Commonwealth v. Dzvonick

297 A.2d 912, 450 Pa. 98, 1972 Pa. LEXIS 335

• Court: Supreme Court of Pennsylvania
• Decided: December 19, 1972
• Docket: Appeal, 66
• Status: Published

Opinions

Opinion by

Mb. Justice Roberts,

At 6:00 a.m., on April 15, 1969, Officer Uziel of the Borough of Glassport Police Department, droye up to the Borough Police Station. Appellant, Darrell Dzvonick, immediately came out of the station toward Officer Uziel’s car with a knife held at arm’s length. He lunged at the officer with the knife through the open car window, but did not “cut, stab, or wound” the officer. Appellant was immediately arrested and subsequently charged with both attempt with intent to kill¹ and assault with intent to maim.² He pleaded not guilty to both charges and was tried before a jury.

On September 29, 1969, the jury returned verdicts of not guilty of attempt with intent to kill and guilty on the second charge of assault with intent to maim. Appellant filed no post-trial motions. However, after a change of counsel, and appeal to the Superior Court, he was permitted to file motions for a new trial and in arrest of judgment “nunc pro tunc”. The motion for a new trial was later withdrawn, and the motion in arrest of judgment was denied.

Appellant appealed the denial of his motion in arrest of judgment to the Superior Court which affirmed by a per curiam order. We granted allocatur.

Appellant cites three principal errors as the basis for relief on this appeal. He asserts that the verdict of guilty of assault with intent to maim as returned by the jury and recorded by the court is unsupported by the evidence and therefore his motion in arrest of judgment should have been granted. The Commonwealth concedes that the jury’s verdict was not supported by the evidence,³ but nevertheless claims that the court molded the jury’s verdict to that of guilty of attempted assault with intent to maim. In response appellant asserts that the court did not mold the verdict to guilty of the attempt offense, nor could it have done so after-discharging the jury. Finally appellant contends, arguendo, that even if the verdict was so molded it could not stand because there is no such offense as “attempted assault with intent to maim.” In view of our disposition of the case we need not deal with the last challenge.

The Commonwealth claims that after the jury returned a verdict of guilty of assault with intent to maim (the completed offense), the court molded the verdict to guilty of attempted assault with intent to maiin. However, the Commonwealth’s claim of such molding is nowhere supported in the record. The following excerpt from the record establishes that the only “molding” which occurred was the court’s insertion of the date, which the jury had inadvertently omitted. “Minute Clerk: Who will read the verdict? The Foreman: I will. The jury finds the defendant guilty on the second count. The Court: All right. You find him not guilty on the first count? Is that correct? (Jury indicates affirmative.) The Court: We will record the verdict. Minute Clerk : Members of the jury, Harken to your verdict as the Court hath recorded it between the Commonwealth and the defendant Darrell Dzvonick, wherein the defendant is charged of the first count, attempt with intent to kill, and the second count, assault with intent to maim, you say you find the defendant not guilty of the first count and guilty as to the second count. I might mention to the Court the jury left out the date. The Court: All right. Well, we’ll mold the verdict; but including today’s date, there’s no objection by counsel? Mr. Mansmann : No. The Court: We will make it September 29, 1969. (Jurors Excused)”

The record discloses no other molding of the verdict whatsoever by the trial judge, either before or after the jury was excused. Moreover, once the jury has been discharged and has dispersed, the verdict can no longer be molded by the trial judge. Commonwealth v. Martin, 379 Pa. 587, 109 A. 2d 325 (1954); Commonwealth v. Johnson, 359 Pa. 287, 59 A. 2d 128 (1948); cf. Commonwealth v. Corbin, 215 Pa. Superior Ct. 63, 257 A. 2d 356 (1969).⁴

Tlie guilty verdict returned by the jury and recorded by the court was not, and could not in the circumstances be molded.⁵ Thus, appellant stands convicted of the completed offense—assault with intent to maim. Since both the Commonwealth and appellant readily concede that the “assault” verdict is not supported by the evidence, it necessarily follows that the verdict may not stand.

Accordingly, the order of the Superior Court is reversed and the motion in arrest of judgment is granted.

Mr. Justice Eagen concurs in the result.

1 Act of June 24, 1939, P. L. 872, §711, 18 P.S. §4711.

2 Act of June 24, 1939, P. L. 872, §712, 18 P.S. §4712.

3 “Whoever . . . stabs, cuts or wounds any person, with intent to maim, disfigure or disable such person, is guilty of felony. . . .” Act of .Tune 2-1, 1939, P. L. 872, §712, 18 P.S. §4712. At trial Officer Uziel testified that although he might have been touched with the knife he definitely was not cut, wounded or stabbed in any way. Thus there was no evidence to support the charge of the completed offense.

4 The situations in which molding is permissible are severely circumscribed. They fall into two principal categories—molding prior to recording the verdict and discharge of the jury, and molding after such recording and discharge.

Prior to recording the verdict there are two accepted methods of verdict molding. See Laub, Pennsylvania Trial Guide, §244, at 416 (1959). If the jury’s error is defective in form only, as here where the date was omitted, then the judge may correct it in open court with the acquiescence of the jury. Commonvwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145 (1949) ; see also Newsom v. Smyth, 261 E. 2d 452 (4th Cir. 1958), cert. denied, 359 U.S. 969, 79 S. Ct. 883 (1959). However, if the error is substantive, the court must send the jury back with additional instructions for further deliberation. Commonwealth v. Komatowski, 347 Pa. 445, 32 A. 2d 905 (1943), citing Commonwealth v. Huston, 46 Pa. Superior Ct. 172 (1911) ; Commonwealth v. Micuso, 273 Pa. 474, 117 Atl. 211 (1922) ; see also United States v. Henson, 365 F. 2d 282 (6th Cir.), cert. denied, 385 U.S. 974, 87 S. Ct. 513 (1966) ; Helms v. United States, 310 F. 2d 236 (5th Cir. 1962) ; cf. Glenn v. United States, 420 P. 2d 1323 (D.C. Cir. 1969).

After the verdict has been recorded and the jury discharged, only in “extremely exceptional cases” may the verdict be molded and even then “only unless to make the corrected verdict conform to the obvious intention of the jury, i.e., to conform to a verdict actually rendered, but informally or improperly stated in writing.” Laub, supra, at 415. After the jury has been discharged the verdict as recorded may not be molded by the trial court. See Commonwealth v. Martin, 379 Pa. 587, 109 A. 2d 325 (1954).

5 The Commonwealth’s theory that the court molded the verdict is an assumption that is directly contradicted by the record. Even had molding occurred it would not have constituted a permissible molding of the jury verdict; it would instead be a substitution of an entirely new verdict never found by the jury for the verdict it did in fact return.