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COMMONWEALTH PENNSYLVANIA v. GUY EUGENE FERGUSON (07/24/81)

filed: July 24, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
GUY EUGENE FERGUSON, APPELLANT



No. 379 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, at Nos. 4738 and 5299 of 1978.

COUNSEL

Frank J. Marcone, Media, for appellant.

David E. Fritchey, Deputy District Attorney, Media, for Commonwealth, appellee.

Wickersham, Hoffman and Van der Voort, JJ. Wickersham, J., files a concurring statement. Hoffman, J., files a dissenting opinion.

Author: Van Der Voort

[ 289 Pa. Super. Page 166]

Appellant was charged with several counts of possession and delivery of cocaine, methamphetamine, and marijuana. At appellant's jury trial the Commonwealth presented evidence that on three separate occasions appellant had sold the above-mentioned drugs to an undercover officer of the Pennsylvania State Police. Appellant admitted making the sales, but attempted to show that he had been entrapped. Specifically, appellant introduced evidence that his father had been in jail at the time of the sales, and that his father's paramour, working in concert with the State Police, had allegedly induced appellant to sell the drugs to raise enough money to secure his father's release on bail. Appellant was convicted of three counts of possession and three counts of possessing with intent to deliver and delivery of a controlled substance. Appellant has filed this direct appeal alleging the trial court committed six errors, which he claims entitles him to a new trial.

I. Appellant's main contention is that the trial judge usurped the function of the jury in his charge on entrapment. The lower court instructed the jury generally on entrapment and included in its instructions the following statement: "Now, does it make any difference that your father's in jail and you were asked to do something illegal and as a result he would get help? That's not enough. A

[ 289 Pa. Super. Page 167]

    lot of people have that situation but I am going to leave it for you." (N.T. Jury Charge p. 2). The appellant extracts these few comments out of the charge as a whole and claims the court improperly interfered with the jury.

We must review the court's charge to the jury in its entirety. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). In at least ten different points in the charge the court clearly told the jury that it, the jury, exclusively, must decide appellant's guilt or innocence. (N.T. Jury Charge, pp. 2, 3, 11, 12, 14, 15, 16 and 23). The trial judge commenced his charge and completed it by informing the jury that it was solely responsible for adjudging the appellant. In the midst of this the court made one reference to one of the pertinent issues and expressed its opinion on the issue.

A court may clarify the issues that are before the jury. Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974); Commonwealth v. Vernille, 275 Pa. Super. 263, 418 A.2d 713 (1980); and Commonwealth v. Cameron, 247 Pa. Super. 435, 372 A.2d 904 (1977). We believe the court's question: "Now, does it make any difference that your father's in jail and you were asked to do something illegal and he would get help?", was a concise, accurate and fair phrasing of the entrapment issue faced by the jury.

A court may express its opinion on the evidence so long as it emphasizes that its opinion is only the opinion of the court and is not binding upon the jurors who are the sole judges of the defendant's guilt. Commonwealth v. Austin, 274 Pa. Super. 1, 417 A.2d 1220 (1980); Commonwealth v. Dougherty, 259 Pa. Super. 88, 393 A.2d 730 (1978). We realize that the line between permissible and impermissible comment is not clearly defined. However, we believe the court did not exceed its permissible limits.

A judge who at the end of the formal charge stated that in his opinion the defendant if guilty at all was guilty of

[ 289 Pa. Super. Page 168]

    first degree murder was held to have interfered with the jury's duty. Commonwealth v. Goins, 457 Pa. 594, 321 A.2d 913 (1974). The judicial statement that "I think it would be a miscarriage of justice to find the defendant not guilty," was held to be impermissible. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). While in Commonwealth v. Ott, 417 Pa. 269, 207 A.2d 874 (1965) the Supreme Court held it impermissible for a judge to tell the jury that he had a duty to tell them that in his opinion the defendant was guilty. In Commonwealth v. Austin, supra, this court held that the lower court erred in instructing the jury that the weapon "certainly is an offensive one", when "offensiveness" was one of the elements of the crime charged. There are numerous cases dealing with this issue; the four above are representative of cases where the reviewing court found the comment to be reversible error.

Cases where the comment was held permissible include Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978) where the court in charging on the voluntariness of the defendant's statement, mentioned that the court had found it to be voluntary in determining its admissibility. The court however clearly stated that it was the jury's obligation to determine the voluntariness of the statements. The Supreme Court found it "inconceivable" that the charge as a whole had interfered with the jury's function. Similarly, the Supreme Court in Commonwealth v. Walker, 459 Pa. 12, 326 A.2d 311 (1974) found that the trial court had not exceeded its bounds when it stated in the charge "now if you believe beyond a reasonable doubt that the defendant shot and killed the victim under the circumstances as the Commonwealth has proved to you." (emphasis added by Supreme Court) and held that this statement simply indicated what the Commonwealth's evidence if believed tended to establish.

We find the present case to be more in line with Walker and Woodward. The court succinctly stated the issue before the jury and then made a passing comment as to its opinion, ...


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