Commonwealth v. Stufflet

HESTER, Judge,

concurring and dissenting:

While I agree that the conviction for attempted rape should be affirmed, I dissent from the reversal of the judgment of sentence for indecent assault. The quoted portions of the juror colloquy in the majority opinion demonstrate that the verdict was unanimous.

At the outset, it should be noted that counsel’s repeated requests for a mistrial were properly denied. If, upon a poll, there is no concurrence among the jurors as to the verdict, the proper procedure is for the judge to send the jury back for deliberations, Pa.R.Crim. P. 1120(f), and not to declare a mistrial as counsel urged. In any event, the trial court was correct in accepting the verdict as unanimous. In Pennsylvania, the cases have recognized that a juror’s inconsistent, ambiguous, equivocal, or evasive answer during a poll may render the verdict defective. Commonwealth v. Brown, 231 Pa.Super 431, 332 A.2d 828 (1974); Commonwealth v. Corbin, 215 Pa.Super 63, 257 A.2d 356 (1969); Commonwealth v. Watson, 211 Pa.Super 394, 236 A.2d 567 (1967). However, it is clear that the effect of such a response may be cured by a subsequent, unequivocal answer, thus obviating the need for a new trial. Commonwealth v. Hall, 267 Pa.Super. 204, 406 A.2d 765 (1979); Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974); Commonwealth v. Conner, 445 Pa. 36, 282 A.2d 23 (1971). See, Anno. 25 A.L.R. 1149. Generally, it is the duty of the trial judge to determine from the answers of the jurors, together with their demeanor and appearance and all of the surrounding circumstances, whether each juror assents to the verdict. Feldman, Trial Guide, § 15.7. An inadvertent response by a juror during the poll which seemingly indicates disagreement with the announced verdict does not prevent recording the verdict where, upon further inquiry by the court, the juror unequivocally and understandingly assents to the verdict. Hall, supra; 21 Am.Jur.2d, Criminal Law, § 370 et seq.

Instantly, Mrs. Baldwin unequivocally stated, “Guilty of rape and assault.” Her abbreviation of the charge of indecent assault can hardly be taken to mean she did not understand the charges. Rather, I accept the lower court’s observation that the juror was merely unaccustomed to court procedures and phraseology. Her final and definitive pronouncement of the verdicts cured whatever defects may have previously existed by virtue of her ambiguous responses.

Accordingly, I would affirm the judgment of sentence on both counts.