Commonwealth v. Stufflet
419 A.2d 124
Pa. Super. Ct.
1980
Check Treatment

*1 Pennsylvania COMMONWEALTH Terry STUFFLET,Appellant. Brian

Superior Pennsylvania. Court 8,Dec. 1978.

Submitted Filed March *2 Moore, Defender, Reading, Robert Lee Assistant Public *3 for appellant. Michael District for Com- Morrissey, Attorney, Reading,

J. monwealth, appellee. CERCONE, HOFFMAN, HESTER JJ.

Before and HOFFMAN, Judge: contends, alia,1that the lower court inter

Appellant allegedly statements (1) prejudicial admitted improperly (2) sale marijuana; permit about of and appellant made by unanimity a lack despite to be recorded of ted the verdicts with second conten agree appellant’s We among jurors. the we and, reverse and remand. accordingly tion victim, a dog July her on While walking standing who was appellant encountered 14-year-old girl, additionally in re- Appellant the lower erred contends court jury. The fusing give requested instruction alibi defense to to his jury’s recollection purpose instruction is to refresh of an alibi point such to out presentation alibi defense and of an guilt. as to may a reasonable doubt raise evidence be sufficient Bonomo, (1959); 151 A.2d 441 396 Pa. See Commonwealth Wright, 378 A.2d v. Van Commonwealth appellant’s proffered judge (1977). Although read trial did not friend, Jeffrey the home of her and neighbor porch on when previously, seen once appellant only Keenan. She had at her for directions a few hours earlier he had asked her engaged the two called to the victim and Appellant home. then asked steps. Appellant on the porch in a conversation used As the conversa- marijuana. the victim whether she continued, suddenly violently grabbed and appellant tion Appellant carrier her into the Keenan home. victim and sexually into a first floor bedroom and forced the victim thereafter, however, escaped shortly assaulted her. She in the out the back kneeing appellant groin running door. of indecent charges tried before a

Appellant jury was returned from When the attempted rape.3 jury assault2 and verdicts on deliberations, guilty the foreman announced its requested poll counsel then both charges. Appellant’s verdict as guilty number one affirmed the Juror jury. found “Not appellant but stated that she attempted rape Collo- charges innocent” on the of indecent assault. guilty, in in open with the both chambers and quies conducted guilty her statements that appellant court elicited from well as that he was not of indecent assault as statements The nonetheless ordered charge. of that trial guilty jury, alibi he did remind it that instruction that he was elsewhere at the time of the crime instruct- testified along with the other evidence ed it that this was to be considered determining had sustained its burden of whether the Commonwealth proving appellant guilty beyond a doubt. We therefore reasonable Bonomo, given was under conclude that the instruction sufficient supra. Additionally, appellant the evidence was insufficient contends that *4 contrary weight the verdict was to the to sustain the verdict and that upon the fact that of the evidence. He bases these assertions solely testimony consisted of the of the Commonwealth’s evidence thus, are, fourteen-year-old Appellant’s contentions directed victim. witness, credibility an issue “within the sole to the of the victim as a Eckert, province 244 Pa.Su- of the trier of fact.” Commonwealth (citations omitted). per. (1976) 368 A.2d We merit. therefore conclude that these contentions are without 901(a); 2. 18 Pa.C.S.A. 3121. §§ 1977-80). (Supp. Id. § the verdict verdicts on both slip containing guilty motions, posttrial be recorded. After denial of his

charges took this appeal. first the lower court erred contends Appellant to refer to and the victim to testify allowing prosecutor before the time just her conversation with appellant to as fol- The victim’s marijuana. testimony regarding lows: Well, down taking my dog past I was

A. [The victim:] calling and a man attracted Keenan’s house Jeffrey walked to attention, up I turned around and my step. these? Q. steps What were Jeffrey in front of Keenan’s A. The to the steps porch house. with Mr. conversation Stufflet

Q. any Did you Keenan’s home? of Mr. steps A. Yes. with Mr. Stuf- you the conversation

Q. What was flet? said, He I “No.” said, pot,” “Do smoke you

A. Terry I does,” and said who anybody “Do know you goes, “No.” The Your Honor. object I’m going Eshelman:

Mr. bar previously. I made at side objection same ruling. Court: Same The please. Q. Welz: Continue Mr. By it,” that smokes know said, anybody “Do you he A. Then some for said, sell you “Could “No.” He and I said said, “No.” I me” and objection continuing I have Can Mr. Eshelman: this, Honor? Your You do.

The Court: 15, 1977.

N.T., November de conduct criminal prior imputing Evidence probative where its only admissible generally is fendant

125 See, value its outweighs prejudicial g., effect. e. Common Williamson, 139, 144, 488, Pa.Super. wealth 243 364 A.2d however, 491 More our Court specifically, Supreme has held that “such evidence is admissible where ‘such prior chain, conviction or criminal act formed a of a or was part acts, one of of of sequence part history or became trial, the event on or was of the natural part development ” Brown, the facts.’ 342 Commonwealth v. 462 Pa. 84, (1975) Williams, 90 (quoting Commonwealth v. 307 602, 134, 148, 160 (1932)). Pa. A. “This is often classified as proving a of the transaction’ ‘res part ‘same or the ” gestae.’ Stevens, 457, Commonwealth v. 237 Pa.Super. 463, 509, (1975) McCormick, 352 A.2d (citing Evidence (2d 1972)). Thus, Stevens, at 448 ed. in where § appellant charged with we held admissible robbery, testimony that the victim appellant raped prior We stated that robbery. the evidence of the “was rape properly admitted under the ‘same transaction’ exception because it was integral part an of the immediate context of events Id., surrounding alleged robbery.” at 352 A.2d at 513. bar,

In the case at appellant’s references to sale of occurred marijuana during the conversation which immedi ately preceded the criminal incident in issue. Were the facts, victim from precluded stating these she could not clearly have described the events leading up to the crime. circumstances, In these the implication of other criminal conduct constituted an aspect of the “res ges tae” of the in question. crime The evidence was needed to complete Moreover, of the crime. story the prejudicial effect of this evidence was not so as to great outweigh the legitimate for purpose which it was admitted. Appellant did not admit to sale or explicitly purchase marijuana, could jury reasonably have inferred his statements were made to attract the attention only of the victim. In addition, the crime referred to in the allegedly prejudicial remarks differed from completely the crimes charged was not so prejudicial rape as the to which the victim was permitted to in testify Stevens. We therefore conclude that value of the challenged testimony clarifying

victim’s narrative of the crime outweighed prejudicial effect of the marijuana. reference sale of passing See *6 Williamson, Commonwealth 243 Thus, the err lower court did not the or in admitting testimony victim’s the permitting prose- cutor to refer to admissible in his testimony opening remarks to the jury.4 the further contends that verdict should

Appellant slip not have been recorded because the verdict was not unanimous responses juror evidenced the of by contradictory as number We After her initial upon being polled. agree. one re- with one the number oc- sponse, following colloquy curred. chambers)

(in Baldwin, a seat. Mrs. when you THE COURT: Have you were called when were as individually, polled you were, attempted stated on the you guilty charge rape assault. Is that guilty charge but not on the indecent you the intended? way Yes. BALDWIN:

MRS. intend it to be? you THE COURT: How do both Guilty ways. BALDWIN: MRS. right. All

THE COURT: Did she sign DISTRICT ATTORNEY]: [ASSISTANT slip? verdict the Yes, slip. verdict signed she

THE COURT: s|c [*] [*] [*] [*] [*] Baldwin, you just been inter- Mrs. THE COURT: When myself. you involved and attorneys by viewed respect with to you court said open here in polled were Was that intention? your guilty. assault not indecent cautionary gave extensive Additionally, court an we that the note opening objection remarks upon counsel’s defense instruction testimony the victim prosecutor to by which referred prosecutor Thus, give. the remarks of even if was to victim, cautionary testimony inadmissible to referred any prejudice to remove would have sufficed instruction resulting therefrom. BALDWIN: Uh-huh. MRS. not or your say guilty

THE COURT: Was it intention guilty? guilty.

WILIMINA BALDWIN: Not I would like the record to re- COUNSEL]: [DEFENSE flect that the asked her if that was juror, when intention, her she said uh-huh.

THE COURT: Will state it what is you again, your intention?

WILIMINA J. Guilty. BALDWIN: THE of what? Guilty COURT: WILIMINA J. BALDWIN: Of both. of what? Guilty

[DEFENSE COUNSEL]: THE said . . COURT: She . I’d tell like her to us both.

[DEFENSE COUNSEL]: WILIMINA J. BALDWIN: and assault. Guilty rape *7 He is charged not with assault. [DEFENSE COUNSEL]: I am moving mistrial, for a Your Honor.

THE The COURT: motion is denied. You the signed verdict slip you? didn’t

WILIMINA J. BALDWIN: Yes. object I of the recording

[DEFENSE COUNSEL]: slip. verdict

THE COURT: I’m sure do. The verdict be you slip may recorded.

N.T., 16, November

A criminal defendant be found may guilty only by Jackson, unanimous vote of the Commonwealth v. 457 jury. 237, Watson, In (1974). Pa. 324 A.2d 350 Commonwealth v. 394, (1967), 211 236 A.2d 567 where a when Pa.Super. juror for the first time with the polled clearly disagreed guilty foreman, we verdict read held that his subsequent in acquiescence upon questioning the verdict did not render the verdict unanimous. We recognize an “[w]here evasive answer of a leaves doubt as to juror whether he has verdict, assented to the but his answers indicate neither coercion, involuntariness nor a answer subsequent on further clear and interrogation unequivocal which indicates assent 128 Jackson,

will cure any possible defect.” Commonwealth v. supra, Pa. at A.2d at (citations omitted) 324 354 case, In (emphasis added). however, this colloquy court’s did not result in the categorical, sort of answer unequivocal required from for a guilty. unanimous verdict of We therefore reverse the conviction for indecent and assault Commonwealth new remand for a trial on that charge. Watson, supra. Additionally, we resentencing remand for Lock attempted rape conviction. Commonwealth v. on the hart, reversed case for

Judgment of sentence and remanded new tria.1 on the indecent assault and charge resentencing conviction. attempted rape

HESTER, J., concurring dissenting opinion. files a HESTER, Judge, concurring dissenting: for rape While I the conviction agree attempted affirmed, from the of the should be I dissent reversal indecent assault. The judgment quoted of sentence for in the majority opinion demon- juror colloquy of the portions the verdict was unanimous. strate that outset, counsel’s repeated At the it should be noted that If, a properly upon poll, a mistrial were denied. requests for verdict, as among jurors is concurrence there no back to send the jury is for the proper procedure a P. and not to declare deliberations, 1120(f), Pa.R.Crim. for event, court was In the trial any urged. mistrial as counsel Pennsyl verdict as unanimous. In accepting correct inconsistent, juror’s that a vania, recognized the cases may during poll answer or evasive *8 ambiguous, equivocal, Brown, v. Commonwealth 231 defective. the verdict render v. Cor (1974); Commonwealth 431, A.2d 828 332 Pa.Super v. Commonwealth (1969); 356 bin, 63, A.2d 257 Pa.Super 215 However, it (1967). Watson, 394, 236 A.2d 567 Pa.Super 211 aby be cured may a response of such the effect is clear that for the need answer, obviating thus subsequent, unequivocal 204, 406 Hall, v. 267 Commonwealth new a trial. Jackson, 237, v. 324 457 Pa. Commonwealth (1979); A.2d Conner, 36, 282 v. 445 Pa. Commonwealth (1974); See, Generally, A.2d 23 Anno. 25 A.L.R. 1149. it is of the trial to determine from the answers of duty the jurors, together appearance with their demeanor and circumstances, and all the surrounding whether each Feldman, juror Guide, assents to the verdict. Trial 15.7. § An response juror inadvertent poll which by during indicates seemingly with the disagreement announced ver- where, dict does not prevent recording the upon verdict court, further inquiry by juror unequivocally and Hall, understandingly assents supra; the verdict. Am.Jur.2d, Law, Criminal 370 et seq. § stated, Mrs. Baldwin

Instantly, unequivocally “Guilty rape and assault.” Her charge abbreviation of inde- cent assault can hardly be taken to mean she did not Rather, the charges. understand I the lower accept court’s observation that unaccustomed merely court procedures and Her phraseology. final and definitive pronouncement of the verdicts cured whatever defects may existed previously virtue of her ambiguous respons- es. I would

Accordingly, judgment affirm of sentence on both counts.

419 A.2d 129 James C. EADS Oaten, Frederick E. SMITH and Samuel G. Additional Defendant.

Appeal of Frederick E. SMITH.

Superior Pennsylvania. Court of

Argued June 1979. Filed March