*1 Pennsylvania, Appellant, COMMONWEALTH of ELMORE, Appellee. Franklin Supreme Pennsylvania.
Argued March Decided June *2 Veshecco, Scutella, Frank Atty., Michael Dist. J. Asst. Erie, Atty., appellant. Dist. for Defender, Erie, Presogna, R.M. Asst. Public Carmela LARSEN, FLAHERTY, NIX, C.J., and McDER Before MOTT, HUTCHINSON, PAPADAKOS, ZAPPALA and JJ.
OPINION McDERMOTT, Justice. County convicted an Erie
Appellee jury period He to a of incarceration of from five was sentenced Court, to ten years years. (1983) and re- judgment
A.2d 76 vacated the of sentence manded the case for a new trial. trial, presented first day
On the Then, presiding five of its six witnesses. because ill, recessed one week. When the became the trial was its final wit- presented trial resumed the Commonwealth witnesses, ness, prosecu- two and the presented the defense After four hours of tion a rebuttal witness. guilty. returned with a verdict of jury deliberation attorney learned of a com- Subsequently, appellee’s place jury that had taken between the and a munication final instruc- jury officer soon after the received its deliberate, tions from the court. When the retired to ‘T asked tipstaff: of the had asked the foreperson if could have a of the records of the first copy them we (N.T., 4). p. tip- testimony.” day’s way that it was not done that foreperson staff told the to the court. Short- reporting denied without it counsel, defense his discussing perform- after the trial ly foreperson, foregoing jury ascertained the ance with contact, it to the and a was held to reported hearing effect, any, on the determine its deliberations of the and their verdict. hearing judge,
After the the Honorable Fred P. denied the motion for a new trial Anthony, gave as his he known of the jurors’ request, reasons had he would it, have denied because it was and is his policy deny jury case, requests transcript; for a and in this to allow portions transcript of the to be re-read would have especially been addition, prejudicial to the defendant.1 Pa.R.Crim.P. 1114, prohibits having from transcript during deliberations.2
This
recently
question
addressed the
of ex parte
*3
judges
communication between
juries
Common-
25,
(1983).
wealth v.
501 Pa.
We are called upon now to decide the standard proper to be applied when a court is faced with a determination of particular whether a parte ex communication has resulted important transcript day 1. It is to note that it was the of the first of juror requested only trial that the day to see. The evidence testimony Among was the of five Commonwealth witnesses. complainant those witnesses was the whose direct was beyond more than sufficient to establish a reasonable doubt that she raped by was provides: 2. Pa.R.Crim.P. 1114 deliberations, Upon retiring permitted shall be not transcript any testimony, copy any have a confession indictment. nor a written defendant, by copy nor a of the information or Otherwise, upon retiring, jury may take with it proper. such exhibits as the trial deems Id., 36, in a “reasonable likelihood of prejudice.” 501 Pa. at at 459 A.2d
Initially we must examine the
Tra-
concept
prejudice.
ditionally, when
an error committed
considering
during the
trial,
course of a criminal
prejudice
we have measured
determining whether or not the error could be construed as
harmless.
If the error was harmless there obviously was
if
prejudice;
the error was not harmless to the defend-
right
ant’s
to a fair trial then
found to have
See,
Canales,
example, Commonwealth v.
attached.
572,
(1973);
454 Pa.
311 A.2d
Fell,
(1973);
Commonwealth v.
453 Pa.
In the landmark case of Story,
476 Pa.
this Court set the standard for
determining
particular
whether a
error was harmless: “an
error
only
can be harmless
is con-
appellate
vinced
beyond
reasonable doubt
error is harm-
Id.,
405-406,
(footnote
less.”
an error cannot be held harmless unless the appellate court determines that the error could not have contribut- “ ed to the verdict. Whenever there is a ‘reasonable ” “ possibility’ ‘might that an error contributed ” conviction,’ (Citations the error is not harmless. omitted.)
Id.,
In the present context of the case we see no basis to upon distinguish occurring which errors before the jury begins to occurring deliberate from errors after the jury begins Therefore, to deliberate. the Story we hold that must in in Bradley-type analysis employed be case as other instances of trial error. Story Superior ap-
The Court held that the correctly Elmore, 323 proach proper. was Pa.Su- 540, 545, However, per. (1983). are 471 A.2d 78 we
85 to the that constrained reverse decision of since we accept the reasoning they cannot far-fetched whereby found under the of this facts case. appeal Superior On the Court in panel, concluding that the defendant here prejudiced, was somehow avoided the judge’s definitive well-reasoned explanation by characterizing his decision as an “after-the-fact” determi- nation, weakened prospect granting a new trial. panel suggested had known of the or request, doubtless he someone would furnished a disagree. We remedy. is no
There reason to believe that the trial judge was any less in post-trial honest his view than he would have been at the request time occurred. Certainly the reason he gave, give that to a transcript to the of a trial in day’s which the prosecution all evidence was would defendant, offered revivify testimony to damn was a sound discretion whether made now then. or To evade the of that soundness discretion the Superior panel, al- esurient, most found semantic difficulties com- with the plainant’s description penetration required support
To their view the Court panel recited complainant’s testimony, and found ambiguity. That the complainant meant said penetrated she was could not be clearer from her is testimony. question There but clearly would exactly understand that is what meant, she and no nuance of reasonable interpretation possible seems to deprive her meaning. complainant’s As defendant, identification of the com- plainant testified she was long defendant’s for a company walk, and that the substance of their conversation was when home; and where last they They met. met at her appellee was a friend her plaintiff brother. The never from identification; flinched her if anything the cross-exam- ination fortified her. To require the her again hear evidence damning hardly a benison the appellee, Elmore, 471 A.2d (1983). *5 86 rationale, now, then or that to do judge’s
and the trial so prejudice was a is well-founded.
The distaste for “after-the-fact” determinations is panel’s Commonwealth v. example found their own in not to be Mason, where this found, policeman’s examined a notes and with panel same that a could not assuring prescience, jury possibly have reached conclusion as to when were made. any they By of such an “after-the-fact” only nature events determination than Except stronger can be made. reasons those here the trial determination should have judge’s given slighting more than reference. been conclusion, a review of the record convinces us complained-of that the communication was no more than an contact and a offic inconsequential between course, the tipstaff reported er.4 Of should have the jury’s in judge to the who turn would consult with both record; however, attorneys on the we are convinced beyond a reasonable doubt that the error in failing follow was harmless and that it caused procedure absolutely Story, supra. See Commonwealth v. the order of the is Accordingly, Superior Court reversed and the case is remanded to for considera- Superior Court tion of those issues not addressed. previously
HUTCHINSON, J., concurs in the result.
ZAPPALA, J., dissenting files a opinion.
ZAPPALA, Justice, dissenting.
I must
there
respectfully
Although
dissent.
exists a well
finding by
reasoned
Court that the
ex
jury’s
parte communication with the court crier was not harmless
P.M.,
upon
4. The
retired to deliberate at 11:00A.M. At 1:43
their
request, they
written
returned to court for three minutes in order for
legal
to read to them the
definition of
the
reached its verdict at 3:05 P.M. There
absolutely
is
no indication in
hearing
post-trial
any
the record of the
difficulty
that the
encountered
reaching
having
as a result of
in
its verdict
been denied
(N.T.,
2-12).
transcript.
pp.
error under our
holding
Story,
*6
(1978),
Pa.
The Superior reasoning Court’s and this denial majority’s reasoning of that conjecture both involve and second-guess- ing as to the understanding thoughts of the jury, emphasizing the need for a test which does not invade that solely which is the jury’s province. fact very that we cannot know any degree with of how ex
certainty parte interactions with the could affected the outcome of the trial was the raison d’etre for our establishing rule requiring grant the absolute of a new trial it where was found that unreported ex parte communications had occurred between the its offi- cers, and the jury. Bradley, Pa. we did not disembowel that rule. We merely modified it to address those situations where the ex parte communication concerned an incidental matter not directly affecting the heart of the deliberations.
It cannot be seriously challenged under the present facts of the jury foreman to the court crier was one that touched the very heart of the deliberations. It occurred because of the unusual one week recess which was caused by the judge’s absence, trial a recess which resulted in a continuous motion for mistrial the defense attorney. As testified, foreman I guess “... it was shortly after I was elected foreman that they it, asked about we could have the first day’s testimony because there was such lapse (N.T. 5). time.” 1981 at p. (Emphasis added).
It is also conceded by parties both appeal this that the failure of the court crier to inform judge jury’s request constituted error. That precluded error from ascertaining the underlying reason for the request. It further precluded trial counsel from arguing the merits or having the notes of prevented week read to the prior creating of a record. contradicted,
I say venture to this much cannot be Bradley and is sufficient under and under the harmless Story error test announced in to make out a case for granting a new trial. Further into the under- inquiry of the a domain into we standing jury, always which are invade, into specula- reticent would take us the realm of tion and conjecture. Any inquiry serious into the under- standing precluded of the when the foreman failed request. to inform the trial court of its For the reasons under either the Bradley foregoing rule rule, or the harmless on error the facts and circumstances *7 case, I grant Appellee of this would a new trial. Pennsylvania, Appellee,
COMMONWEALTH of HAMMER, Appellant. Frederick Supreme Pennsylvania.
Submitted Dec. Decided June