Opinion
September 14, 1972.
November 28, 1972.
Criminal Law — Practice — Charge to jury — Urging jury to attempt to agree on verdict — Application of standard of reasonable doubt.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 911, Oct. T., 1972, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 1084, in case of Commonwealth of Pennsylvania v. Ollie P. Johnson. Judgment of sentence affirmed.
Indictments charging defendant with violation of the Uniform Firearms Act, assault and battery with intent to kill and aggravated robbery. Before SPORKIN, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Michael L. Levy and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
SPAULDING, J., filed a dissenting opinion, in which HOFFMAN, J., joined.
Submitted September 14, 1972.
Judgment of sentence affirmed.
I respectfully dissent.
Appellant contends that, taken together, the charge in this case, which urged the jury to attempt to agree on a verdict, and the instructions of the trial court on applying the standard of reasonable doubt deprived him of a fair trial. We were faced with the identical issue in Commonwealth v. McCoy, 219 Pa. Super. 298, 279 A.2d 237 (1971), which was an appeal by appellant's co-defendant. I would reverse the order of the court below and grant a new trial for the reasons stated in my Dissenting Opinion in McCoy, id., in which Judges MONTGOMERY and HOFFMAN joined.
Although not identical in wording the charge constituted an "Allen Charge", Allen v. United States, 164 U.S. 492, 501-2 (1896), which our Supreme Court has now prospectively overruled. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), upholding the decision of this Court at 216 Pa. Super. 169, 263 A.2d 923 (1970).
HOFFMAN, J., joins in this dissenting opinion.