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COMMONWEALTH v. FREE (06/13/69)

decided: June 13, 1969.

COMMONWEALTH
v.
FREE, APPELLANT



Appeals from judgment of Court of Oyer and Terminer of Dauphin County, March T., 1967, Nos. 12 and 25, and June T., 1967, No. 23, in case of Commonwealth of Pennsylvania v. Clarence W. Free, Jr.

COUNSEL

William H. Saye, Public Defender, and Arthur K. Dils, for appellant.

James G. Morgan, Jr., Assistant District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., would affirm on the opinion of Judge Shelley. Watkins and Jacobs, JJ., dissent.

Author: Hoffman

[ 214 Pa. Super. Page 494]

On January 9, 1967, appellant was called for trial on the charge of aggravated robbery in the Court of Oyer and Terminer of Dauphin County at No. 6, September Sessions, 1967.

Prior to trial fifty-two members of the Dauphin County jury panel were called into the courtroom where appellant was sitting at counsel table. The District Attorney identified appellant as the defendant in the case and added that appellant and his co-defendant "committed the crime of aggravated robbery on or about January 19, 1967 [sic] at a store room located in the twenty-five hundred block, specifically 2543 North Sixth Street in the City of Harrisburg. This was a store room that was owned and operated by the victim in this case, Mrs. Johnston. The Commonwealth in essence is alleging that these two men came in, robbed the store . . ."

Immediately thereafter the court allowed counsel to conduct a general voir dire. Twelve jurors were selected and the trial commenced. Appellant was found guilty.

On January 15, 1967, appellant was called for trial on the charges of sodomy, rape and robbery in the cases now on appeal. These indictments had no relation to appellant's prior indictment and conviction of aggravated robbery.

Fifty-two members of the Dauphin County jury panel were again summoned to the courtroom where appellant was to be tried for the purpose of selecting a jury. Of these, twenty-two had sat in the jury panel which participated in the voir dire examination preceding appellant's trial on January 9, 1967. At this point, appellant's trial counsel moved strenuously for a continuance. He stated that appellant wanted a jury trial but did not want to be tried by a jury selected

[ 214 Pa. Super. Page 495]

    from the same panel which was in service at the time of his previous trial. The court refused this request and directed the empaneling of a jury to proceed. A general voir dire was conducted and twelve jurors were selected. Of these twelve, seven of the jurors had been members of the jury panel which participated in the voir dire examination of appellant at his prior trial.*fn1 Perforce, they knew, at a minimum, that appellant had been tried for the offense of aggravated robbery.

The question on appeal, therefore, is whether the court below erred in not granting appellant's ...


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