*1 Pennsylvania COMMONWEALTH v. KELLY, Appellant.
William J. Supreme Pennsylvania. Court of
Argued Nov. 1978.
Decided March 1979. Rehearing April Denied Tumini, Pandóla, Alfonso Armando A. Philadelphia, appellant. Erie,
Bernard Deputy L. Dist. Siegel, Atty., appellee. NIX, ROBERTS, POMEROY, O’BRIEN, MAN- LARSEN, JJ. DERINO THE OF COURT
OPINION *2 ROBERTS, Justice. 1975, jury of one appellant was convicted August
In law, the Pa.C. 18 obstructing count of administration 4902, 18 and 5101, counts of Pa.C.S.A. perjury, S.A. three § § 18 Post-trial motions bribery, one count Pa.C.S.A. § three to appellant twenty were was sentenced to denied and was in counts. Sentence prison perjury months three Superior On appeal all other counts. suspended (1976). A.2d 438 Pa.Super. Court affirmed. appellant’s review of the record and consideration After contentions, no the order of the disturbing we find basis for we Court and affirm.* Superior court merits comment! The trial one issue Only to slip seeking identify notations on the verdict placed charged. We are satisfied separate for the counts a verdict sending slip identifying that out with Pa.R.Crim.P. prohibited notations is not and Here, where were numerous distinct separate there no of the trial we find abuse charges against appellant, a need in that there was concluding court’s discretion themselves, while not The notations identifying notations. drawn, in neutral and were nevertheless essence ideally * (1) complete transcripts argued Appellant entitled has that he was testimony grand jury prosecution witnesses deleting portions not trial court which deemed erred those (2) hearsay charge against appellant; to the relevant statements co-conspirator not been into an unindicted evidence; should admitted (3) containing giving slip to the a verdict notations error; descriptive prejudicial (4) appellant’s grand each jury testimony not coerced and therefore should have been trial; (5) appellant charged admitted at should have been under 18 5101; (6) than certain records § § Pa.C.S.A. rather 18 Pa.C.S.A. properly qualified not have been admit- were and hence should not ted; (7) judge’s charge his were conduct against appellant prejudicial; (8) the evidence was insuffi- cient. viewed the context of the court’s instructions not sugges- tive or prejudicial.
Unlike Commonwealth v. 466 Pa. (1976), the on the language here is slip not a con- densed and potentially misleading statement of the court’s instructions. itsOn face the verdict left slip to the decision whether defendant was guilty or not That guilty. the notations referred incidentally some aspect Commonwealth’s evidence does not in and of itself require reversal in the circumstances of this case.
Nonetheless, it is inappropriate to observe as a prudential principle identifying notations which are not completely neutral create a potential prejudice. It is therefore desirable for trial courts in the exercise of their discretion: to determine after consultation with counsel *3 whether, due to the of the complexity charges and the trial, nature of the there is a clear need for identifying notations on a verdict slip to avoid confusion it; concerning the issues before if such a clear need appears, determine, after with conferring counsel, the text which preserves best impartiality verdict slip. We are satisfied that trial courts together counsel can achieve that result. judgment Superior Court is affirmed.
MANDERINO, J., filed a dissenting opinion.
EAGEN, J.,C. did not participate the consideration or decision of this case.
POMEROY, J., former did not in the participate decision of this case.
MANDERINO, Justice, dissenting.
I dissent. Rule 1114 of our Rules of Criminal Procedure specifies that “[u]pon retiring deliberations, the jury [to] a transcript any to have of permitted
shall nor a written confession any defendant, nor a indictment. Otherwise, take with upon retiring, jury may exhibits as the trial (emphasis added). judge proper.” deems here, Superior Court, he as did before the Appellant argues to take with it trial court erred certain on which the to record its slips” “verdict against appellant, to each count and on which a forming limited the facts the basis for each recitation of direction. These “ver- judge’s at typed slips” following description dict contained the of each count: Obstructing Governmental Functions of Law Other . . Administration “2381 27,1973 September Morrese) (Sgt. Bar. Andrew Chippy’s Marino Arrest Andy Perjury* .
FIRST COUNT: Investigating on Jury Grand Defendant before Special Testimony Regarding Truth in Oath Before of Statement December 20, Judge Wairant: Melton'to Secure COUNT: SECOND Investigating July Snecial Grand Defendant Before
Testimony Regarding Speaking to Raid on to Narcise Prior December September . PERJURY 2383 . Judge 1973 that Melton September of Defendant
Oath 25,1973 Bar on September Did conduct a Surveillance Chippy’s He P.M. P.M. and 1:00 the hours 12:15 between MATTERS: IN AND POLITICAL #2384 . OFFICIAL BRIBERY FIRST COUNT on or about July
SECOND COUNT or 7,1973. from Narcise on about Sept. Receipt $20.00 THIRD COUNT on or from Narcise about Sept.
Receipt $20.00 FOURTH COUNT on or about Oct. descriptions brief factual accompanying each count do
not fall within those items squarely specifically prohibited a a by transcript namely, 1114— of a written confession or a
indictment —nor are “exhibits” such they may permit- Nevertheless, ted Rule. the danger presented by to take those prohibited items with it deliberations is here. The equally present prohibition are designed “. to ensure that the jury give does not undue weight those written materials before them.” Baker, 382, 400, Com. v. Pa. 353 A.2d Roberts, (dissenting opinion J.).
Mr. Justice Roberts words of dissent in Com. v. supra equally applicable are here.
“The court’s procedure case could only encourage ignore general court’s instructions and to reach a verdict without a complete analysis issues involved.
This could have
an impression
created
with the jury that
the court
considered
definitions unimportant and is
similar to an instruction to consider
only part
Moreover,
evidence.
have
jury might
also structured
its entire deliberation
around
solely
answering these ques-
tions,
thus short-circuiting full consideration of all the
evidence
and the
instructions. These dangers
jeopardized defendant’s right to a fair trial.”
Id.,
Similarly, by including
brief
description
some of the
count,
evidence associated with each
the court in the instant
have
may
encouraged
to conclude that other
court,
évidence was considered unimportant by the
the listed “facts” were the
ones that
only
needed to be
considered
jury.
these
Additionally,
cryptic summa-
ries
may
caused the
to believe
the listed
“facts” has been proven by
prosecution.
“These dangers
jeopardized [appellant’s] right
Id.,
to a fair trial.”