*1 evening, attempted along way and to make her home Frederick which has no sidewalks. Street, As she neared the intersection Frederick Street and Prеsi- slipped pieces dent she Avenue, ice and broke her leg. way walking The where usual- was ly by light, light illuminated a street but the was not working particular adjoin- еvening. on this The land ing City. the street was owned
I do not believe that it can be said as a matter of given case, appellant law, circumstances by jury. entitled to have her evidence considered light ap- record, viewed most favorable to pellant, demonstrates that Frederick Street had not plowed past been more than two or three in the times years. municipality duty fourteen A should owe a public to exercise reasonable care the mainte- public ways nance of sidewalks and other in a safe passage pedestrians, duty condition for and this dangerous should to the extеnd elimination of condi- tions caused unreasonable of ice accumulations present such snow, as that in this record.
Accordingly, I dissent. joins dissenting
Mr. Chief Justice Bell in this opinion. Appellant.
Commonwealth v. Milliner, *2 Before Jones, 1970. Cohen, November Argued JJ. Pomeroy, Roberts O’Brien, Eagen, *3 .David Rudovsky, Assistant with him Defender, John Packet, W. Assistant Defender, and Vincent J. Ziccardi, for Defender, appellant.
Jаmes T. Assistant District Owens, with Attorney, him Milton M. Stein, Assistant District Attorney, James D. District Crawford, Deputy Attorney, Richard A. First Assistant District Sprague, and Ar- Attorney len District for Specter, Attorney, ap- Commonwealth, pellee.
Opinion 22, April 1971: O’Brien, was tried Appellant before judge and on December 12-17, charge rape. Decem- ber at 3:30 approximately four p.m., and one-half the hours after had begun its the deliberations, told court crier the the judge following: At approxi- 2:00 he had mately p.m., been asked by the jury fore- the man whether had appellant made a statement at the time he was arrested and had replied “I don’t know 5'40 then askеd He I tell you.” I couldn’t did
and even instructions further wanted if the jury foreman the approximately not. However, did they told and was asked again foreman latеr the and one-half hour an him a statement. had made the whether the ques- that he could not answer him crier told court time the This problem?” “Do have a you and asked tion the court was why which they did, indicated for request with the jury’s came to crier further instructions. could seek at which meeting they tomet then and the two attorneys The trial forthcoming should handle the the court how discuss counsel The appellant’s for instructions. request consid- the jury it opinion that was his statеd in a non- particular evidence, matters ering He appellant. urged confession by existent instructing not confine itself court statement before any them, no evidence there was to make it clear that no statement it elaborate but that counsel in- this discussion, During existed. to exten- jury might reacting a fеar that dicated media the Paul concerning the news coverage sive the district case where attorney Ware four murder pros, charges tо nolle de- against his were invalid under because confessions fendant Miranda U.S. Arizona, court and the trial counsel never learned
However, on the jurors’ certain what was minds. for Between a half hour minutes and after the court and the *4 twenty their began before the attorneys discussions, had jury to the courtrоom to returned make its request been to additional for the instructions, the jury reported a verdict. agreed upon it had there- Immediately of verdict guilty thе was jury’s after received. After the recorded the the polling jury, verdict. of request appellant’s
At
the
counsel,
post-trial
on January
held
was
1969. At
heаring
this hearing
Tlieir testi-
testified.
the court crier and his assistant
had
materially
crier
mony
the
did
differ from what
day
deliberations.
of
told the
the
jurors
Appellant’s
be
сounsel also
request
questioned
but
tbis
to their deliberations,
as
judg-
Superior
affirmed the
denied and the
Court
Pa.
Commonwealth
Milliner,
ment
sentence.
Superiоr
granted
Ct.
mine whether the considered not in evi matters reaching raising emphasizes, dence in its verdict. He argument, testimony that the court crier’s ob jective, indepеndent indicating evidence that extraneous jury. accept factors were considered We do not appellant’s view the facts. The court crier’s remark to nothing he could tell them about the case was correct and appellant, not harmful quite prejudicial clearly unlike the rеmarks made bailiff in Parker v. upon 385 U. (1966), Gladden, S. 363 which the relies. Moreover, coun fully sel was informed about the conversation between foreman and the court crier before the verdict objection was recorded. He no request made nor did he questioned at that time. We have frequently staled that in thе absence of fundamental party may idly by, error, not sit taking his chances only appeal on a verdict, the verdict is adverse.
Order affirmed. Eagen
Mr. Justice dissents. Mr. Chief took no part in the consider- Bell ation decision this ease. or part Justice Cohen took no iu the decision
this case.
542 by Opinion
Dissenting Roberts: with In the court crier’s two cоnversations view my for this to and a new trial, entitle jury I reason dissent. crier’s remarks that asserts majority “not harmful to However, were jury appellant”. of of Cоurt has held in a series civil majority this
a
to the
judge
communication from the
any
cases
of
requires
in the absence of counsel
the granting
jury
nonprejudicial
no
how innocuous or
new
matter
trial,
a
have been.
v. Good
might
Argo
communication
See
2d 195
Yarsunas
424 Pa.
228 A.
v.
(1967);
stein,
612,
Manufacturing
423 Pa.
Moreover, leаst potential in the present two separate case. prejudice occasions apart, one-half hours foreman and one the jury crier whether of the court appellant had inquired made time of his at the arrest. statement These any inquiries distinct substantial suspicion raised * Boros, suprа, at (dis Yarsunas v. 223 A. See 2d at 698 Kersey Manufacturing senting opinion); Rozic, supra, Co. v. at Opinion). (concurring 222 A. 2d at including not in deliberations matters its Upon learning the trial court events, evidence. these immediately into the should have summoned the *6 again duty them of their courtroom warned pre- solely on render a the basis of the verdict evidence thereby reducing possibility sented at that that trial, duty disregarded. would
Finally, agree majority’s I cannot with the deter- oportunity minаtion has waived his upon seek the reversal of his conviction of the basis jury. purpose court crier’s conversations with the of the doctrine of is tо ensure that waiver the trial court any possible be alerted to errors. The trial majority instant case was so alerted. As the itself promptly expressed counsel states, his con- implications cern toas ominous of the fore- man’s conversations with the court crier and appropriate cautionary giving instructions. The of such precluded by instructions was the trial court’s later ac- ceptance of the verdict. This the trial court should not done. have
Commonwealth v. Morris Half Hour Appellant.
Laundromat,