John J. Dean, John R. Cook, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Thomas M. Lilly, Asst. Dist. Attys., Robert A. Zunich, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., took no part in the consideration or decision of this case. Roberts, J., concurs in the result. Manderino, J., filed a dissenting opinion.
On June 20, 1973, Wilbert O. Brooks was fatally stabbed. Appellant, Lindred Dean Craig, and Brooks had fought twice earlier that evening. Twenty minutes after the last fight, they again met on the street. Another scuffle ensued, decedent staggered and fell, and appellant ran from the scene. Appellant was tried and convicted by a jury of murder in the first degree. After denying post-trial motions, the court imposed a sentence of life imprisonment. This direct appeal followed.*fn1
Appellant asserts two arguments as grounds for reversal: first, that the trial judge abused his discretion in refusing a motion for a mistrial; and second, that the evidence is insufficient to sustain a conviction of murder in the first degree.
Appellant's first argument is that the trial court abused its discretion in refusing to grant the motion for a mistrial which was based upon the jury's returning a defective verdict and the allegedly prejudicial effect of a spectator outburst upon its subsequent deliberations. The jury foreman announced the verdict in these words: "We, the jurors . . . find the defendant first count of murder guilty." Apparently, at this announcement, there was a spontaneous expression of approval by one or more of the spectators. However, the court was preoccupied with the defects in the announced verdict. When questioned by the court, the foreman indicated that the issue of degree was overlooked in its deliberations. The court informed the jury that its verdict was improper for that reason, reiterated the possible degrees of guilt, and returned the jury for further deliberations.*fn2
The jury came back with a verdict of guilty of murder in the first degree.
Appellant argues that the expression of approval by the audience which accompanied the initial verdict influenced the jury's further deliberations as to degree and, therefore, a mistrial should have been granted. Initially, it should be noted that the court acted properly when it returned the jury for a determination of degree of guilt. To correct an error of substance in a verdict prior to its recording, the court may send the jury back with additional instructions for further deliberation. Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d 912 (1972); Commonwealth v. Johnson, 369 Pa. 120, 85 A.2d 171 (1952); Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905 (1943); Commonwealth v. Troup, 302 Pa. 246, 153 A. 337 (1931). A motion for mistrial is addressed to the discretion of the court. Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). In the area of bystander misconduct, we have held that it is primarily within the trial judge's discretion to determine whether the defendant was prejudiced by the misconduct. Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 ...