Commonwealth v. Spencer
| Decision Date | 25 March 1971 |
| Citation | 442 Pa. 328,275 A.2d 299 |
| Parties | COMMONWEALTH of Pennylvania v. Frank D. SPENCER, Appellant. |
| Court | Pennsylvania Supreme Court |
Defender Assn. of Philadelphia, Vincent J. Ziccardi Defender, John W. Packel, Chief, Appeals Div., Philadelphia for appellant.
Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty Richard Max Bockol, Asst. Dist. Atty., Milton M. Stein, Asst Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.
Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
This is an appeal from the judgment of sentence imposed by the Common Pleas Court of Philadelphia. With two judges concurring in the result, the Superior Court affirmed. Com. v. Spencer, 216 Pa.Super. 169, 263 A.2d 923 (1970). We granted allocatur.
The charges against appellant stem from an unlawful entry into the apartment of a Patricia Fitzgerald on July 3, 1967. While in her bedroom, Mrs. Fitzgerald was suddenly confronted by a man brandishing a pistol who ordered her to move toward the bed. Fearing a possible rape and/or harm to her six-year old daughter, Mrs. Fitzgerald began screaming and the man fled. Appellant was later arrested, indicted and found guilty by two juries on the charges of assault and unlawful entry. [1]
On appeal we are confronted with two distinct issues: (1) whether it was reversible error for the trial court to permit the introduction of certain identification testimony; and (2) whether the court erred in the use of the 'Allen' charge. (Allen v. United States, 164 U.S. 492, 501, 502, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
Following appellant's arrest, a police stand-up [2] with three other men was conducted at the East Detective Division at Front and Westmoreland Streets in Philadelphia on July 6, 1967, and appellant was identified by Mrs. Fitzgerald as the man who entered her apartment. Since counsel was neither present nor waived in this stand-up occurring twenty-four days after the United States Supreme Court delivered its landmark decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), it would be error to admit any evidence pertaining to the stand-up or any in-court identification evidence which is tainted by the stand-up. A reading of the preliminary hearing record convinces us, as it convinced Both trial judges, that any identification by Mrs. Fitzgerald based on appellant's dental make-up would be improper since Mrs. Fitzgerald first noticed that irregularity during the stand-up. Nonetheless, the second trial judge inadvertently permitted a testimonial identification of appellant based on his teeth. [3]
Although the admission of the 'dental' testimony tainted by the stand-up identification was error, Mrs. Fitzgerald's testimony was not objected to by defense counsel and her in-court identification was unequivocal in all respects, at all stages of these proceedings, and we conclude the receipt into evidence of this improper identification testimony was harmless error within the meaning of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See, e.g., Com. v. Williams, 440 Pa. 400, 405--408, 270 A.2d 226, 228--230 (1970) (concurring opinion). However, we recognize that this conclusion begs the question whether the other courtroom identification by this witness had an origin independent of the illegal stand-up or whether it was similarly tainted.
We begin with the proposition enunciated in Wade that, '(w)here, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified.' 388 U.S. at 240, 87 S.Ct. at 1939. While realizing that a line-up will ofttimes 'crystallize the witnesses' identification of the defendant for future reference,' Id., 87 S.Ct. at 1939, the Supreme Court held 'the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441, 388 U.S. at 241, 87 S.Ct. at 1939.
Because it could not be determined from the record whether the courtroom identification in Wade and Gilbert had an independent origin, the Supreme Court, in both cases, found it necessary to 'vacate the conviction pending a hearing to determine whether the in-court identification had an independent source,' 388 U.S. at 242, 87 S.Ct. at 1940. See, also, 388 U.S. at 272, 87 S.Ct. 1951. The same procedure was employed by this Court in Com. v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970). However, on these facts, we find such remand to be unnecesary since the first judge conducted an independent inquiry of the witness' other identification and concluded it was not tainted. See, e.g., Com. v. Williams, 440 Pa. 405--408, 270 A.2d 226, 228--230 (1970) (concurring opinion).
Applying the Wade standards, we note: (1) the complainant observed the man identified as appellant for five to ten minutes in a brightly lit room; (2) there was no substantial discrepancy of physical description between any pre-stand-up description and the appellant's actual description; (3) complainant identified appellant through photographs prior to arrest; (4) the complainant consistently identified the appellant at every stage of these proceedings and testified she would 'never forget his face'; and (5) there was only a three-day interval between the alleged act and the stand-up. Accordingly, we conclude: (1) the witness' courtroom identification, apart from the dental testimony, was not tainted by the illegal stand-up and (2) this unequivocal courtroom identification renders harmless the error in permitting the dental identification.
Secondly, appellant urges us to reverse his conviction because of the trial judge's use of the so-called 'Allen' charge. The second trial commenced on January 13 1969, and the jury retired to deliberate after hearing the judge's initial charge at 11:13 a.m. on January 16, 1969. At 4:40 p.m. on the same date, the foreman of the jury reported an inability to reach a verdict on both counts as the jury was hopelessly deadlocked. At that point the prosecutor requested, at side-bar, that the judge charge the jury in accordance with Allen v. United States, 164 U.S. 492, 501--502, 17 S.Ct. 154, 41 L.Ed. 528 (1896), [4] and the defense objected. Reluctant to so charge the jury, the trial judge sent the jury back for further deliberation and held a conference on the record in his chambers at 5:10 p.m. Present at the conference was the District Attorney of Philadelphia who requested the Allen charge if for no other reason than to test its continuing validity and the trial judge agreed.
After the jury returned to the courtroom, the trial judge, substantially quoting Allen charged as follows:
"In a large proportion of cases absolute certainty cannot be expected. Though a verdict must be the verdict of each individual juror and not a mere acquiescence to his fellow jurors, nonetheless juries should examine the question of guilt or innocence with candor and with proper regard and deference to the opinions of each other. It is the duty of the jury to decide the case if they can conscientiously do so. The jury should listen with a disposition to be convinced to each other's arguments. If much the larger number of the jurors are fully convinced, a dissenting juror should consider whether his doubt is a reasonable one if it made no impression upon the minds of so many other jurors, equally as honest and as intelligent as himself. While undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a district of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the argument of men * * *', and I will add parenthetically women, '* * * who are equally honest and intelligent as himself * * *', and I add as herself.'
The jury then returned for further deliberation and later had dinner between 6:20 p.m. and 8:00 p.m. Returning to the courtroom at 9:51 p.m. for an account of one witness' testimony, the judge ordered the playback of a tape recording of that witness at 10:45 p.m. Upon hearing the recording, the jury again retired. Finally, at 12:00 a.m., January 18, 1969, the jury returned verdicts of guilty on both counts.
In the past this Court has held that a conviction will be reversed if the jury's verdict was effectively coerced by the trial judge's charge: Com. v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969) (initial charge); Com. v. Holton, 432 Pa. 11, 247 A.2d 228 (1968) (supplemental charge). See, also, Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). Hence the precise issue is whether the Allen charge has such a coercive effect. [5]
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Com. v. Clayton
...which may be drawn from the accused's flight, and (2) the court erred in giving an instruction consistent with Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), because the jury was not The first contention is waived because at trial the defense counsel objected to the evidence of ......