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COMMONWEALTH v. MILLINER (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
MILLINER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1969, No. 1243, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1968, No. 1464, in case of Commonwealth of Pennsylvania v. Alphonso Milliner.

COUNSEL

David Rudovsky, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James T. Owens, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen dissents. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 442 Pa. Page 539]

Appellant was tried before a judge and jury on December 12-17, 1968, on a charge of rape. On December 17, at approximately 3:30 p.m., four and one-half hours after the jury had begun its deliberations, the court crier told the judge the following: At approximately 2:00 p.m., he had been asked by the jury foreman whether the appellant had made a statement at the time he was arrested and had replied "I don't know

[ 442 Pa. Page 540]

    and even if I did I couldn't tell you." He then asked the foreman if the jury wanted further instructions and was told they did not. However, approximately an hour and one-half later the foreman again asked him whether the appellant had made a statement. The court crier told him that he could not answer the question and asked "Do you have a problem?" This time the jurors indicated that they did, which was why the court crier came to the judge with the jury's request for a meeting at which they could seek further instructions.

The trial judge and the two attorneys then met to discuss how the court should handle the forthcoming jury's request for instructions. The appellant's counsel stated that it was his opinion that the jury was considering matters not in evidence, and in particular a nonexistent confession by the appellant. He urged that the court not confine itself to instructing the jury that there was no evidence of any statement before them, but that it elaborate to make it clear that no statement existed. During this discussion, appellant's counsel indicated a fear that the jury might be reacting to extensive coverage in the news media concerning the Paul Ware case where the district attorney requested the court to nolle pros. four murder charges against a defendant because his confessions were invalid under Miranda v. Arizona, 384 U.S. 436 (1966).

However, the trial court and counsel never learned for certain what was on the jurors' minds. Between twenty minutes and a half hour after the court and the attorneys began their discussions, before the jury had been returned to the courtroom to make its request to the judge for additional instructions, the jury reported that it had agreed upon a verdict. Immediately thereafter the jury's verdict of guilty was received. After polling the jury, the court recorded the verdict.

At the request of appellant's counsel, a post-trial hearing was held on January 15, 1969. At this hearing

[ 442 Pa. Page 541]

    the court crier and his assistant testified. Their testimony did not materially differ from what the crier had told the judge on the day of the jury's deliberations. Appellant's counsel also requested that the jurors be questioned as to their deliberations, but this request was denied and the Superior Court affirmed the judgment of sentence. ...


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