Commonwealth v. Patrick

• Decision Date: 19 January 1965
• Citation: 416 Pa. 437,206 A.2d 295
• Parties: COMMONWEALTH of Pennsylvania v. Charles PATRICK, Appellant.
• Court: Pennsylvania Supreme Court

206 A.2d 295

416 Pa. 437

COMMONWEALTH of Pennsylvania v. Charles PATRICK, Appellant.

Supreme Court of Pennsylvania.

January 19, 1965.

Irving W. Backman, Philadelphia, for appellant.

Charles H. Rogovin, Vincent C. Veldorale, Joseph M. Smith, Asst Dist. Attys., F. Emmett Fitzpatrick, Jr., First Asst. Dist Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

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

BELL, Chief Justice.

A jury found defendant guilty of murder in the first degree on each of two consolidated bills of indictment, and fixed the penalty on one bill at life imprisonment and on the other bill at death. Defendant appeals from the judgments of sentence of the Court of Oyer and Terminer of Philadelphia County which denied defendant's motion for a new trial and imposed sentence in accordance with the jury's verdict.

The evidence justified the jury in finding the following facts:

On March 26 1960, the dead bodies of Gloria Louise Overton, a minor 10 years of age, and Lula Mae Overton, 30 year old mother of the minor, were found in their home in Philadelphia. The cause of death in each case was manual strangulation. In the early morning of the day after the bodies were found, the defendant, Patrick, was apprehended and taken to a police headquarters where he signed a typewritten statement in which he admitted killing both deceaseds. Numerous questions are raised by both parties to this appeal.

The first question involved is whether the trial Court committed reversible error in failing to poll the jury of its own motion. Counsel for the defense at the time the jury announced its verdicts on the question of guilt, did not request the Court that a poll of the jury be taken. In the absence of a demand by defendant or by the District Attorney for the polling of the jury, there is no duty or burden on the trial Court to order or conduct a poll. Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325; Commonwealth v. Cano, 182 Pa.Super. 524, 128 A.2d 358, affirmed on other grounds by the Supreme Court, 389 Pa. 639, 133 A.2d 800; 53 Am.Jur., 'Trial', Section 1017, p. 704; Anno., 49 A.L.R.2d 619, Section 6, 'Accused's right to poll of jury.'

Although the question of the duty of a trial Court to poll the jury of its own motion has never been specifically decided ipsissimis verbis, our books are replete with cases in which the Court assumed that the right to poll the jury is dependent upon a request by defendant or by the Commonwealth. For example, in Commmonwealth v. Martin, 379 Pa. 587, 109 A.2d 325, a defendant convicted of first degree murder and sentenced to death appealed the judgment of sentence. Defendant contended, inter alia, that he was entitled to have the jury polled before its verdict was recorded. The Court said (pages 592-593, 109 A.2d page 327):

'The right of a defendant to poll the jury which has returned a verdict of guilty against him has been widely recognized and accorded: 3 Wharton's Criminal Procedure (10th Ed.), § 1683; 2 Bishop, New Criminal Procedure (2nd Ed.), § 1003-3; Abbott, Criminal Trial Practice (4th Ed.), § 735. The procedure had its genesis in ancient common law (see 2 Hale, Pleas of the Crown 299) and has long been both approved and uniform practice in this State; Walters v. Junkins, 16 Serg. & R. 414, 415; Commonwealth v. Twitchell, 1 Brewst. 551 (O. & T. Phila. Co.); Commonwealth v. Krause, 8 Phila. 607 (Q.S.); Commonwealth v. Buccieri, 153 Pa. 535, 553, 26 A. 228; Commonwealth v. Schmous, 162 Pa. 326, 336, 29 A. 644; Commonwealth v. Scovern, 292 Pa. 26, 36, 140 A. 611; ef. Commonwealth v. Johnson, 359 Pa. 287, 291, 59 A.2d 128. See, also, 1 Sadler, Criminal Procedure in Pennsylvania (2nd Ed., Henry), § 504, and Moschzisker, Trial by Jury, § 347. Even the Commonwealth possesses the right to have the jury polled: Commonwealth v. Lemley, 158 Pa.Super. 125, 127, 44 A.2d 317. * * *

'As stated in some of our cases, cit. supra, and by text writers, the procedure for polling a jury requires that the request be made before the verdict is recorded.'

The second question is whether, after the verdict is recorded and the jury discharged, the verdict can be impeached by the affidavit of one juror ^[1] alleging coercion by the other jurors. About one week after the trial, juror No. 12, Frank E. Satell, informed counsel for the defendant that he had been coerced by his fellow jurors, and on November 20, 1963, 11 days after the trial, he executed and presented to the lower Court an affidavit to such effect. This affidavit was in effect an attempt to impeach the verdict of the jury unanimously recorded. Our Courts have repeatedly held for over 150 years that after a verdict is recorded, and after the jury has separated and been discharged, jurors may not invalidate or impeach a verdict by their own testimony. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785; Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128; Commonwealth v. Curry, 298 Pa. 363, 148 A. 508; Commonwealth v. Newcomer, 183 Pa.Super. 432, 132 A.2d 731; Commonwealth v. Cano, 182 Pa.Super. 524, 128 A.2d 358.

In Commonwealth v. Kravitz, 400 Pa. pp. 222-223, 161 A.2d p. 873, supra, the Court said:

'In Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, at pages 133-134, 79 A.2d 785, 786, the Court said: 'The petition alleges that some of the jurors have recently been interviewed and have stated that, if relator had taken the witness stand in his own defense or if his counsel had produced evidence of good reputation prior to his association with his co-defendants, they would have fixed the penalty at life imprisonment instead of death. The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court in Cluggage's Lessee, 1811, v. Swan, 4 Bin. 150, 158, reiterated and reaffirmed in Friedman v. Ralph Bros., Inc., 314 Pa. 247, 249, 171 A. 900, 901, and again quoted from at length in Redmond v. Pittsburgh Railways Co., 329 Pa. 302, 303-304, 198 A. 71, 72. It is forbidden by public policy: Commonwealth v. Greevy, 271 Pa. 95, 99, 114 A. 511, 512. Certainly such post-trial statements by jurors are not to be given any weight on even an application for a new trial, much less a petition for a writ of habeas corpus.' We find no error or abuse of discretion in the lower Court's rejection of this motion for a new trial.'

In Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128, the defendant was indicted and tried for murder. A verdict of 'not guilty' was returned. The following morning, several members of the jury indicated that instead of 'not guilty' their intended verdict was not guilty of murder, but guilty of manslaughter. The lower Court permitted the jury to be polled after discharge and separation, at which time a verdict of guilty of voluntary manslaughter was entered. This Court reversed, holding that the trial Judge's act in reassembling the jury was a nullity and that the verdict as recorded was the verdict of the jury, which the jury may not impeach or alter or change after separation or discharge.

It is clear that there was no error in the trial Court's refusal to consider the juror's affidavit.

The third question involved is whether there was error in consolidating for trial the two murder bills of indictment and trying defendant on both indictments at one trial. In the instant case, although each bill of indictment related to a separate homicide, the two homicides were almost inseparably interrelated to one another.

When defendant sat down beside Lula Mae's body after having strangled her to death, her daughter woke up and said, 'Where's Mommy.' Defendant then grabbed her around the neck, choked her, picked her up, took her into the bathroom and put her in the bathtub, and filled it with water high enough to cover her face. However, the assistant medical examiner for the City of Philadelphia testified that she died not of drowning but of strangulation.

The constitutionality and legality of consolidating two separate but related bills of indictment for murder against one defendant has been sustained ever since Ashe v. United States ex rel. Valotta, 270 U.S. 424, 46 S.Ct. 333, 70 L.Ed. 662. In that case, Mr. Justice Holmes, speaking for the Court, said (pages 425-426, 46 S.Ct. page 334):

'There is no question that the State Court had jurisdiction. But the much abused suggestion is made that it lost jurisdiction by trying the two indictments together. Manifestly this would not be true even if the trial was not warranted by law. But the Supreme Court of Pennsylvania has said that there was no mistake of law, and so far as the law of Pennsylvania was concerned it was most improper [for the federal Court in a habeas corpus] to attempt to go behind the decision of the Supreme Court, to construe statutes as opposed to it and to hear evidence that the practice of the State had been the other way. The question of constitutional power is the only one that could be raised, if even that were open upon this collateral attack, and as to that we cannot doubt that Pennsylvania could authorize the whole story to be brought out before the jury at once, even though two indictments were involved, without denying due process of law. If any question was made at the trial as to the loss of the fight to challenge twenty jurors on each indictment, the only side of it that would be open here, would be again the question of constitutional power. That Pennsylvania could limit the challenges on each indictment to ten does not admit doubt.'

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