decided: March 19, 1970.
Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1967, Nos. 2549 and 2550, in case of Commonwealth of Pennsylvania v. Frank D. Spencer.
Dennis Kelly, Assistant Defender, with him John W. Packel and Melvin Dildine, Assistant Defenders, and Vincent J. Ziccardi, Acting Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Jacobs, J., concur in the result.
[ 216 Pa. Super. Page 170]
Appellant was tried on criminal charges before a judge and jury. At 11:13 A.M. of the final day of trial, the jury retired to deliberate. At 4:40 P.M., they returned and told the judge their disagreement was hopeless. At sidebar, the assistant district attorney requested the judge to charge the jury in accordance with Allen v. United States, 164 U.S. 492, 501-502, 17 S. Ct. 154 (1896). The judge refused and sent the jury back for further deliberation. At 5:10 P.M., the District Attorney of Philadelphia appeared before the judge in chambers to request that the Allen charge be given. The District Attorney said: "I think the Allen charge would be of help when it is used in an appropriate way, and I would think it would be a very useful thing to have it tested once and for all." Over appellant's objection, the jury was then called back.
[ 216 Pa. Super. Page 171]
The judge charged the jury as follows:
"'In a large proportion of cases absolute certainty cannot be expected. Though a verdict must be the verdict of each individual juror and not a mere acquiescence to his fellow jurors, nonetheless juries should examine the question of guilt or innocence with candor and with proper regard and deference to the opinions of each other. It is the duty of the jury to decide the case if they can conscientiously do so. The jury should listen with a disposition to be convinced to each other's arguments. If much the larger number of the jurors are fully convinced, a dissenting juror should consider whether his doubt is a reasonable one if it made no impression upon the minds of so many other jurors, equally as honest and as intelligent as himself. While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the argument of men . . .', and I will add parenthetically women, '. . . who are equally honest and intelligent as himself . . .', and I add as herself."
The jury retired for further deliberations. At 6:20 P.M., they left for dinner, returning at 8:00 P.M. At 9:51 P.M., the jury returned to request that a witness' testimony be read to them. Finally, at 10:45 P.M., after some discussion with counsel, a tape recording of
[ 216 Pa. Super. Page 172]
a witness' testimony was played. The judge also redefined "reasonable doubt." At 12:20 A.M., the jury returned, having found appellant guilty on both bills submitted to them.
This appeal raises the question whether the Allen charge so coerces members of the jury that a defendant is thereby denied a verdict by unanimous agreement.*fn*
[ 216 Pa. Super. Page 173]
A criminal defendant is entitled to a verdict by a unanimous jury. This right is protected by both the federal and state constitutions. U. S. Const. art. III, § 2; id. amend. VI; Pa. Const. art. I, § 6. The courts have sought to preserve the unanimity of the jury by assuring that no juror is coerced into voting against his conscientious convictions. See, e.g., Jenkins v. United States, 380 U.S. 445, 85 S. Ct. 1059 (1965); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968); Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969).
In Jenkins, the Supreme Court held that a judge who told a deadlocked jury that they had to "reach a decision" had coerced them. That is, he had convinced certain jurors by his statement to surrender their views in order to reach accord. Similarly in Holton, the Supreme Court of this state held that a judge who told a deadlocked jury that they must "stand up like men and women and do what [they] should do before [their] God to whom [they] will answer some day whether [they] answer to [the trial] court or not" had coerced them into a decision, despite their individual convictions. The Allen charge, as given above, contains similar coercive elements which must be corrected in order to avoid constitutional error.
Judgment of sentence affirmed.