Commonwealth v. Hall ( 1979 )

HESTER, Judge:

Appellant Drake Hall, a/k/a James Carter was convicted by a jury in the Court of Common Pleas of Philadelphia County of one count of robbery. Following denial of post-trial motions, he was sentenced to a maximum term of ten to twenty years imprisonment. This direct appeal followed.

Testimony at trial established the following. On March 5, 1976, the victim, 43 year-old Phillip Skipworth, was in his home he shared with his brother on Farragut Street in Philadelphia. Sometime during the afternoon, appellant and an unidentified individual came to the door and asked for Phillip’s brother Wilbur. Although Wilbur was not at home at that time, Phillip admitted the two men into the house and accompanied them upstairs. At this point, appellant’s companion bound Phillip’s hands, threatened him with an iron bar, and forced him to lie on a bed. Appellant and his confederate then removed clothes, TV set, and “a few more things” from the house and quickly fled. Phillip was soon able to free himself and summon aid. Appellant was known to Phillip as an occasional companion of Wilbur Skipworth and thus Phillip could readily supply investigating officers with appellant’s name and description. An arrest warrant issued the next day, but was not served on appellant until nearly five months later.

Appellant testified that he was indeed at the Skipworth residence on March 5,1976 in the company of Phillip and one James Allan. Appellant left the premises without Allan and discovered later that Allan had threatened Phillip and taken several items from the house. Appellant admitted to eluding the authorities for five months because he was aware the police were looking for him, but he denied any participation in the robbery.

Appellant first contends he is entitled to a dismissal of all charges because the Commonwealth did not bring him to trial within the time required by Pa.R.Crim.P. 1100. At a pre-trial suppression hearing, counsel raised the prompt trial issue orally, suggesting the 180 day time limit had long since expired and that appellant should be discharged. This motion was denied. We think the Rule 1100 claim has not been properly preserved since it was presented orally and not in writing as Rule 306 clearly requires: “All pretrial motions for relief shall be in writing . . .” Moreover, Rule 1100 itself implies that an application to dismiss must be written: “A copy of such application shall be served upon the attorney for the Commonwealth . . . ” Rule 1100(f), (emphasis added). The reason for requiring written pretrial motions is well settled. A writing crystalizes the specific grounds relied upon for relief and ensures that the Commonwealth, trial, and appellate courts will know the precise contentions raised, allowing a focused response and decision. Commonwealth v. Kinsey, 249 Pa.Super. 1, 375 A.2d 727 (1977). In the instant case, the Rule 1100 issue was raised by the defense counsel as an afterthought following a lengthy pretrial hearing on other matters. The brief, cursory discussion which ensued between the court and counsel illustrates by contrast the need for a prior, written motion, allowing both sides to carefully prepare their positions and to present concrete, well-reasoned arguments to the court. We cannot accept such cavalier treatment of important issues below, in derogation of the Rules, and thus hold appellant has waived his Rule 1100 claim by failing to file a written application to dismiss. See, Commonwealth v. Webb, 254 Pa.Super. 429, 386 A.2d 25 (1978) (Opinion in Support of Affirmance).

Appellant next challenges the competency of the Commonwealth’s chief witness, Phillip Skipworth. Phillip, age 43 at time of trial and an epileptic, experienced some difficulty at the preliminary hearing understanding questions posed to Mm and recalling certain facts germane to the incident. At a pretrial hearing, the court determined Phillip competent to testify.

Initially we note the competency of a witness is a matter for the trial court to determine and is not revlewable in the absence of a clear abuse of discretion. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. Allabaugh, 162 Pa.Super. 490, 58 A.2d 184 (1948). The relevant inquiry is whether the witness: 1) has the capacity to observe or perceive the occurrence with a substantial degree of accuracy; 2) has the ability to remember the event which was observed or perceived; 3) has the ability to understand questions and to communicate intelligent answers about the occurrence, and; 4) has a consciousness of the duty to speak the truth. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977); Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); cf. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). Appellant instantly centers his attack on the fourth criterion, which we have also described as “the moral responsibility to be truthful”. Commonwealth v. Mangello, 250 Pa.Super. 202, 203, 378 A.2d 897, 898 (1977).

The following colloquy between Phillip and the trial court amply demonstrates Phillip was well aware of his obligations under oath:

Q. Do you know what you just did a while ago when the man came over and you put your hand on that book? Do you know what you did?

A. Yes.

Q. Tell me, what did you do?

A. I swore.

Q. Right. Go ahead. That you would do what?

A. Tell the truth.

Q. You’re telling me the truth now, aren’t you?

A. Yes, I am.

Q. Were you involved in an incident back on March 5, 1976? Why are you here today?

A. To tell you the right fellow that robbed me.

Q. In other words, you’re here to tell me about a robbery; is that what you’re saying?

A. Yes, I am.

Q. Now, you know the difference between right and wrong, don’t you.

A. Yes, I do.

Q. And if you’re allowed to testify before me and a jury of twelve people, would you tell them the truth?

A. Yes, I will.

Q. Would you know.what would happen if you didn’t tell the truth?

A. I probably get sent to prison.

Competency Hearing of 10/15/76, pp. 13-14.

This Court has previously upheld fear of incarceration as sufficient to establish the consciousness of the duty to speak the truth. Mangello, supra, (five year-old victim’s belief that people who tell lies “go to jail”, held sufficient); Commonwealth v. Ault, 228 Pa.Super. 353, 323 A.2d 33 (1974) (nine year-old witness’ statement “ ‘if you don’t do it [tell the truth] in court, you get put in jail’ ”, held sufficient). Our courts have found on a number of occasions that a witness’ expectation of punishment following a lie under oath will satisfy the fourth requirement of Baker, supra. See, Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974) (witness’ statement he would “go to the devil” if he lied); Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971) (witness’ statement “I’d be in trouble” if she lied); Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978) (witness’ statement that her mother would punish her if she lied); Commonwealth v. Hughlett, 249 Pa.Super. 341, 378 A.2d 326 (1977) (witness’ statement she would “go to hell” if she didn’t tell the truth). See also, Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978); Commonwealth v. Morin, 237 Pa.Super. 533, 352 A.2d 189 (1975); Allabaugh, supra. This is thus not a case where a deficiency in the witness’ responses or the witness’ inability to comprehend the necessity of truth telling has led our courts to conclude the witness was not competent. Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977) (witness stated he did not know what would happen if he lied and later stated it is right to tell a lie); Commonwealth v. Rimmel, 221 Pa.Super. 84, 289 A.2d 116 (1972) (no indication in record that young female witnesses could comprehend difference between truth and falsehood; witness’ statements they would be “beaten”, “punished”, and “hollered at” if they lied, held not sufficient to show they understood nature of taking an oath; Rimmel was criticized and confined to its facts in Commonwealth v. Mangello, supra, 250 Pa.Super. 202, 378 A.2d 897 (1977)). In the instant case, the record leaves no doubt that Phillip understood the nature of an oath and could distinguish between truth and falsehood.¹ We cannot say it was an abuse of discretion for the court to find him competent.²

Appellant’s next averment of error relates to alleged confusion on the part of one juror as to the verdict. The facts are these. Appellant was tried for, in addition to robbery, counts of simple assault, burglary, and conspiracy. When the jury returned from its deliberations, the forelady announced the not guilty verdicts as to assault, burglary, and conspiracy, and the guilty verdict as to robbery. A poll was requested by the defense as to the guilty bill and the following exchange occurred with Juror Number One:

COURT OFFICER: Juror number one, Annabelle Forrest, please rise.

This Bill of Information Number 1317, October Session 1976, charging the defendant with robbery, how do you say, guilty or not guilty?

JUROR NUMBER ONE: Not guilty.

[DEFENSE COUNSEL] If the Court please—

THE COURT: —Wait a minute. Just a moment.

JUROR NUMBER ONE: I made a mistake.

[FORELADY] She doesn’t understand the charges.

THE COURT: Would you please rise?

JUROR NUMBER ONE: Yes.

THE COURT: The question asked of you is how do you find the defendant on the charge of robbery?

JUROR NUMBER ONE: Guilty.

N.T. of 10/21/76, pp. 302-3.

The polling of the remaining jurors proceeded without incident and at the conclusion thereof defense counsel requested further inquiry into Juror Number One’s possible confusion. The court refused counsel’s request and appellant now assigns that refusal as error. We do not agree.

It is fundamental that a criminal defendant tried before a jury is entitled to a unanimous verdict before a conviction is proper. Pa.Const. Art. 1, Secs. 6, 9; Pa.R. Crim.P. 1120(b); Commonwealth v. Conner, 445 Pa. 36, 282 A.2d 23 (1971); Commonwealth v. Pemberton, 256 Pa.Super. 297, 389 A.2d 1132 (1978). See, Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). To ensure this guarantee, the defense may request a poll of the jury to ascertain whether each juror concurs in the verdict. Pa.R. Crim.F. 1120(f). “The purpose of the poll is to give any juror, who may possibly have been under pressure from other members of the jury to acquiesce in the verdict, an opportunity to speak out and declare to the court that the verdict as announced by the foreman was voluntarily joined in by the answering juror.” Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. 326, 328, 162 A.2d 354, 355 (1960). Thus, our courts have found that a poll may well reveal equivocation by a juror on a verdict or a substantial doubt that the responding juror joins his colleagues in the decision. In such instances, the courts have not hesitated to reverse. See, e.g., Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974) (juror, during poll, responded “not guilty” twice; further inquiry revealed the juror had hearing impairment; new trial ordered); Commonwealth v. Corbin, 215 Pa.Super. 63, 257 A.2d 856 (1969) (trial court refused to hear a question from juror who, during poll, indicated a problem with the verdict; juror, after recording of verdict, stated he would like to change his vote; new trial ordered); Commonwealth v. Watson, 211 Pa.Super. 394, 236 A.2d 567 (1967) (juror, during poll, expressed disagreement with guilty verdict and only changed his vote upon being importuned by court to come to final decision; new trial ordered).

Our cases also recognize, however, that a juror’s initial ambiguous, inconsistent, or evasive answer to a poll does not vitiate unanimity so long as a subsequent answer or further interrogation indicates clear and unequivocal assent to the majority vote, and there is no evidence of involuntariness or coercion. See, e. g., Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974) (juror’s response “He is guilty in one way and I am not sure in another way”, followed quickly by a definitive guilty vote, held, a unanimous verdict); Commonwealth v. Conner, 445 Pa. 36, 282 A.2d 23 (1971) (two jurors, who initially stated “guilty of involuntary manslaughter”, quickly changed their verdict to “guilty of voluntary manslaughter”; held, initial response was mere inadvertence and did not negate unanimity of voluntary manslaughter verdict); Commonwealth v. Coleman, 179 Pa. Super. 1, 115 A.2d 811 (1955), aff’d, 383 Pa. 474, 119 A.2d 261 (1956) (juror made mistake as to certain counts of indictment but promptly corrected the mistake by stating what she actually meant). See also, Banmiller, supra; Anno. 25 A.L.R.3d 1149.

We think it clear the instant case must fall into the latter category of cases where a subsequent unequivocal assent to the majority vote cures any defect in a prior response. Juror Number One’s initial answer was followed immediately by her acknowledgment she was mistaken and her unhesitating correction of her verdict. There is nothing in the record to show the juror disagreed with the majority, Watson, or that she was so confused as to require clarification from the court as to her duties and options, Corbin. Rather, the error was inadvertent and the correction was made by the juror herself without any influence from the court or anyone else present. The court thus properly refused counsel’s request for further interrogation of the juror and the contention that the verdict was not unanimous is without merit.

Finally, appellant argues the court erred in not granting his request for a continuance because of possible prejudice among the panel of veniremen from which appel-' lant’s jurors were chosen. A week and one-half before appellant’s trial in the instant case, he was convicted in Philadelphia Common Pleas Court by a jury of conspiracy, possessing instruments of crime, and robbery. After the verdict in that prior trial, the judge congratulated the jury and read to them appellant’s conviction record for robberies. Prior to trial in the instant case, counsel requested a continuance, opining that the jurors in the prior trial may have gone back to the general pool of veniremen, discussed appellant and his record with their colleagues, and that the jurors in appellant’s instant trial were selected from this polluted pool. The court refused the continuance.

The record shows that appellant’s contention is speculative at best and wholly lacking in supportive evidence. There is no affirmative showing that the pool of veniremen from which the jurors in appellant’s first trial were chosen was the same pool from which the jurors in appellant’s second trial were selected.³ Further, during voir dire, the panel was asked collectively if they knew appellant and none responded. Counsel did not pursue the matter further in his individual voir and we find nothing in the transcript which would lend any support to the contention that the panel was tainted from appellant’s prior trial.⁴

Judgment of sentence affirmed.

CERCONE, President Judge, concurs in the result. SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins. JACOBS, former President Judge, did not participate in the consideration or decision of this case.

1 . Appellant directs us to the following exchange between defense counsel and Phillip at the competency hearing as vitiating Phillip’s understanding of the oath:

Q. Did the district attorney tell you before you got on the witness stand when you swore on the Bible to tell the truth, that you would go to jail if you didn’t tell the truth?

A. Yes, he did.

Q. Did he tell you the district attorney or the Judge was going to ask you what it meant to swear on the Bible? Did the district attorney tell you that?

A. I knew already.

Competency Hearing of 10/15/76, pp. 20-1.

First of all, we rejected a similar claim in Payton, supra, where we noted it does not matter who tells the witness he will be punished for lying so long as he understands the concept of punishment. “It would be inappropriate to compare this with a situation where the District Attorney tells a witness what answers to give to questions directly related to the crime.” Payton, 392 A.2d at 725. Further, we think Phillip’s response “I knew already” sufficient, with his other testimony at the hearing, to show he understood his obligations.

2 . Appellant also argues counsel’s cross-examination of Phillip at the competency hearing was improperly limited by the court. Counsel was attempting to elicit various inconsistent responses Phillip made at the preliminary hearing. “The fact that a witness makes inconsistent or even contradictory statements does not make [him] an incompetent witness, but iriay affect [his] credibility.” Commonwealth v. Morin, 237 Pa.Super. 533, 535, 352 A.2d 189, 192 (1975). We have examined the colloquy as a whole and find no error meriting reversal.

3 . Jurors at that time were required to serve only two weeks unless, at the conclusion of their time, they were in the midst of a trial. Counsel conceded at the pretrial hearing that he did not know whether the panel of veniremen from which the first jury was selected was still empaneled or had been discharged. Hearing of 10/18/76, p. 42. His motion was based on the conjecture that the panel was still extant and would be used in comprising appellant’s upcoming jury trial.

4 . This is thus clearly not a case where there is proof that veniremen had participated in a voir dire for prior trials of a defendant, Commonwealth v. Free, 214 Pa.Super. 492, 259 A.2d 195 (1969) or were otherwise made aware of a defendant’s criminal record, Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973); Commonwealth v. McDaniel, 217 Pa.Super. 20, 268 A.2d 237 (1970). See also, Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975); Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979).