No. 80-3-741, Appeal from the Order of the Superior Court dated December 14, 1979, as of October Term, 1978, No. 838, reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division and granting a new trial as of Information Nos. 1304, 1307, 1308 February Session, 1977, 272 Pa. Superior Ct. 370,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.
This is the Commonwealth's appeal by allowance from an order of Superior Court vacating Philadelphia Common Pleas' judgment of sentence and granting a new trial after a jury found appellee guilty of rape, robbery and involuntary deviate sexual intercourse. Superior Court acted because it felt "[t]he 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." (Emphasis supplied). Reviewing our holdings on this issue convinces us we must reconsider the prophylactic rule broadly stated in the civil cases which Superior Court
relied on and reconcile them with our line of criminal cases requiring prejudice.
We, therefore, reverse Superior Court, 272 Pa. Super. 370, 415 A.2d 1243, disapproving the broad language in our civil cases requiring reversal without prejudice, and hold that only those ex parte communications between a court and jury which are likely to prejudice a party will require reversal. In this connection we note that instructions on the law or its application to the facts often create a high risk of prejudice, as opposed to incidental communications such as the one involved here. Furthermore, we see no reason to apply different rules in civil and criminal cases.
The issue before us arose from a stipulation between the Commonwealth and defendant with respect to the testimony of the custodian of records for Jefferson Hospital, where the rape victim had been treated. The trial court correctly instructed the jury as to the effect of the stipulation, and the assistant district attorney then entered the stipulation into the record before the jury:
[Assistant District Attorney]: She [the custodian of records] would testify, your Honor, that the records of Jefferson Hospital, of Philadelphia, reflect that the complaining witness, Nina Rothschild, was treated there at about three o'clock in the afternoon, on 1-13-77, for an alleged rape, and was released later in the day to the police.
Record at 138-39a. This evidence was introduced to corroborate Miss Rothschild's testimony that she had promptly reported the rape and was then taken to the hospital.
During its deliberations, a court officer received an inquiry from the jury which read: "May we see or hear the hospital report on Nina Rothschild." Upon being advised of this note, the trial judge instructed the court officer to tell the jury that the hospital report had been put in by stipulation, and to continue their deliberations. Neither the defense nor the prosecution were notified of these communications until after the verdict had been recorded. The court promptly recorded the present communication as follows:
Let the record show that the court officer received the following inquiry from the jury during their deliberations, "May we see or hear the hospital report on Nina Rothschild." Upon being advised of this memorandum, the court advised the court officer to instruct the jury that the hospital report had been put in by stipulation, and to continue their deliberations.
In reaching its conclusion that all ex parte communications between the court and jury require a new trial, the Superior Court extended to criminal cases already overbroad language from a series of civil cases, Sommer v. Huber, 183 Pa. 162, 38 A. 595 (1893); Glendenning v. Sprowls, 405 Pa. 222, 174 A.2d 865 (1961); Gould v. Argiro, 422 Pa. 433, 220 A.2d 654 (1966); Kersey Manufacturing Co. v. Rozic, 422 Pa. 564, 222 A.2d 713 (1966); Yarsunas v. Boros, 423 Pa. 364, 223 A.2d 696 (1966) and Argo v. Goodstein, 424 Pa. 612, 228 A.2d 195 (1967). By so doing, it provided a self-confessed perpetrator of rape, robbery and involuntary deviate sexual intercourse with a new trial. We have not previously applied such a strict prophylactic rule in criminal cases, although it would be difficult to understand why a criminal defendant should receive less protection than civil litigants.
An analysis of the facts and holdings in the civil cases relied on below demonstrates the initial wisdom of their results, followed by a creeping extension of their initial rationale to a point where its conflict with the competing rationale in the criminal field plainly shows the need for a reversal of that extension. In Sommer v. Huber, the jury had sent two written requests to the trial judge for instructions concerning the legal rights of the litigants and the issues between them. To one of these requests the trial judge gave a written response which was not preserved or placed in the record. The parties were not advised of the communications until some time after the verdict was rendered and the jury discharged. This Court reversed the judgment, properly condemning "secret instructions to the
jury in relation to questions raised by the pleadings or the evidence." Id. 183 Pa. at 167, 38 A. at 597.
In Glendenning v. Sprowls, the trial judge outrageously visited the jury room six times during deliberations and allowed a juror to leave the jury room in the judge's company in order to telephone the juror's wife. Although the trial judge subsequently filed a statement in open court explaining the purposes of his actions, he prevented the defendant from interviewing the jurors to ascertain their recollection and interpretation of what had occurred. Accordingly, we reversed this judgment, commenting in the words of Chief Justice Bell: "We strongly condemn any intrusion by a Judge into the jury room during the jury's deliberations, or any communication by a Judge with the jury without prior notice to counsel, and such practice must be immediately stopped!" Id. 405 Pa. at 226, 174 A.2d at 867.
In Gould v. Argiro, seizing on Chief Justice Bell's use of the word "communication," Justice Cohen, writing for the majority, extended Glendenning to private communications without regard to prejudice, saying:
Although we have in the past held that to warrant a new trial prejudice must arise from the trial court's instruction in the absence of counsel, Sebastianelli v. Prudential Insurance Company of America, 337 Pa. 466, 12 A.2d 113 (1940), we have more recently said: . . . This court has . . . . warned trial judges that they are not to enter the jury room or privately communicate with the jury under any circumstances . . . ." (Emphasis supplied). Glendenning v. Sprowls, supra 405 Pa. at 224, 174 A.2d 865.
Gould v. Argiro, 422 Pa. at 435, 220 A.2d at 655. In Gould v. Argiro, the jury had requested two further ...