Commonwealth v. Edmondson

OLSZEWSKI, Judge,

dissenting.

I wholeheartedly agree that a verdict which has been elicited through judicial coercion must not be allowed to stand. In finding such coercion, however, the majority states that “the trial court abused its discretion when it improperly demanded a verdict and implicitly conveyed its own opinion of the case.” Majority opinion at 187. I cannot agree with either conclusion.

The majority writes that:

the judge expressed his displeasure with the jury’s indecision on the aggravated assault charge when he told them [sic] 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 threaten*188ing them with the wrath of God should they bring in a verdict of not guilty.”

Id. (citations omitted).

A plain reading of the trial judge’s remarks reveals that they were clearly neutral. In no way did the judge express an opinion as to Edmondson’s guilt. Moreover, the judge was correct in stating that the jury only had one or two people to believe concerning the aggravated assault charge. Only two people were present during the alleged assault: Edmondson and the arresting officer, Thomas Eberlein, Jr. Thus, the jury either had to believe Officer Eberlein, who testified that Edmondson had struck him in the nose, or Edmondson, who testified that he never hit the lawman. The trial judge never expressed to the jury a personal preference as to who he believed was more credible. Consequently, I cannot join the majority in concluding that the trial judge “threatened [the jurors] with the wrath of God should they bring in a verdict of not guilty.”

The majority also finds that the judge improperly forced the jury into reaching a verdict. Again, I must disagree. First, I do not believe that the trial judge’s supplemental comments, taken in isolation, require reversal of this case. My research has not revealed, nor has the majority cited to, any case in this Commonwealth in which it was held that the trial court improperly bullied the jury into reaching a verdict. In fact, historically, trial courts have been given great latitude in this area. In Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635 (1919), our Supreme Court stated

The jury, after 48 hours’ deliberation, came into court and reported their inability to agree upon a verdict, whereupon the trial judge explained the nature of the case and importance of reaching a verdict and said, “you must agree,” but added
If some one of you should become physically unable to remain, the situation would be different; but as long as you are physically able to remain, it is your duty to undertake to agree.
He also expressed great sympathy for the jury, and enjoined them to continue their deliberations. Considering, as we must, all that the judge said, it did not constitute such a coercion of the jury as to invalidate the verdict.

265 Pa. at 256-57, 108 A. at 637 (emphasis added).

Further, in Commonwealth v. McCoy, 219 Pa.Super. 298, 279 A.2d 237 (1971), this Court affirmed appellant’s judgment of sentence where the trial court instructed the jury that “I trust that you will find your task not one of which you are hopelessly divided ... [sjhould you be unable to agree, as disappointing and undesirable as such disagreement might be ... [v]erdicts are very important in this case.” 219 Pa.Super. at 303, 279 A.2d at 239. Finally, in Commonwealth v. Fowler, 259 Pa.Super. 314, 393 A.2d 844 (1978), the judge 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.” 259 Pa.Super. at 317, 393 A.2d at 845. There, six judges of this Court were equally divided and, consequently, appellant’s judgment of sentence was affirmed. The three judges who voted to affirm, however, found that “the statement of the trial judge cannot be said to have had the coercive impact on jurors in this case similar to the ‘Allen’ type charge.” Id. at 318-19, 393 A.2d at 846. In light of the above, it is clear that our state’s appellate courts have demonstrated a preference for allowing the trial court wide latitude in this area. As such, I cannot find that, in the instant ease, the trial judge’s supplemental comments, when taken in isolation, require that the jury’s verdict be rendered void.

Even if the judge’s supplemental comments were alone coercive, the verdict must still stand. In Commonwealth v. Hammond, 350 Pa.Super. 477, 504 A.2d 940 (1986), this Court stated that

we cannot base a finding of error on isolated sentences that are without any context; it is the effect of the jury charge of a whole that is controlling. When the jury instructions are read as a whole, it is clear that the dissenting jurors were not coerced into adopting a view not truly their own. The judge stated repeatedly that the jurors should not give in to their peers sim*189ply for the sake of ending the trial; “... none of you should surrender an honest conviction ... merely for the purpose of reaching a verdict.” While this might not be quite as strong as stating outright that jurors are free to disagree, such explicit language is not a necessary part of jury instructions.

350 Pa.Super. at 480, 504 A.2d at 941 (emphasis added) (citations omitted).

Instantly, prior to uttering the remarks that the majority has found offensive, the trial court originally instructed the jury as follows:

Your verdict must be unanimous. That means in order to return to this court with a verdict, each of you must agree to [that] verdict. You have a duty to consult with each other with a view towards reaching an agreement, but only if you can do so without doing any violence to your own individual judgment. Each of you must decide this case for him or herself. But only after there has been fair and impartial deliberation with your fellow jurors.
In the course of deliberation each juror should not hesitate to reexamine his or her view or change his or her mind if convinced it is erroneous. However, no juror should surrender the weight or effect of their conviction merely because it may differ from their fellow jurors or they might be in the minority or for the mere purpose of returning a unanimous verdict.

N.T. 5/11/94, at 177-178 (emphasis added).

Incredibly, the majority totally discounts the above statements, finding instead that “the instruction in question nullified any effect the prior instruction may have had.” Majority opinion at 186. I disagree. The jury had been deliberating for only an hour and a half when the judge informed it that he would not declare it hung. In light of the proximity of the judge’s original instructions to his questioned comments, it is clearly not only proper, but also necessary, to review the former in determining the latter’s effects upon the jury. As such, in reading the jury charge as a whole, I cannot find that the trial 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, 620, 557 A.2d 421, 424 (1989) (quoting Cucchi v. Rollins Protective Services, 377 Pa.Super. 9, 20, 546 A.2d 1131, 1136 (1988)).

Finally, even ignoring all of the above, the majority’s decision is still flawed. Regardless of whether the trial court’s instruction was, in fact, proper, my review of the record indicates that Edmondson failed to object to the questioned statements. As such, this issue has been waived. In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), our Supreme Court stated

The proper functioning of our guilt determining process neither requires nor assures a defendant an errorless trial. A defendant is, however, entitled to a fair trial free of such trial errors as his trial counsel timely sought to have corrected by calling them to the court’s attention. Trial errors are made in the courtroom and it is there that the correction process should at least be initiated.
The defense may not successfully complain of trial errors for the first time only after the jury has returned a verdict of guilty, unless the errors were initially challenged at trial, and thereby preserved on appeal_ [To hold otherwise] encourages defense counsel to sit by silently without calling errors to the trial court’s attention until after the guilty verdict is returned. [Such an] approach places the appellate court in the role of a super-trial-defense counsel.

458 Pa. at 420, 326 A.2d at 273 (emphasis original) (quoting Commonwealth v. Williams, 432 Pa. 557, 569-570, 248 A.2d 301, 307 (1968) (Roberts, J., dissenting)). Further, in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), our Supreme Court stated that

The ill-prepared advocate’s hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged er-ror_ Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error....
*190Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources.

457 Pa. at 257-59, 322 A.2d at 116.

In light of the above, it is clear that, by failing to object to the trial court’s statements, Edmondson has waived this issue for appeal. Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974); Clair, supra; Dilliplaine, supra; Commonwealth v. Weaver, 384 Pa.Super. 231, 558 A.2d 97 (1989), alloc. denied, 524 Pa. 627, 574 A.2d 69 (1990). The majority rewards the defendant’s dereliction by granting him a new trial. This is clearly inappropriate.

Since I am convinced that the majority’s approach is deficient on a number of grounds, I must dissent.