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11/25/97 COMMONWEALTH PENNSYLVANIA v. KEVIN BLAINE

November 25, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KEVIN BLAINE LEASE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Somerset County, Criminal Division, at No. 706 CRIMINAL 1995. Before FIKE, J.

Before: Popovich, Hudock and Hester, JJ.

The opinion of the court was delivered by: Hudock

OPINION BY HUDOCK, J.:

Filed November 25, 1997

This is an appeal from the judgment of sentence after a jury convicted Appellant of burglary, criminal trespass and two counts of conspiracy. *fn1 Separately, the trial Judge found Appellant guilty of the summary offense of criminal mischief. *fn2 Appellant was sentenced to an aggregate term of four and one-half to nine years incarceration. This direct appeal followed in which Appellant challenges the denial of his request for a mistrial and the sufficiency of the evidence supporting his burglary conviction. We affirm.

The pertinent facts may be summarized as follows: Appellant claimed that he had loaned money to Earl Sheets (Sheets) in order for Sheets to purchase marijuana. According to Appellant, Sheets never completed this transaction. Thus, Appellant wanted Sheets to return his money. In order to settle the dispute, Appellant contended that Sheets invited him to visit his mobile home. Appellant went to Sheets' home, but Sheets was not there. Nevertheless, Appellant and his co-defendant *fn3 decided to enter the mobile home.

Sheets protected his home with a video monitoring system. The monitoring system caught Appellant and his accomplice breaking down the door to Sheets' residence and roaming through the mobile home. At trial, the prosecution introduced the videotape from the monitoring system. The tape demonstrated that the door was significantly damaged during the break-in.

The case proceeded to a two-day jury trial. When the jury returned a guilty verdict on four of the charges, defense counsel asked for a poll of the jury. There were six ballot questions; the jury had returned a guilty verdict on numbers one, two, five and six. *fn4 Without any instruction from the Judge, the clerk only polled the jurors on the questions where they returned a guilty verdict. When the first juror was polled, he answered "not guilty" to the third question. N.T., 10/30/96, at 2.153. The Judge immediately called all counsel to the bench for a sidebar conference.

Defense counsel immediately moved for a mistrial: "I move for a mistrial . . . . I think there's ample authority that indicates that on a polling of the jury, if the response is contra to what's [on] the verdict slip . . . that's grounds for a mistrial." Id. at 2.154. Since the Judge, prosecution and defense counsel wanted to do some research before taking any further action, the jury was directed to return to the jury room. After some research and further argument, the Judge denied the motion for a mistrial. He did, however, grant a defense request for a new verdict slip.

At that point, about fifty minutes after the juror answered "not guilty," the jury was brought back to the courtroom. The Judge explained to them that Pa.R.Crim.P. 1120(f), 42 Pa.C.S.A., required them to continue their deliberations in the case. Then, they were given the new verdict slip. It asked them to continue to deliberate and reach verdicts only on the charges for which they found guilt on the first verdict slip. *fn5 After ten minutes of further deliberation, the jury returned a guilty verdict on all three questions.

As a preliminary matter, we wish to note Appellant's non-compliance with our rules of appellate procedure. Appellant has not provided us with a "Statement of the Scope and Standard of Review," required by Pa.R.A.P. 3518, 42 Pa.C.S.A. While not fatal to his appeal, such errors weaken the strength of his brief and make this Court's review more difficult.

Appellant presents two questions for our review:

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT APPELLANT'S MOTION FOR MISTRIAL WHEN JUROR [sic] IN SEAT NO. 1 ANNOUNCED "NOT GUILTY" ON BEING POLLED, AND IN SENDING THE JURY BACK TO THE JURY ROOM AFTER THE INITIAL POLLING, BUT BEFORE INDICATING TO THEM THAT THEY MUST FURTHER DELIBERATE PURSUANT TO PA. R. CRIM. 1120(f) [sic]?

II. DID THE LOWER COURT ERR IN CONCLUDING THAT THE JURY'S VERDICTS OF GUILTY AS TO THE BURGLARY CHARGE AND THE CONSPIRACY TO COMMIT BURGLARY CHARGE WERE SUPPORTED BY THE EVIDENCE, DESPITE APPELLANT'S ...


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