No. 70 W.D. Appeal Dkt. 1984; Appeal from the Order of the Superior Court at No. 28 Pittsburgh 1982, filed December 30, 1983, vacating the judgment of sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 1492 of 1980 and remanding for a new trial.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result. Zappala, J., files a dissenting opinion.
Appellee was convicted by an Erie County jury of rape. He was sentenced to a period of incarceration of from five years to ten years. Superior Court, 323 Pa. Super. 540, 471 A.2d 76 (1983) vacated the judgment of sentence and remanded the case for a new trial.
On the first day of trial, the Commonwealth presented five of its six witnesses. Then, because the presiding judge became ill, the trial was recessed for one week. When the trial resumed the Commonwealth presented its final witness, the defense presented two witnesses, and the prosecution presented a rebuttal witness. After four hours of deliberation the jury returned with a verdict of guilty.
Subsequently, appellee's trial attorney learned of a communication that had taken place between the jury and a court officer soon after the jury received its final instructions from the court. When the jury retired to deliberate, the foreperson of the jury had asked the tipstaff: "I asked them if we could have a copy of the records of the first day's testimony." (N.T., October 1, 1981, p. 4). The tipstaff told the foreperson that it was not done that way and denied the request without reporting it to the court. Shortly
after the trial defense counsel, discussing his performance with the foreperson, ascertained the foregoing jury contact, reported it to the court, and a hearing was held to determine its effect, if any, on the deliberations of the jury and their verdict.
After the hearing the trial judge, the Honorable Fred P. Anthony, denied the motion for a new trial and gave as his reasons that had he known of the jurors' request, he would have denied it, because it was and is his policy to deny jury requests for a transcript; and in this case, to allow portions of the transcript to be re-read would have been especially prejudicial to the defendant.*fn1 In addition, Pa.R.Crim.P. 1114, prohibits a jury from having a transcript during deliberations.*fn2
This Court recently addressed the question of ex parte communication between judges and juries in Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983). In that case, we descended from the untenable view that any unreported contact between the court, its officers, and the jury was eo ipso, grounds for a new trial. We went to more level ground. Mr. Justice Hutchinson speaking for a unanimous court laid the new standard: "only those ex parte communications between a court and jury which are likely to prejudice a party will require reversal." Id., 501 Pa. at 27, 459 A.2d at 734.
We are now called upon to decide the proper standard to be applied when a court is faced with a determination of whether a particular ex parte communication has resulted
in a "reasonable likelihood of prejudice." Id., 501 Pa. at 36, 459 A.2d at 739.
Initially we must examine the concept of prejudice. Traditionally, when considering an error committed during the course of a criminal trial, we have measured prejudice by determining whether or not the error could be construed as harmless. If the error was harmless there obviously was no prejudice; if the error was not harmless to the defendant's right to a fair trial then prejudice was found to have attached. See, for example, Commonwealth v. Canales, 454 Pa. 422, 428, 311 A.2d 572, ...