COMMONWEALTH of Pennsylvania v. Charles R. GREINER, Appellant.
Superior Court of Pennsylvania.
Argued Sept. 23, 1981. Filed Jan. 21, 1983.
Petition for Allowance of Appeal Denied June 1, 1983.
455 A.2d 164
291
* Act of December 6, 1972, P.L. 1482, No. 334 § 1301, аdded December 30, 1974, P.L. 1052, No. 345,
Gary Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
Before BROSKY, McEWEN and BECK, JJ.
BROSKY, Judge:
This is an appeal from a judgment оf sentence for possession of marijuana1 and criminal conspiracy.2 The dispositive issue before us is whether a new trial is required when a juror does not hear some testimony due to his being hard of hearing. The trial сourt held, inter alia, that since the problem was detected and efforts were made to cure it during the trial, a new trial was not necessary. We disagree and find that constitutional fair trial considerations mandate a reversal.
Issue number six was not raised in the pre-trial suppression motion and is therefore waived on apрeal. Carl v. Kurtz, 255 Pa.Super. 198 at 203, 386 A.2d 577 at 579 (1978).
As we reverse on issue number three, it is unnecessary for us to reach issues two, four and five. The post-trial opinion of President Judge Spicer adequately addresses the Rule 1100 issue, this bеing issue number one.
In issue number three, appellant contends that the trial court erred in not declaring a mistrial when a juror admitted during the trial that he had not heard some testimony. The relevant facts are as follows.
The first witness in this trial by jury was Jerry Lawrence. Lawrence was, according to the prosecution, the Commonwealth‘s “chief witness” and an alleged coconspirator and coactor with appellant in the crimes with which he was charged. Twice during direct examination, the District Attorney asked Lawrence to raise his voice. During redirect, a juror requested that Lawrence speak louder. After
The Court then dеnied defendant/appellant‘s timely motion for a mistrial and overruled his objections to the partial repetition by the prosecution of matters previously dealt with on direct.3 Juror number seven exchanged places with another juror.4 All the jurors were cautioned by the Court to “speak up or raise your hand” “if you have any trouble hearing from now on.” No such responses occurred during the remainder of the trial.
In its post-trial opinion, the trial court stated that “enough testimony was presented after the situation arose” to cure the problem. The trial court also found a waiver of this issue in defendant‘s fаilure to make “further motions after the examination of the witness has concluded.” We find this second holding without merit. Timely objections were made at trial and at all subsequent stages the issue wаs preserved for appellate review. We turn now to a treatment of the substantive issue. Did the juror‘s hearing difficulties invalidate the conviction?
The leading case in this area, in this statе, and, indeed, the leading case nationally, is Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974). The judgment of sentence was reversed in Brown, due to a juror‘s hearing difficulties, which were discovered when the jury was being polled. That juror had said that he had heard “most” of the testimony. “I heаrd practically everything. I think I heard everything.” Brown, supra, 231 Pa.Super. at 434, 332 A.2d at 830. The Superior Court opinion,
Two points distinguish the factual context of Brown from that before us. First, the juror in Brown was somewhаt equivocal with regard to his hearing difficulties and the trial court made a determination, subsequent to a colloquy with the juror, that his hearing had been deficient. On the other hand, the juror‘s responses in Greiner‘s trial evinced no such uncertainty. He acknowledged without reservation that he had not heard some testimony. This point goes, of course, to strengthen the applicаbility of Brown to the decision to be made by us here.
The other distinguishing factual situation is that in Brown, the failure to hear all the testimony was discovered during the polling of the jurors, while that discovery was made in Greiner‘s trial during the redirect of the first witness. We do not find this difference sufficient tо make the rule of Brown inapplicable here. In order for the defendant to be denied a fair trial, it is not necessary that a juror‘s deafness result in his not hearing testimony throughout the entire trial. A fair trial is clearly barred when, as here, a juror‘s deafness results in his not hearing material testimony. This is not to say that if an isolated piece of testimony is not heard by a juror that a new trial is mandated—for such a response can be repeated by the witness or by the court reporter. Here, however, the direct, cross and portions of the redirect examinations of the
The court‘s attempts to cure the problem—by moving the juror in question and instructing him to indicate when he couldn‘t hear—were in vain. At that point the damage had already been done; a fair trial had been denied Greiner.5
The case here is to be distinguished from Roberts v. State, 4 Md.App. 209, 241 A.2d 903 (1968). In Roberts, the high court of our sister state dеclined to disapprove of a trial court allowing two slightly deaf jurors to serve, while cautioning them both prior to the beginning of the trial to indicate when they experienced troublе in hearing any of the testimony. Here, the cautionary instructions occurred after testimony had been given and not heard.
We also distinguish the case sub judice from a long line of cases in which the competency of a juror with regard to hearing difficulties is left to the discretion of the trial court. Holder v. State, 556 P.2d 1049 (Okl.Cir., 1976). By forthrightly admitting that he had not heard some of the testimony, the juror in this case removеd the issue from the purview of the trial court‘s discretion to this extent: evaluation by the court of the existence of a hearing difficulty was not possible here.
Accordingly, we reverse thе judgment of sentence and remand for a new trial.
McEWEN, J., files concurring opinion.
McEWEN, Judge, concurring:
I concur in the result. While it is true the court resolved the hearing difficulty experienced by the juror while the first witness was still on the stand, it must be noted that this first witness was an alleged co-conspirator and accomplice of appellant who is acknowledged by the Commonwealth to be its “chief witness“. While it is also true that
While I concur in this result, it must be emphasized that it is the particular facts of this case that compel this determination and that it should not be said that the trial court must declare a mistrial in every situation of this type.