Appeal from Judgment of Sentence of Court of Common Pleas, Criminal, of Bucks County, at No. 12 of 1972. No. 1856 October Term, 1975.
Richard R. Fink, Chief Public Defender, Doylestown, with him James A. Downey, III, and Nathan Criste, Assistant Public Defenders, Doylestown, for appellant.
Peter F. Schenck, Assistant District Attorney, and Stephen B. Harris, First Assistant District Attorney, Doylestown, submitted a brief for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 247 Pa. Super. Page 160]
Appellant, George Stegmaier, was convicted by a jury of burglary, possession of burglary tools, and two counts of conspiracy. Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of one to three years. This appeal followed.
In the early morning hours of March 5, 1971, the police received a report of a burglary in progress at the Morrisville Bowling Alleys. When the police arrived at the scene they entered the building through an unlocked rear door and immediately observed indications of a burglary and an attempted theft. Articles were stacked near the rear door, pry marks were visible on the office safe, drawers and closets had been ransacked, and various tools were recovered from the area of the safe. Upon further investigation the police discovered appellant and Walter and Gregory Tanchuk, hiding in an open space above the building's false ceiling.*fn1
[ 247 Pa. Super. Page 161]
Appellant has advanced several assignments of alleged trial errors. However, since we conclude that a portion of the trial court's charge to the jury was clearly in error and compels a new trial, we need not address the other issues presented.*fn2
During the course of his charge to the jury, the trial judge stated: "Under the facts of the case, it would defy reason and it would be improper to return a verdict of guilty as to one of these offenses and not to all. So, your verdict will be guilty or not guilty as to all charges under the peculiar circumstances of this case." In so instructing the jury the lower court improperly usurped the function of the jury.
Apparently, the trial judge was of the opinion that, on the facts of this case, an acquittal on one or more of the charges, and a finding of guilty on the others, would be logically inconsistent. While the lower court's desire for avoiding a possibly inconsistent verdict is understandable, we believe this concern was misfounded and did not warrant the instruction at issue. It is firmly established that consistent verdicts in criminal cases are not required, provided there is sufficient evidence to support the conviction the jury has returned. See, e. g., Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Jackson, 230 Pa. Super. 386, 326 A.2d 623 (1974). The rationale underlying this principle was well-stated by Judge Friendly in United States v. Carbone, 378 F.2d 420, 422 (2d Cir. 1967):
"The very fact that the jury may have acquitted of one or more counts in a multicount ...