Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1962, No. 1710, in case of Commonwealth of Pennsylvania v. Leonard Archambault.
John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in the majority opinion and filed a concurring opinion. Mr. Justice Manderino joins in the majority opinion and joins in the concurring opinion of Mr. Justice Nix. Mr. Justice Eagen filed a dissenting opinion. Concurring Opinion by Mr. Justice Nix. Dissenting Opinion by Mr. Justice Eagen.
Appellant Leonard Archambault, after trial by jury in 1962, was convicted of first degree murder and sentenced to life imprisonment. No appeal was taken from his conviction at that time. However, in 1968 appellant filed a petition pursuant to the Post Conviction Hearing Act,*fn1 alleging that he had been deprived of his right to appeal, guaranteed by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963). His petition was dismissed by the common pleas court, but on appeal this Court ordered that appellant be permitted to file post trial motions as if timely filed if he could establish that his previous failure to prosecute an appeal was motivated by fear of the death penalty. Commonwealth v. Archambault, 433 Pa. 336, 250 A.2d 811 (1969). Such a showing was made, but after argument appellant's motion for a new trial was denied. Appellant appealed directly to this Court, and on March 25, 1971, this Court, by a vote of three to two, affirmed the judgment of sentence. A petition for reargument was timely filed, and was granted on May 28, 1971. The case was then reargued before a full Court.
Appellant contends that the trial court erred in telling the jury during the charge: I think it would be a miscarriage of justice to find this defendant not guilty."*fn2 We agree with appellant and grant him a
new trial.*fn3 To the same effect see Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972), decided this day.
We believe that when a judge expresses to the jury his opinion that the accused is guilty, he invades the province of the jury and thereby violates the accused's fundamental right to trial by jury, a right that has been guaranteed by the Constitution of this Commonwealth since 1776.*fn4
In a criminal case the direction of a verdict of guilty by a trial judge is not allowed.*fn5 For an accused has a right to trial by jury, and if a trial judge directs the jury to return a verdict of guilty, the accused has had no jury trial at all. Our constitutional system of trial by jury is founded upon the firm conviction that the peace and dignity of our society are best maintained, and the highest degree of criminal justice is achieved, if the power to convict individuals of crimes lies solely with the jury.
Justice Brandeis' observations on the question of whether a trial judge may express his opinion on the guilt of an accused, expressed over fifty years ago, still ring true today: "[ I ]t is still the rule . . . that the judge
is without power to direct a verdict of guilty although no fact is in dispute. What the judge is forbidden to do directly, he may not do by indirection. The judge may enlighten the understanding of the jury and thereby inflence their judgment; but he may not use undue influence. He may advise; he may persuade; but he may not command or coerce. He does coerce when without convincing the judgment he overcomes the will by the weight of his authority."*fn6
Justice Brandeis has not been alone in his observation that a trial judge cannot indirectly effect a directed verdict of guilty. As the United States Court of Appeals for the First Circuit recently noted: "In a criminal case a court may not order the jury to return a verdict of guilty, no matter how overwhelming the evidence of guilt. This principle is so well established that its basis is not normally a matter of discussion. There is, however, a deep undercurrent of reasons. Put simply, the right to be tried by a jury of one's peers finally exacted from the king would be meaningless if the king's judges could call the turn. Bushel's Case, 124 Eng. Rep. 1006 (C.P. 1670). In the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent. Commonwealth v. Anthes, 1857, 71 Mass. (5 Gray) 185, 209-10; Rex v. Larkin,  K.B. 174; P. Devlin, Trial by Jury 14, 56, 75-91 (3d impr. with addendum, 1966); T. Plucknett, A Concise History of the Common Law 137-38 (5th ed. 1956); Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939)."*fn7
The now-apparent weakness in some of our previous decisions*fn8 was the supposition that the trial judge could express his personal opinion on the guilt of the accused, and even tell the jury, as the trial court did here, that: "I think it would be a miscarriage of justice to find this defendant not guilty," and yet somehow still leave "the ultimate decision to the jury" and not "interfere with its responsibility."*fn9 This assumption fails to recognize the actualities of the judge-jury relationship.
An expression by the judge that in his opinion the accused is guilty leaves an indelible imprint on the minds of the jury. The jury is undoubtedly going to attribute to the judge, because of his experience in criminal cases, special expertise in determining guilt or innocence. As Mr. Justice (later Chief Justice) Kephart stated for this Court: "The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box. . . . To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has the tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence."*fn10 Or, as the United States Supreme Court recognized in Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 405 (1946): "'The influence of the trial judge on
the jury is necessarily and properly of great weight,' . . . and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge's last word is apt to be the decisive word."*fn11
A judge's expression of his opinion on the guilt of an accused has an even greater coercive effect on the jury when as here the judge states that it would be a "miscarriage of justice" to find the defendant not guilty. "A juror may not mind disagreeing with a judge on factual matters but he would dislike very much placing himself in the category of a person who has participated in a miscarriage of justice, judicially proclaimed." Commonwealth v. Raymond, 412 Pa. 194, 210, 194 A.2d 150, 158 (1963) (dissenting opinion).*fn12
In light of the decisive effect that a jury is likely to give to a judge's statement that in his opinion the accused is guilty, it is clear that cautioning instructions to the effect that the jury is the final arbiter of the verdict are insufficient to vitiate the impact of the judge's statement. In a lengthy charge such as the one that was given to the jury at appellant's trial, the judge's statement that "I think it would be a miscarriage of justice to find this defendant not guilty" is the one part of the charge that no juror will forget or fail to understand. Cautionary instructions will be unable to remove the indelible impact of such a statement.