A jury found the defendant guilty of murder in the third degree. Her post-trial motions are now before us. Because of the complexity of the case and of the issues presented, we deem it appropriate to begin with a statement of the facts in the case.
The body of James Dean Lewis was discovered by police in the living room of his home at 611 John Street in New Castle on the morning of November 30, 1990. He appeared to have died of a gunshot wound in the head. The defendant had been living with Lewis in a common-law marriage for several years and had borne him two children. When the police and the ambulance personnel arrived at the home (about 7:30 in the morning), they found the defendant present with her children and several other relatives whom she had called before notifying the police. The body was lying on one side against a sofa with one arm under his head and a cigarette in
As a result of police investigation, the defendant was arrested on December 2, 1990, and charged with criminal homicide. A preliminary hearing was held on January 2, 1991, at which time the district justice ordered the defendant held for court. An information charging her with the murder of James Dean Lewis was filed by the district attorney on February 11,1991. Discovery motions were made and ruled on during March of 1991, and the trial began on November 19, 1991. During the trial the Commonwealth presented evidence tending to show that the defendant had shot the victim with a firearm (never recovered) during the early morning hours of November 30, 1990, and that she had previously been quarreling with him regarding his use of drugs and his association with drug dealers. The defendant’s theory was that the victim had been shot by someone else, perhaps by a drug dealer on whom he had informed (he was an informant for the police), and that she had discovered his dead body on awaking that morning.
After four days of testimony, closing arguments and the charge were delivered on the morning of November 25, 1991, and the jury retired to deliberate at 12:23 p.m. They returned to the courtroom at 4:30 p.m. with a verdict. The verdict slip as it had been completed indicated that the jury had found the defendant not guilty of first degree murder but guilty of third degree murder, and that was the verdict announced by the tipstaff. But when the jury was polled at the request of defense counsel, juror 10 responded “not guilty” on the charge of third degree mur
Post-trial motions were filed on December 5, 1991. In addition to the standard boilerplate contentions regarding the sufficiency and weight of the evidence, these motions allege error in the court’s refusal to grant discovery concerning the status of the decedent as a drug informant; in ruling inadmissible certain defense evidence; in refusing the defendant’s points for charge; in granting the Commonwealth’s “dual inference” points for charge and emphasizing them repeatedly; in refusing to charge the jury on involuntary manslaughter; in polling the last two jurors after the tenth had said “not guilty;” in refusing to grant a mistrial after the poll; and in retiring the jury again with the identical verdict slip and the same possible verdicts, thereby effectively allowing them to reconsider their “not guilty” verdict on first degree murder. We will consider the issues raised in these motions in the order in which they are addressed in the defendant’s brief.
THE JURY POLL
The first series of issues raised by the defendant stem from the episode in which the verdict originally returned by the jury was revealed on a poll of the jury not to be unanimous which necessitated the retirement of the
When the poll was complete, the court conducted a sidebar conference with counsel. The assistant district attorney urged the court to retire the jury for further deliberations in accordance with Rule 1120(f). The defense attorney moved for a mistrial, arguing that the sole dissenting juror would be placed under too much pressure during the additional deliberations. Eventually the court decided to deny a mistrial and recess the jury pursuant to the rule. At that point the jury was retired with this instruction: “Members of the jury, as I have instructed you previously, your verdict must be unanimous. It was not unanimous at this point in time so we’re going to re-retire you to continue your deliberations. All right.” (Id. p. 101 11.2-7.) About half an hour later, defense counsel argued to the court that a Superior Court precedent (to be discussed below) required the granting of a mistrial because the final two jurors were polled after the dissent of the tenth juror had been determined. The Commonwealth took the position that Rule 1120(f) had in any event been complied with, and hence there was no need of a mistrial. After a further discussion of other precedents, the court reached the conclusion that the continued polling
The cases relied on by the defendant in support of her claim that a mistrial should have been declared are Commonwealth v. Sanchez, 363 Pa. Super. 499, 526 A.2d 790 (1987); Matthews v. United States, 252 A.2d 505 (D.C. Ct. App. 1969); Williams v. United States, 419 F.2d 740 (D.C. Cir. 1969); United States v. McCoy, 429 F.2d 739 (D.C. Cir. 1970), and Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). But they do not support her position. The federal cases, to begin with, are not binding on us; in addition, they are based on a federal procedural rule which gives the trial judge the option of either declaring a mistrial or requiring the jury to deliberate further. The Pennsylvania rule, by contrast, requires that the jury be sent out to continue deliberating and does not refer to a mistrial. This consideration greatly diminishes whatever persuasive authority the federal cases might otherwise have. The Spencer case does not deal at all with a poll of the jury. It deals with a special charge that was formerly given when a jury had reached a deadlock, but which is no longer permitted because of its potentially coercive effect. The defendant in this case cites Spencer for its holding that a charge which coerces or intimidates a jury is reversible error.
As for Sanchez, supra, it is clear from a reading of the opinion that the error found by the Superior Court consisted in not sending the jury back to the jury room, but in continuing to interrogate the dissenting juror until she finally acquiesced in the decision of the majority. The pertinent portions of the trial transcript, reproduced in the Superior Court’s opinion, confirm this. The poll of the jury indicated that the first four jurors agreed with the guilty verdict that had been announced. When the fifth juror was called, she answered, “Not guilty.” She gave the same response a second time, when asked, “Do you agree with the verdict, yes or no?” But then when the trial judge asked for the third time if she agreed with the verdict, her answer was “Yeah.” The remaining jurors were then polled, and all agreed with the verdict. The judge then returned to juror number five, and asked her (for the fourth time) “Do you agree with the verdict as announced?” She answered, “Yes.” At the request of counsel, each juror was questioned directly to find the defendant either guilty or not guilty. When juror number five was asked, “How do you find the defendant on the charge of criminal conspiracy?” her response this time was, “Agree.” (It eventually was revealed that this juror had a hearing problem.) When the question was repeated, she answered “Not guilty,” but the judge continued to ask “Not guilty or guilty?” Over counsel’s objection, the court asked one more time, “Will you please stand again, ma’am. I’m going to ask you how you found the defendant. I want you to answer me guilty or not guilty on each of these charges, do you understand that?” This time, she
The error, according to the Superior Court, was the repeated and persistent questioning of the juror who was asked at least five times what her verdict was, until she finally changed it from “not guilty” to “guilty.” Significantly, the court analyzed the situation in this way:
“At no time did the court stop the polling and order the jury to retire for further deliberations, as required by Pa.R.Crim.P. 1120(f). Instead, the court impermissibly continued to question juror number five until it obtained a response that comported with the responses of the other jurors. As a result, it is unclear whether the guilty verdict accurately reflects the conscience of each and every juror.” Sanchez, supra at 504,526 A.2d at 792.
That did not occur in the present case. The dissenting juror was not questioned repeatedly. The court merely asked her once more in order to be certain that she understood on which verdict (third degree murder) the jury was being polled. She, in turn, asked “Right now?” in order to verify that her decision at the present moment was being sought.
Thus, the authorities relied on by the defendant are not on point. Furthermore, it is clear from such precedents as Commonwealth v. Fowler, 259 Pa. Super. 314, 393
The argument has been made, however, that even if it would not have been improper to send the jury back out when the dissent of juror number 10 had been discovered, it was nonetheless error to continue to poll the two remaining jurors before doing so. If we read Rule 1120(f) literally, we are easily led to conclude that continuing the poll is superfluous and unnecessary, because whenever it is determined that the verdict is not unanimous, the jury must, under the rule, be instructed to continue deliberating. But neither the rule nor any comment to it states whether this must be done immediately after a juror expresses dissent, or whether the poll may continue until all 12 jurors have been polled. Indeed there appears to be no case law specifically addressing this issue. (In Pemberton, supra, which approves of the practice of sending the jury out in the most unequivocal terms, there is no indication of which of the 12 jurors was the dissenter.)
The only way of resolving this issue appears to be by considering what possible difference, prejudicial to the defendant, could have resulted from polling two more jurors before retiring the jury. The defendant, with no citation of authority, speculates that the public revelation of the opinions of the last two jurors may have served to heighten the pressure placed on juror number 10 to acquiesce to the consensus of her fellow jurors. Presumably, according to this theory, once it is a matter of public knowledge that this particular juror is the lone dissenter,
What a poll of the jury reveals is nothing more than what the entire jury will know when it has retired for further deliberations. A non-unanimous jury must confront its numerical division in the jury room as a first step in the process of turning that division into unanimity. Presumably, nearly every jury deliberation in every trial begins with some divergence of opinion which, in the course of deliberations, eventually turns into a unanimous verdict. The jury is always instructed, before retiring, that they must consult with one another and deliberate with a view to reaching an agreement, whenever possible; that they should each be willing to express their own views, and also to listen to the views of their fellow jurors, that they should be ready, when necessary, to alter their opinion, but not to surrender an honest conviction merely for the sake of unanimity, (tr. 11-25-91 p. 90 1.11 — p. 91 1.8.) If we can no longer assume that jurors follow these instructions to the best of their ability, but must instead speculate on the possibility that they will ignore them, then the jury system has practically lost its value.
If a jury when it originally retires is assumed to follow instructions, should this assumption evaporate when a verdict is returned and a poll finds it to be less than unanimous? If the jury has been capable of deliberating properly up to this point, does the revelation of lack of unanimity suddenly prevent them from continuing to deliberate under the same guidelines? If it is asserted that the problem is not that dissension amongst the jurors was disclosed but that the existence of one lone dissenter was revealed, then it should be asked; what if the poll had revealed juror number 12,
Defendant also claims that the court erred in not instructing the jury, when sending them back to continue deliberating, that they were not to reconsider their “not guilty” verdict on the charge of first-degree murder. Although there is no evidence that they did reconsider it, the suggestion is made that the 11 jurors in the majority may have intimidated the holdout juror into agreeing with them by threatening to reconsider the first-degree murder verdict if she refused to join their verdict as to third-degree murder. This again is nothing but sheer speculation. The jury had been instructed earlier that they were to consider first the charge of first-degree murder, then third-degree murder, and finally voluntary manslaughter. Both the charge of the court and the verdict slip sent out with the jury included instructions that the jury was to proceed from the highest offense to the lowest, stopping when a guilty verdict was reached on one charge. It would appear from the way in which the verdicts were written on the slip that these instructions were followed. There is no reason to assume that the jury did not continue to follow these instructions later when the poll revealed
But even more importantly, the defendant has waived any possible objection on this basis. The record indicates that defense counsel never objected to sending the jury back out with the same verdict slip; nor did he ever ask that the jury be instructed not to reconsider their verdict as to first-degree murder. The question was brought up on oral argument whether the right to a fair trial can ever be waived. The answer is that, under the law of this Commonwealth, any trial error can be waived, and is waived, if it is not objected to while there is still an opportunity to correct it. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979). The former concept of “basic and fundamental error” justifying a reversal even without an objection or exception, enunciated in Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968), was eliminated in civil trials by Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) and in criminal trials by Clair, supra. See also, Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d 14 (1973); Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1972). Since this issue was not raised in a timely manner by a contemporaneous objection, it is waived. Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976); Commonwealth v. Chuck, 227 Pa. Super. 612, 323 A.2d 123 (1974).
DISCOVERY
A petition for pre-trial discovery was presented by the defendant on March 8, 1991. After a hearing at
To the extent that such information may have constituted evidence favorable to the accused and material to either guilt or punishment, then if it was in the Commonwealth’s possession or control, its disclosure was required under Rule 305B(l)(a). But it is equally true that the Commonwealth can have no duty to disclose evidence which it does not possess or of which it is not aware. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), cert. denied 462 U.S. 1120, 77 L.Ed. 2d 1350, 103 S.Ct. 3090 (1983); Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981). It was brought out at the hearing that the Commonwealth had no knowledge of anything adversely affecting the credibility of Kelly Conley. Defense counsel accepted this assurance, (tr. 3-15-91 p. 11 11.6-8.) It was also established that the Commonwealth had no evidence implicating someone other than the defendant and that there was no list of persons on whom the victim had informed. There was, accordingly, no way in which the Commonwealth could provide the defense with the information sought, information which could have been obtained through interviews with the
There was no error in the denial of the discovery petition.
EVIDENTIARY RULINGS
The defense offered to recall an earlier witness, Yvette Montgomery, on the fourth day of the trial. She was prepared to testify that, on the evening preceding the death of James Dean Lewis, she overheard a telephone conversation in which Kelly Conley was conversing with both Lewis and his brother Dennis (her boyfriend), and in which she mentioned that she and James Dean Lewis intended to travel to Akron, Ohio, to “set up” a drug dealer in an effort to help Dennis Lewis evade the criminal charges against him. (She gave this testimony outside of the jury’s hearing so the court could rule on its admissibility.) The defense theory was that if James Dean Lewis had in fact informed the police about the dealer in Akron, and if the Akron dealer found out who had turned him in, this would have furnished the Akron dealer with a motive to kill Lewis, thus diverting suspicion from the defendant. But as the court ruled at the time, this would have involved excessive speculation on the jury’s part. There was no evidence that the planned “bust” in Akron was actually carried out, or that the individual “busted” found out who had informed on him. For the jury to have drawn these inferences would have been unwarranted. The proposed testimony alone would not have been relevant to any issue in the case, inasmuch as it would not
SUFFICIENCY AND WEIGHT OF THE EVIDENCE
In her post-trial motions of December 5, 1991, the defendant states that, “The evidence was insufficient as a matter of law to support the verdict,” and that, “The verdict was against the weight of the evidence.” This language does not, however, preserve any issue for review. The Superior Court held in Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983) that
“a post-verdict motion, either that ‘the evidence was insufficient to support the verdict,’ or that ‘the verdict was against the weight of the evidence,’ will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence.” Id. at 259-60, 461 A.2d at 1270. (emphasis in original)
This prohibition against boilerplate post-verdict motions was adhered to in Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984) and in Commonwealth v. Heckman, 366 Pa. Super. 224, 530 A.2d 1372 (1987). See also, Commonwealth v. Beckham, 349 Pa. Super. 430, 503 A.2d 443 (1986). This rule applies not only to the argument in a brief but to the statement of an issue in a motion itself, as is clear from the statement in Whiteman, supra, that, “The same considerations which render boilerplate allegations objectionable when offered in support of post-verdict motions also make them unfit to serve in an appellate brief
OTHER EVIDENTIARY RULINGS
The Commonwealth witness, Kelly Conley, who lived in close proximity to the house which the defendant shared with the decedent, testified that approximately two weeks before the fatal shooting, she had seen a handgun in his pocket when he was at her house. This evidence was ruled admissible at sidebar because, inasmuch as it showed that the decedent had possessed a firearm during a period of eight or 10 days before his death, would permit an inference that the defendant, with whom he was living, may have had access to it. There was evidence that the gunshot wound in the decedent’s head could have been caused by a firearm of that type.
Evidence that a defendant could reasonably have had access to an implement with which the crime could have been committed is always relevant. Commonwealth v. Akers, 392 Pa. Super. 170, 572 A.2d 746 (1990) citing Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). The question of the lapse of time between the observation of the gun and the crime affected only the weight of the evidence, not its admissibility. It was therefore not error to admit this evidence.
Finally, the defendant claims that the court erred in striking from the record a response in which she had expressed an opinion as to who might have been responsible for the murder. When on direct examination the defendant was first asked by her counsel, “Who did you
The rule that a witness may testify only to matters of personal knowledge and observation and may not render an opinion is one of the oldest rules of the common law. McCormick on Evidence, 2d.ed. section 11 at 23. This rule has long been recognized in Pennsylvania. Esenwein v. Esenwein, 312 Pa. 77, 167 A. 350 (1933); Schuette v. Swank, 265 Pa. 576, 109 A.
We conclude, for all these reasons, that the defendant’s post-trial motions are without merit and must be denied.
ORDER
Now, November 9, 1992, the post-trial motions of the defendant, Paula Anna Andrasik, are hereby denied. The defendant will be scheduled for sentence. The Adult Probation Office will conduct a pre-sentence investigation.
. Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).
. When the guilty verdict was first announced, there was an emotional reaction from the defendant and several of her relatives. The possibility that this could have caused juror number 10 to have second thoughts cannot be discounted.