Commonwealth v. Stufflet
Commonwealth v. Stufflet
Opinion of the Court
Appellant contends, inter alia,
While walking her dog on July 13, 1977, the victim, a 14-year-old girl, encountered appellant who was standing
Appellant was tried before a jury on charges of indecent assault
Appellant contends first that the lower court erred in allowing the prosecutor to refer to and the victim to testify to her conversation with appellant just before the time regarding marijuana. The victim’s testimony was as follows:
A. [The victim:] Well, I was taking my dog down past Jeffrey Keenan’s house and a man calling attracted my attention, and I turned around and walked up to the step.
Q. What steps were these?
A. The steps to the porch in front of Jeffrey Keenan’s house.
Q. Did you have any conversation with Mr. Stufflet on the steps of Mr. Keenan’s home?
A. Yes.
Q. What was the conversation you had with Mr. Stufflet?
A. Terry said, “Do you smoke pot,” and I said, “No.” He goes, “Do you know anybody who does,” and I said “No.”
Mr. Eshelman: I’m going to object Your Honor. The same objection I made at side bar previously.
The Court: Same ruling.
By Mr. Welz: Q. Continue please.
A. Then he said, “Do you know anybody that smokes it,” and I said “No.” He said, “Could you sell some for me” and I said, “No.”
Mr. Eshelman: Can I have a continuing objection to this, Your Honor?
The Court: You do.
N.T., November 15, 1977.
Evidence imputing prior criminal conduct to the defendant is generally admissible only where its probative
In the case at bar, appellant’s references to sale of marijuana occurred during the conversation which immediately preceded the criminal incident in issue. Were the victim precluded from stating these facts, she could not clearly have described the events leading up to the crime. In these circumstances, the implication of other criminal conduct by appellant constituted an aspect of the “res gestae” of the crime in question. The evidence was needed to complete the story of the crime. Moreover, the prejudicial effect of this evidence was not so great as to outweigh the legitimate purpose for which it was admitted. Appellant did not explicitly admit to sale or purchase of marijuana, and the jury could reasonably have inferred that his statements were made only to attract the attention of the victim. In addition, the crime referred to in the allegedly prejudicial remarks differed completely from the crimes charged and was not so prejudicial as the rape to which the victim was permitted to testify in Stevens. We therefore conclude that
Appellant further contends that the verdict slip should not have been recorded because the verdict was not unanimous as evidenced by the contradictory responses of juror number one upon being polled. We agree. After her initial response, the following colloquy with juror number one occurred.
(in chambers)
THE COURT: Have a seat. Mrs. Baldwin, when you were called individually, when you were polled as you were, you stated guilty on the charge of attempted rape but not guilty on the charge of indecent assault. Is that the way you intended?
MRS. BALDWIN: Yes.
THE COURT: How do you intend it to be?
MRS. BALDWIN: Guilty on both ways.
THE COURT: All right.
[ASSISTANT DISTRICT ATTORNEY]: Did she sign the verdict slip?
THE COURT: Yes, she signed the verdict slip.
s|c * * * * *
THE COURT: Mrs. Baldwin, you have just been interviewed by the attorneys involved and myself. When you were polled here in open court you said with respect to indecent assault not guilty. Was that your intention?
THE COURT: Was it your intention to say not guilty or guilty?
WILIMINA BALDWIN: Not guilty.
[DEFENSE COUNSEL]: I would like the record to reflect that the juror, when the judge asked her if that was her intention, she said uh-huh.
THE COURT: Will you state it again, what is your intention?
WILIMINA J. BALDWIN: Guilty.
THE COURT: Guilty of what?
WILIMINA J. BALDWIN: Of both.
[DEFENSE COUNSEL]: Guilty of what?
THE COURT: She said . . .
[DEFENSE COUNSEL]: I’d like her to tell us both.
WILIMINA J. BALDWIN: Guilty of rape and assault.
[DEFENSE COUNSEL]: He is not charged with assault. I am moving for a mistrial, Your Honor.
THE COURT: The motion is denied. You signed the verdict slip didn’t you?
WILIMINA J. BALDWIN: Yes.
[DEFENSE COUNSEL]: I object to the recording of the verdict slip.
THE COURT: I’m sure you do. The verdict slip may be recorded.
N.T., November 16, 1977.
A criminal defendant may be found guilty only by unanimous vote of the jury. Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974). In Commonwealth v. Watson, 211 Pa.Super. 394, 236 A.2d 567 (1967), where a juror when polled for the first time clearly disagreed with the guilty verdict read by the foreman, we held that his subsequent acquiescence in the verdict upon questioning did not render the verdict unanimous. We recognize that “[w]here an evasive answer of a juror leaves doubt as to whether he has assented to the verdict, but his answers indicate neither involuntariness nor coercion, a subsequent answer on further interrogation which indicates clear and unequivocal assent
Judgment of sentence reversed and case remanded for new tria.1 on the indecent assault charge and resentencing on the attempted rape conviction.
. Appellant additionally contends that the lower court erred in refusing to give his requested alibi defense instruction to the jury. The purpose of an alibi instruction is to refresh the jury’s recollection of the presentation of an alibi defense and to point out that such evidence may be sufficient to raise a reasonable doubt as to guilt. See Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). Although the trial judge did not read appellant’s proffered
Additionally, appellant contends that the evidence was insufficient to sustain the verdict and that the verdict was contrary to the weight of the evidence. He bases these assertions upon the fact that the Commonwealth’s evidence consisted solely of the testimony of the fourteen-year-old victim. Appellant’s contentions are, thus, directed to the credibility of the victim as a witness, an issue “within the sole province of the trier of fact.” Commonwealth v. Eckert, 244 Pa.Super. 424, 429, 368 A.2d 794, 797 (1976) (citations omitted). We therefore conclude that these contentions are without merit.
. 18 Pa.C.S.A. §§ 901(a); 3121.
. Id. § 3126 (Supp. 1977-80).
. Additionally, we note that the court gave an extensive cautionary instruction upon defense counsel’s objection to the opening remarks by the prosecutor which referred to the testimony that the victim was to give. Thus, even if the remarks of the prosecutor had referred to inadmissible testimony by the victim, the cautionary instruction would have sufficed to remove any prejudice to appellant resulting therefrom.
Concurring in Part
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
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.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Terry Brian STUFFLET, Appellant
- Cited By
- 19 cases
- Status
- Published