Appeal from the Judgment of Sentence of October 30, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 85-10-0546-0549.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., Appellee.
Brosky, Del Sole and Hoffman, JJ. Brosky, J., files a dissenting opinion.
[ 363 Pa. Super. Page 500]
This is an appeal from the judgment of sentence for robbery, aggravated assault, theft, and conspiracy. Appellant
[ 363 Pa. Super. Page 501]
contends that the lower court erred when it continued to poll the jurors after it became apparent that the verdict was not unanimous. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.
Appellant was tried by a jury on the above charges. Following jury deliberations, the foreperson announced that the jury had reached a unanimous verdict and that appellant was found guilty of all charges. Defense counsel then requested that the jury be polled. After the jury was polled, the court recorded a unanimous verdict of guilty on charges of robbery, aggravated assault, theft and conspiracy. Appellant moved for a mistrial on the grounds that one of the jurors had said she found him not guilty. The motion was denied. Appellant was sentenced to a five-to-ten-year term of imprisonment for robbery and a one-to-two-year term of imprisonment for conspiracy, terms to run consecutively. This appeal followed.
Appellant contends that the lower court erred when it recorded a unanimous verdict of guilty on all charges because it was apparent that the verdict was not unanimous. We agree. It is well-settled in this Commonwealth that a criminal defendant tried before a jury has the right to a unanimous verdict. Commonwealth v. Stufflet, 276 Pa. Superior Ct. 120, 127, 419 A.2d 124, 128 (1980); Commonwealth v. Pemberton, 256 Pa. Superior Ct. 297, 301, 389 A.2d 1132, 1134 (1978); Commonwealth v. Corbin, 215 Pa. Superior Ct. 63, 65, 257 A.2d 356, 358 (1969). See also Pa.R.Crim.P. 1120(b). To ensure that the verdict is unanimous, both parties have the right to poll the jury. Commonwealth v. Martin, 379 Pa. 587, 592-93, 109 A.2d 325, 327 (1954); Commonwealth v. Pemberton, supra.
The polling of the jury is the means for definitely determining, before it is too late, whether the jury's verdict reflects the conscience of each of the jurors or whether it was brought about through the coercion or domination of one of them by some of his [sic] fellow jurors or resulted from sheer mental or physical exhaustion of a juror.
[ 363 Pa. Super. Page 502]
MR. STANSHINE: I would ask that the juror be asked.
THE COURT: Please remove the jury.
MR. STANSHINE: She said not guilty also, I ask that she be asked what her verdict is.
Id. at 8-9. The jury then returned to the courtroom and the court asked each juror directly how he or she found appellant on each of the charges.
Q: Juror number five, please stand. How do you find the defendant on the charge of criminal conspiracy?
Q: How do you find him guilty or not guilty? How do you find the defendant on criminal conspiracy?
A: I don't understand what you're saying. I can't hear so good.
Q: Oh, you can't hear so good. All right. The question is, how do you find the defendant on the charge of criminal conspiracy?