Commonwealth v. Ciotti

420 A.2d 751, 279 Pa. Super. 75

• Court: Superior Court of Pennsylvania
• Decided: April 24, 1981
• Docket: 1489
• Status: Published

Opinions

HOFFMAN, Judge:

This is an appeal following a jury trial in which appellant was convicted of receiving stolen property. Appellant contends, inter alia, that trial counsel was ineffective for failing to object to remarks of the court clerk made during the poll of the jury.¹ We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.

After the jury announced the verdict, trial counsel requested that the jury be polled. After the trial judge directed the court clerk to conduct the poll, the following occurred:

CLERK OF COURTS: When I call your name, would you please stand and respond yes.

THE COURT: And remain standing until the jury is completely polled.

CLERK OF COURTS: Jimmie Hooker. You said you find the defendant guilty?

MR. HOOKER: I do.

CLERK OF COURTS: Dan Locke, you say you find the defendant guilty?

MR. LOCKE: I do.

CLERK OF COURTS: Pearl Adams, you say you find the defendant guilty?

MS. ADAMS: Yes, I do.

CLERK OF COURTS: John Teliski, you say you find the defendant guilty?

MR. TELISKI: Yes, I do.

CLERK OF COURTS: Dolores Theiss, you say you find the defendant guilty?

MS. THEISS: Yes.

CLERK OF COURTS: Jeffrey Donikowski, you say you find the defendant guilty?

MR. DONIKOWSKI: Yes.

CLERK OF COURTS: Mae Nupp, you say you find the defendant guilty?

MS. NUPP: Yes.

CLERK OF COURTS: Ormel Fitch, you say you find the defendant guilty?

MR. FITCH: Yes.

CLERK OF COURTS: Mary Thornton, you say you find the defendant guilty?

MS. THORNTON: Yes.

CLERK OF COURTS: Bethany Yosten, you say you find the defendant guilty?

MS. YOSTEN: Yes.

CLERK OF COURTS: Mirell Fiasco, you say you find the defendant guilty?

MR. FIASCO: Yes.

CLERK OF COURTS: Millicent Miller, you say you find the defendant guilty?

MS. MILLER: Yes.

“A criminal defendant who is tried before a jury can only be convicted by a unanimous verdict. To insure this right the accused is entitled to poll the jury to ascertain whether each juror concurs in the verdict.” Commonwealth v. Pemberton, 256 Pa.Super. 297, 301, 389 A.2d 1132, 1134 (1978). See also Pa.R.Crim.P. 1120(f). In Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. 326, 162 A.2d 354, cert. denied, 364 U.S. 852, 81 S.Ct. 99, 5 L.Ed.2d 76 (1960), our Supreme Court stated:

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 not voluntarily joined in by the answering juror.

400 Pa. at 328, 162 A.2d at 355. See also Commonwealth v. Martin, 379 Pa. 587, 593, 109 A.2d 325, 327 (1974).

We conclude that the court clerk’s remarks deprived appellant of his right to poll the jury. Certainly, the jurors could reasonably conclude from the clerk’s remarks that they were expected to answer in the affirmative when asked if they found appellant guilty. Even the Commonwealth does not argue that when the clerk told the jurors to respond “yes,” he merely was requesting each juror to acknowledge the calling of his name. The purpose of the jury poll-to provide each juror an opportunity to state that he or she did not voluntarily join in the verdict-was undermined in this case by the clerk’s remarks. We must now determine whether appellant is entitled to a new trial because his trial counsel failed to object to the court clerk’s remarks.²

In evaluating the effectiveness of counsel, we apply the following standard: “[Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). If we cannot determine from the record whether counsel had a reasonable basis for not pursuing a claim, then we must remand for an evidentiary hearing on that issue. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975).

Because the jury had reached its verdict before the court clerk’s remarks, “the failure to object could [not] have been born of a reasonable, calculated trial strategy.” Commonwealth v. Hubbard, supra, 472 Pa. at 285, 372 A.2d at 699. We therefore conclude that there could be no reasonable basis for counsel’s failure to object to the court clerk’s remarks. Moreover, because trial counsel’s ineffectiveness is apparent from the record, there is no need to remand for an evidentiary hearing.

Judgment of sentence reversed and case remanded for a new trial.

VAN der VOORT, J., files a dissenting opinion.

1 . Appellant also contends that the Commonwealth did not sustain its burden of proving his guilt beyond a reasonable doubt because the Commonwealth’s evidence was based solely on the testimony of accomplices. “[A] criminal conviction can be sustained solely on the basis of uncorroborated testimony of an accomplice.” Commonwealth v. Gordon, 254 Pa.Super. 267, 271, 385 A.2d 1013, 1014 (1978). Thus, even assuming, arguendo, that the Commonwealth’s evidence was based solely on accomplice testimony, this contention is without merit.

Appellant also argues that he is entitled to a new trial because the trial court erred in (1) refusing to give an accomplice instruction to the jury, and (2) limiting the cross-examination of a Commonwealth witness. Because of our disposition of this case, we need not resolve these issues.

2 . Appellant’s ineffectiveness claim is properly before us because he is represented by new counsel on this appeal. See Commonwealth v. Hubbard, 472 Pa. 259, 276 n.6, 372 A.2d 687, 695 n.6 (1977).