Commonwealth v. Edmondson , 447 Pa. Super. 596 ( 1996 )


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  • POPOVICH, Judge:

    This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Erie County on June 23, 1994, following appellant’s conviction on charges of possession of a controlled substance, possession of a controlled substance with the intent to deliver, aggravated assault and resisting arrest. Appellant was sentenced consecutively to forty-two (42) months to ten (10) years for possession with intent to distribute a controlled substance and eighteen (18) months to ten (10) years for the aggravated assault charge.1 Appellant herein questions whether he was denied a fair trial because the trial court improperly instructed the jury.2 Upon review, we find the trial judge’s instruction to be coercive thereby denying appellant his right to a fair trial. Appellant also argued that the evidence presented was insufficient to sustain the verdict. We disagree that the evidence was insufficient and adopt the trial court opinion which correctly and thoroughly disposed of this issue. [Trial Court Opinion, pp. 5-7] Accordingly, we reverse the judgment of sentence and remand for a new trial.

    The facts of this case are as follows: On April 8, 1993, at approximately 3:30 a.m., Erie Police Officer Tom Eberlein was on patrol when he observed a car which was traveling west on 23rd Street make a right turn and head north on State Street at a high rate of speed. The car then went through a red light while turning left at 21st and State Streets. At this time, Officer Eberlein turned on his lights, pursued the vehicle and called for backup. The officer chased the vehicle for three blocks at a rate of sixty to seventy miles per hour in an area with a speed limit of twenty-five miles per hour. The vehicle ran two more red lights before jumping a curb and coming to a stop among a tree, a telephone pole and a stop sign. Four of the five occupants exited the car and ran. Officer Eberlein chased the closest passenger, appellant, initially by vehicle and then by foot. During the pursuit, Officer Eberlein observed appellant reach into his pocket and pull out something. Appellant ran with the object in his hand before dropping it in the vicinity of 20th and Myrtle. The officer continued to chase appellant and eventually tackled him and wrestled him to the ground. While twisting to get away from the officer, appellant threw his arm back and struck the officer in the nose. Shortly thereafter, additional officers arrived and handcuffed appellant. Officer Eberlein showed them the area where the object was dropped, *185and a prescription pill vial was found. The contents of the vial were determined to be thirty-two rocks of crack cocaine. Appellant had $748.00 in his possession at the time of arrest.

    At trial, the jury began their deliberations at 4:45 p.m. and returned to the courtroom with a question at 6:00 p.m. The jury asked the judge if the injury to the officer was more accidental than intentional, was it still aggravated assault. The judge responded by rereading the legal definition of aggravated assault on a police officer. The jury continued its deliberations until 6:20 p.m. when it returned with another question. The jurors wanted to know what would happen to the other three charges if they could not reach a verdict on one of them. Learning upon which charge they could not agree, the judge stated the following:

    The aggravated assault. If you cannot reach a verdict, you mean you would be a hung jury. I am the one who declares whether you’re a hung jury or not. This case is about as straight-forward as you can ever get. I am not going to hang this jury. So you’ll deliberate until I feel that you can’t deliberate anymore. Now, please do what I’ve instructed you to do. Find the facts from the evidence and apply them to the law, just the facts. Not theory, ifs ands or buts. This has been a short trial, the evidence is quite clear, you have one or two people to believe basically. I’m not going to hang you on that charge. Let’s go back, do your job as responsible jurors.

    Following the judge’s order, the jury deliberated for approximately one hour more before finding appellant guilty on all charges.

    The question presented to this court is whether the above instruction to the jury was coercive, resulting in an unfair trial for appellant. Upon review, we find that the trial judge abused his discretion by issuing a coercive instruction to the jury.

    Initially, we note that our standard for reviewing the propriety of statements made by the trial court in its jury charge “is limited to a determination of whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421, 424 (1989) (quoting Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 546 A.2d 1131, 1136 (1988)).

    The law regarding judicial coercion was defined by the United States Supreme Court in the landmark case Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In Allen, the Supreme Court stated that “[wjhile, 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.” Id (emphasis added). Furthermore, it is within the trial judge’s discretion to determine the length of time a jury deliberates. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1380 (1991). However, “[i]t is well established that a verdict brought about by judicial coercion is a legal nullity.” Id.

    Although the principles of Allen remain intact, our Supreme Court found the charge given to the jury in Allen to be coercive.3 Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). In Spencer, our Supreme Court saw two possible implications of the Allen charge: “(1) a minority juror should yield to the majority; and (2) those with no reasonable doubt, i.e., the majority, need not *186re-examine their position despite the existence of a reasonable doubt in the mind of a minority juror.” Id at 303-304. These notions were seen to be contrary to both the federal and state constitutional right to trial by jury. Id. (referring to U.S. Const, art. Ill, § 2 and amend. VI; Pa. Const, art. I, § 6, P.S.). It is quite clear that a conviction will be reversed upon the finding that a jury charge had the coercive effect of Allen. Spencer, 275 A.2d at 303.

    In Commonwealth v. Hammond, 350 Pa.Super. 477, 504 A.2d 940, 941 (1986), the appellant alleged judicial coercion based on the following three sentences of the trial judge’s instruction: “You cannot be discharged from your duties until you have reached a unanimous verdict; ... each juror should not hesitate to re-examine his or her own view; ... come back with a verdict.” The reviewing court responded that if these three sentences were the sum total of the judge’s instructions, it might find coerciveness. Id. However, the court did not find coerciveness because, in addition to the above three sentences, the trial judge repeatedly told the jurors that they should not give in to their peers for the sake of ending the trial. Id.

    More recent cases illustrate judicial action which does not rise to the level of judicial coercion. In Commonwealth v. Chester, the jury indicated difficulty in reaching a decision two times during thirteen hours of deliberation. Each time, the judge returned the jurors to the jury room for further deliberation. The court found no abuse of the trial judge’s discretion because at each break in deliberation, the judge expressly told the jury that if it found agreement to be hopeless, it was free to return. Chester, 526 Pa. 578, 587 A.2d 1367. Similarly, in Commonwealth v. Bazabe, 404 Pa.Super. 408, 590 A.2d 1298, 1300 (1991), the court dismissed an allegation of judicial coercion where the trial judge encouraged the jury to reach a verdict, yet told the jurors that “you are not required to relinquish your position if you think you are right in whatever results you in your own mind have reached.” 4

    As noted in Hammond, “we cannot base a finding of error on isolated sentences that are without context; it is the effect of the jury charge of a whole that is controlling.” Hammond, 504 A.2d at 941. In the present case, the judge’s instruction, viewed in its totality, had the same effect as the three sentences in Hammond. The distinction being that, in this case, the judge did not give the accompanying instruction that jurors need not abandon their opinion.5 By explicitly forbidding a “hung” jury and saying, “you’ll deliberate until I feel that you can’t deliberate anymore’, the trial judge gave dissenting jurors the option to accept the opinion of the majority or remain in deliberation indefinitely. This implication is coercive for precisely the same reasons that Spencer criticized the Allen charge. The judge’s instruction could have coerced a minority juror to abandon his or her reasonable doubt and yield to the majority for the sake of concluding the trial.

    Perhaps even more improper, the judge expressed his displeasure with the jury’s indecision on the aggravated assault charge when he told them that “this case is about as straightforward as you can ever get ... this has been a short trial, the evidence is quite clear, you have one or two people to believe basically ... I’m not going to hang you on that charge.” Through this statement, the judge virtually conveyed his own opinion that appellant should be found guilty of aggravated assault. Moreover, as previously stated by this court, “individual jurors might have concluded ... that the court was threatening them with the wrath of God should they bring in a verdict of not guilty.” Fowler, 393 A.2d at 852 (quoting Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969).

    *187It is difficult to imagine a clearer display of judicial coercion than occurred in the present case. It is the jury’s duty to consider all of the evidence and reach a unanimous verdict. This verdict should reflect the opinion of each juror and should not be tainted by the judge’s refusal to “hang” the jury nor his own opinion of the case. When reviewing the trial court’s charge as a whole, we conclude that the trial court abused its discretion when it improperly demanded a verdict and implicitly conveyed its own opinion of the case.

    We note that this court is sympathetic to the judge’s discouragement of a “hung” jury due to the additional time and expense it entails. Further, it is clearly within the trial judge’s discretion to attempt to avoid such a situation by returning the jury for further deliberation. Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180, 1185 (1991). However, it would be more proper to encourage the jury to reach a verdict than to forbid a “hung” jury. We reiterate the recommendation of our Supreme Court concerning the proper instruction to be given to a deadlocked jury.6 In essence, this charge would emphasize that, while a verdict is encouraged, no juror should relinquish an honest opinion based solely on the opinion of other jurors or for the purpose of returning a verdict.

    In sum, we find the trial judge’s jury instruction to be coercive, thereby denying appellant his right to a fair trial. Accordingly, we reverse the judgment of sentence in totality 7 and remand for a new trial free from the taint of judicial coercion.

    Judgment of sentence reversed. Case remanded for a new trial in accordance with this opinion. Jurisdiction relinquished.

    OLSZEWSKI, J„ files a dissenting opinion.

    . The possession of a controlled substance conviction merged with the count of possession with intent to deliver, and the resisting arrest conviction merged with the aggravated assault count.

    . Appellant also raised the following issues which we need not address: whether the verdict was against the weight of the evidence; and whether the sentence imposed was manifestly excessive.

    . In Allen, the trial judge instructed the jury substantially as follows:

    [I]n a large proportion of cases [,] absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they cotdd conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.

    Allen, supra at 501, 17 S.Ct. at 157.

    . See also, Commonwealth v. Fowler, 259 Pa.Super. 314, 393 A.2d 844 (1978) (The trial court told an undecided jury that "I think you have to go back out again and start deliberating again. Make sure that you have this done right." Amongst a divided court, three judges voted to reverse stating that the trial court’s admonition was "tantamount to the disfavored Allen charge.” Id. at 852).

    . Although the trial court did give such an instruction prior to deliberation, we find that the instruction in question nullified any effect the prior instruction may have had.

    . The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating To Trial By Jury, § 5.4(a) and (b) provide:

    (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
    (i) that in order to return a verdict, each juror must agree thereto;
    (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
    (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors; (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
    (v)that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
    (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the juty to deliberate for an unreasonable length of time or for unreasonable intervals.

    Spencer, 275 A.2d at 304; Fowler, 393 A.2d at 851-852.

    . We reverse the judgment of sentence on all charges because it is impossible to tell from the record whether the trial judge's comments tainted the jurors' verdict on the other charges as well.

Document Info

Citation Numbers: 670 A.2d 183, 447 Pa. Super. 596

Judges: Cirillo, Olszewski, Popovich

Filed Date: 1/19/1996

Precedential Status: Precedential

Modified Date: 1/13/2023