J-S45018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANTHONY W. REEDER

                            Appellant                No. 3192 EDA 2015


            Appeal from the Judgment of Sentence October 5, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010676-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 29, 2017

        Appellant, Anthony W. Reeder, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

conviction for homicide by vehicle while driving under the influence (“DUI”)

and related offenses. Appellant contends the trial court erred in presenting

the jury with a special verdict sheet containing interrogatories. We affirm.

        The relevant facts and procedural history of this case are as follows.

On March 3, 2012, Appellant and his fiancée, Sheila Whalen, consumed

several alcoholic beverages with friends at a Philadelphia bar. The couple

was later seen leaving the bar in a Jeep, with Appellant in the driver’s seat.

Shortly thereafter, Appellant lost control of the vehicle. The Jeep struck a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S45018-17



parking pole before it ultimately rolled over and collided with a house.

Witnesses observed Appellant climbing through the driver’s side window

after the accident. Ms. Whalen, who was a front seat passenger, died at the

scene.

       Police officers responding to the crash found Appellant near the scene,

and observed that he appeared intoxicated. Appellant gave conflicting stories

about whether he was in the vehicle at the time of the crash. The officers

ultimately arrested Appellant. He submitted to a Breathalyzer test at the

station two hours after the crash, which showed his blood alcohol content at

0.131%.      The     Commonwealth          charged   Appellant   with   involuntary

manslaughter, homicide by vehicle, homicide by vehicle while DUI, accident

involving death or personal injury while not properly licensed, and multiple

subsections of the DUI statute, including DUI high rate of alcohol.1

       Appellant proceeded to his first jury trial. After the jury deadlocked

during deliberations, the court granted Appellant’s motion for a mistrial. The

Commonwealth withdrew the charge of involuntary manslaughter, and

proceeded to a second jury trial on the remaining charges. After the close of

argument, Appellant objected to the proposed verdict sheet. The sheet

contained interrogatories after certain charges, only to be answered if the

jurors found Appellant guilty of that offense. One of the charges with

____________________________________________


1
 18 Pa.C.S.A. § 2504(a); 75 Pa.C.S.A. §§ 3732(a), 3735(a), 3742.1(a), and
3802, respectively.



                                           -2-
J-S45018-17



interrogatories, homicide by vehicle, asked jurors to render a verdict of guilt

or innocence, and then answer the following by checking the appropriately

marked “yes” or “no” box:

      If and only if you find the defendant guilty, did you find beyond a
      reasonable doubt, that the defendant committed the underlying
      violation of:

      Driving vehicle at [an] unsafe speed: Yes ___ No ___

      Driving upon sidewalk: Yes ___ No ___

      Careless driving: Yes ___ No ___

Verdict Report, 6/12/15, at 2.

      The jury found Appellant guilty of homicide by vehicle. They marked

“no” to the subsequent question of whether Appellant was driving at an

unsafe speed, and responded “yes” to the other two traffic violations. The

charge of DUI – incapable of safe driving also asked the jury to answer this

interrogatory in a separate space on the verdict form, following the verdict:

      If and only if you find the defendant guilty, did you find beyond a
      reasonable doubt that:

      During the commission of the offense there was an accident
      resulting in death? Yes ___ No ___

      During the commission of the offense there was an accident
      resulting in damage to a vehicle or other property?
      Yes ___ No ___

Id., at 1.




                                     -3-
J-S45018-17



       The jury found Appellant guilty of DUI – incapable of safe driving, and

answered “yes” to both questions. The jury also found Appellant guilty of all

other charged offenses.2

       On October 5, 2015, the court sentenced Appellant to an aggregate 3

to 7½ years’ incarceration. Appellant timely filed a notice of appeal.

       Appellant presents a single question for our review:

       Did not the trial court err in issuing to the jury, over objection,
       special verdict forms that included special interrogatories?

Appellant’s Brief at 3.

       In examining the propriety of the instructions a trial court
       presents to a jury, our scope of review is to determine whether
       the trial court committed a clear abuse of discretion or an error
       of law which controlled the outcome of the case. A jury charge
       will be deemed erroneous only if the charge as a whole is
       inadequate, not clear or has a tendency to mislead or confuse,
____________________________________________


2
  Appellant also contests the interrogatory following the charge of DUI –
Blood Alcohol Concentration Above the Prohibited Amount. The jury
rendered a verdict of guilty, and then answered the following interrogatory:

       If and only if you found the defendant guilty, did you find beyond
       a reasonable doubt, that the defendant’s blood alcohol
       concentration range was:
       .08-.09 _____
       .10-.159 _____

Verdict Report, 6/12/15, at 1.

At trial, Appellant’s counsel specifically assented to this interrogatory,
saying: “[It] is true that in the charge it says that they have to select if they
believe his blood alcohol and the ranges [sic]. So, I’m fine with that.” N.T.
Trial, 6/12/15, at 2. Consequently, Appellant did not preserve this particular
issue for our review. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 647(C).



                                           -4-
J-S45018-17


       rather than clarify, a material issue. A charge is considered
       adequate unless the jury was palpably misled by what the trial
       judge said or there is an omission which is tantamount to
       fundamental error. Consequently, the trial court has wide
       discretion in fashioning jury instructions.

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)

(citations omitted).

       “Discretion is abused when the course pursued represents not merely

an error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a

result of partiality, prejudice, bias or ill will.” Commonwealth v. Widmer,

744 A.2d 745, 753 (Pa. 2000) (citation omitted).

       On appeal, Appellant contends that special verdicts are patently

unacceptable in criminal cases.3 In his argument, Appellant cites to

Commonwealth v. Samuel, 961 A.2d 57 (Pa. 2008), for the proposition

that “[t]he proposal of special verdicts in criminal trials to determine what

issues the jury actually resolved has been almost universally condemned.”

Id., at 64 (citation omitted). Our Supreme Court also addressed this issue in
____________________________________________


3
  We note that Appellant uses the terms “special verdicts” and “special
interrogatories” without distinction. Special verdicts consist of questions
posed to the jury as a wholesale replacement of the general “guilty or not
guilty” verdict. In a case premised on a special verdict, the jury does not
determine the defendant’s guilt or innocence. The jury instead answers the
questions posed, and the court makes the legal determination of guilt or
innocence based on those answers. By contrast, special interrogatories ask
the fact-finder to answer questions that merely supplement, without
replacing, a general verdict of guilt or innocence. See, e.g., Kate H. Nepveu,
Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury
Trials, 21 Yale Law & Policy Review 263, 264 (2003).



                                           -5-
J-S45018-17



a more recent case following the United States Supreme Court’s decision in

Alleyne,4 Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). The

Hopkins Court found that special interrogatories could not be used to rectify

deficiencies in a statute violating Alleyne. See 117 A.3d at 260. However,

that is not what occurred here.

        Appellant mischaracterizes Hopkins as having issued a blanket

prohibition on supplementing general verdicts with special interrogatories,

when it in fact held that such questions could not cure an already

constitutionally    deficient    statute.      He   does   not   allege   the   special

interrogatories in his case were used to correct a constitutionally deficient

statute, as in Hopkins. Appellant limits his challenge to the mere presence

of the special interrogatories.

        Significantly, Appellant fails to explain specifically how the questions

on the verdict sheet prejudiced him. Even assuming, without so deciding,

that the trial court erred in including the special interrogatories on the

verdict sheet, we find the logic of Commonwealth v. Davis, 135 A.3d 631

(Pa. Super. 2016), to be persuasive. In that case, the court provided the

jury with a verdict sheet that contained questions about the weight of the

drugs and the presence of a firearm. This was done in order for the court to

determine applicable mandatory minimums, in an attempt to comply with


____________________________________________


4
    Alleyne v. United States, 133 S.Ct. 2151 (2013).



                                            -6-
J-S45018-17



Alleyne. However, the sentencing court in Davis ultimately did not apply a

mandatory minimum sentence based on those findings. On appeal, Davis

challenged the questions on the verdict sheet. A panel of this Court noted

that Davis was not given a mandatory minimum sentence, and that he failed

to provide any evidence that the questions on the verdict sheet influenced

the jury’s deliberation about his guilt or innocence.

      Appellant, like Davis, failed to provide any argument as to how these

questions   influenced    the   jury’s   deliberations.   Consequently,   we   find

Appellant’s issue lacks merit, and affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




                                         -7-
