Commonwealth v. Andrasik

20 Pa. D. & C.4th 555, 1992 Pa. Dist. & Cnty. Dec. LEXIS 7
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedNovember 9, 1992
Docketno. 1200 of 1990
StatusPublished

This text of 20 Pa. D. & C.4th 555 (Commonwealth v. Andrasik) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Andrasik, 20 Pa. D. & C.4th 555, 1992 Pa. Dist. & Cnty. Dec. LEXIS 7 (Pa. Super. Ct. 1992).

Opinion

McCRACKEN, P.J.,

A jury found the defendant guilty of murder in the third degree. Her post-trial motions are now before us. Because of the complexity of the case and of the issues presented, we deem it appropriate to begin with a statement of the facts in the case.

The body of James Dean Lewis was discovered by police in the living room of his home at 611 John Street in New Castle on the morning of November 30, 1990. He appeared to have died of a gunshot wound in the head. The defendant had been living with Lewis in a common-law marriage for several years and had borne him two children. When the police and the ambulance personnel arrived at the home (about 7:30 in the morning), they found the defendant present with her children and several other relatives whom she had called before notifying the police. The body was lying on one side against a sofa with one arm under his head and a cigarette in [556]*556the other hand. The coroner’s office and the police detective bureau were duly notified. An autopsy determined the cause of death to be a single gunshot wound to the right temporal area of the head.

As a result of police investigation, the defendant was arrested on December 2, 1990, and charged with criminal homicide. A preliminary hearing was held on January 2, 1991, at which time the district justice ordered the defendant held for court. An information charging her with the murder of James Dean Lewis was filed by the district attorney on February 11,1991. Discovery motions were made and ruled on during March of 1991, and the trial began on November 19, 1991. During the trial the Commonwealth presented evidence tending to show that the defendant had shot the victim with a firearm (never recovered) during the early morning hours of November 30, 1990, and that she had previously been quarreling with him regarding his use of drugs and his association with drug dealers. The defendant’s theory was that the victim had been shot by someone else, perhaps by a drug dealer on whom he had informed (he was an informant for the police), and that she had discovered his dead body on awaking that morning.

After four days of testimony, closing arguments and the charge were delivered on the morning of November 25, 1991, and the jury retired to deliberate at 12:23 p.m. They returned to the courtroom at 4:30 p.m. with a verdict. The verdict slip as it had been completed indicated that the jury had found the defendant not guilty of first degree murder but guilty of third degree murder, and that was the verdict announced by the tipstaff. But when the jury was polled at the request of defense counsel, juror 10 responded “not guilty” on the charge of third degree mur[557]*557der. All other jurors responded “guilty.” Defense counsel moved for an immediate mistrial, which was denied. The court then directed the jury to return to the jury room for further deliberations. Retiring again at 4:39 p.m., the jury gave notice at 6:22 p.m. that a verdict had been reached. They returned to the courtroom and rendered the same verdict as before: not guilty of first degree murder, but guilty of third degree murder. The jury was again polled, and this time all 12 jurors indicated assent to the verdict and it was duly recorded.

Post-trial motions were filed on December 5, 1991. In addition to the standard boilerplate contentions regarding the sufficiency and weight of the evidence, these motions allege error in the court’s refusal to grant discovery concerning the status of the decedent as a drug informant; in ruling inadmissible certain defense evidence; in refusing the defendant’s points for charge; in granting the Commonwealth’s “dual inference” points for charge and emphasizing them repeatedly; in refusing to charge the jury on involuntary manslaughter; in polling the last two jurors after the tenth had said “not guilty;” in refusing to grant a mistrial after the poll; and in retiring the jury again with the identical verdict slip and the same possible verdicts, thereby effectively allowing them to reconsider their “not guilty” verdict on first degree murder. We will consider the issues raised in these motions in the order in which they are addressed in the defendant’s brief.

THE JURY POLL

The first series of issues raised by the defendant stem from the episode in which the verdict originally returned by the jury was revealed on a poll of the jury not to be unanimous which necessitated the retirement of the [558]*558jury for further deliberations. We begin by noting that the Pennsylvania Rules of Criminal Procedure expressly provide for the steps to be taken in such a situation. Rule 1120(f) provides: “Before a verdict, whether oral or sealed, is recorded, the jury shall be polled at the request of any party. Except when the verdict is sealed, if upon such poll there is no concurrence, the jury shall be directed to retire for further deliberations.” The official comment to this rule states that section (f) provides for the polling of the jury and requires the judge to send the jury back for deliberations in accordance with Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954). That case established that before a verdict is officially recorded, the party against whom it is rendered is entitled to have the jury polled individually in order to assure that the verdict represents the unanimous conclusion of each juror. The point at which a request to poll the jury must be made is after the verdict has been announced but before it is recorded in order that a verdict which is shown not to be unanimous may be corrected by further deliberation before the jury is discharged. The record in the present case indicates that Rule 1120(f) was followed exactly. When the jury returned to the courtroom at 4:30 p.m. on November 25, 1991, the verdict slip which had been filled out and signed by the foreman was read aloud by the tipstaff. The court immediately asked defense counsel, “Anything, Mr. Falls?” and he replied, “May we have the jury polled, Your Honor, with regard to the verdict of murder, third degree?” (tr. 11-25-91 p. 95 11.19-22.) The court then directed the tipstaff to conduct the poll. Each juror in order was asked to rise and state whether he or she found the defendant guilty or not guilty of third degree murder. The first nine jurors all answered [559]*559“Guilty.” (Id. p. 95 1.23 — p. 97 1.11.) When juror 10 was asked to state her verdict she said, “Not guilty”. At first, the court directed that the polling continue, and the tipstaff began to question juror number 11, but then the court, in an attempt to clarify the matter, said “Just a moment. Juror number 10, you understand this is to murder in the third degree. Was your verdict guilty or not guilty?” The juror asked “Right now?” and “At this point?” and then stated “I said, not guilty.” The court then directed the poll to continue, and the last two jurors both said “Guilty.” (Id. p. 97 1.12 — p. 98 1.17.)

When the poll was complete, the court conducted a sidebar conference with counsel. The assistant district attorney urged the court to retire the jury for further deliberations in accordance with Rule 1120(f). The defense attorney moved for a mistrial, arguing that the sole dissenting juror would be placed under too much pressure during the additional deliberations. Eventually the court decided to deny a mistrial and recess the jury pursuant to the rule. At that point the jury was retired with this instruction: “Members of the jury, as I have instructed you previously, your verdict must be unanimous.

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Cite This Page — Counsel Stack

Bluebook (online)
20 Pa. D. & C.4th 555, 1992 Pa. Dist. & Cnty. Dec. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-andrasik-pactcompllawren-1992.