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COMMONWEALTH PENNSYLVANIA v. GREGORY FOWLER (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY FOWLER, APPELLANT



No. 1506 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 800/802 July Term, 1975.

COUNSEL

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 Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Jacobs, President Judge and Price, J., join. Cercone, J., files an opinion in support of reversal. Hoffman, J., files an opinion in support of reversal in which Spaeth, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case. The above case was decided prior to the retirement of Hoffman, J.

Author: Per Curiam

[ 259 Pa. Super. Page 316]

The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.

[ 259 Pa. Super. Page 317]

VAN der VOORT, Judge, in support of affirmance:

The appellant files the instant direct appeal following his conviction at jury trial, denial of post-trial motions, and sentencing on charges of simple assault, aggravated assault and criminal conspiracy. He raises several claims of error.

Initially, we review the assertion that the lower court erred in instructing the jurors to re-enter deliberations and ". . . make sure that you have done this right." The record shows that the jurors retired to begin deliberations shortly after 11:00 A.M. on December 12, 1976. At almost 10:00 P.M., on the same date, the jurors returned to the courtroom. The jury foreman announced a verdict of guilty on all charges. The defense thereupon requested that the jurors be polled. The first seven jurors proclaimed a guilty verdict on all charges. The difficulties began when juror number eight, in response to the court crier's question as to his finding on a simple assault charge, stated: "Not guilty. Not guilty." The following colloquy ensued:

THE COURT: Wait, do you understand the question?

JUROR NO. 8: Yes, I do.

THE COURT: Oh, then you have not reached a unanimous verdict?

JUROR NO. 4: (To Juror No. 8) You did, did you?

JUROR NO. 8: (To Juror No. 4) I found him on one count.

THE COURT: Well, I think you have to go back out again and start deliberating again. Make sure that you have this done right. Okay, take them back to the room.

After the jurors left the courtroom, defense counsel entered a motion for mistrial, arguing that the last comment of the trial judge, as related above, might have had the effect of coercing juror number eight in his voting. The lower court refused the motion, and we affirm that decision.

Pennsylvania Rule of Criminal Procedure 1120, dealing with jury verdicts, provides in Section (f): "Before a verdict, whether oral or sealed, is recorded, the jury shall be polled at the request of any party. If upon such poll there is no

[ 259 Pa. Super. Page 318]

    concurrence, except for a sealed verdict, the jury shall be directed to retire for further deliberations." Thus, the trial court followed a correct procedure in sending the jurors back to their deliberations. We cannot agree that the court's comment to the jurors in doing so had any possible coercive impact of the sort suggested by appellant.

The appellant cites Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971) in support of his argument. In that case, our Supreme Court held improper the so-called " Allen " charge,*fn1 which, inter alia, cautioned the jurors, in strong terms, not to reach unalterable conclusions with a "blind determination", but rather to consider the opinions of other jurors having a different opinion or disposition to suggest. The Spencer holding was applicable to situations in which a jury announces that it is hopelessly deadlocked in deliberations, and is totally inapplicable in the circumstances of the instant case, where there was apparently no deadlock, but merely some confusion as to the vote. Moreover, the statement of the trial judge cannot be said to have had the coercive impact on jurors in this case similar to the " Allen " type of charge.

Our brethren on this Court suggesting reversal rely upon the holdings in such cases as Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969) and Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968) for support. Such reliance is clearly misplaced as the factual circumstances in such cases make them completely inapposite for application to the instant case. In both Wilmer and Holton, the jury charges deemed improper strongly suggested to the Supreme Court that jurors may have concluded that they were threatened with the "wrath of God" if they brought in a not guilty verdict. The trial judges, in their charges in both cases, made pointed references to the jurors' duty to answer to the Deity for their verdict, and also appealed to the patriotic instincts of the jurors. The mandate to "make sure that you have done this right", while not the most artful instruction

[ 259 Pa. Super. Page 319]

    for the jurors, neither carried the coercive impact evidenced in charges in such cases as Wilmer and Holton, nor created any demonstrable prejudice to appellant. Thus, we must reject appellant's first claim of error.

Next, the appellant contends that the Commonwealth systematically excluded, by peremptory challenge, all members of the Black race who were on the jury panel from sitting on his jury, thereby denying him due process rights, equal protection of law, and trial before a jury of his peers. It is well established that a defendant, in raising such claims, has the burden of establishing a prima facie case of the systematic exclusion of Blacks by the Commonwealth. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Suffice it to note that appellant in essence admits, in his brief to our Court, that he has not met that burden. He argues however that the Swain holding should not be followed by this Court. We ...


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