitate and expedite the voir dire examination,” and it
reiterates that the scope of voir dire is within the discretion of the trial judge. Id. Thus,
Appellant’s suggestion that voir dire is unnecessary to ensure the empaneling of a
competent, fair, impartial, and unprejudiced jury that is capable of following the trial court’s
instructions because prospective jurors are required to complete a jury instruction
questionnaire which serves this purpose is without merit.
Additionally, we agree with the lower courts’ conclusions that the challenged voir
dire question was proper because the question was designed to ascertain whether
potential jurors would be capable of following the trial court’s instructions, rather than to
probe the effectiveness of any particular trial strategy.
In Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), for example, this Court
rejected a challenge to a voir dire question concerning jurors’ ability to follow the legal
principle that guilt may be established solely by circumstantial evidence. Montalvo was
charged with the murder of his wife and another individual, and, although there was
evidence that, the night before the murder, Montalvo told his brother that he would kill his
wife, and Montalvo was seen later that same evening demanding entry into his wife’s
apartment, there were no eyewitnesses to the murder.
During voir dire, at the request of the Commonwealth, the trial court posed, inter
alia, the following question to the jurors:
[J-93-2024] - 11 Does anyone have any reservations or doubts about accepting the fact that a Defendant’s guilt can be established solely by circumstantial evidence? And I will instruct you that the guilt of a Defendant may be established by circumstantial evidence alone but only if certain factors are met by the Commonwealth. Does anybody have a problem following the Court’s instruction concerning circumstantial evidence? Id. at 93 (record citations omitted). On appeal, we concluded that the trial court’s question
was intended only to ascertain whether the jurors were capable of following the trial
court’s instructions that a defendant may be convicted based on circumstantial evidence,
and, thus, we held that the trial court did not abuse its discretion in asking the question.
To reiterate, the voir dire question in the instant case provided:
Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law? As the trial court observed, the first two sentences of this question are the same
statements of the law that must be provided to the jury pursuant to Pa.SSJI (Crim) §
4.13B.13 The last sentence of the question specifically asked whether the prospective
jurors would be able to follow this undisputed principle of the law, which is the very
purpose of voir dire.
Moreover, with respect to Appellant’s reliance on prior decisions in which we have
held specific voir dire questions to be improper, we conclude that those cases are factually
distinguishable, and, thus, do not entitle Appellant to relief. Appellant first cites this
13 In his Reply Brief, Appellant states that he “does not concede that jury instruction 4.13B
is appropriate.” Appellant’s Reply Brief at 24. He contends that, “[l]ike the voir dire question at bar, instruction 4.13B is an inaccurate statement of law at worst and an incomplete one at best.” Id. He continues: “When a judge gives that instruction at the close of trial, however, other instructions can add the missing information and provide needed context. The same is not true during voir dire.” Id. We did not grant review to consider the propriety of the jury instruction 4.13B, so we do not further discuss this issue.
[J-93-2024] - 12 Court’s decision in Commonwealth v. Johnson, 305 A.2d 5 (Pa. 1973), wherein defense
counsel sought to ask prospective jurors if, inter alia, they had “any fixed opinions about
the credibility of psychiatrists and their opinions?” Id. at 7. In holding that the trial court
properly precluded this question, we explained that the “apparent purpose of this line of
questioning was to obtain information as to the verdict which the juror would render upon
the production of psychiatric evidence,” and we reiterated that “the purpose of voir dire is
not to determine in advance what a juror’s attitude will likely be if certain facts develop
during trial.” Id. at 8.
Appellant next relies on Holt, supra, wherein the trial court prohibited the defense
from posing the following voir dire question: “You may hear that the Defendant did not
turn himself in and was only arrested after a four day police search or manhunt for his
whereabouts. Would that fact alone cause you problems?” 273 A.3d at 546. On appeal,
we determined that the trial court properly precluded the proposed question because it
“appear[ed] to have been designed to inform [defense] counsel in advance what opinion
a prospective juror might form when presented with evidence of [the defendant’s] flight,”
and not whether jurors would be fair. Id. at 547. We further stated, “[a] prospective juror’s
personal views are of no moment unless these opinions ‘are so deeply embedded as to
render that person incapable of accepting and applying the law as given by the court.’”
Id. (citation omitted).
Appellant also cites Paolello, supra, wherein the defendant was accused of giving
the victim at least three large glasses of vodka, resulting in the victim’s death from alcohol
poisoning. During voir dire, the defense sought to question prospective jurors regarding
their “opinions, attitudes, and involvement with alcohol.” 665 A.2d at 451. The trial court
prohibited this line of questioning, and, on appeal, we held that the trial court properly
excluded the voir dire question because “the purpose of voir dire is to empanel a fair and
[J-93-2024] - 13 impartial jury, not to empanel a jury sympathetic to positions or beliefs of either party,”
and “[v]oir dire is not to be utilized as a tool for the attorneys to ascertain the effectiveness
of potential trial strategies.” Id.
Appellant additionally relies on this Court’s decision in Commonwealth v. Moon,
132 A.2d 224 (Pa. 1957), wherein counsel for the defendant, who pled guilty to first-
degree murder for shooting the trial judge who presided over a hearing on his failure to
comply with a support order, attempted to pose the following voir dire question to a juror
at his subsequent penalty hearing:
Mrs. Knapp, again under the law of Pennsylvania, a person who at the time of the commission of any act which would otherwise be criminal, is unable to tell the difference between right and wrong and to appreciate the consequences of his acts, such a person is entitled to be found not guilty by reason of insanity. If you found from a fair preponderance of the evidence, that the accused at the time of the commission of this act, was unable to distinguish right from wrong and unable to appreciate the consequences of his act, would you then find him not guilty by reason of insanity? Id. at 226. The trial court sustained the Commonwealth’s objection to the question, and,
on appeal, we affirmed its holding. We explained that, in conducting voir dire,
considerable latitude must be permitted to elicit the necessary information, but it is to be strictly confined to inquiries disclosing qualifications, or lack of them, and not extended so as to include hypothetical questions, when their evident purpose is to have the jurors indicate, in advance, what their decisions will be under a certain state of the evidence or upon a certain state of facts. Id. (emphasis added).
Finally, Appellant cites our decision in Bomar, supra, wherein defense counsel
sought to ask prospective jurors if they would “want to hear” or “would . . . consider
evidence of the defendant’s childhood.” 826 A.2d at 847. Defense counsel also
attempted to ask whether mitigating circumstances, such as the defendant’s character,
[J-93-2024] - 14 record, and good deeds, would “be considered” by the jurors or whether the jurors would
consider them “irrelevant.” Id. at 848. The trial court prohibited defense counsel from
posing those questions during voir dire, but rephrased the questions to allow defense
counsel to ask the jury if they would consider both aggravating and mitigating
circumstances that were presented. On appeal, we explained that the trial court correctly
disallowed the voir dire questions proposed by the defense because they “were simply
not relevant in seeking to determine whether the jurors would be competent, fair, impartial
and unprejudiced. Rather, the queries at issue sought to gauge the efficacy of potential
mitigation strategies.” Id. at 849.
In each of the above cases relied on by Appellant, we determined that the trial
court properly prohibited the voir dire questions because the questions either went
beyond the legitimate purpose of securing a competent, fair, impartial, and unprejudiced
jury, capable of following the trial court’s instructions, or comprised hypothetical questions
designed to reveal the prospective jurors’ likely decisions when presented with particular
evidence.
In contrast, the voir dire question in the instant case was not an attempt to discern
prospective jurors’ existing opinions or beliefs on evidence that might be introduced at
trial, nor did it attempt to probe how the jurors might react to the presentation of any
particular type of evidence. The question was not posed as a matter of trial strategy, but
merely sought to confirm that the prospective jurors would be capable of following a
particular principle of law applicable to sexual assault cases. Indeed, as noted by the
Commonwealth, regardless of the prospective jurors’ answers to the voir dire question,
its “trial strategy” would have remained the same, as it could not change the fact that the
only testimony implicating Appellant was that of the alleged victim.
[J-93-2024] - 15 Appellant next contends that the trial court erred in allowing the Commonwealth’s
voir dire question because it was in the nature of a jury instruction and concerned a legal
principle. In this regard, Appellant argues that the trial judge alone has the authority to
instruct jurors on the relevant legal principles in a case, and such instructions should be
provided only after the jury is empaneled. In support of his argument, he relies on, inter
alia, Commonwealth v. Calhoun, 86 A. 472, 474-75 (Pa. 1913) (holding that trial judge
properly prohibited defense counsel from asking jurors “What do you understand by the
words, ‘a person of sound memory and discretion’?” and “Would you deem [defendant]
legally responsible” for the crime if the testimony demonstrated that he was insane at the
time he committed the murder, as these questions impermissibly sought to examine the
proposed jurors on their understanding of the law); Holt, 273 A.3d at 546-47 (asking
prospective jurors whether defendant’s flight after the crime “[w]ould . . . cause [them]
problems” or prevent them from being a “fair and impartial juror” properly precluded
because trial court instructed the jury that it could not find the defendant guilty solely on
the basis of flight or concealment); Moon, 132 A.2d at 226 (voir dire question that defined
insanity defense and asked jurors if they would find the defendant not guilty by reason of
insanity if they found he was unable to distinguish right from wrong when he committed
the crime, or was unable to appreciate the consequences of his act, properly prohibited);
Commonwealth v. Kingsley, 391 A.2d 1027, 1033 (Pa. 1978) (holding that trial court
properly prohibited defendant’s proposed voir dire questions because “voir dire questions
concerning legal principles [are] improper questions”);14 and Johnson, 305 A.2d at 8 (trial
14 The questions prohibited in Kingsley were as follows: “Do you have any problem in your own conscience with the legal principle that, as [Defendant] sits here now, he is presumed innocent”; “Do you have any problem in your own conscience that the burden of proof is upon the Commonwealth to prove beyond a reasonable doubt that the Defendant is guilty of the charges against him”; “Do you have any problem in your own conscience that it is incumbent upon the Commonwealth to prove the charges here (continued…)
[J-93-2024] - 16 court properly refused to allow counsel to examine prospective jurors as to their ability to
accept and apply the law because the court had already specifically instructed each
prospective juror that they must accept the law as provided by the court and apply that
law to the facts).15
Appellant concedes that this Court has recognized an exception to this rule in
capital cases, such that prospective jurors may be asked if they would be capable of
applying the law and imposing the death penalty where the evidence supports it, due to
the existence of a “widespread public concern” that individuals who oppose the death
penalty would be unable to follow the trial court’s instructions in such cases. See
Appellant’s Brief at 29 (citing Commonwealth v. Fisher, 290 A.2d 262, 264 (Pa. 1972)
(holding that trial court properly rejected the appellant’s request to voir dire the jury
regarding the subject of self-defense because there “has been no showing of a
widespread public concern with a juror’s ability to impartially and fairly apply the law of
self-defense similar to that involving the imposition of the death penalty”), citing
Witherspoon v. Illinois, 391 U.S. 510, 519 (1968)). Appellant maintains, however, that
the Commonwealth failed to show there is any “widespread concern” concerning jurors’
beyond a reasonable doubt and it is not incumbent upon [Defendant], who is presumed innocent, to prove he is not guilty”; “Are you willing to acquit the Defendant unless the Commonwealth of Pennsylvania overcomes the presumption of innocence and proves the charges beyond a reasonable doubt”; “Do you agree that the presumption of innocence is so strong that the Defendant may even rely upon it and that he has no duty to take the stand to prove his innocence”; “Do you agree that you will acquit [Defendant] unless the Commonwealth . . . proves each and every element of the offenses charged beyond a reasonable doubt”; and “Do you agree that even if the Commonwealth . . . proves some of the elements of the offenses charged but does not prove each and every element of the offenses charged beyond a reasonable doubt, that you will acquit [Defendant].” Kingsley, 391 A.2d at 1033. 15 While Appellant cites several Superior Court cases to support his argument, we note
that decisions of the intermediate appellate court are not binding on this Court. Marion v. Bryn Mawr Trust Co., 288 A.3d 76, 93 (Pa. 2023).
[J-93-2024] - 17 ability to “fairly weigh complainant evidence in sexual offense cases or that they hold the
belief that uncorroborated testimony is insufficient to convict.” Appellant’s Brief at 30.
Appellant further asserts that he was prejudiced by the Commonwealth’s voir dire
question because the question “gave the legal principle embedded within it heightened
importance.” Id. at 35 (emphasis omitted). He posits that allowing voir dire questions
regarding prospective jurors’ understanding of legal principles could “commit [jurors] to
definite ideas or views” before they hear any evidence. Id. at 37 (quoting Moon, 132 A.2d
at 226). Along these lines, he disputes the Superior Court’s determination that the trial
court’s jury instructions cured any potential error in singling out the legal principle, noting
that the harm had already occurred because it affected the composition of the jury.
As additional support for his claim of prejudice, Appellant argues that the voir dire
question contained an incomplete or incorrect statement of the law, as it failed to inform
the jury that the Commonwealth must prove “every element of a given charge beyond a
reasonable doubt to convict.” Id. (emphasis omitted). Furthermore, Appellant contends
that the voir dire question incorrectly suggested that a different standard exists for
determining a complainant’s credibility in sexual assault cases when, in fact, Section 3106
instructs that the jury shall not be instructed to view the complainant’s testimony in any
other way than that in which all complainants’ testimony is viewed.
The Commonwealth responds that there is no rule that prohibits trial courts from
exercising their discretion to permit or preclude litigants from posing voir dire questions
that contain information which may also be covered in the court’s jury instructions. It
further notes that, to the extent Appellant suggests there is such a rule, his position is
based on cases in which the trial court refused to permit a specific voir dire question
because the subject of the question would be covered by the court’s charge, and this
Court ultimately determined that the trial court had not erred. According to the
[J-93-2024] - 18 Commonwealth, “just because a court may refuse to ask a particular voir dire question,
on the grounds that the question will later be covered in the court’s charge, it does not
automatically follow that all other courts must refuse to do so as well.” Commonwealth’s
Brief at 25 (emphasis original). In the Commonwealth’s view, such logic would eliminate
trial courts’ discretion in the voir dire process.
In response to Appellant’s claim of prejudice, the Commonwealth suggests that, at
most, Appellant suffered de minimis prejudice, and that any error by the trial court in
allowing the voir dire question was harmless because the question accurately stated the
law, the trial court instructed the jury in accordance with Pa.SSJI (Crim) § 4.13B, and
juries are presumed to follow the court’s instructions.
After careful review, we conclude that, under the facts of the instant case, the trial
court did not abuse its discretion by allowing the Commonwealth to pose the challenged
voir dire question which addressed a principle of law that subsequently was covered in
the trial court’s jury instructions. Preliminarily, we observe that several of the cases
Appellant relies upon, including Holt and Moon, involved proposed voir dire questions that
were deemed improper because they were designed to reveal the prospective jurors’
likely decisions when presented with particular evidence, not their ability to follow a
specific principle of law.
Although Appellant contends that, in Calhoun and Kingsley, the proposed voir dire
questions were deemed improper because they examined a proposed juror on his current
understanding of specific legal principles, those cases do not stand for the proposition
that a voir dire question that asks jurors whether they will be able to follow a correctly-
stated principle of law, when the trial court subsequently provides accurate and correct
jury instructions as to applicable principles of law, constitutes reversible error. Indeed, it
is the trial judge’s responsibility to instruct the jury on the legal principles applicable to the
[J-93-2024] - 19 facts presented at trial, see Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996), and
we decline to restrict the broad discretion trial courts are afforded in matters of voir dire.
We recognize that, prior to our decision in Montalvo, this Court has suggested that
voir dire questions which ask whether a juror would be capable of following a legal
principle may be improper. See, e.g., Kingsley, 391 A.2d at 1033 (“We can find no error
in the court’s refusal [to allow certain questions], as we have held voir dire questions
concerning legal principles to be improper questions.” (citing Commonwealth v. Lopinson,
234 A.2d 552 (Pa. 1967)). However, we conclude that, where a defendant is charged
with a sexual offense under Chapter 31 of the Crimes Code, as in the instant case, asking
prospective jurors during voir dire if they would be capable of following the established
legal principle that the testimony of the victim, standing alone, if believed by the juror, is
sufficient proof upon which to find a defendant guilty, is not error.
First, as discussed above, revised Pa.SSJI (Crim) § 4.13B contemplates that the
trial court’s instruction to jurors indicate that the testimony of a complainant need not be
corroborated. See supra note 9. Indeed, it has been observed that:
[t]he rule that corroboration is not required of the victim’s testimony in a prosecution for nonconsensual sodomy is based on the theory that such an offense is rarely, if ever, committed under circumstances permitting knowledge and observation by persons other than the accused and the complaining witness, not all such offenses are capable of corroboration, and it would be unrealistic and unreasonable to require proof that could not be procured. 70C Am. Jur. 2d Sodomy § 79. In light of the fact that sexual offenses under Chapter 31
are unique in that, in most cases, there is no witness to the offense, it is reasonable, in
our view, to allow the Commonwealth to inquire of prospective jurors whether they would
be capable of following the trial court’s instructions regarding the law that the alleged
victim’s testimony, if believed by the juror, need not be corroborated.
[J-93-2024] - 20 Second, the evolution of the language of Section 3106 suggests an acceptance of
the premise that jurors may possess an inherent belief that a complainant’s
uncorroborated testimony alone, even if believed, can never be sufficient to support a
conviction. Specifically, when 18 Pa.C.S. § 3106 originally was enacted in 1972, it
provided:
In any prosecution before a jury for an offense under this chapter, the jury shall be instructed to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 3106, repealed by Act of Nov. 21, 1973, P.L.
339, No. 115.
Notably, in 1976, Section 3106 was amended to read:
The credibility of an alleged victim of an offense under this chapter shall be determined by the same standard as is the credibility of an alleged victim of any other crime. The testimony of a victim need not be corroborated in prosecutions under this chapter. In any prosecution before a jury for an offense under this chapter, no instructions shall be given cautioning the jury to view the alleged victim’s testimony in any other way than that in which all victims’ testimony is viewed. Act of May 18, 1976, P.L. 120, No. 53, § 2. Significantly, the 1976 amendment to Section
3106 eliminated the requirement that the jury be instructed to evaluate the testimony of a
complainant with “special care in view of the emotional involvement of the witness and
the difficulty of determining the truth with respect to alleged sexual activities carried out
in private.”
Section 3106 was further amended in 1995, and now provides:
The credibility of a complainant of an offense under this chapter shall be determined by the same standard as is the credibility of a complainant of any other crime. The testimony
[J-93-2024] - 21 of a complainant need not be corroborated in prosecutions under this chapter. No instructions shall be given cautioning the jury to view the complainant’s testimony in any other way than that in which all complainants’ testimony is viewed. Act of March 31, 1995, P.L. 985, No. 10, § 3.
As the above-noted amendments to Section 3106 reveal a recognition by the
legislature that jurors may possess an inherent belief that a complainant’s uncorroborated
testimony alone, even if believed, can never be sufficient to support a conviction, we
conclude that the Commonwealth should be permitted to voir dire prospective jurors as
to their ability to put aside any such inherent beliefs and follow the trial court’s instructions
that an alleged victim’s testimony, if believed by the juror, need not be corroborated.16
16 We observe that at least one of our sister courts has permitted voir dire questions
regarding the jurors’ ability to follow a trial court’s non-corroboration instruction in sexual assault cases. In State v. Ross, 986 N.W.2d 581 (Iowa 2023), the appellant alleged that he was prejudiced by the following instruction to the jury because it specifically referenced the victims by name, thereby highlighting their particular testimony: You should evaluate the testimony of [L.C. or K.C.] the same way you evaluate the testimony of any other witness. The law does not require that the testimony of [L.C. or K.C.] be corroborated in order to prove that she was sexually abused. You may find the Defendant guilty of Sexual Abuse if [L.C.’s or K.C.’s] testimony convinces you of guilt beyond a reasonable doubt. Id. at 584 (alteration original). Initially, the Iowa Supreme Court acknowledged “the State’s interest in sex-abuse cases in dispelling the misconception that alleged victims’ testimony requires corroboration to support a conviction,” but opined that “those interests can be advanced by a nonparticularized instruction applicable to all witness testimony.” Id. at 588 (emphasis original). Moreover, the court questioned the necessity of the trial court’s jury instruction in that particular case, noting that: the State gave examples of three jurors’ responses to voir dire questions about the need for victim-witness corroboration to support its position that the noncorroboration instruction was necessary here. None of those three jurors were selected for the final jury panel. And the State candidly admits that “other panelists said they understood that they could rely on testimony as proof that the abuse occurred.” Presumably, then, the voir dire process worked as intended to remove jurors who harbored such attitudes and were unwilling to set them aside. (continued…)
[J-93-2024] - 22 As a final matter, we reject Appellant’s claim that he was prejudiced by the voir
dire question posed in the instant case. First, there is no basis for Appellant’s argument
that the voir dire question was “incomplete,” as it was not a jury instruction. Further, to
the extent the voir dire question referenced a legal principle that would subsequently be
addressed by the trial court during its jury instructions, as discussed above, the voir dire
question was consistent with the applicable jury instruction provided in Pa.SSJI (Crim) §
4.13(B), and consistent with 18 Pa.C.S. § 3106. Finally, the question in no way suggested
that there was a different standard for evaluating the credibility of a sexual assault victim
versus any other complainant.
For the reasons set forth above, we conclude that, under the facts of the case sub
judice, the trial court did not abuse its discretion in permitting the Commonwealth to pose
the challenged voir dire question.
Judgment of sentence affirmed.
Justices Donohue, Dougherty, Wecht, Mundy, Brobson and McCaffery join the
opinion.
Justice Wecht files a concurring opinion.
Id. at 588 n.4 (emphasis added). Ultimately, the court in Ross vacated the appellant’s judgment of sentence because it determined that the presumption of prejudice arising from the trial court’s non-corroboration instruction, which improperly mentioned the victims by name, was not overcome.
[J-93-2024] - 23