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decided: July 12, 1978.


No. 1102 October Term, 1976, Appeal from Judgment of Sentence Imposed January 20, 1976 in the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, Pennsylvania, at No. 1108 February, 1975.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 256 Pa. Super. Page 300]

Appellant, Kenneth Pemberton, was convicted by a jury of robbery, conspiracy and possession of an instrument of a crime. In this appeal appellant raises two issues: First, whether the court erred in not declaring a mistrial because a poll of the jury revealed that one juror initially disagreed with the guilty verdict; and, second, whether the court erred in not suppressing identification testimony of a Commonwealth witness.

On Tuesday, January 21, 1975, the Roy Rogers Restaurant at Broad and Stenton Avenue, Philadelphia, was robbed at gunpoint by two men. One man forced a cashier, Marcella Miralles, to give him the money from the registers; the other man armed with a shotgun or rifle went to the back office and forced the manager, Herman Reyes, to open the vault and give him the paper money. The next evening appellant and his co-defendant, Leonard Moore, were arrested with a Ms. Fisher on an unrelated auto theft charge. While they were in custody on that charge, the police took their photographs and put together a photographic array which was displayed to Ms. Miralles at the Roy Rogers Restaurant and she identified appellant and his co-defendant from the pictures. About four hours later she also identified them in a line-up conducted at the police station. Mr. Reyes did not attend the line-up and did not identify any photographs.

At a hearing on appellant's motion to suppress the identification testimony, the court below suppressed Ms. Miralles' out-of-court identification as to appellant since the photo display and, consequently, the line-up may have been suggestive. However, the court found a sufficient independent basis for permitting her in-court identification.*fn1

Trial began on September 9, 1975, and, at 4:00 P.M. on September 11, the jury retired to deliberate. Not reaching a verdict that evening, the jury was allowed to go home and to

[ 256 Pa. Super. Page 301]

    return for resumption of their deliberations the next day. At 5:20 P.M. on September 12, the jury returned with a verdict of guilty, but during the ensuing poll one juror announced disagreement with the verdict. The trial court denied appellant's motion for a mistrial and directed the jury to retire for further deliberations at 5:40 P.M. At 9:10 P.M. the jury again returned a verdict of guilty, and the poll established that all the jurors now agreed. The verdict was then recorded. Post-trial motions were subsequently denied and this appeal followed.

First, appellant claims the court below committed prejudicial error in denying his motion for a mistrial following the first poll of the jury. In support of this contention, appellant argues that the polling of jurors must terminate the trial, otherwise it becomes an instrument which puts undue pressure on a dissenting juror to succumb to the decision of the majority of jurors. At least, appellant claims, sending the jury back to deliberate without further instructions is equivalent to giving a prohibited "Allen Charge." We do not find merit in either of these contentions.

A criminal defendant who is tried before a jury can only be convicted by a unanimous verdict. To insure this right the accused is entitled to poll the jury to ascertain whether each juror concurs in the verdict. Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974). The verdict is not final until it is recorded, and it may be corrected or altered until then. Commonwealth v. Craig, 471 Pa. 310, 370 A.2d 317 (1977); Commonwealth v. Corbin, 215 Pa. Super. 63, 65 n. 1, 257 A.2d 356 (1969). The Pennsylvania Rules of ...

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