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COMMONWEALTH PENNSYLVANIA v. WILLIAM HOKE (01/12/89)

filed: January 12, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WILLIAM HOKE, II, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division at No. 151/1987.

COUNSEL

Walter M. Phillips, Jr., Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Kelly, Popovich and Hoffman, JJ.

Author: Popovich

[ 381 Pa. Super. Page 72]

This is an appeal from a judgment of sentence of March 18, 1988,*fn1 after a jury trial regarding a November 28, 1986, automobile accident. The accident occurred on Post Road in a residential development of Northhampton Township, Bucks County and resulted in a fatal head injury to the victim, Dr. Stephen Chartan. The jury convicted the appellant of aggravated assault,*fn2 recklessly endangering another person,*fn3 and leaving the scene of an accident involving death or personal injury.*fn4 He was acquitted of the charge of involuntary manslaughter,*fn5 and simple assault.*fn6 For the reasons herein set forth, we affirm.*fn7

[ 381 Pa. Super. Page 73]

The pertinent facts are as follows. The appellant stopped his blue Corvair on Post Road before approaching a mound of gravel that traversed the width of the street outside the victim's house. Automobiles frequently drove over nearby lawns to pass the gravel piled in the road. In order to circumvent the gravel, appellant drove his vehicle over Dr. Chartan's lawn, and then re-entered the roadway.

At this juncture an Oldsmobile backed out of a Post Road residence and parked in the middle of the street, approximately 50 feet in front of the appellant's car. Dr. Chartan emerged from the vehicle which remained parked on Post Road. As Dr. Chartan approached appellant's vehicle, appellant began to apologize for driving over the lawn. A discussion ensued in which Dr. Chartan requested appellant produce a license and vehicle registration. The appellant refused to comply with the request.

As Dr. Chartan returned to his vehicle, appellant proceeded to leave the scene by driving in the direction of Dr. Chartan's car. Dr. Chartan either jumped or was forced onto the hood of appellant's Corvair. He affixed himself to the hood by grabbing the wiper blades. After a jump or fall to the pavement, Dr. Chartan's body was found approximately 100 feet from his Oldsmobile.*fn8 As appellant fled the scene of accident, he observed in his rear view mirror the victim lying motionless in the street, but proceeded with his plans for the evening by visiting the homes of his parents and girlfriend. Appellant mentioned the incident to no one.

Appellant raises five issues for us to consider: 1) The trial court erred in not granting motion for a mistrial after a court employee mistakenly submitted, to a deliberating jury, an unadmitted exhibit of evidence in the nature of a scaled diagram of the accident scene; 2) The Commonwealth's

[ 381 Pa. Super. Page 74]

    failure to preserve an unadmitted exhibit for the appellate process denies meaningful appellate review and warrants a new trial; 3) The evidence was insufficient to support a guilty verdict to the charge of aggravated assault; 4) The trial court erred in denying appellant's request to charge the jury on the defense of justification for leaving the scene of an accident; and 5) The trial court erred by charging the jury that it could consider appellant's flight from the scene of the accident as evidence of consciousness of guilt. We will deal with them seriatim.

Appellant's first argument is that the trial court erred in not granting appellant's motion for a mistrial after a court employee mistakenly submitted, to a deliberating jury, an unadmitted exhibit of evidence in the nature of a scaled diagram of the accident scene. Before evaluating the effect of the mistake, we must analyze the overall context in which it occurred.

The diagram contained several pieces of information relevant to the Commonwealth's case.*fn9 It was used as an exhibit during the testimony of Officer James Caldwell. However, the diagram was not admitted into evidence because of the presence of a skid mark on the diagram. The skid mark was discovered by the police two days after the accident. Appellant objected to the fact the Commonwealth could not offer expert testimony to connect the skid mark to the vehicle of the appellant or victim. The lower court properly sustained the objection. Consequently, the diagram was not admitted into evidence.

Nevertheless, during jury deliberations a court employee mistakenly gave the unadmitted evidence to the jury. Upon learning of the error, the trial judge immediately directed the diagram be removed from the jury room.*fn10 It is estimated

[ 381 Pa. Super. Page 75]

    the evidence remained in the jury room for approximately five to eight minutes. Counsel for appellant argues the error was so prejudicial it resulted in the denial of a fair trial for his client. After careful consideration of the entire record, we disagree.

The Court has never ruled on the factual circumstances of this particular issue. However, a myriad of prior cases has set forth the legal standard used to rule on issues in which unauthorized material enters the jury room.

For example, in Commonwealth v. Maute, 336 Pa. Super. 394, 485 A.2d 1138 (1984), we reviewed the issue of whether the appellant was entitled to a new trial because the jury foreman took notes when the trial court, upon jury request, repeated the elements of the crime charged. The court said it is improper for a juror to take notes during a trial and use the notes in the jury room. It further ruled that since the appellant did not introduce competent evidence to establish prejudice from such conduct, he was not entitled to a new trial. Id., 336 Pa. Superior Ct. at 406, 485 A.2d at 1144. See also, Pa.R.Crim.P. 1113, Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973).

A long line of Pennsylvania cases has held that the misconduct of a juror must result in a prejudicial effect upon the defendant to justify a new trial. Any irregularity or misconduct on the part of a juror during the trial will not warrant a new trial unless it appears that the act complained of actually prejudiced the rights of the parties involved. Fisher v. Strader, 399 Pa. 222, 160 A.2d 203 (1960). See also, Friedman v. Ralph Brothers Inc., 314 Pa. 247, 171 A. 900 (1934), Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915). See, generally, Pierce, 309 A.2d at 372.

[ 381 Pa. Super. Page 76]

Granted, in the case sub judice, the mistake is not attributed to the actions of a juror, but rather a court employee who improperly submitted the diagram to the jury. Nonetheless, we are of the opinion that the legal standard enunciated in the aforementioned cases applies to situations where unadmitted exhibits somehow find their way into a jury room through improper actions of court personnel. Thus, when exhibits not in evidence are given to the jury by court personnel, a new trial will not be ordered unless it is shown the evidence was so prejudicial that the defendant was denied a fair trial.

In the case on hand, the diagram in question was marked for identification purposes as Commonwealth's Exhibit # 9 (C-9). It was not admitted into evidence. In fact, the trial court sustained appellant's objection when the Commonwealth was unable to offer expert evidence connecting a skid mark on the diagram to appellant's vehicle. However, during Officer Caldwell's testimony the jury had a clear view of the diagram as the Commonwealth made references to ...


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