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COMMONWEALTH PENNSYLVANIA v. DAVID TURK (07/25/79)

decided: July 25, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID TURK, PETER TURK, AND EDWARD TURK, APPELLANTS



No. 15 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Please, Criminal Division, of Allegheny County, at Nos. CC7605671A, and CC7605676A, CC 7605677.

COUNSEL

Michael A. Litman, Pittsburgh, for appellants.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Van der Voort, Spaeth and Montgomery, JJ. Spaeth, J., files a dissenting opinion.

Author: Van Der Voort

[ 268 Pa. Super. Page 188]

Appeal is taken from judgment of sentence rendered following jury trial and verdict of guilty to numerous charges including aggravated assault and criminal conspiracy, crimes for which prison sentences were imposed, sentences suspended otherwise.*fn1 The sole question preserved for our consideration is a claim of abuse of discretion below in refusing appellants' motion for mistrial.

Pertinent facts are that during the court's charge to the jury, the victim, a witness for the Commonwealth, was suddenly taken ill and was removed from the courtroom for

[ 268 Pa. Super. Page 189]

    medical attention. Defense counsel moved for a mistrial. The court and counsel discussed the occurrence as it might have upset the jurors, one in particular appearing to be disturbed by what had transpired. Counsel further requested that each juror be asked whether he or she could go forward to render an impartial decision. The Commonwealth attorney objected to an individual voir dire because a juror might avail himself of the opportunity to be removed from service for the reason that the case was difficult, rather than a clouding of judgment caused by emotion. Having heard that the juror who appeared upset was all right following a medical examination, the court decided to and did address the entire jury thus:

Members of the jury, I presume you're all physically able to go on with this trial, but I want to pose this question to you: In view of this unfortunate incident, is there anybody on this jury that feels that he or she can't render an impartial verdict? Nobody answers, so I presume you're all saying that you can render an impartial verdict in this case.

Mistrial was refused, and the charge continued.

Appellants ground their argument upon the allegation that the courtroom disturbance had a prejudicial effect upon the jury. The injuries sustained at the hands of appellants were said to be a skull fracture resulting in confusion and the need for psychiatric treatment. Appellants claim that there was an inference that the witness-victim's sudden collapse was caused by these injuries. At the least, to avoid prejudice, ...


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