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decided: February 28, 1977.



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.

Author: Jones

[ 471 Pa. Page 311]


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

[ 471 Pa. Page 312]

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

[ 471 Pa. Page 313]

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 (1971). Our review satisfies us that the court did not abuse its discretion in denying this motion. The record contains several characterizations of the nature of the audience reaction including one by the court that someone approved of the decision.*fn3 In the opinion of the

[ 471 Pa. Page 314]

    court below, it is described as "a spontaneous expression, neither loud nor combined with any overt conduct. . . . Even the trial judge was unaware of this incident until brought to his attention." There is no indication that the jury was any more aware of the incident. Nor is there any indication that the jury was in any manner influenced by the incident. Within eleven minutes, the jury had completed its second deliberation. The court further questioned the foreman when the jury returned. The gist of this colloquy is that the question of degree had been decided in the first session but, through oversight, the original verdict was misworded.*fn4 On this

[ 471 Pa. Page 315]

    record, we cannot conclude that the trial court abused its discretion by refusing to grant the mistrial motion.

Appellant's second argument is that the evidence was insufficient to sustain a conviction of murder in the first degree. We have previously articulated the principles which guide our review in such cases.

"The necessary feature of nonfelony murder in the first degree is the presence of a willful, premeditated and deliberate intent to kill. In establishing the presence of a specific intent to kill, the Commonwealth is not required to depend upon proof by direct evidence, but may meet its burden by circumstantial evidence alone. 'The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom . . .' Commonwealth v. Ahearn, 421 Pa. 311, 318, 218 A.2d 561, 565 (1966). See also, Commonwealth v. Williams, 455 Pa. 539, 546-47, 316 A.2d 888 (1970); Commonwealth v. Fostar, 455 Pa. 216, 220-221, 317 A.2d 188 (1974). The task of an appellate court in reviewing the sufficiency claim is to determine whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the jury

[ 471 Pa. Page 316]

    could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Williams, supra; Commonwealth v. Fostar, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972)."

Commonwealth v. Bundy, 458 Pa. 240, 243-44, 328 A.2d 517, 519 (1974). See Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). The evidence must be read in a light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975). Upon a review of the record, we conclude that the evidence is sufficient to sustain the conviction. Appellant and the victim had fought previously on the evening of the stabbing. During these scuffles, appellant was heard to make threats to kill the victim while the victim repeatedly expressed his unwillingness to fight. When the two met again, a third fight ensued. Witnesses saw the two men grapple, the victim stagger away, fall to the ground, and the appellant run away. When the detective arrived on the scene, he was told that the appellant did it. A medical examination revealed that death was caused by the puncturing of the organs in the upper left chest by a sharp instrument.

Judgment of sentence affirmed.

MANDERINO, Justice, dissenting.

I dissent. I conclude that on the facts of this case the trial court abused its discretion in failing to grant a mistrial in view of the fact that no supplemental instructions

[ 471 Pa. Page 317]

    regarding distinctions between first and second degree murder were given, and the trial court failed to take any precautionary measures to minimize any possible prejudicial effects of the outburst by courtroom spectators.

The majority opinion fails to mention that the verdict slip in this case contained the following options:

COUNT ONE -- murder, COUNT TWO -- voluntary manslaughter, COUNT THREE -- involuntary manslaughter. The slip did not distinguish between first and second degree murder in Count One.

When the foreman of the jury announced that they had found the defendant guilty of the first count of murder, (as opposed to second count of voluntary manslaughter and third count of involuntary manslaughter) the trial judge queried the foreman as to the degree of murder. The following discussion took place:

"THE COURT: Was it an oversight as to the assessing the degree of the crime, and necessary for further deliberation, or had you in fact deliberated on the question of degree of crime?

JURY FOREMAN: I can't say -- from looking at the form we assumed the charges, and it says first count. We just assumed that there was no other degree to go on from there, I guess. We felt that it was it, that it was the highest you could go." (Emphasis added.)

It is obvious from this discussion that the jury did not understand the original charge as to distinctions between first and second degree murder. It is also obvious that they did not deliberate as to the degree of guilt prior to returning the defective verdict. At this point the trial court should have given supplemental instructions prior to further deliberations by the jury. See Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d 912, 914, n. 4 (1972).

[ 471 Pa. Page 318]

In Commonwealth v. Komatowski, 347 Pa. 445, 32 A.2d 905, 910 (1943) this Court noted:

"When a jury tenders a verdict which is defective in substance, uncertain, repugnant, or not responsive to the issue, it is proper for the court to reject it, as not warranted by law, call the attention of the jury to the defect, instruct them as to the form of verdict in case they mean to acquit or convict the defendant and send them back to their room where they can, untrammeled by the presence and influence of others, find such verdict as they think proper." (Emphasis added.)

Since the "spontaneous expression of approval" by one or more spectators in this case occurred when the jury was in the middle of its deliberations, I cannot conclude that they were "untrammeled by the presence and influence of others" in reaching their ultimate verdict. At the very least, the trial court should have cautioned the jury with respect to the prejudicial outburst. See Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970).

The only thing that we can be certain of in this case is that the defendant was found guilty of murder. Accordingly, the only proper judgment is the lowest degree of murder, -- second degree.

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