No. 2729 October Term, 1978, No. 2814 October Term, 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County at Nos. 519, 522 and 523 August Term 1977 and Nos. 1037/1040, 1043 August Term 1977.
John W. Packel, Assistant Public Defender, Philadelphia, for Porter, appellant (at No. 2729).
Thomas H. A. Gallagher, Philadelphia, for Gillmer, appellant (at No. 2814).
James Bowen Jordan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Hoffman and Van der Voort, JJ.
[ 300 Pa. Super. Page 264]
These are appeals from judgments of sentence imposed after jury trials held before the Honorable Levy Anderson of the Court of Common Pleas of Philadelphia County. On April 5, 1978 appellant Gillmer was found guilty of two informations charging simple assault and aggravated assault and of criminal conspiracy. On October 12, 1978 Gillmer was sentenced to imprisonment for an aggregate term of not less than two years nor more than five years.
Appellant Porter was found guilty on two informations charging simple assault and aggravated assault and of criminal conspiracy. On October 12, 1978 Porter was sentenced to imprisonment for an aggregate term of not less than two years nor more than five years.
The essential facts in the instant case are as follows. On July 23, 1977, several men, including appellants Gillmer and Porter, entered the house of Jack Eleazer in Philadelphia. One of the men stabbed Mr. Eleazer in the chest; twenty-five dollars was taken from Mr. Eleazer after he was bound and gagged. Mr. Eleazer heard appellant Gillmer say that he planned to kill him.
[ 300 Pa. Super. Page 265]
Two of the intruders found Mrs. Eleazer on the second floor of the house. One of them, armed with an ice pick, told Mrs. Eleazer to be quiet or she would be killed. The man then struck Mrs. Eleazer, tied her up, and took fifteen dollars from her purse.
Mr. Eleazer freed himself, obtained a butcher knife, and chased appellant Gillmer upstairs. Mr. Eleazer then went to his living room and recovered a shotgun he had previously hidden there, and ordered appellant Gillmer, who was standing at the top of the steps, to come down. Gillmer refused to do so and threw an old rifle down at Mr. Eleazer. Mr. Eleazer then left the house to notify the police.
Appellants Gillmer and Porter then came to the door of the Eleazer house. Upon seeing Mr. Eleazer returning with his shotgun, appellant Porter told appellant Gillmer that the shotgun was unloaded as he had the shells for it in his pocket. Porter further suggested that they attack the assumedly defenseless Mr. Eleazer.
As appellant Gillmer came out of the house, Mr. Eleazer shot him. Appellant Porter and the other intruders then came out of the house. Porter took the shotgun from Mr. Eleazer and then attempted to help Gillmer escape.
A Philadelphia police officer subsequently found the wounded appellant Gillmer around the corner from the Eleazer house. Appellant Porter was found running away from the scene. Porter's clothes were soaked with blood. Mr. Eleazer identified both appellants Gillmer and Porter as two of his assailants to the police on the night of the crime and, subsequently, in court proceedings.
At trial, appellant Gillmer testified that he had gone to the Eleazer home to buy wine on the night in question and was robbed by three young men leaving the house. Gillmer maintained that Mr. Eleazer then came out of the house and fired a shotgun, wounding him.
Appellant Porter testified that he was walking towards appellant Gilmer's sister's home when he heard gunfire and saw Gillmer doubled over. After taking the shotgun and
[ 300 Pa. Super. Page 266]
two shells away from Mr. Eleazer, and helping Gillmer around the corner, Porter said he went to the scene of the crime and was chased by a crowd that had gathered. Porter was arrested shortly thereafter.
When called as a witness, Mrs. Eleazer testified that no wine had been sold from her house during 1977. Joel Moldovsky, Esquire, counsel for appellant Gillmer, then withdrew from the case in order to testify that Mrs. Eleazer had previously admitted to him that such sales had taken place during 1977. During Mr. Moldovsky's testimony the assistant district attorney prosecuting the case laughed at his testimony and then attempted to impeach him.
During closing argument, the prosecutor made a reference to the jurors' duty to the community. Defense counsel objected to such reference and was sustained by the trial judge, but specifically asked that no cautionary instruction be given.
During his charge on March 31, 1978, the trial judge instructed the jury that co-conspirators are liable for the natural and probable consequences of each others' acts committed during the conspiracy.
After several hours of deliberations on March 31 and April 3, 1978, the jury announced that they had reached a verdict. At the request of both defense counsel the jury was polled individually. All jurors polled announced that they found appellants Gillmer and Porter guilty on all counts until juror number nine announced that his verdict was not guilty on all counts. At that point the trial judge dropped the pencil he was holding in surprise. The trial judge then instructed the jury to continue its deliberations as it had not yet reached a verdict.
Jury deliberations continued into the next day, April 4, 1978, at which time the jury advised the trial judge that they were deadlocked. The trial judge then delivered a supplemental charge to the jury which urged them to consult with one another during their deliberations.
[ 300 Pa. Super. Page 267]
The jury continued its deliberations for approximately two hours on April 4, 1978 and for approximately two and one-half hours on April 5, 1978. The jury then returned with the verdicts of guilty which appellants Gillmer and Porter challenge in this appeal.
Appellants Gillmer and Porter phrase their first contention of error as:
Did not the lower court violate appellant's federal and state constitutional rights to trial by jury and coerce the jury into a verdict when the court: (A) exhibited what could reasonably have been viewed as disgust and disapproval when juror number nine announced a dissenting not guilty verdict and directed the jury to continue deliberations and (B) reinstructed the jury on its duties in deliberations for the third time -- directing the jury to continue ...