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COMMONWEALTH PENNSYLVANIA v. BENJAMIN TERRY (07/11/83)

decided: July 11, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BENJAMIN TERRY, APPELLANT



NO. 80-3-595 Appeal from the Order of the Court of Common Pleas Criminal Division of Montgomery County, No. 1563-79, entered on May 16, 1980

COUNSEL

Marvin L. Wilenzik, Norristown (court-appointed), for appellant.

Joseph A. Smyth, Jr., Dist. Atty., Ronald T. Williamson, Chief, Appeals Div., Bert Goodman, Norristown, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a concurring opinion.

Author: Hutchinson

[ 501 Pa. Page 628]

OPINION OF THE COURT

On March 20, 1979, while serving three life sentences at Graterford Prison, appellant bludgeoned Felix Mokychic, Captain of the Guards, to death. On November 19, 1979, a jury found appellant guilty of first degree murder, 18 Pa.C.S. § 2502(a), and after a sentencing hearing pursuant to 42 Pa.C.S. § 9711, returned a death sentence. This is appellant's automatic direct appeal from that sentence. 42 Pa.C.S. § 9711(h).

Appellant claims the trial court erred reversibly in permitting the jury to have appellant's signed confession during its deliberations in violation of Pa.R.Crim.P. 1114. Appellant made the confession shortly after his arrest and it was reduced to writing in the words of a State Police trooper. Since appellant's only defense was his subjective mental condition we conclude the availability of a police edited statement emphasizing the criminal act and its conscious planning, but omitting appellant's arguably delusional statements, was prejudicial to him. We therefore reverse and remand for a new trial.*fn1

The trial judge overruled a defense objection and permitted a copy of appellant's signed confession to go out with the jury. Appellant contends that constituted a clear violation of Pa.R.Crim.P. 1114 which provides:

Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.

It is undisputed that appellant fatally assaulted Felix Mokychic with a baseball bat at about 3:00 P.M. on March

[ 501 Pa. Page 62920]

, 1979. Immediately after the incident, he dropped the bat and surrendered to correctional Officer Arthur Smith. Trooper Moran of the Pennsylvania State Police arrived at Graterford at ...


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