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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. KELLY (03/14/79)

decided: March 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM J. KELLY, APPELLANT



No. 417 January Term, 1977, Appeal from the Judgment of the Superior Court filed November 22, 1976, at No. 1074 October Term, 1976, Affirming the Orders of Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia, at Nos. 2381 to 2385 March Term, 1975.

COUNSEL

Alfonso Tumini, Armando A. Pandola, Philadelphia, for appellant.

Bernard L. Siegel, Deputy Dist. Atty., Erie, for appellee.

O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion. Eagen, C. J., did not participate in the consideration or decision of this case. Pomeroy, former J., did not participate in the decision of this case.

Author: Roberts

[ 484 Pa. Page 528]

OPINION OF THE COURT

In August 1975, appellant was convicted by a jury of one count of obstructing the administration of the law, 18 Pa.C.S.A. § 5101, three counts of perjury, 18 Pa.C.S.A. § 4902, and one count of bribery, 18 Pa.C.S.A. § 4701. Post-trial motions were denied and appellant was sentenced to three to twenty months in prison on the three perjury counts. Sentence was suspended on all other counts. On appeal the Superior Court affirmed. 245 Pa. Super. 351, 369 A.2d 438 (1976). After review of the record and consideration of appellant's contentions, we find no basis for disturbing the order of the Superior Court and we affirm.*fn*

Only one issue merits comment. The trial court in this case placed notations on the verdict slip seeking to identify for the jury the separate counts charged. We are satisfied that sending out with the jury a verdict slip with identifying notations is not prohibited by Rule 1114, Pa.R.Crim.P. Here, where there were numerous separate and distinct charges against appellant, we find no abuse of the trial court's discretion in concluding that there was a need for the identifying notations. The notations themselves, while not ideally drawn, were nevertheless in essence neutral and

[ 484 Pa. Page 529]

    viewed in the context of the court's instructions not suggestive or prejudicial.

Unlike Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976), the language on the verdict slip here is not a condensed and potentially misleading statement of the court's instructions. On its face the verdict slip left to the jury the decision whether defendant was guilty or not guilty. That the notations referred incidentally to some aspect of the Commonwealth's evidence does not in and of itself require reversal in the circumstances of this case.

Nonetheless, it is not inappropriate to observe as a general prudential principle that identifying notations which are not completely neutral create a potential for prejudice. It is therefore desirable for trial courts in the exercise of their discretion: (1) to determine after consultation with counsel whether, due to the complexity of the charges and the nature of the trial, there is a clear need for identifying notations on a verdict slip to avoid confusion by the jury concerning the issues before it; and (2) if such a clear need appears, to determine, after conferring with counsel, the text which best preserves the impartiality of the verdict slip. We are satisfied that trial courts together with counsel can achieve that result.

The judgment of the Superior Court ...


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