No. 838 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 1304 and 1307-08 February Term, 1977.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ.
[ 272 Pa. Super. Page 371]
On September 28 through 30, 1977, appellant was tried before a jury and found guilty of robbery,*fn1 rape,*fn2 and involuntary deviate sexual intercourse.*fn3 Post-verdict motions were denied, and he was sentenced to a term of imprisonment of from five to fifteen years for robbery, ten to twenty years for rape, to be served consecutive to the term for robbery, and ten to twenty years for involuntary deviate sexual intercourse, to be served concurrently with the robbery and rape terms. This appeal was subsequently brought alleging several instances of error in both the trial and sentencing proceedings. We agree that the facts mandate reversal and remand for a new trial.
The pertinent factual and procedural history is as follows. On January 13, 1977, at about 12:30 p. m., acts of unlawful sexual intercourse and involuntary deviate sexual behavior
[ 272 Pa. Super. Page 372]
occurred between appellant and the victim at the latter's apartment. After appellant departed, the victim was taken to the hospital and examined. Appellant was subsequently arrested on January 29, 1977, and brought to trial.
At trial, the following events transpired and form the grounds of appellant's assignment of error. During the course of its deliberations, the jury sent the judge an inquiry which stated, "May we see or hear the hospital report on [the victim]." (N.T. at 353). Although there is no indication in the record that counsel was unavailable, the judge responded to the inquiry without notifying counsel. The court officer was advised to instruct the jury "that the hospital report had been put in by stipulation, and to continue their deliberations." (N.T. at 353). Appellant's counsel did not learn of this communication until the trial judge placed the matter on record after the jury's verdict was delivered.
Appellant argues that the procedure employed by the trial court to communicate with the jury was improper because: (1) the instruction was erroneous; (2) his counsel was not given notice of the jury request to enable him to assist in formulating the response; and (3) the judge should have instructed the jury himself, in open court, and should not have orally relayed information through a court officer. Appellant claims that these improprieties constitute reversible error, and we are constrained to agree.*fn4
The Supreme Court of Pennsylvania has strictly prohibited communication between the judge and jury other than in open court and in the presence of counsel for all parties. Although in the past, courts had been content to label communications outside the presence of ...