Appeals from judgment of Court of Oyer and Terminer of Philadelphia County, May T., 1960, Nos. 698 and 699, in case of Commonwealth of Pennsylvania v. Charles Patrick.
Irving W. Backman, for appellant.
Charles H. Rogovin, Assistant District Attorney, with him Vincent C. Veldorale and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice Cohen dissents and would grant a new trial.
A jury found defendant guilty of murder in the first degree on each of two consolidated bills of indictment, and fixed the penalty on one bill at life imprisonment and on the other bill at death. Defendant appeals from the judgments of sentence of the Court of Oyer and Terminer of Philadelphia County which denied defendant's motion for a new trial and imposed sentence in accordance with the jury's verdict.
The evidence justified the jury in finding the following facts:
On March 26, 1960, the dead bodies of Gloria Louise Overton, a minor 10 years of age, and Lula Mae Overton, 30 year old mother of the minor, were found in their home in Philadelphia. The cause of death in each case was manual strangulation. In the early morning of the day after the bodies were found, the defendant, Patrick, was apprehended and taken to a police headquarters where he signed a typewritten statement in which he admitted killing both deceaseds. Numerous questions are raised by both parties to this appeal.
The first question involved is whether the trial Court committed reversible error in failing to poll the jury of its own motion. Counsel for the defense at the time the jury announced its verdicts on the question of guilt, did not request the Court that a poll of the jury be taken. In the absence of a demand by defendant or by the District Attorney for the polling of the jury, there is no duty or burden on the trial Court to order or conduct a poll. Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325; Commonwealth v. Cano, 182 Pa. Superior Ct. 524, 128 A.2d 358, affirmed on other grounds by the Supreme Court, 389 Pa. 639, 133 A.2d 800; 53 Am. Jur., "Trial", § 1017, p. 704; Anno., 49 A.L.R. 2d 619, § 6, "Accused's right to poll of jury."
Although the question of the duty of a trial Court to poll the jury of its own motion has never been specifically decided ipsissimis verbis, our books are replete with cases in which the Court assumed that the right to poll the jury is dependent upon a request by defendant or by the Commonwealth. For example, in Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325, a defendant convicted of first degree murder and sentenced to death appealed the judgment of sentence. Defendant contended, inter alia, that he was entitled to have the jury polled before its verdict was recorded. The Court said (pages 592-593): "The right of a defendant to poll the jury which has returned a verdict of guilty against him has been widely recognized and accorded: 3 Wharton's Criminal Procedure (10th Ed.), § 1683; 2 Bishop, New Criminal Procedure (2nd Ed.), § 1003-3; Abbott, Criminal Trial Practice (4th Ed.), § 735. The procedure had its genesis in ancient common law (see 2 Hale, Pleas of the Crown 299) and has long been both approved and uniform practice in this State: Walters v. Junkins, 16 S. & R. 414, 415; Commonwealth v. Twitchell, 1 Brewster 551 (O. & T. Phila. Co.); Commonwealth v. Krause, 8 Philadelphia 607 (Q.S.); Commonwealth v. Buccieri, 153 Pa. 535, 553, 26 A. 228; Commonwealth v. Schmous, 162 Pa. 326, 336, 29 A. 644; Commonwealth v. Scovern, 292 Pa. 26, 36, 140 A. 611; cf. Commonwealth v. Johnson, 359 Pa. 287, 291, 59 A.2d 128. See, also, 1 Sadler, Criminal Procedure in Pennsylvania (2nd Ed., Henry), § 504, and Moschzisker, Trial by Jury, § 347. Even the Commonwealth possesses the right to have the jury polled: Commonwealth v. Lemley, 158 Pa. Superior Ct. 125, 127, 44 A.2d 317. . . .
"As stated in some of our cases, cit. supra, and by text writers, the procedure for polling a jury requires that the request be made before the verdict is recorded."
The second question is whether, after the verdict is recorded and the jury discharged, the verdict can be impeached by the affidavit of one juror*fn* alleging coercion by the other jurors. About one week after the trial, juror No. 12, Frank E. Satell, informed counsel for the defendant that he had been coerced by his fellow jurors, and on November 20, 1963, 11 days after the trial, he executed and presented to the lower Court an affidavit to such effect. This affidavit was in effect an attempt to impeach the verdict of the jury unanimously recorded. Our Courts have repeatedly held for over 150 years that after a verdict is recorded, and after the jury has separated and been discharged, jurors may not invalidate or impeach a verdict by their own testimony. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785; Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128; Commonwealth v. Curry, 298 Pa. 363, 148 A. 508; Commonwealth v. Newcomer, 183 Pa. Superior Ct. 432, 132 A.2d 731; Commonwealth v. Cano, 182 Pa. Superior Ct. 524, 128 A.2d 358.
In Commonwealth v. Kravitz, 400 Pa., supra, the Court said (pp. 222-223): "In Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785, the Court said (pages 133-134): 'The petition alleges that some of the jurors have recently been interviewed and have stated that, if relator had taken the witness stand in his own defense or if his counsel had produced evidence of good reputation prior to his association with his co-defendants, they would have fixed the penalty at life imprisonment instead of death. The practice of interviewing jurors ...