Appeal from order of Court of Common Pleas of Dauphin County, No. 1088 of 1971, in case of Commonwealth of Pennsylvania v. John F. Pacini.
James K. O'Malley, with him Neil H. Fink, for appellant.
William C. Costopoulos, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaulding, J.
[ 224 Pa. Super. Page 498]
The sole issue in this appeal is whether a party to a criminal proceeding may have the jury polled after the verdict has been announced and affirmed in open court. Appellant John F. Pacini was convicted of rape by a Dauphin County jury. He seeks a new trial on the basis of the trial judge's refusal to allow him a poll of the jury.*fn1
Appellant's trial involved conflicting testimony as to whether the prosecutrix consented to intercourse with appellant. At the conclusion of testimony, the jurors retired for deliberation, charged with the definitions of rape, indecent assault and assault and battery. After two hours of deliberation, the jury returned for further instructions as to the definition of indecent assault. After four hours of further deliberation, the jury returned again and announced that it was unable
[ 224 Pa. Super. Page 499]
to reach a verdict. Upon further instructions from the court as to the definition of indecent assault, the jury again retired, returning after a few minutes with its verdict. The following transpired:
"The Court: All right. Have you reached a verdict? [Forelady]: Yes. . . . The Clerk: In the case of Commonwealth versus John F. Pacini to the charge of rape, indecent assault and assault and battery how do you find the Defendant? [Forelady]: Guilty of rape. . . . The Court: Will you record the verdict please? [The verdict was recorded.] The Clerk: Will the jury please rise. Harken to your verdict as the Court hath it recorded, in the case of the Commonwealth versus John F. Pacini, to No. 1088 Criminal Division 1971 on the charge of rape you find the Defendant guilty and so say you all? The Jury (in unison): Yes. The Clerk: Please be seated. The Court: All right. Mr. Shumaker: Your Honor, I'd like to poll the jury. The Court: You are too late to poll the jury now."*fn2
Appellant contends that this denial of his motion to poll the jury constitutes reversible error. It is undisputed that either party to a criminal proceeding has the right to poll the jury. "The procedure had its genesis in ancient common law (see 2 Hale, Pleas of the Crown 299) and has long been approved and uniform practice in this State. (citations omitted)." Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954). "The polling of the jury is the means for definitely determining, before it is too late, whether the jury's verdict reflects
[ 224 Pa. Super. Page 500]
the conscience of each of the jurors or whether it was brought about through the coercion or domination of one of them by some of his fellow jurors or resulted from sheer mental or ...