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filed: December 30, 1983.


No. 1201 Pittsburgh 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Butler County, Criminal at C.A. No. 156 of 1981, Book 71, Page 48.


William Roy Shaffer, Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 324 Pa. Super. Page 245]

Appellant was convicted by a jury of robbery. On appeal from the judgment of sentence, he argues (1) that he should be granted a new trial because a tipstaff refused the jury's request to see an exhibit, without informing the trial court

[ 324 Pa. Super. Page 246]

    of the request; or (2) that if a new trial is denied, the case should be remanded for resentencing because the sentencing judge did not adequately state of record the reasons for the sentence. We agree that the action of the tipstaff was error, but find that it was harmless. Appellant's second argument has been waived. We therefore affirm.

Appellant was charged with committing an armed robbery at the L'il Shopper in Slippery Rock, Pennsylvania, on February 2, 1981. At the trial, on June 25, 1981, the Commonwealth's evidence consisted primarily of the testimony of the cashier, who said that the man who robbed her was wearing a red ski mask and a denim jacket, N.T. 8-9; the testimony of the investigating officer, Thomas Eckels, who noticed distinctive footprints in the snow outside the store, and later noticed that, when arrested, appellant was wearing boots that would leave similar prints, N.T. 25-26, 28-29, 36-37, 38; and the testimony of an informant, who said that appellant had admitted to him that he was responsible for the robbery, N.T. 50. In addition, the left boot and denim jacket that appellant was wearing when arrested were admitted into evidence and sent out with the jury. Appellant offered two principal witnesses: his mother, who said that she had seen appellant go to bed about an hour before the robbery, N.T. 86, and that he could not have left the house without being seen, N.T. 87; and appellant himself, who gave the same account of his activities as his mother did, N.T. 97-98.

Appellant's argument for a new trial arises out of a conversation that a juror had with a tipstaff after deliberations had begun. An evidentiary hearing was held on August 21, 1981 at which time the juror testified that:

A. I went to the door and requested of the tipstaffs that we have the search warrant and some notes that Officer Eckles [ sic; Eckels] had made the evening of the robbery of the Little Shopper.

Q. And what did the tipstaff reply to you?

A. We were told that we were not permitted to have the evidence.

[ 324 Pa. Super. Page 247]

N.T. 3 (8/21/81).

The tipstaff did not advise the juror that if the juror would put the jury's request in writing, he would give it to the trial judge; nor did the tipstaff inform the judge of his conversation with the juror.

The behavior of the tipstaff was clearly erroneous. In his charge to the jury the trial judge had said:

If a question arises during your deliberations, write out the question and send it to the court by way of a tipstaff. When everyone has reassembled in the courtroom we will return to the courtroom and answer the question.

N.T. 127.

It was the tipstaff's duty to follow this procedure. But the tipstaff's error went further. At the close of the evidence there was some discussion of the exhibits. This discussion was not transcribed, but at a later evidentiary hearing the trial judge's "recollection" was that the substance of the discussion was that he had declined to rule on whether the documentary exhibits should be sent to the jury room because they may have contained prejudicial matter, and that his "instructions" were that if the jury requested an exhibit, he "would answer the question in open court." N.T. 10-11 (8/21/81). Thus, in telling the jury that it could not have Officer Eckels's notes, the tipstaff, in effect, made his own evidentiary ruling.

Having found error, we must decide whether it was harmless. Error can be harmless only if the Commonwealth proves beyond a reasonable doubt that the error is harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a "'reasonable possibility'" that an error "'might have contributed to the conviction,'" the error is not harmless. Commonwealth v. Davis, 452 Pa. [171] at 178, 305 A.2d [715] at 719, quoting Chapman v. California, 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [17 L.Ed.2d 705 (1967)].

[ 324 Pa. Super. Page 248]

    filed with the sentencing court within ten days after imposition of sentence. Appellant's motion to modify was filed on December 3, 1981. We therefore will not consider appellant's argument that the sentencing judge did not adequately state of record the reasons for the sentence, for by failing to file a timely motion to modify, appellant has waived that argument. Commonwealth v. Walls, 248 Pa. Superior Ct. 335, 375 A.2d 125 (1977), aff'd 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Tolassi, 303 Pa. Superior Ct. 177, 449 A.2d 636 (1982).



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