Com. v. Elmore

• Decision Date: 26 June 1985
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Franklin ELMORE, Appellee.
• Court: Pennsylvania Supreme Court

Page 1050

494 A.2d 1050

508 Pa. 81

COMMONWEALTH of Pennsylvania, Appellant, v. Franklin ELMORE, Appellee.

Supreme Court of Pennsylvania.

Argued March 4, 1985.

Decided June 26, 1985.

Michael Veshecco, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellant.

Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

Appellee was convicted by an Erie County jury of rape. He was sentenced to a period of incarceration of from five years to ten years. Superior Court, 323 Pa.Super. 540, 471 A.2d 76 (1983) vacated the judgment of sentence and remanded the case for a new trial.

On the first day of trial, the Commonwealth presented five of its six witnesses. Then, because the presiding judge became ill, the trial was recessed for one week. When the trial resumed the Commonwealth presented its final witness, the defense presented two witnesses, and the prosecution presented a rebuttal witness. After four hours of deliberation the jury returned with a verdict of guilty.

Subsequently, appellee's trial attorney learned of a communication that had taken place between the jury and a court officer soon after the jury received its final instructions from the court. When the jury retired to deliberate, the foreperson of the jury had asked the tipstaff: "I asked them if we could have a copy of the records of the first day's testimony." (N.T., October 1, 1981, p. 4). The tipstaff told the foreperson that it was not done that way and denied the request without reporting it to the court. Shortly after the trial defense counsel, discussing his performance with the foreperson, ascertained the foregoing jury contact, reported it to the court, and a hearing was held to determine its effect, if any, on the deliberations of the jury and their verdict.

After the hearing the trial judge, the Honorable Fred P. Anthony, denied the motion for a new trial and gave as his reasons that had he known of the jurors' request, he would have denied it, because it was and is his policy to deny jury requests for a transcript; and in this case, to allow portions of the transcript to be re-read would have been especially prejudicial to the defendant. ¹ In addition, Pa.R.Crim.P. 1114, prohibits a jury from having a transcript during deliberations. ²

This Court recently addressed the question of ex parte communication between judges and juries in Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983). In that case, we descended from the untenable view that any unreported contact between the court, its officers, and the jury was eo ipso, grounds for a new trial. We went to more level ground. Mr. Justice Hutchinson speaking for a unanimous court laid the new standard: "only those ex parte communications between a court and jury which are likely to prejudice a party will require reversal." Id. at 27, 459 A.2d at 734.

We are now called upon to decide the proper standard to be applied when a court is faced with a determination of whether a particular ex parte communication has resulted in a "reasonable likelihood of prejudice." Id. at 36, 459 A.2d at 739.

Initially we must examine the concept of prejudice. Traditionally, when considering an error committed during the course of a criminal trial, we have measured prejudice by determining whether or not the error could be construed as harmless. If the error was harmless there obviously was no prejudice; if the error was not harmless to the defendant's right to a fair trial then prejudice was found to have attached. See, for example, Commonwealth v. Canales, 454 Pa. 422, 428, 311 A.2d 572, 575 (1973); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972).

In the landmark case of Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), this Court set the standard for determining whether a particular error was harmless: "an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless." Id. at 405-406, 383 A.2d at 162 (footnote omitted). In addition, we defined the concept of harmlessness:

an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a " 'reasonable possibility' " that an error " 'might have contributed to the conviction,' " the error is not harmless. (Citations omitted.)

Id. at 409, 383 A.2d at 164.

In the context of the present case we see no basis upon which to distinguish errors occurring before the jury begins to deliberate from errors occurring after the jury begins to deliberate. Therefore, we hold that the Story analysis must be employed in a Bradley -type case as in other instances of trial error.

The Superior Court correctly held that the Story approach was proper. Commonwealth v. Elmore, 323 Pa.Super. 540, 545, 471 A.2d 76, 78 (1983). However, we are constrained to reverse the decision of that court, since we cannot accept the far-fetched reasoning whereby they found prejudice under the facts of this case.

On appeal the Superior Court panel, in concluding that the defendant here was somehow prejudiced, avoided the trial judge's definitive and well-reasoned explanation by characterizing his decision as an "after-the-fact" ³ determination, weakened by the prospect of granting a new trial. The panel suggested that had the trial judge known of the request, doubtless he or someone would have furnished a remedy. We disagree.

There is no reason to believe that the trial judge was any less honest in his post-trial view than he would have been at the time the request occurred. Certainly the reason he gave, that to give a transcript to the jury of a day's trial in which all the prosecution evidence was presented would revivify the testimony offered to damn the defendant, was a sound discretion whether made now or then. To evade the soundness of that discretion the Superior Court panel, almost esurient, found semantic difficulties with the complainant's description of the penetration required for rape.

To support their view the Superior Court panel recited complainant's testimony, and found ambiguity. That the complainant meant and said she was penetrated could not be clearer from her testimony. There is no question but that the jury would clearly understand that is exactly what she meant, and no nuance of reasonable interpretation seems possible to deprive her testimony of that meaning. As to complainant's identification of the defendant, complainant testified she was in defendant's company for a long walk, and that the substance of their conversation was when and where they last met. They met at her home; appellee was a friend of her brother. The plaintiff never flinched from her identification; if anything the cross-examination fortified her. To require the jury to hear again her damning evidence was hardly a benison for the appellee, and the trial judge's rationale, then or now, that to do so was a prejudice is well-founded.

The panel's distaste for "after-the-fact" determinations is not to be found by their own example in Commonwealth v. Mason, 324 Pa.Super. 244, 471 A.2d 555 (1983), where this same panel examined a policeman's notes and found, with assuring prescience, that a jury could not possibly have reached any conclusion as to when they were made. By the nature of such events only an "after-the-fact" determination can be made. Except for stronger reasons than those presented here the trial judge's determination should have been given more than slighting reference.

In conclusion, a review of the record convinces us that the complained-of communication was no more than an inconsequential contact between the jury and...