No. 1986 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division, to No. 77075501-2.
Robert Lee Moore, Assistant Public Defender, Reading, for appellant.
J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.
Cercone, Hester and Hoffman, JJ. Hester, J., files a concurring and dissenting opinion.
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Appellant contends, inter alia,*fn1 that the lower court improperly (1) admitted prejudicial statements allegedly made by appellant about sale of marijuana; and (2) permitted the verdicts to be recorded despite a lack of unanimity among the jurors. We agree with appellant's second contention and, accordingly we reverse and remand.
While walking her dog on July 13, 1977, the victim, a 14-year-old girl, encountered appellant who was standing
[ 276 Pa. Super. Page 123]
on the porch of the home of her neighbor and friend, Jeffrey Keenan. She had seen appellant only once previously, when he had asked her for directions a few hours earlier at her home. Appellant called to the victim and the two engaged in a conversation on the porch steps. Appellant then asked the victim whether she used marijuana. As the conversation continued, appellant suddenly and violently grabbed the victim and carrier her into the Keenan home. Appellant forced the victim into a first floor bedroom and sexually assaulted her. She escaped shortly thereafter, however, by kneeing appellant in the groin and running out the back door.
Appellant was tried before a jury on charges of indecent assault*fn2 and attempted rape.*fn3 When the jury returned from its deliberations, the foreman announced guilty verdicts on both charges. Appellant's counsel then requested a poll of the jury. Juror number one affirmed the guilty verdict as to attempted rape but stated that she found appellant "Not guilty, innocent" on the charges of indecent assault. Colloquies conducted with the juror both in chambers and in open court elicited from her statements that appellant was guilty of indecent assault as well as statements that he was not guilty of that charge. The trial judge nonetheless ordered
[ 276 Pa. Super. Page 124]
that the verdict slip containing guilty verdicts on both charges be recorded. After denial of his posttrial motions, appellant took this appeal.
Appellant contends first that the lower court erred in allowing the prosecutor to refer to and the victim to testify to her conversation with appellant just before the time regarding marijuana. The victim's testimony was as follows:
A. [The victim:] Well, I was taking my dog down past Jeffrey Keenan's house and a man calling attracted my attention, and I turned around and walked up to the step.
Q. What steps were these?
A. The steps to the porch in front of Jeffrey Keenan's house.
Q. Did you have any conversation with Mr. Stufflet on the steps of Mr. Keenan's home?
Q. What was the conversation you had with Mr. Stufflet?
A. Terry said, "Do you smoke pot," and I said, "No." He goes, "Do you know anybody who ...