APPEAL FROM THE JUDGMENT OF SENTENCE MARCH 27, 1985 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CRIMINAL NO. 8407867A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cirillo, Beck, and Watkins, JJ.
[ 350 Pa. Super. Page 479]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Allegheny County. Following a trial by jury, appellant Mark Hammond was found guilty of robbery; post-verdict motions were denied. Hammond received a prison term of twenty-four to forty-eight months. We affirm.
Appellant urges three trial court errors. First, he contends the jury was improperly coerced into reaching a guilty verdict. He next maintains the jury was improperly instructed on the meaning of "reasonable doubt." Finally, appellant argues that the trial court abused its discretion in applying the "deadly weapon enhancement" provision of the Sentencing Guidelines, 42 P.C.S. § 9721.
After the jury returned with its initial guilty verdict, the jurors were polled at defense counsel's request. It was discovered that two of the jurors disagreed with the verdict. Consequently, the trial judge re-instructed the jurors and sent them back to deliberate further. They came back with a verdict of guilty. Appellant urges that the instructions given prior to the second round of deliberations were coercive in violation of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). Specifically, appellant finds such coerciveness based on three sentences included in the judge's instructions: "You cannot be discharged from your duties until you have reached a unanimous verdict; . . . each juror should not hesitate to re-examine his or her own view; . . . come back with a verdict."
[ 350 Pa. Super. Page 480]
If the statements relied upon by appellant were the sum total of the judge's instructions, we might find coerciveness. However, as appellant himself points out, we cannot base a finding of error on isolated sentences that are without any context; it is the effect of the jury charge as a whole that is controlling.*fn1 Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985); Commonwealth v. Davis, 331 Pa. Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Melendez, 326 Pa. Super. 531, 474 A.2d 617 (1984). When the jury instructions are read as a whole, it is clear that the dissenting jurors were not coerced into adopting a view not truly their own. The judge stated repeatedly that the jurors should not give in to their peers simply for the sake of ending the trial: ". . . none of you should surrender an honest conviction . . . merely for the purpose of reaching a verdict." While this might not be quite as strong as stating outright that jurors are free to disagree, such explicit language is not a necessary part of the jury instructions. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965).
Appellant maintains, however, that even when taken as a whole, the instructions had a coercive effect in light of the late hour of the day at which the jury was sent back to deliberate further. We disagree. As the trial judge observes in his opinion, the trial lasted for less than one day, and the jury had been out for only two hours. This was hardly a situation in which the jury was obviously deadlocked beyond hope. In sum, we find no defect in the jury instructions.
Appellant next argues that in its second charge to the jury, the trial judge improperly defined "reasonable doubt" to the prejudice of appellant. After explaining that it was incumbent upon the Commonwealth to prove ...