J-A23013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANTHONY BERRY                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    ROGER DICKSON, RHONDA                      :   No. 1918 EDA 2016
    DICKSON, ELITE PROPERTY                    :
    MANAGEMENT, LLC AND LASALLE                :
    PROPERTIES, LLC                            :

                Appeal from the Judgment Entered July 29, 2016
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): August Term, 2014 No. 3087


BEFORE:      PANELLA, J., DUBOW, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                            FILED DECEMBER 08, 2017

        Appellant sued the Appellees, alleging their negligent maintenance of a

building led to a ceiling collapse that resulted in his serious injury. The

matter proceeded to trial. The jury ultimately returned a verdict in Appellees’

favor. The length of their deliberations is at issue on appeal.1
____________________________________________


   Former Justice specially assigned to the Superior Court.

1 Appellant purports to appeal from the order denying his post-trial motions.
“Orders denying post-trial motions, however, are not appealable. Rather, it
is the subsequent judgment that is the appealable order when a trial has
occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1 (Pa.
Super. 2006) (citation omitted). Appellant prematurely filed his notice of
appeal, as judgment in this case was not entered until July 29, 2016.
Despite this error, we will address the appeal because judgment has been
entered on the verdict. See id. We have corrected the appeals statement of
the caption accordingly.
J-A23013-17



      The trial began on Friday, April 15, 2016, and the parties rested on

Tuesday, April 19. Shortly after noon on April 21, the jurors informed the

court they were “unable to reach a verdict on question 1.” The court

instructed them to continue deliberating. Late in the afternoon the next day,

the jurors informed the court “that after a very exhaustive consideration of

the evidence” they “were unable to reach a verdict on question 1.” The court

informed the parties of its intention to “give them an instruction” and “have

them at least try one more time at deliberating….” The court indicated that if

they had not reached a verdict on Monday it would consider if they were

“hopelessly deadlocked.” Appellant moved for a mistrial, which the court

denied. The court brought in the jurors and read them a lengthy instruction.

In essence, the court explained if they were unable to reach a verdict, it

would declare a mistrial and asked them “to please continue to work

together awhile more to try and reach a verdict.” As it was 4:00 p.m. on

Friday, the court dismissed the jurors for the weekend.

      Deliberations resumed on Monday morning. At 9:39 a.m., the jurors

requested, “to hear the charge re-read” as they were interested “in the

instructions regarding weighing the evidence, lack of evidence, witness

credibility.” Appellant asked for reconsideration of the court’s denial of its

motion for a mistrial, which the court denied. The court obliged the jurors’

request, read them the burden of proof charge, and went on to “remind” the

jurors “that you are not to violate your own personal beliefs. In other words,

don’t change your opinion just because of another juror’s opinion or to

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J-A23013-17



return a verdict, but if you can do so without violating your own personal

judgment.” Later that afternoon, the jurors returned a defense verdict.

      On appeal, Appellant argues the court effectively coerced the verdict

after instructing the jury to resume deliberations after they indicated twice

over four days of deliberations they were unable to reach a verdict. We

disagree.

      “[T]he amount of time that a jury is kept together to deliberate is” a

“matter … within the discretion of the trial judge, whose decision will only be

reversed for an abuse of discretion or evidence that the verdict was the

product of coercion of an overworked or fatigued jury.” Commonwealth v.

Bridges, 757 A.2d 859, 881 (Pa. 2000) (citations omitted), abrogated on

other grounds by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).

In determining what constitutes an abuse of discretion in this context,

“consideration should be given to the charges at issue, the complexity of the

issues, the amount of testimony to consider, the length of the trial, the

solemnity of the proceedings and indications from the jury on the possibility

of reaching a verdict.” Commonwealth v. Johnson, 668 A.2d 97, 108 (Pa.

1995) (citations omitted).

      Appellant attempts to minimize what the jurors had to consider by

characterizing this matter as “a noncomplex case.” But at the same time

Appellant documents in his brief the severity of his injuries (to his cervical

spine, his lumbar spine, and his left shoulder), which he continues to

attribute to Appellees’ negligence in maintaining their property. And the

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J-A23013-17



jurors in this negligence case had to consider all that after hearing testimony

from three fact witnesses and two expert witnesses.

      As noted, the jurors twice indicated they were deadlocked in their

deliberations. But they never indicated they were hopelessly deadlocked.

See id., at 109 (finding no abuse of discretion in trial court’s refusal to end

deliberations where, among others, the jury indicated they were deadlocked,

but not “hopelessly” so) (emphasis in original). Nor is the time of

deliberations and rendering of the verdict here an aberration in the case law.

See Commonwealth v. Penn, 439 A.2d 1154, 1161 (Pa. 1982) (finding no

abuse of discretion to continue deliberations where jury indicated it was

deadlocked after two days of deliberations, but reached a verdict on the

fourth day).

      The trial court carefully and methodically instructed the jurors on the

law and reminded them they were under no pressure whatsoever to violate

their own personal judgment by entering a particular verdict—all the court

instructed them to do was to continue to work together and consider the

evidence. After hearing that thoughtful instruction on Friday afternoon, the

jurors returned on Monday morning and after some deliberation requested to

hear the burden of proof charge again, later returning a defense verdict.

That last request for an additional instruction strongly suggests the jurors

moved past their deadlock. Appellant has failed to demonstrate the verdict

was the product of coercion of an overworked or fatigued jury.




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J-A23013-17



      The trial court committed no abuse of discretion in this case when it

refused to end deliberations.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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