Commonwealth v. P.L.S.

• Decision Date: 02 February 2006
• Citation: 894 A.2d 120
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. P.L.S., Appellant.
• Court: Pennsylvania Superior Court

Page 120

894 A.2d 120

COMMONWEALTH of Pennsylvania, Appellee v. P.L.S., Appellant.

Superior Court of Pennsylvania.

Argued September 14, 2004.

Filed February 2, 2006.

Reargument Denied April 7, 2006.

COPYRIGHT MATERIAL OMITTED

Patrick M. Livingston, Pittsburgh, for appellant.

Jeffery D. Burkett, Asst. Dist. Atty, Brookville, for the Com., appellee.

Before: JOYCE, BENDER and BOWES, JJ.

BOWES, J.:

¶ 1 P.L.S. appeals the judgment of sentence of twenty-six to fifty-two years imprisonment that was imposed after he was convicted by a jury of one count each of rape, attempted rape, attempted involuntary deviate sexual intercourse, statutory sexual assault, indecent assault, corruption of a minor, and endangering the welfare of a child. We affirm.

¶ 2 On February 6, 2001, the Commonwealth filed an information against Appellant containing 297 separate counts of crimes relating to his sexual abuse of his paramour's daughter, S.McK. The information later was amended to set forth only a single count of each sexual offense because the dates of the incidents of sexual abuse could not be specified.

¶ 3 At trial, the following was established. S.McK. was born on September 2, 1987, and resided on Railroad Street in a town in Pennsylvania with her mother and her sister, J.R.S., who is Appellant's biological daughter with S.McK.'s mother. Appellant, S.McK., and her mother moved into the Railroad Street residence in 1996, and Appellant vacated the residence in July 1998. S.McK. testified that the sexual abuse occurred over a two-year period at that residence from approximately September 1997 to July 1998. The child was sexually abused when her mother attended a weekly bingo game or went grocery shopping, if no other adult was present.

¶ 4 S.McK. related that Appellant would drink alcohol and then play a movie or game to keep J.R.S. occupied. Appellant would take the victim into the bedroom and force her to perform oral sex or engage in vaginal intercourse. In 2000, S.McK. reported Appellant's abuse after a cousin informed her that Appellant's actions were wrong. S.McK. explained that Appellant had told her that all young girls had this type of sexual conduct performed on them.

¶ 5 On March 8, 2002, a jury acquitted Appellant of involuntary deviate sexual intercourse but convicted him of rape, attempted rape, attempted involuntary deviate sexual intercourse, statutory sexual assault, indecent assault, corruption of a minor, and endangering the welfare of a child. Following this verdict, the court ordered an assessment to determine whether Appellant was a sexually violent predator pursuant to the provisions of Megan's Law, 42 Pa.C.S. §§ 9791-9799.7. The Commonwealth presented the results of that assessment to the trial court at a May 28, 2002 hearing. On June 5, 2002, the sentencing court determined that Appellant was a SVP and sentenced him to consecutive terms of imprisonment at the statutory maximums for rape, attempted rape, corruption of a minor, and endangering the welfare of a child for a total term of imprisonment of twenty-six to fifty-two years. This appeal followed the denial of Appellant's post-sentence motion.¹

¶ 6 Appellant raises three questions for our review. His first contention involves a supplemental instruction given to the jury by the trial court after the jury indicated that it might be deadlocked. The following facts provide the relevant context for Appellant's first claim. After approximately three hours of deliberations, the jury sent the trial court a note that read, "How long do we have to deliberate before it's considered a hung jury?" Order in accordance with Rule 1926 of Appellate Procedure, 5/13/03, at 1.² In response, the trial court and the jury had an exchange:

THE COURT: Members of the jury, you have now had this case for three hours approximately. Obviously, you are having some difficulty in resolving the issues in this case. On the one hand, this difficulty is the indication of the sincerity and objectivity of which you have approached your duties. On the other hand, it may be the result of confusion in your minds about the instruction I gave you on the law and about the application to the facts of this case.

Speaking through your foreperson, would you please stand.

Mr. Smith [,foreperson], does the jury require any additional or clarifying instructions on the laws that apply to this case?

[FOREPERSON]: No. I don't think so, no.

THE COURT: In your judgment is there a reasonable probability of the jury reaching a unanimous verdict?

[FOREPERSON]: It was because of lack of evidence.

THE COURT: Okay. And in your judgment is there reasonable probability that the jury could reach a unanimous verdict?

[FOREPERSON]: I don't think so.

THE COURT: Have a seat for a moment. And I want to explain this as you know, and I already went through my instructions, I will not go back through all those again. But, as I said, during the case this is certainly important to both the Commonwealth and the defendant. I appreciate all of you being here to this late hour of the night, but because the matter is of such importance and because we have spent a substantial amount of your time as well as the time of both the attorneys and witnesses I'm going to give you some further instructions and ask you to reconsider this in the jury room. Obviously, it's not only important to the Commonwealth and defendant but the county and for yourselves. If the matter were to go to hung jury this matter could be retried or would face other disposition that the county and possibly other jurors would have to be in your same place hearing the same evidence, the families, witnesses would have to travel back to the courtroom and possibly go through this exercise again. Now, I'm going to say that you realize, of course, any verdict you return must be a unanimous verdict and if we get past that point you still do have a duty to consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to your own individual judgment. Each juror must decide the case for himself or herself but only after impartial consideration of the evidence with the other jurors. A juror should not hesitate to reexamine his or her own views and change his or her views if that person thinks they are erroneous. But no juror should surrender their honest convictions, the weight or effect of the evidence because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict.

Keeping those instructions in mind — and these were approximately the last instructions I gave you — because of the time already that you have invested along with everyone else I am going to send you back to the deliberation room to give further consideration to these charges that are before you. Now, if the Court can give you any assistance — again, I tell you if you have questions on the law, if there is a specific point regarding anything that I gave you before, we can consider that and reinstruct on that part. So if the Court can be of any assistance certainly write the question down and I will be more than happy to take a look at that and clarify any points of law. Just simply ask that you take some further time, examine each of your own consciences, examine the evidence in line with your own opinion and see if it is possible that you might reach a verdict on each of these.

Now, there is another possibility. If there are some that you can agree on but some you cannot I would ask that you look at each charge individually and if there is some that you believe, in fair consideration of all of your own beliefs, you can unanimously agree on one or two up to seven or eight of the individual charges, please mark those that are unanimous. If we can't reach it on others, we will reconsider that at a later time. But again, because I don't want to delay anymore, because of what I just told you about the importance and I know you are all taking this very serious[ly] from the time you have put in, I would ask you to go back, give some more consideration to your own thoughts and to each other's thoughts on each individual charge and see if there are any and maybe all that you can reach a unanimous verdict on.

. . . .

(Whereupon the jury was dismissed for further deliberations).

N.T. Charge of the Court, 3/8/02, at 106-110.

¶ 7 Appellant claims that the instruction violated his constitutional right to a fair trial because it instructed the jury to "consider matters other than the evidence presented at trial" and also "effectively coerced the jury" into rendering a guilty verdict. Appellant's brief at 14. Appellant suggests that the instruction given in this case was akin to the Allen instruction, which was criticized in Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).

¶ 8 Initially, we acknowledge that "it is `well established that a verdict brought about by judicial coercion is a legal nullity.'" Commonwealth v. Montgomery, 455 Pa.Super. 202, 687 A.2d 1131, 1136 (1996) (quoting Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1380 (1991)). "In order to assess the propriety of the trial judge's statements, this Court must review the instructions as a whole to determine if any improper judicial wrangling occurred." Montgomery, 687 A.2d at 1136.

¶ 9 Formerly, when confronted with a deadlocked jury, a trial court typically gave a charge pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), our state Supreme Court forbade the use of the Allen charge, citing its potential for a coercive effect on the jury. In Spencer, the jury deliberated for more than five hours when the foreman reported a hopeless deadlock. The Commonwealth asked that the trial court give the jury an Allen charge, and the trial court complied. The Allen charge read substantially as follows:

[A]lthough the verdict must be the verdict of...