Commonwealth v. Price

• Decision Date: 21 June 1973
• Citation: Commonwealth v. Price, 307 A.2d 374, 225 Pa.Super. 57 (Pa. Super. Ct. 1973)
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Marvin PRICE, Appellant.

Page 374

307 A.2d 374

225 Pa.Super. 57

COMMONWEALTH of Pennsylvania v. Marvin PRICE, Appellant.

Superior Court of Pennsylvania.

June 21, 1973.

David E. Auerbach, Public Defender,

David E. Auerbach, Asst. Public Defender,

Ralph B. D'Iorio, Philip J. O'Malley, Asst. Dist. Attys., Medica, for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

PER CURIAM.

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAULDING, J., joins.

HOFFMAN, Judge (dissenting):

Appellant contends that the trial court erred in not declaring a mistrial upon learning that one juror had made an unauthorized visit to the scene of the crime and then conveyed his impressions to several other jurors.

Appellant and a codefendant were tried before the Honorable John V. Diggins in Delaware County on charges of burglary, larceny, receiving stolen goods, and aggravated robbery. On the evening of January 24, 1971, two or three men entered a Honeysuckle Farms Ice Cream Parlor in Chester and robbed the employees at gunpoint. Shortly thereafter, the police apprehended the appellant, his codefendant, and a third man and returned them to the scene of the crime. The appellant and his codefendant were indicted and tried. The Commonwealth presented all of its evidence and the jury retired to deliberate on October 20, 1971. When the jury could not reach a verdict, the judge, over defense counsel's objection, sent the jurors home that evening after instructing them not to discuss the case with anyone. The following day, the foreman of the jury informed the judge that one of the jurors had visited the scene of the crime and had conveyed his impressions to several other jurors. The judge instructed the jury not to consider the unauthorized view in reaching a verdict. The jury resumed deliberations and later returned a verdict finding appellant guilty and his codefendant not guilty of the crimes charged. The jurors asserted that the view did not have an effect on their verdict.

The general rule throughout the United States has long been that it is error for a juror to make an unauthorized view of the scene of the crime; however, a new trial will only be granted where the defendant establishes that the view substantially prejudiced his rights to a fair trial. 58 A.L.R.2d 1147. This rule has been adopted in Pennsylvania. In Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915), the jurors, without court authorization, were allowed to view a location which the defendant had mentioned in his testimony. The Supreme Court refused to grant a new trial holding: '(T)he general rule is that a new trial will not be granted unless it appears that the alleged misconduct was prejudicial to the rights of the accused. Such matters rest largely in the discretion of the trial judge.' ¹ 249 Pa. at 179--180, 94 A. at 825 (citations omitted) Accord, Commonwealth v. Gockley, 411 Pa. 437, 456--459, 192 A.2d 693 (1963). The significance of an unauthorized view was most clearly expressed in a civil case, Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 171 A. 900 (1934): 'We cannot condemn too severely the act of a juror personally viewing the place of an accident or Any matter subject to judicial investigation which is not performed under the security and protection of the court. Such acts are improper, and a juror should not only be censured for such conduct but, if necessary, punished by the court, and If the act was of sufficient importance, a mistrial should be directed.' 314 Pa. at 249, 171 A. at 901 (emphasis added).

The trend in the United States, however, is away from the Filer approach. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) emphasized the undesirability of a conviction based upon evidence which the jurors gathered outside the judicial process: 'In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.' 379 U.S. at 472--473, 85 S.Ct. at 550. (The conviction was reversed and the case remanded).

Courts have expansively interpreted the language in Turner. In Farese v. United States, 428 F.2d 178 (C.A. 5, 1970), the Fifth Circuit held: 'It is a fundamental principle that the government has the burden of establishing guilt solely on the basis of evidence produced in the courtroom and under circumstances assuring the accused of all safeguards of a fair trial. Trial jurors have no right to investigate or acquire information relating to the case outside of that which is presented to them in the course at the trial in accordance with the established trial procedure. Indeed, Mr. Justice Holmes expressed this concept over sixty years ago in the following language: 'The theory of our system is that the conclusions to be reached in a case will be induced only be evidence and argument in open court, and not by any outside influence, * * *.' Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). . . . Judicial control of the juror's knowledge of the case pursuant to the laws of evidence is fundamental to the prevention of bias and prejudice. . . .' 428 F.2d at 179--180.

Once a court decides that the jury erred in considering extrajudicial evidence in reaching its verdict, the court must determine whether or not the error was so prejudicial as to require the granting of a new trial: '(T)he courts will not speculate as to the amount of prejudice arising from information secured by a jury outside the courtroom. 'The right to trial by jury comprehends a fair determination of the guilt or innocence of the accused free from bias, passion, or prejudice. * * * And where error occurs which, within the range of a reasonable possibility, may have affected the verdict of a jury, Appellant is not required to explore the minds of the jurors in an effort to prove that it did in fact influence their verdict.' . . . Our courts have traditionally upheld the position that verdicts should be set aside where it is shown that the impartiality of jurors may have been affected or Where tainted material has come before the jury.' 428 F.2d at 180 (emphasis added) (citations omitted). Even the most diligent juror who makes every effort to 'safeguard against the hazards of outside contacts' may be unconsciously swayed by such contact. Schofield v. State, 45 Ala.App. 191, 227 So.2d 822 (1969) (St's writ of appeal den'd, 285 Ala. 756, 229 So.2d 26 (1969)).

Although some state courts are still applying the old Filer standard, ² the best reasoned opinions of our sister states hold that a fact-finder's unauthorized view of the scene of the crime is so prejudicial as to require that the defendant receive a new trial. The New York Court of Appeals first enunciated this new trend in People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211 (1967). In that case several...