The opinion of the court was delivered by: KNOX
The defendant filed a motion for new trial and/or arrest of judgment and the same was argued before the court and briefed by the parties on July 5, 1978. The court has determined the motion must be denied. The three points argued by defendant were:
(1) Evidence of Jury Tampering.
There was evidence that the defendant had suggested to Mr. and Mrs. Lawless, two friends, that they should contact Officer Ochs of the Pennsylvania State Police whose wife was a cousin of one of the jurors and have him go out in a State Police car in a State Police uniform and attempt to contact her at the Howard Johnson Motor Lodge where the jury had been sequestered under order of the court to prevent any unlawful contacts such as this. The defendant denied the charge. However it was clear he was aware of Ochs' connection with the juror since this matter had been brought up on individual voir dire at which the defendant was present prior to trial and the testimony also was that it was his suggestion that the officer go there in uniform. Mrs. Ochs stated Mrs. Lawless said they had been sent by Bob.
The court finds that this evidence was admissible to the same extent as similar matters showing consciousness of guilt such as flight and concealment, suppression or fabrication of evidence, attempts to intimidate or coerce witnesses and exculpatory statements shown to be false. See Devitt and Blackmar Federal Jury Practice and Instruction 11.18 to 11.20.
There is a host of cases in the federal courts and also the Pennsylvania state courts upholding the introduction of such testimony for whatever inferences the jury may derive therefrom. See U.S. v. Hall, 565 F.2d 1052 (8th Cir. 1977); U.S. v. Papia, 560 F.2d 827 (7th Cir. 1977); U.S. v. Bastone, 526 F.2d 971 (7th Cir. 1975); Rich v. U.S., 384 F.2d 887 (5th Cir. 1967).
The Pennsylvania Supreme Court has recently considered specifically the admissibility of evidence of attempt to influence the jury in Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972) wherein Mr. Justice Pomeroy said:
"It is undoubtedly true that evidence of a party's attempt to embrace a juror is admissible to show his unwillingness to rely on the soundness of his cause. Subornation of a witness and proof of flight as an admission of guilt are analogues." Citing inter alia Commonwealth v. Brown, 23 Pa.Super. 470, 502 (1903).
In Commonwealth v. Brown, supra, the Superior Court also approved of admission of evidence of jury tampering by the defendants. The court noted again that such attempt to corrupt and influence a juror are competent as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause and said that this stood on the same plane with inference of flight or fabrication of evidence or destruction of evidence or attempt to corrupt witnesses.
It is true that in Commonwealth v. White, it was held there was insufficient connection with the defendant as shown by the testimony whereas in our case there is direct testimony which if believed by the jury would authorize them to find that the defendant instigated, suggested or approved this attempt to reach the juror through Officer Ochs. It should be noted upon being contacted he immediately called his superior officer who reported the matter to federal officials.
See also McCormick on Evidence § 273, treating such evidence as admission by conduct.
Defendant complains the evidence was so prejudicial that it should have been excluded. Since the evidence was relevant, the fact it might have been prejudicial to the defendant is no reason to argue against its admission. See U.S. v. Higgins, 458 F.2d 461 (3d Cir. 1972). This is a matter for the discretion of the trial judge and in view of the testimony in the balance of the case, the ...