Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1970, No. 8961, in case of Commonwealth of Pennsylvania v. Tyrone K. Jackson.
John R. Cook, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Louis R. Paulick, Assistant District Attorney, with him Robert L. Eberhardt and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Nix dissents. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Roberts joins in this dissenting opinion.
Appellant, Tyrone Jackson, was tried before a jury and found guilty of murder in the first degree. Post-trial motions were denied and a sentence of life imprisonment was imposed. This direct appeal followed. Appellant, through his appointed counsel,*fn1 argues that
his conviction should be set aside for four reasons: (1) that the verdict of the jury was not unanimous; (2) that the court erred in refusing to suppress appellant's confession; (3) that the court erred in refusing to issue subpoenas for witnesses requested by appellant; and (4) that the verdict was contrary to the evidence. We find these contentions to be without merit.
A criminal defendant who is tried before a jury can only be convicted by unanimous verdict. This right is protected by both the federal and state constitutions. See U. S. Const. art. III, § 2; U. S. Const. amend. VI; Pa. Const. art. I, § 6. See also Pa. R. Crim. P. 1120(b). To insure this right, a defendant is entitled to a poll of the jury to ascertain whether each juror concurs in the verdict. Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. 326, 162 A.2d 354, cert. denied, 364 U.S. 852 (1960); Pa. R. Crim. P. 1120(f). At the time of polling the jury in the present case the following colloquy took place: "The Court: What is your verdict, that is the question. Is he guilty or not guilty? What? Juror No. 1: He is guilty in one way and I am not sure in another way. The Court: Well, did you join in this verdict? Juror No. 1: Yes, sir. The Court: Then your verdict is what? Juror No. 1: Guilty." Appellant argues that this juror's response was so ambiguous and equivocal as to destroy the unanimity of the verdict.
When a jury is polled it is the court's duty to determine before the verdict is accepted and recorded whether the answers of each juror indicate his concordance with the announced verdict. If the answer of any juror is unclear, or if it is questioned, the court may further
interrogate that juror before determining whether to accept the verdict. Commonwealth ex rel. Ryan v. Banmiller, supra. In the absence of a demand for a polling of the jury, however, there is no duty or burden on the trial court to order or conduct a poll. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). Similarly, where a poll is conducted and, as in the present case, the defendant neither raises questions concerning the answers of the jurors nor requests that the juror be further interrogated,*fn2 the defendant cannot later be heard to challenge the unanimity of the verdict if upon the colloquy which did take place the trial court could have found that each juror assented to the verdict.
Although it might have been desirable to have had juror no. 1 explain her first answer, that was neither requested nor manifestly necessary. Where an evasive answer of a juror leaves doubt as to whether he has assented to the verdict, but his answers indicate neither involuntariness nor coercion, a subsequent answer or further interrogation which indicates clear and unequivocal assent will cure any possible defect. Commonwealth ex rel. Ryan v. Banmiller, supra. See generally Annot., 25 A.L.R. 3d 1149 (1969). "The exact words used by a juror are not material, if they clearly indicate the assent of the individual mind to the verdict." Commonwealth v. Buccieri, 153 Pa. 535, 553, 26 A. 228, 235 (1893). Here, the record indicates that the ...