Commonwealth v. Fowler
| Decision Date | 20 October 1978 |
| Citation | 393 A.2d 844,259 Pa.Super. 314 |
| Parties | COMMONWEALTH of Pennsylvania v. Gregory FOWLER, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Oct. 8, 1976.
John W. Packel, Asst. Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Asst. Dist. Attys., and F Emmett Fitzpatrick, Dist. Atty., Philadelphia, for Com appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
VAN der VOORT, J., files an opinion in support of affirmance in which JACOBS, President Judge and PRICE, J., join.
CERCONE, J., files an opinion in support of reversal.
HOFFMAN, J., files an opinion in support of reversal in which SPAETH, J., joins.
WATKINS, former President Judge, did not participate in the consideration or decision of this case.
The above case was decided prior to the retirement of HOFFMAN, J.
VAN der VOORT, Judge, in support of affirmance:
The appellant files the instant direct appeal following his conviction at jury trial, denial of post-trial motions, and sentencing on charges of simple assault, aggravated assault and criminal conspiracy. He raises several claims of error.
Initially, we review the assertion that the lower court erred in instructing the jurors to re-enter deliberations and " . . . make sure that you have done this right." The record shows that the jurors retired to begin deliberations shortly after 11:00 A.M. on December 12, 1976. At almost 10:00 P.M., on the same date, the jurors returned to the courtroom. The jury foreman announced a verdict of guilty on all charges. The defense thereupon requested that the jurors be polled. The first seven jurors proclaimed a guilty verdict on all charges. The difficulties began when juror number eight, in response to the court crier's question as to his finding on a simple assault charge, stated: The following colloquy ensued:
After the jurors left the courtroom, defense counsel entered a motion for mistrial, arguing that the last comment of the trial judge, as related above, might have had the effect of coercing juror number eight in his voting. The lower court refused the motion, and we affirm that decision.
Pennsylvania Rule of Criminal Procedure 1120, dealing with jury verdicts, provides in Section (f): Thus, the trial court followed a correct procedure in sending the jurors back to their deliberations. We cannot agree that the court's comment to the jurors in doing so had any possible coercive impact of the sort suggested by appellant.
The appellant cites Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971) in support of his argument. In that case, our Supreme Court held improper the so-called "Allen " charge, [1] which, Inter alia, cautioned the jurors, in strong terms, not to reach unalterable conclusions with a "blind determination", but rather to consider the opinions of other jurors having a different opinion or disposition to suggest. The Spencer holding was applicable to situations in which a jury announces that it is hopelessly deadlocked in deliberations, and is totally inapplicable in the circumstances of the instant case, where there was apparently no deadlock, but merely some confusion as to the vote. Moreover, the statement of the trial judge cannot be said to have had the coercive impact on jurors in this case similar to the "Allen " type of charge.
Our brethren on this Court suggesting reversal rely upon the holdings in such cases as Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969) and Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968) for support. Such reliance is clearly misplaced as the factual circumstances in such cases make them completely inapposite for application to the instant case. In both Wilmer and Holton, the jury charges deemed improper strongly suggested to the Supreme Court that jurors may have concluded that they were threatened with the "wrath of God" if they brought in a not guilty verdict. The trial judges, in their charges in both cases, made pointed references to the jurors' duty to answer to the Deity for their verdict, and also appealed to the patriotic instincts of the jurors. The mandate to "make sure that you have done this right", while not the most artful instruction for the jurors, neither carried the coercive impact evidenced in charges in such cases as Wilmer and Holton, nor created any demonstrable prejudice to appellant. Thus, we must reject appellant's first claim of error.
Next, the appellant contends that the Commonwealth systematically excluded, by peremptory challenge, all members of the Black race who were on the jury panel from sitting on his jury, thereby denying him due process rights, equal protection of law, and trial before a jury of his peers. It is well established that a defendant, in raising such claims, has the burden of establishing a prima facie case of the Systematic exclusion of Blacks by the Commonwealth. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Suffice it to note that appellant in essence admits, in his brief to our Court, that he has not met that burden. He argues however that the Swain holding should not be followed by this Court. We simply are not free to ignore the dictates of the United States Supreme Court and the Pennsylvania Supreme Court, in this instance or in any other case. We reject appellant's second contention of error.
Last, appellant claims that reversible error occurred when the court allowed the Commonwealth to amend the conspiracy indictment by adding the criminal objective of aggravated assault after the Commonwealth had rested and the defense had demurred to that indictment. Pennsylvania Rule of Criminal Procedure 220 allows an indictment to be amended if the amendment is one of form and does not charge an additional or different offense. [2] Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. Brown, 229 Pa.Super. 67, 323 A.2d 845 (1974). The principal consideration with regard to an indictment is whether the defendant has had notice of the charge he must defend. Commonwealth v. Brown, supra.
In the instant case, the charges arose out of a vicious attack by three individuals upon two elderly shopkeepers. The appellant had clear notice that he would be required to defend against a charge of aggravated assault, as he was charged with both simple and aggravated assault on two other indictments tried in the same trial. Moreover, the original conspiracy indictment provided that appellant and another individual conspired with the criminal objective of committing robbery and theft and committed the overt acts of robbery and aggravated assault in furtherance of the conspiracy. The amendment permitted by the trial court resulted in adding aggravated assault to the criminal objective section of the indictment, along with robbery and theft.
The amendment permitted by the court caused no prejudice to appellant as he was clearly aware that he would be defending aggravated assault allegations. No specific prejudice is alleged by appellant. While he notes that he had already concluded cross-examination of prosecution witnesses prior to the amendment, he did not request permission to recall such witnesses for further cross-examination, nor did he seek a postponement or other relief as is authorized by Rule 220. The defense proceeded throughout on the theory that appellant was not present or involved in the assault on the victims, and that he was not a conspirator in any of the criminal acts. The amendment permitted could not be seen as having any effect on the theory advanced by the defense. In light of all of these factors, we find no basis for reversal in the lower court's granting of the motion to amend indictment.
Affirmed.
HOFFMAN, Judge, in support of reversal:
Appellant raises three contentions: (1) the lower court erred in allowing the Commonwealth to amend the criminal objective section of a conspiracy indictment, (2) the trial court coercively instructed the jury to redeliberate and to "make sure that you have this done right" after one juror announced a verdict of not guilty during a poll of the jury, and (3) the Commonwealth deliberately and unconstitutionally excluded all members of appellant's race from the jury. I would grant appellant a new trial because the trial court's instructions may very well have coerced the dissenting juror to alter his vote.
In July 1975 a Philadelphia grand jury returned five separate bills of indictment charging appellant with various crimes stemming from a violent attack with crowbars by three men upon two elderly shopkeepers. Indictment number 799 charged appellant with possession of an instrument of crime; [1] indictment numbers 800 and 801 charged appellant with simple [2] and aggravated assault [3] against two shopkeepers;...
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