Com. v. Greer

951 A.2d 346

COMMONWEALTH of Pennsylvania, Appellant v. Benjamin GREER, Appellee.

No. 40 EAP 2006.

Supreme Court of Pennsylvania.

Argued April 16, 2007.

Decided July 24, 2008.

William George Young, Esq., Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

Mark S. Keenheel, Esq., Maplewood Mall Law Center, for Benjamin Greer.

Chief Justice CASTILLE.

The question on appeal is whether the trial court abused its discretion in issuing Spencer¹ instructions—that is, instructions to a deadlocked jury to continue to deliberate, with an open mind to reconsideration of views, without giving up firmly held convictions—in an instance where the jury foreperson volunteered to the trial court the fact of the deadlock as well as the numerical division among the jurors and the identity of the holdout jurors.² A divided Superior Court panel held that the Spencer instructions were impermissibly coercive, primarily relying upon authority from the U.S. Court of Appeals for the Ninth Circuit. For the reasons that follow, we find that the trial court's instructions neither ran afoul of Spencer nor were they coercive, and thus, there was no abuse of discretion warranting a new trial. Accordingly, we vacate the new trial order below and remand to the Superior Court for consideration of appellee's remaining appellate claim.

On February 5, 2004, Bin Zhang was working at the Golden Dragon Restaurant in Philadelphia when he received a telephone call requesting a food delivery. Zhang recognized the number as one used in a previous robbery, and so he called the police. In response, the Burglary Detail Unit of the Philadelphia Police Department posted officers at the delivery address. Meanwhile, at the instruction of the officers, Zhang took an empty box to that address. When Zhang arrived, he was approached by two men who took his cell phone and then attempted to flee. One man escaped, but the second man, appellee Benjamin Greer, was thwarted by Zhang, who grabbed his clothing. Appellee and Zhang fell to the ground, causing Zhang to break his ankle. The police then apprehended appellee, who was charged with criminal conspiracy, aggravated assault, and robbery.

Appellee was tried by a jury sitting before the Honorable Gary S. Glazer. After two days of testimony, the jury began deliberations late in the afternoon of February 10, 2005, breaking after less than an hour that day. The jury resumed deliberations the following morning. The jury then sent a note to Judge Glazer, asking that certain testimony be read back and seeking clarification regarding the law of criminal conspiracy. The relevant testimony was read back to the jury, Judge Glazer gave a supplemental instruction, and deliberations resumed at approximately 11:00 a.m. That afternoon, the jury sent the first of two additional notes to Judge Glazer. The first note, which was signed by the jury's forewoman and stated that it was written at 12:30 p.m., volunteered that the jurors had reached a verdict of not guilty on the robbery charge, but were unable to reach a verdict on criminal conspiracy and aggravated assault. The note also volunteered that the jurors were divided 10-2 in favor of guilt for conspiracy, with jurors nine and ten favoring a not guilty verdict; and that juror number ten was the sole juror in favor of a not guilty verdict for aggravated assault. The note further volunteered that the holdout jurors "have reasonable doubt about evidence." At no point had Judge Glazer inquired as to the numerical split of the jury or the identity of the jurors in the minority.

At 1:30 p.m., Judge Glazer informed trial counsel that he had received a note from the jury stating that it was having difficulty reaching a verdict on conspiracy and aggravated assault, but he did not reveal that the note also outlined the numerical division of the jury, the identities of the "holdout" jurors, and their concerns. Judge Glazer suggested issuing a jury charge deriving from Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), i.e., a non-coercive charge instructing the jurors to be true to their convictions, but to reconsider their original views. Both attorneys agreed, and Judge Glazer issued a supplemental instruction which, inter alia:

• stressed that jurors were not expected "to surrender deeply held personal views just to reach a verdict because that would be unfair as well;"

• asked the jurors to go back and isolate the areas where there was an uncertainty, dispute, or issue;

• suggested that the jurors could identify the issue in writing for the court and it could be addressed;

• noted that the parties entrusted the case to the jury for a decision, but the verdict was whatever was the jury's judgment;

• reiterated ("I can't say this strongly enough") that the court did not expect individual jurors "to surrender deeply-held views only to reach a verdict" but rather, "our overriding concern, our overriding interest is that you do justice, that you do what's right, not just reach a verdict so that we can all go home;"

• asked that the jury "spend time, that you deliberate, that you try to isolate what areas divide you and try to reach a reasonable verdict;"

• reiterated the importance of the jury in the criminal justice system; and

• reiterated that the parties were relying on the jury to resolve the case in a way that is "fair and consistent with the law."

Notes of Testimony, 2/11/05, 72-75 (hereinafter N.T.).

Following this charge, the jury again requested that certain testimony be read back and that they be reinstructed on conspiracy. Judge Glazer complied and the jury resumed deliberations at 2:05 p.m. Forty-five minutes later, at approximately 2:50 p.m., the court received a second note signed by the jury forewoman, entitled "Reason for Hung Jury." The note volunteered that: juror number nine was "not convinced" of (1) the police account of how they actually apprehended appellee, and (2) "the discrepancy between" Zhang's testimony and the police testimony; and juror number ten was "not convinced" that the evidence "conclude[d]" that appellee was "the actual perp." Judge Glazer informed counsel of the note, this time also apparently revealing that it identified the holdout jurors. Judge Glazer suggested that he make "one last comment" to the jury and then take a verdict at 4 p.m. As the court and counsel were discussing the options, the jury was brought back into the courtroom. Judge Glazer then addressed the jury with another Spencer charge, which consisted of the following:

I'm just going to ask that you go back for a little bit. What this indicates to me is either someone is not talking or someone is not listening. And, you know, I mean you owe that to the parties here.

I mean again, I have a sense of fairness to the people here. That's why you're here. That's why you were picked. You promised us that you would be fair and that you would listen to your fellow jurors, and that you would give us a fair verdict. I mean that's really all that we we're asking for. Parties just want a fair shot which is what everybody is entitled to.

And a jury verdict is a—it's a jury of 12 people speaking as one. And, you know, if it were easy, anybody could do it .... But it's not easy.

This is one of the most serious, difficult citizen participation functions that we have in American government .... Parties entrust you to reach a verdict.

Now, you're almost there. You're there on one count. But we need your best efforts. We need you to talk. This is not time for people to stand on ego. There's people's lives that are depending on your verdict and on your participation, if you can fairly do so. If you can.

And there's always that caveat because, as I said, you know—this is probably the third or fourth time—don't ask people to surrender deeply-held beliefs just to get out of here and reach a verdict because that's not right.

On the other hand, each of you has views and just judging by what the note says, you're close, but no cigar. So we need you to go back and try to do and resolve this case.

I mean that's—we've been here almost a week. It's a lot of time. It's a lot of your time. I'm here everyday, I work here. But you are serving the system and the community in an effort to reach a verdict, if you can fairly do so.

So I'm going to asking [sic] you to go back. We're not going to keep you here over the weekend. Don't worry about that. We're going to ask you to go back and try because I think you can do it. But just keep an open mind. Listen to each other. Okay? Go on.

N.T., 2/11/05, at 87-90.

The jury resumed deliberations at 3:20 p.m., whereupon appellee objected to the above charge, arguing that it was directed at the two holdout jurors and pressured them to convict. Appellee suggested that the court declare a hung jury on the two deadlocked counts. Judge Glazer rejected the argument, noting that his Spencer charge was directed at the jury as a whole, and that "maybe [the two holdouts were] right and the other ten are wrong. You don't know that. I don't know." In the court's view, it had the power "to remind them of their responsibility to serve and to deliberate and to listen to each other, and reach a verdict, if they can fairly do so." At 3:53 p.m., the jury returned with a unanimous verdict of not guilty on the charge of robbery, and guilty on the charges of criminal conspiracy and aggravated assault. Id. at 90-95.

On February 22, 2005, appellee filed a written notice for extraordinary relief which noted, inter alia, that counsel had not been made aware at the time of trial that the jury forewoman's first signed note had identified the holdout jurors and the nature of their concerns. Appellee asserted that, because the forewoman had revealed the jury's numerical division and the identity of the holdout jurors, the court should have responded by declaring a mistrial on its own. Citing Brasfield v. United States, ...