Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1966, No. 835, in case of Commonwealth of Pennsylvania v. Waverly Peterman.
Robert N. C. Nix, Jr., for appellant.
William Stevens, Jr., Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell dissents.
This matter comes before us on a direct appeal from a judgment of sentence imposed on Waverly Peterman following his conviction by a jury of voluntary manslaughter.
On January 21, 1966, Peterman was the night manager of the "Roberts Bar" located in Philadelphia. On that date, at approximately 9:30 p.m., one Samuel Barron, a bar patron, was shot and killed by Peterman, the bullet having been fired at a range of 6 to 8 inches. Peterman was indicted for murder and manslaughter,
convicted of voluntary manslaughter and, upon refusal of motions for a new trial and in arrest of judgment, sentenced to a prison term of not less than 3 nor more than 10 years.
In presenting its case at trial, the Commonwealth relied principally upon the testimony of two witnesses whose versions of the incident were conflicting. Arthur Fleming, a bartender at "Roberts Bar", testified that Barron with others entered the barroom and, after some period of time had elapsed, he engaged in an argument with Fleming concerning the amount of change due him; that Barron created a disturbance and Peterman, after some effort, momentarily quieted Barron; later, as Barron and Peterman were standing on the patron's side of the bar with Peterman wedged between the bar stools, Barron appeared to be reaching for a gun and Peterman then instructed Fleming to give him a gun; that Fleming took a pistol from behind the bar and placed it within Peterman's reach; while Fleming's attention was directed elsewhere, he heard a shot but he did not actually see the shooting. Thomas Bates testified that he and Barron, prior to their arrival at "Roberts Bar", had purchased and consumed a bottle of gin; that they arrived at the bar between 6:45 and 7:00 p.m.; that, after he and Barron had consumed some beer, an argument arose between Peterman and Barron concerning a girl; that, prior to the shooting, Peterman knocked Barron to the floor, and as he was getting up said to him "M. F. I told you I would kill you sooner or later."; that, although Fleming had twice refused Peterman a gun, Fleming finally placed a pistol on the bar within Peterman's reach; that he, Bates, remonstrated with Peterman saying "You don't need the pistol. You already won the fight with the fellow"; that he saw the actual shooting; that Peterman, holding Barron by the back of the neck, pointed the pistol at him and discharged it.
Other Commonwealth testimony was as follows: Mrs. Barron, the victim's wife, testified that about 9:50 p.m., she arrived at the "Roberts Bar" and the only persons present at that time were Fleming, Peterman and Bates and her husband who was then lying on the floor groaning; a Mr. Williams, manager of the corporation which owned "Roberts Bar", stated that Peterman, after the shooting, had telephoned him and said "I didn't intend to shoot this man, it was an accident", that he and the victim had had a struggle and the victim had knocked the gun out of Peterman's hand causing it to discharge accidentally. Several police officers testified as to circumstances subsequent to but collateral to the shooting. A medical examiner testified that the cause of death was a gunshot wound at close range, the bullet travelling upward at a 30 degrees angle, and that, at the time, Barron was in a state of acute alcoholism.
Peterman's argument falls into three categories: (1) that the trial court erred in its charge to the jury in that: (a) it summarized, from its own notes, Bates' testimony after the jury had requested additional instructions unrelated to Bates' testimony ; (b) in not fairly presenting the positions of both Peterman and the Commonwealth; (c) in charging on the necessity that the verdict be unanimous; (2) that the trial court erred in several trial rulings; (a) in permitting a prior consonant statement of Bates to be received in evidence; (b) in refusing to sequester Barron's widow and (c) in ruling that Peterman's prior criminal record could be considered by the jury to show a likelihood that he had committed the offense charged; (3) that the trial court erred in not directing a verdict of acquittal for Peterman.
After the jury had deliberated for several hours, the trial court was notified that the jury desired to have the complete testimony of the Commonwealth's witness
Fleming read to them.*fn1 After Fleming's testimony had been read, the trial court, sua sponte, summarized from its own notes the testimony of the Commonwealth's witness Bates. Peterman contends such summarization constituted error because (a) it unduly emphasized Bates' testimony and (b) the recitation of such unsolicited testimony was prejudicial.
This proposition is somewhat novel in this Commonwealth. Prior reported cases have dealt with the question whether a trial court had abused its discretion in agreeing to or refusing to give additional instructions as to the law or to have read back certain portions of the testimony when requested to do so by the jury. See: Cunningham v. Patton, 6 Pa. 355 (1847); Commonwealth v. Smith, 221 Pa. 552, 70 A. 850 (1908); Commonwealth v. Bolger, 42 Pa. Superior Ct. 115 (1910); Commonwealth v. Brown, 264 Pa. 85, 107 A. 676 (1919); Commonwealth v. Fontaine, supra.
A trial court's duty is to insure that the jury is fully and adequately instructed as to the law applicable to the facts of the case and, when a trial court refuses a jury request for additional instructions, such refusal is reversible error. See: Commonwealth v. Smith, supra. But where a jury, in order to refresh their recollection, requests a reading of a portion of the testimony actually given at the trial, it is a matter within the discretion of the trial court whether to grant such request. If the trial court does grant the request, the review of testimony must be conducted in open court in the presence of parties and their counsel and, if the resultant review does not place undue
emphasis on one witness' testimony, no reversible error is committed. See: Commonwealth v. Bolger, supra. However, if the trial court, at the request of the jury, sends out to the jury the testimony of any certain witness such would constitute reversible error. See: Commonwealth v. Ware, 137 Pa. 465, 20 A. 806 (1890).*fn2 The proper procedure is for a jury to address its request to the trial judge and, if, in the exercise of the court's discretion, a review of testimony is allowed, such review must be conducted before the court, the parties and counsel.
In Henry v. United States, 204 F. 2d 817, 820, 821 (1953) it was said: "After the jury has reported its inability to agree upon a verdict, it is, in our opinion, incumbent upon the trial judge to exercise extreme care in reopening the case for the introduction of further testimony or in permitting any evidence to be restated or re-read to the jurors. Unless restraint is exercised by the judge, it may well be that he would permit undue emphasis to be placed upon portions of the testimony, if such portions were called for by the jurors." (Emphasis added).
The purpose of any requested review of testimony, obviously, is to dispel any confusion or uncertainty present in the minds of the jurors as to the actual testimony they heard during the course of the trial. As was said in Commonwealth v. Fontaine, supra (at p. 47): "Although under our system of jurisprudence the jury is the ultimate trier of facts, it does not follow that in all instances and at all times men and women called for jury duty are endowed with infallible powers of retention. Juries may not ...