No. 443 March Term, 1977, Appeal from Judgment of Sentence Imposed by Court of Common Pleas of the 39th Judicial District of Pennsylvania, Criminal, Franklin County Branch, on July 27, 1977, to No. 238 of 1976.
Blake E. Martin, Public Defender, Chambersburg, for appellant.
George S. Glen, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case. Cercone, J., concurs in the result. Hester, J., files a dissenting statement.
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This appeal follows appellant's conviction and sentence in the court below on the charge of solicitation to commit murder. The issue we must decide is whether the court below erred in the way it handled a note passed to it
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from the jury during deliberations.*fn1 For the reasons that follow, we hold that the court should have questioned the jurors regarding the nature of the information received by them, and therefore grant appellant a new trial.
The evidence produced at trial reveals that sometime during 1976, appellant began discussing a plan to "beat up" Wilmer Sheffield, the husband of a woman with whom appellant had lived for several weeks in the Fall of 1975. Two of appellant's co-workers testified that he enlisted their help in carrying out his plan because of the size of the intended victim. The focus of the plan soon changed, however, from assault to murder. Appellant began talking in terms of killing Sheffield, and requested his two friends to hold the victim down when the time came while he inflicted blows with a crowbar. Appellant's plan also included cutting up Sheffield's body with a chain saw and disposing of the pieces in a quarry. A date was set for Easter night.
Apparently afraid that appellant intended to carry out the scheme, the two co-workers related the plan to the police. Appellant was thereupon arrested and charged with solicitation to commit murder. A jury trial resulted in conviction of the offense charged, and appellant was sentenced to five to ten years imprisonment. This appeal followed.
Approximately two hours after the jury had retired for deliberations, a tipstaff delivered a note to the court. In the presence of counsel, the court read the note, which said:
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Because of information revealed by several members of the jury regarding the defendant we are unable to proceed with dispatch in ...