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COMMONWEALTH v. WILMER (05/28/69)

decided: May 28, 1969.

COMMONWEALTH
v.
WILMER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, Nos. 59 and 60, affirming judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County, May T., 1965, Nos. 630 and 631, in case of Commonwealth v. Finley Wilmer.

COUNSEL

Charles Robert Bernsee, for appellant.

James D. Crawford, Assistant District Attorney, with him Harold K. Don, Jr., Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Roberts

[ 434 Pa. Page 399]

Appellant was tried before a judge and jury and was convicted of aggravated assault and battery, rape, and several lesser included charges. The Superior Court affirmed in an opinion by Judge Ervin, Judge Hoffman dissenting in an opinion in which Judge Spaulding joined. Commonwealth v. Wilmer, 208 Pa. Superior Ct. 102, 220 A.2d 360 (1966). We granted allocatur.

Appellant maintains that the initial and supplemental charges of the court below were error. In the initial charge, the trial judge told the jury: "You are American citizens, and we all live under the same flag. And you do what is right and proper in the sight of Almighty God, because you are chargeable as jurors before

[ 434 Pa. Page 400]

    the Great Maker of the Universe to do what is right in this case. You are not responsible to me; you are responsible to everybody in the Commonwealth, and you are responsible to God how you act here. You bring in a proper verdict."

In Commonwealth v. Holton, 432 Pa. 11, 18-19, 247 A.2d 228, 232 (1968), this Court, per Mr. Justice Eagen, characterized a similar charge*fn* as improper, quoting from Judge Hoffman's dissenting opinion in the Superior Court: "'It is not for us to determine the court's intent in making this statement or the jury's inference from it. . . . More importantly, individual jurors might have concluded, as appellant suggests, that the court was threatening them with the wrath of God should they bring in a verdict of not guilty.'" (Emphasis added.) That statement is equally applicable to the case before us.

The Commonwealth attempts to distinguish Holton by arguing that there, the erroneous charge was made after the jury had been deliberating for twenty-two hours, while here, the comment was made before the jury retired. In effect the Commonwealth is asking us to do what we refused to do in Holton -- attempt to inquire into the psychological motivations of the jury to determine whether and in which way they were affected by the erroneous charge. This we once again refuse to do. It is clear that our decision in Holton was based on what the jury might have thought, and in our opinion that is the only workable test. Here at least one of the jurors certainly could have believed that an acquittal would bring the wrath of God down upon his head, and this well might have affected the

[ 434 Pa. Page 401]

    jury's deliberations and ultimate verdict. Viewed in this light, it is irrelevant when ...


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