Joseph N. Bongiovanni, III, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., B. H. Levintow, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., did not participate in the consideration or decision of this case.
Appellant was convicted by a jury of murder in the second degree for the beating death of his employer, Arthur Bock, in January, 1973, in Philadelphia. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of not less than ten nor more than twenty years. This direct appeal was then taken.
Three arguments are advanced as to why the trial court erred in denying appellant's motion for a new trial. We conclude that none of them has merit and therefore affirm the judgment of sentence.
Appellant's first contention is that it was error to refuse his motion for a mistrial when it was brought to the court's attention that two women jurors might have seen the defendant in handcuffs during a court recess. The ruling followed an evidentiary hearing held outside the presence of the jury at the request of the prosecuting attorney. At that hearing, the defendant, the deputy sheriff who was accompanying him at the time of the incident, and another court officer testified. It was established that during the recess in question one juror and one alternate passed close to the defendant and the deputy as they were waiting for an elevator in the hallway outside the courtroom; the defendant's hands were cuffed to a leather belt. There was no testimony that either of the jurors actually saw or appeared to see the defendant. To the contrary, a court officer, Mrs. Wilma Oliver, testified that she had observed the entire incident and had followed the two jurors in an attempt to determine whether they had actually seen the defendant. She reported that neither had turned in the direction of the
defendant as they walked by and that their conversation did not concern the defendant, or having seen him.
Following the taking of this testimony, the assistant district attorney suggested that the court substitute a second alternate juror for the juror who had possibly observed the defendant. Defense counsel, however, refused to agree; he also told the court that he did not think that it would be "helpful" to interrogate the jurors in question as to what they had seen or for the court to give cautionary instructions.
The thrust of appellant's argument is that it is inherently prejudicial for jurors to see a defendant in shackles; that this is so (it is said) because his appearance in shackles or handcuffs "brands him as convicted in the state's eyes", Commonwealth v. Keeler, 216 Pa. Super. 193, 195, 264 A.2d 407, 409 (1970), thus destroying the presumption of innocence which every defendant enjoys, and that the only way in which this inherent prejudice can be avoided is to declare a mistrial. The majority of the courts which have considered this issue have concluded to the contrary. In United States v. Chrzanowski, 502 F.2d 573 (3d Cir. 1974) the Third Circuit Court of Appeals held that "[t]he fact that jurors may briefly see a defendant in handcuffs is not so inherently prejudicial as to require a mistrial. United States v. Rickus, 351 F.Supp. 1386 (E.D.Pa.1972), aff'd, 480 F.2d 919 (3d Cir. 1973); United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir. 1972); United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971); United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971)." Our own Superior Court recently addressed this issue in the case of Commonwealth v. McGonigle, 228 Pa. Super. 345, 323 A.2d 733 (1974). There a unanimous court stated:
"It is settled law that a mere accidental observation of a defendant in handcuffs outside a courtroom by a juror does not, ...