David E. Auerbach, Asst. Public Defender, Media, for appellant.
Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Div., Vram Nedurian, Jr., Asst. Dist. Atty., Stephen J. McEwen, Jr., Dist. Atty., Media, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurred in the result.
The appellant, Marvin Price, was convicted of various counts of burglary, robbery, and larceny arising out of a holdup at the Honeysuckle Farms Ice Cream Parlor on January 24, 1971. Post-verdict motions were denied. On appeal, the Superior Court affirmed. Judge Hoffman filed a dissenting opinion in which Judge Spaulding joined. Appellant's petition for allowance of appeal was granted, but limited to the issue of whether the trial court erred in failing to grant a defense motion for a mistrial based on an unauthorized visit made to the scene of the crime by one of the jurors during a break in the jury's deliberation.
The jury in this case retired to deliberate on October 20, 1971. After about five and one-half hours of deliberation, the jury was brought back to the court room and inquiry was made as to whether they might reach a verdict within a reasonable time. All of the jurors indicated they would not. Over defense counsel's objections, the jury was then excused at 5:45 p. m. and permitted to go home for the evening. They were admonished not to discuss the case with anyone or read any papers.
The next morning, about one-half hour after the jury had resumed its deliberations, the trial court received a note from the foreman of the jury informing the court that one juror had visited the scene of the crime and the Jeffrey Street area where the appellant and his co-defendant had been arrested. The foreman also told the court that the juror had discussed his visit with some of the other jurors. The note inquired as to whether any rights had been prejudiced. The note also asked whether the appellant and his co-defendant could "be considered separately with varying degrees of guilt and innocence as the indictments list both men." The trial court instructed the jury not to consider the unauthorized view in reaching a verdict, and also informed them that different verdicts were permissible. The Court made no inquiry about the unauthorized visit at this time.
The jury resumed deliberations and later returned a verdict finding the appellant guilty and his co-defendant not guilty of the crimes charged. After the verdicts were received, inquiry was made of the jurors, and several admitted the discussion with the juror who had made the unauthorized visit. This juror was not identified, and thus no inquiry was made of him. The jurors who spoke up said that the juror who made the unauthorized visit had told them that he went to familiarize himself with the geography of the area, and that he went up and down the various streets. One juror said he overheard talk about the house numbers on Jeffrey Street. The jurors who had received or overheard the discussion from the juror who made the unauthorized visit asserted that they were not influenced by what they heard in reaching their verdict.
A juror is not permitted to make an unauthorized view of the scene of the crime. See Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963) and Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915). Even in civil cases unauthorized views have been condemned.
In this case significant issues were raised at trial concerning the physical aspects of the areas visited by the juror. A brief resume of the circumstances leading to the appellant's arrest makes this evident. When the robbery occurred at the Honeysuckle Farm Ice Cream Parlor on January 24, 1971, two men, one carrying a pistol, went inside the ice cream parlor. There was also some evidence that a third man may have remained outside as a look-out. Police arrived at the scene shortly after the robbery and followed three sets of footprints in the snow. After several blocks, one set of footprints went in a different direction than the other two. The two sets of footprints led to a house at 714 Jeffrey Street, about eight blocks away from the scene of the crime. The footprints went up the steps at the front of the 714 Jeffrey Street house. This house was located next to an alley. As the police were observing this house, three men were seen exiting from another house nearby. The 714 Jeffrey Street house and the house from which the three men were exiting are separated by the alley, and by another house across the alley from the 714 Jeffrey Street house. One of these three men, appellant's co-defendant, lived in the house out of which the group was coming. The three ...