Commonwealth v. Ott

207 A.2d 874, 417 Pa. 269, 1965 Pa. LEXIS 412

• Court: Supreme Court of Pennsylvania
• Decided: March 16, 1965
• Docket: Appeal, 221
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

Russell John Ott was convicted by a jury of murder in the first degree. The case was tried under the so-called Split-Verdict Act of December 1, 1959, P. L. 1621, §1, 18 P.S. §4701, and after the jury failed to agree upon the punishment to be imposed, it was discharged. A new trial was denied and Ott was sentenced to imprisonment for life. From this judgment the present appeal was filed.

The prime question for decision is whether or not the learned trial judge erred in charging the jury that in his opinion the defendant was guilty and it was his duty to tell them so. We are impelled to the conclusion that he did, and that sufficient prejudice resulted which renders a new trial mandatory.

The pertinent portion of the instructions to the jury was as follows: “Now, I am about to make a comment, members of the jury. And my comment is that I am of the opinion that this defendant is guilty. But please understand, members of the jury, that it’s my duty and it’s my right to make a comment, under the law of Pennsylvania. But it’s also my duty to say to the jury when I make that comment that you don’t have to agree with me, that it’s entirely, completely, finally for you to say what the verdict shall be: guilty of murder in the first degree, not guilty of murder in the first degree; guilty of murder in the second degree, not guilty of murder in the second degree; not guilty. You may find one of those three verdicts. That is entirely for you.”¹

At least as early as the year 1885, this Court ruled that the trial judge in a criminal case may express an opinion to the jury on the weight and effect of the evidence, provided that such comment does not amount to a binding instruction, and moreover, is warranted by the evidence: McClain v. Commonwealth, 110 Pa. 263, 1 A. 45 (1885). This principle of law has been consistently followed ever since. See, e.g., Commonwealth v. Cunningham, 232 Pa. 609, 81 A. 711 (1911); Commonwealth v. Weston, 297 Pa. 382, 147 A. 79 (1929); Commonwealth v. Chambers, 367 Pa. 159, 79 (1951); and, Commonwealth v. Romano, 392 Pa. 632, 141 A. 2d 597 (1958).

In connection with the right of the trial judge to express an opinion on the weight and effect of the evidence, this Court said in Commonwealth v. Cunningham, supra, 232 Pa. at 611, 81 A. at 712: “It is the undoubted right of a judge, and often it is his duty, to express to the jury his opinion of the weight and effect of the evidence.”

For the first time, as far as our research discloses, in Commonwealth v. Nafus, 303 Pa. 418, 154 A. 485 (1931), this Court held that a trial judge may also express an opinion as to the guilt or innocence of the defendant. And in many cases since, this right has been reaffirmed, provided 1) that it is exercised fairly and temperately; 2) that there is reasonable ground for any statement the judge may make; and, 3) that he clearly leaves to the jury the right to decide all the facts and every question in the case, regardless of his opinion: Commonwealth v. Raymond, 412 Pa. 194, 194 A. 2d 150 (1963); Commonwealth v. Chester, 410 Pa. 45, 188 A. 2d 323 (1963); Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704 (1953); and, Commonwealth v. Watts, 358 Pa. 92, 56 A. 2d 81 (1948).

In connection with the right' of the trial judge to express an opinion as to the guilt or innocence of the accused, it was said in Commonwealth v. Nafus, supra, 303 Pa. at 420, 154 A. at 486, “that it was sometimes his duty to do so.” In Commonwealth v. Moyer, 357 Pa. 181, 53 A. 2d 736 (1947), it was held that “in some cases” it may be his duty to express such an opinion. Likewise, in Commonwealth v. Chambers, supra, 367 Pa. at 164, 79 A. 2d 204, we said “. . . it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render. . . .” See also, Commonwealth v. Patskin, supra. However, in no case within our knowledge has it been said that it is always the duty of the court to do so, and clearly no language of this Court has ever indicated that a judge should feel compelled to do so in every case, regardless of the nature, quality or quantity of the proof.

Whether or not the learned trial court below misconstrued its responsibilities in this regard, we are firmly of the opinion that in no instance should a trial judge tell a jury that it is his duty to express an opinion that the accused is guilty. The connotations of the term “duty” in such a context are such that the jury may well conclude that a guilty verdict is the only choice they have and thus such an instruction would effectively interfere with the jury’s right to solely determine the question of guilt or innocence. Further, it could prejudicially impair the jury’s performance of its responsibility to weigh the evidence carefully and fairly before coming to a decision.

Additional comment is necessary.

While we have repeatedly and unequivocally stated that a trial judge always has the privilege of expressing an opinion as to the guilt or innocence of the defendant, we have just as frequently said in this connection that “reasonable ground for any statement he may make” should exist. Thus, some restriction on the exercise of the privilege has been clearly indicated, and the exercise of a wise discretion in connection therewith imposed. Otherwise, the limitation would be meaningless. While it is difficult to define with any degree of specificity when such an opinion as here under discussion should not be expressed, it can be definitely stated that such should not be done in a very close case. In such an instance, such an expression by the presiding judicial officer could well prejudice the defendant unfairly, and in itself be sufficient to overcome any honest and justified reasonable doubt the jurors may have in their minds as to the guilt of the defendant after evaluating the evidence.

Judgment reversed, and new trial ordered.

Mr. Justice Roberts concurs in the result and is of the opinion that it is undesirable, unnecessary and unfair to allow the trial judge to inform the jury that in his opinion the defendant is guilty.

Mr. Justice Musmanno joins in this view. Mr. Justice Cohen dissents.

1 All emphasis throughout supplied unless otherwise indicated.