Commonwealth v. Brown
| Decision Date | 11 December 1974 |
| Citation | 332 A.2d 828,231 Pa.Super. 431 |
| Parties | COMMONWEALTH of Pennsylvania v. Kenny W. BROWN, Appellant. |
| Court | Pennsylvania Superior Court |
Arthur R. Sagoskin, Asst. Public Defender Doylestown, for appellant.
Stephen B. Harris, First Asst. Dist. Atty., Martin King, Doylestown for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
On March 27 1973, after a jury trial, appellant was found guilty of burglary, aggravated robbery, larceny, wantonly pointing a firearm, carrying a firearm without a license, carrying a concealed deadly weapon, committing a crime of violence while in possession of a firearm, all related to the robbery of a food store in Bucks County. At the conclusion of the trial, after the jury had returned a verdict of guilty, defense counsel requested a poll of the jury. When juror seven was asked his verdict, he responded 'not guilty' twice. [1] Immediately after the remaining jurors were polled, defense counsel requested a mistrial based on juror seven's responses. The motion was denied, but defense counsel's further voir dire of juror seven was granted. [2] During both periods of questioning of the juror, he indicated that he had difficulty hearing.
In this appeal, appellant contends that the hearing difficulties of the juror, discovered only upon the polling of the jury following the verdict, denied him a fair, impartial, and competent jury, resulting in less than a unanimous verdict as guaranteed by the Fourteenth and Sixth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution, P.S. We agree with appellant's contention, and, therefore, reverse and remand for a new trial. [3]
The right to an 'impartial' jury is guaranteed by the Pennsylvania Constitution [4] and the Sixth Amendment of the United States Constitution [5] applied to the states through the Due Process clause of the Fourteenth Amendment. Thus, the minimal standards of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and 'indifferent' jurors. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). 'A fair trial in a fair tribunal is a basic requirement of due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). See also Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972).
Fundamental to the right of an 'impartial' jury is the necessity that participating jurors be competent and qualified. By statute, Pennsylvania requires that only 'sober, intelligent, and judicious persons,' Act of April 10, 1867, P.L. 62, § 2 (17 P.S. § 942), and persons 'able to understand the English language,' Act of May 11, 1973, No. 12, § 1 (17 P.S. § 1333), be eligible as jurors. Implicit in these requirements is that a juror should be free from such physical infirmities as will interfere with or preclude the proper discharge of his duties. See 47 Am.Jur. Jury § 108 (1969); A.B.A. Project on Standards for Criminal Justice, Standards Relating to Trial by Jury § 2.1(b)(ii) (Approved Draft 1968).
The appellant is entitled to a jury verdict arrived at by each and all of the jurors upon the evidence introduced. Commonwealth v. Fugmann,330 Pa. 4, 198 A. 99 (1938). See Pa.R.Crim.P. 1120(b), 19 P.S. Appendix ('verdict shall be unanimous'). The presence of a juror with a physical impairment of such magnitude as to interfere with the juror's ability to hear and understand the presented testimony and evidence precludes a verdict by all jurors. Such a disability would render the juror incompetent to serve and would deny appellant's right to an impartial jury and a fair hearing. While a juror is not disqualified per se because of his deafness, Safran v. Meyer, 103 S.C. 356, 88 S.E. 3 (1916), where the deafness is of such degree as to indicate that the juror may have not heard material testimony, the juror must be disqualified, rendering any verdict he gave as meaningless.
In the instant appeal, we find that the record indicates that the juror in question had a hearing impairment so great as to deny appellant a fair, impartial trial and a unanimous verdict. [6] We recognize that it is quite difficult to determine the amount of prejudice suffered by the appellant because of the juror's hearing difficulties. However, the record substantiates that the juror had difficulty in hearing. He admitted inability to hear questions and his responses were inconclusive as to whether he had heard all the testimony. Thus, we are confronted with a situation where, in order to insure fairness and to alleviate any possibility of prejudice caused by the deaf juror, we must assume prejudice for the sake of insured fairness. Cf. Commonwealth v. Stewart, 449 Pa. 50, 56, 295 A.2d 303, 306 (1972) (); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). We, therefore, reverse the judgment of sentence of the lower court and remand for a new trial.
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Notes:
[1] The following exchange took place at the conclusion of the trial on March 27, 1973: 'THE COURT Samuel Bender. JUROR SAMUEL BENDER (#7): Not guilty. THE COURT: Your response? JUROR SAMUEL BENDER (#7): (Pause) THE COURT: Samuel Bender, you are being asked if you agree with the verdict as given by your foreman. JUROR SAMUEL BENDER (#7): Yes, sir. THE COURT: Say 'guilty' if you do agree. JUROR SAMUEL BENDER (#7): I agree with him. THE COURT: Your verdict is guilty then? Is that correct? JUROR SAMUEL BENDER (#7): Yes, not guilty. THE COURT: Just a moment. JUROR KATHLEEN RUTLEDGE (#8): He doesn't understand. THE COURT: Juror number 7, Samuel Bender, can you hear me? JUROR SAMUEL BENDER (#7): Slightly. THE COURT: Can you hear me now? (The Court moving closer to the jury) JUROR SAMUEL BENDER (#7): Yes. THE COURT: Your foreman, Mr. Comerford, on behalf of the entire jury returned a verdict of guilty as to all the counts. Do you agree? JUROR SAMUEL BENDER (#7): Right. THE COURT: You do agree? JUROR SAMUEL BENDER (#7): Yes. THE COURT: I will interpret that to mean 'guilty. " (NT 154--55)
[2] Juror seven was returned to the court room and questioned by the trial judge and defense counsel: (NT 159--61)
In order to more fully detail the circumstances in the court room, affidavits were taken from three attorneys present. The affidavits stated that the trial judge, while questioning juror seven, moved to the part of the bench closest to the witness box and raised his voice. The affidavits were introduced and accepted by the trial judge during arguments on the post-trial motions.
[3] As a result of the disposition of this issue, we do not reach other issues raised by appellant.
[4] Article 1, Section 9, of the Constitution of the Commonwealth of Pennsylvania states in part: 'In all criminal prosecutions the accused hath a right to...
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