Com. v. Wilmer

• Decision Date: 28 May 1969
• Citation: 434 Pa. 397,254 A.2d 24
• Parties: , 39 A.L.R.3d 1440 COMMONWEALTH of Pennsylvania v. Finley WILMER, Appellant.
• Court: Pennsylvania Supreme Court

Page 24

254 A.2d 24

434 Pa. 397, 39 A.L.R.3d 1440

COMMONWEALTH of Pennsylvania v. Finley WILMER, Appellant.

Supreme Court of Pennsylvania.

May 28, 1969.

Charles Robert Bernsee, Philadelphia, for appellant.

Arlen Specter, Dist. Atty. James D. Crawford, Asst. Dist. Atty., Harold K. Don, Jr., Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant was tried before a judge and jury and was convicted of aggravated assault and battery, rape, and several lesser included charges. The Superior Court affirmed in an opinion by Judge Ervin, Judge Hoffman dissenting in an opinion in which Judge Spaulding joined. Commonwealth v. Wilmer, 208 Pa.Super. 102, 220 A.2d 360 (1966). We granted allocatur.

Appellant maintains that the initial and supplemental charges of the court below were error. In the initial charge, the trial judge told the jury:

'You are American citizens, and we all live under the same flag. And you do what is right and proper in the sight of Almighty God, because you are chargeable as jurors before the Great Maker of the Universe to do what is right in this case. You are not responsible to me; you are responsible to everybody in the Commonwealth, and you are responsible to God how you act here. You bring in a proper verdict.'

In Commonwealth v. Holton, 432 Pa. 11, 18--19, 247 A.2d 228, 232 (1968), this Court, per Mr. Justice EAGEN, characterized a similar charge ^* as improper, quoting from Judge Hoffman's dissenting opinion in the Superior Court: "It is not for us to determine the court's intent in making this statement or the jury's inference from it. * * * More importantly, individual jurors Might have concluded, as appellant suggests, that the court was threatening them with the wrath of God should they bring in a verdict of not guilty." (Emphasis added.) That statement is equally applicable to the case before us.

The Commonwealth attempts to distinguish Holton by arguing that there, the erroneous charge was made after the jury had been deliberating for twenty-two hours, while here, the comment was made before the jury retired. In effect the Commonwealth is asking us to do what we refused to do in Holton--attempt to inquire into the psychological motivations of the jury to determine whether and in which way they were affected by the erroneous charge. This we once against refuse to do. It is clear that our decision in Holton was based on what the jury might have thought, and in our opinion that is the only workable test. Here at least one of the jurors certainly could have believed that an acquittal would bring the wrath of God down upon his head, and this well might have affected the jury's deliberations and ultimate verdict. Viewed in this light, it is irrelevant when the erroneous charge was made.

We also agree with appellant's contention that the court below committed error in its supplemental charge. To properly evaluate this issue, some background discussion is necessary.

The jury verdict turned on a determination of credibility. The victim was unable to identify appellant or even to testify as to whether she had been raped. The police officers who apprehended appellant testified that they discovered in a dark, vacant lot 'a white female, lying on her back, completely nude, her legs spread apart, with a colored man on top of her with his pants down, in between her legs, in a motion up and down as though he was having sexual intercourse. * * *' The officers further testified that upon their arrival, appellant jumped up, pulled on his pants, and attempted to escape, but was trapped in the lot and arrested.

Appellant on the other hand maintained that when the police arrived, he was kneeling beside the victim, whom he had discovered in the lot beaten, bleeding profusely, and semi-conscious. Appellant denied that he tried to escape, claiming instead that the officers approached him, shouted racial epithets, and beat him to the ground.

The jury deliberated for an hour and thirteen minutes, then returned and requested evidence concerning appellant's trousers, which had not been introduced into evidence by either side. The trial judge explained that the case was now closed, no further evidence could be heard, and opined that there was sufficient evidence to convict without the...