Garfield W. Levy, Walter N. Kennedy, Jr., Philadelphia, for appellant.
Samuel Dash, Victor Wright, Jr., Asst. Dist. Attys., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 609]
Armand DiFilippo was tried in the Court of Oyer and Terminer of Philadelphia County before Judge Sloane and a jury on bill number 159 May Sessions 1953, charging assault and battery, aggravated assault
[ 176 Pa. Super. Page 610]
and battery, assault and battery with intent to ravish, and rape; on bill number 160 charging contributing to the delinquency of a minor; and on bill number 161 charging incestuous fornication. The jury found DiFilippo guilty on all three bills. His motion for new trial was denied, and sentence was imposed. This appeal raises six questions, of which we deem it necessary to consider only one, since we are in agreement with appellant's principal contention, namely, that the jury was improperly impaneled.
Twelve jurors were called and seated in the box before any challenging began. Then appellant's counsel peremptorily challenged five of these original twelve jurors, and the District Attorney challenged none. As additional jurors were called, appellant's counsel continued to exercise his right of challenge, without any corresponding exercise on the part of the Commonwealth, until he had exhausted his quota of twenty peremptory challenges. It became apparent that, as a matter of tactics, the defense had succeeded in securing an all male jury. The District Attorney was then permitted by the trial judge to exercise his right of challenge, and proceeded therewith until he had exhausted his original quota of twenty peremptory challenges. After a conference in chambers, the trial judge placed the following statement on the record
'It is agreed that the defense counsel exercised twenty peremptory challenges before the Commonwealth exercised any of its challenges. Since this is a case involving incestuous statutory rape on a girl that will be shown to be under sixteen years of age by her uncle, it appears in chambers beyond the hearing of the panel that defense counsel stated that he did not want any women on the jury, that he is going to exercise his peremptory challenges until he exhausted all the women jurors as jurors.
[ 176 Pa. Super. Page 611]
'The assistant district attorney, in consultation with Joseph Alessandroni, representing the family of the prosecutrix, decided that they thought there ought to be some women on the jury and began exercising their challenges. That is the long and short of it, and I have permitted the Commonwealth to do it.
'This was done over the objection of defense counsel, who raised the query whether the Commonwealth has a right to do it when the assistant district attorney did not challenge alternately ...