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COMMONWEALTH PENNSYLVANIA v. FRANKLIN ELMORE (12/30/83)

filed: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANKLIN ELMORE, APPELLANT



NO. 28 PITTSBURGH 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Erie County, Criminal No. 1492 of 1980

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ. Hester, J., filed a dissenting statement.

Author: Spaeth

[ 323 Pa. Super. Page 542]

This appeal was taken from a judgment of sentence for rape. Appellant argues: (1) that the trial court committed reversible error in failing to grant a new trial where the jury's request for part of the trial transcript was denied ex parte by the tipstaff; (2) that the trial court committed reversible error in failing to grant a mistrial due to a six-day delay in the trial proceedings; (3) that the trial court's statement of reasons for its sentence was inadequate; and (4) that trial counsel was ineffective in failing to raise in the motion to modify sentence the inadequacy of the statement of reasons for the sentence. We agree with appellant's first argument and therefore reverse and remand for a new trial, without addressing appellant's remaining arguments.

The first day of trial started, before a jury, on Monday, January 12, 1981, at 2:23 p.m., and ended at 4:10 p.m. During this time the prosecution presented the testimony of five of its six witnesses, including the complainant, all of

[ 323 Pa. Super. Page 543]

    whom were cross-examined by defense counsel. On Tuesday morning, January 13, at 9:45, the jury was advised that the trial judge had taken ill and that the case would therefore be continued until Wednesday morning. On Wednesday morning, January 14, at 9:40, the jury was advised that the trial judge was still ill, and the trial was recessed until Monday morning, January 19.

The trial resumed on January 19, 1981, at 9:20 a.m., and at 11:00 a.m. the jury retired to deliberate. During this time the prosecution presented its final witness, the defense presented its two witnesses, and the prosecution presented a rebuttal witness. At 1:43 p.m. the jury returned with a question for the court regarding the legal definition of rape. The trial judge again recited the definition for the jury. The jury then resumed its deliberations, and at 3:05 p.m. returned a verdict of guilty.

After the trial was over, defense counsel interviewed the foreman of the jury, Patricia Hagmann. She indicated that at the start of the deliberations she had asked the tipstaff if the jury could see the record of the first day's proceedings and that the tipstaff had denied this request. At the evidentiary hearing held October 1, 1981, Ms. Hagmann testified as follows:

Q. What specifically did you ask the tipstaff?

A. I asked them if we could have a copy of the records of the first day's testimony.

Q. And what was their response, if any?

A. They just said no; that it wasn't done that way.

Q. Was that response immediate or was there a time delay?

A. It was immediate.

In denying appellant's motion for a new trial, the trial court criticized defense counsel for interviewing Ms. Hagmann. The court stated:

This juror had to be subpoenaed to appear by defendant's counsel and gave the impression she was annoyed by such. Of course, we ...


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