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COMMONWEALTH PENNSYLVANIA v. THOMAS FOWLER (04/02/87)

filed: April 2, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
THOMAS FOWLER, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1552-1560 May, 1985.

COUNSEL

Sandra F. Zavodnick, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Tamilia and Hester, JJ.

Author: Wieand

[ 362 Pa. Super. Page 83]

Thomas Fowler was tried by jury and was found guilty of attempted rape, attempted involuntary deviate sexual intercourse, robbery, theft by unlawful taking, simple assault and possession of an instrument of crime. Post-verdict motions were denied, and Fowler was sentenced to serve a term of imprisonment for not less than three and one-half years nor more than ten years. On direct appeal, he contends that the trial court erred by denying a request for a mistrial when, during the polling of the jury after a verdict had been returned, it was discovered that a juror had observed portions of a fictional television show pertaining to rape. Fowler also contends that trial counsel was ineffective because he refused to permit him to testify in his own behalf. We find no merit in these contentions and affirm the judgment of sentence.

The victim, according to the Commonwealth's evidence, was accosted on a public street at 5:00 a.m. and was forced into an enclosed school yard where she was assaulted physically and sexually at knife point. When, after approximately two hours, the victim was able to seize the knife, her assailant took a plastic bag, in which the victim had been

[ 362 Pa. Super. Page 84]

    carrying personal items, and fled. The principal issue at trial was whether Fowler had been the assailant.

The jury began its deliberations at or about 2:00 p.m. on October 30, 1985. When, at 5:07 p.m., the jury had not reached a verdict, the trial court permitted the members of the jury to disperse with instructions that they should not discuss the case with anyone and to return on the following day. On October 31, 1985, the jury deliberated from 9:15 a.m. until 11:15 a.m., when a verdict of guilty was returned. The jury was polled, and all members indicated agreement with the announced verdict. Thereafter, but before the jurors had been discharged, defense counsel requested the trial court to poll the jurors regarding the possible influence of an episode of the television series entitled "Hotel" which, on the prior evening, had depicted the circumstances of a fictional rape. The trial judge initially denied the request, then relented, changed his mind and conducted an individual poll of the jurors. This revealed that one juror had seen the television show, and that he had seen only "the tail end of it." When asked further if it had had an impact on his deliberations, he responded, "I don't think so." The trial court then directed that the verdict be recorded. However, defense counsel proceeded to cross-examine the juror without objection by the prosecuting attorney and without interruption by the court. Although the juror continued to say that he did not think the television production had affected his deliberations, he finally conceded, in response to a leading question posed by defense counsel, that he could not be certain. The juror was then taken into the judge's chambers and, after being individually instructed in the presence of counsel, assured the court that he could follow the court's instructions and reach a decision based solely on the evidence produced during trial. The court then directed the jury to retire once again and resume deliberations. At this point, defense counsel moved for a mistrial, which the court denied. Twenty-five minutes later, at 11:55 a.m., the jury sent a note to the trial judge to the effect that they could not "reach a verdict with total agreement." The jurors were asked to continue deliberating. At 2:50 p.m., a

[ 362 Pa. Super. Page 85]

    note to the trial judge, signed by the foreman, again suggested an inability to reach a unanimous agreement. The trial court instructed the jury consistently with Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), and asked the jury to continue its deliberations. At 3:55 p.m., a third note to the trial judge suggested that further deliberations would not break the impasse. The trial court thereafter excused the jurors for the day and permitted them to disperse until the following morning. A verdict of guilty on all charges was returned at 10:59 a.m. on November 1, 1985.

The proceedings following the initial return of a verdict were ill-advised. This is patently clear. The ABA Standards pertaining to Trial by Jury, at § 5.7(a), direct that "[u]pon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined." This is consistent with the well-settled principle of public policy in this Commonwealth that "post-trial affidavits and evidence of jurors elicited by the examination of counsel or by a litigant for the purpose of . . . impeaching the verdict are improper, and such practice is to be discouraged." 38 P.L.E. Trial § 397. ...


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