Com. v. Kelly

• Decision Date: 13 April 1979
• Citation: 399 A.2d 1061,484 Pa. 527
• Parties: COMMONWEALTH of Pennsylvania v. William J. KELLY, Appellant.
• Court: Pennsylvania Supreme Court

Page 1061

399 A.2d 1061

484 Pa. 527

COMMONWEALTH of Pennsylvania v. William J. KELLY, Appellant.

Supreme Court of Pennsylvania.

Argued Nov. 13, 1978.

Decided March 14, 1979.

Rehearing Denied April 13, 1979.

Alfonso Tumini, Armando A. Pandola, Philadelphia, for appellant.

Bernard L. Siegel, Deputy Dist. Atty., Erie, for appellee.

Before O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

In August 1975, appellant was convicted by a jury of one count of obstructing the administration of the law, 18 Pa.C.S.A. § 5101, three counts of perjury, 18 Pa.C.S.A. § 4902, and one count of bribery, 18 Pa.C.S.A. § 4701. Post-trial motions were denied and appellant was sentenced to three to twenty months in prison on the three perjury counts. Sentence was suspended on all other counts. On appeal the Superior Court affirmed. 245 Pa.Super. 351, 369 A.2d 438 (1976). After review of the record and consideration of appellant's contentions, we find no basis for disturbing the order of the Superior Court and we affirm. ^*

Only one issue merits comment. The trial court in this case placed notations on the verdict slip seeking to identify for the jury the separate counts charged. We are satisfied that sending out with the jury a verdict slip with identifying notations is not prohibited by Rule 1114, Pa.R.Crim.P. Here, where there were numerous separate and distinct charges against appellant, we find no abuse of the trial court's discretion in concluding that there was a need for the identifying notations. The notations themselves, while not ideally drawn, were nevertheless in essence neutral and viewed in the context of the court's instructions not suggestive or prejudicial.

Unlike Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976), the language on the verdict slip here is not a condensed and potentially misleading statement of the court's instructions. On its face the verdict slip left to the jury the decision whether defendant was guilty or not guilty. That the notations referred incidentally to some aspect of the Commonwealth's evidence does not in and of itself require reversal in the circumstances of this case.

Nonetheless, it is not inappropriate to observe as a general prudential principle that identifying notations which are not completely neutral create a potential for prejudice. It is therefore desirable for trial courts in the exercise of their discretion: (1) to determine after consultation with counsel whether, due to the complexity of the charges and the nature of the trial, there is a clear need for identifying notations on a verdict slip to avoid confusion by the jury concerning the issues before it; and (2) if such a clear need appears, to determine, after conferring with counsel, the text which best preserves the impartiality of the verdict slip. We are satisfied that trial courts together with counsel can achieve that result.

The judgment of the Superior Court is affirmed.

MANDERINO, J., filed a dissenting opinion.

EAGEN, C. J., did not participate in the consideration or decision of this case.

POMEROY, former J., did not participate in the decision of this case.

MANDERINO, Justice, dissenting.

I dissent. Rule 1114 of our Rules of Criminal Procedure specifies that "(u) pon retiring (to) deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information and indictment. Otherwise, upon retiring, the jury may take with it such Exhibits as the trial judge deems proper." (emphasis added). Appellant argues here, as he did before the Superior Court, that the trial court erred in allowing the jury to take with it certain "verdict slips" on which the jury was to record its verdict as to each count against appellant, and on which a limited recitation of the facts forming the basis for each count was typed at the trial judge's direction. These "verdict slips" contained the following description of each count:

The brief factual descriptions accompanying each count do not fall squarely within those items specifically prohibited by Rule 1114 namely, a transcript of trial testimony, a copy of a written confession or a copy of the information or indictment nor are they "exhibits" such as may be permitted by the Rule. Nevertheless, the danger presented by allowing the jury to take those prohibited items with it...