Appeals from judgment of Court of Common Pleas of Lackawanna County, May T., 1968, No. 258, in cases of Commonwealth of Pennsylvania v. Joseph Matcheson, and Same v. Jack L. Dyson.
John J. Brier, Assistant Public Defender, with him Andrew Hailstone, for appellants.
Harry P. O'Neill, Jr., Assistant District Attorney, with him Joseph J. Cimino, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 215 Pa. Super. Page 372]
These two appeals were tried and argued together and will be disposed of in this opinion. Both cases raise the same issue. That issue is whether the trial judge erred in denying defendants' motions for a mistrial, based upon the possession by the jurors of copies of the criminal list containing a listing of two additional indictments against one of the defendants, Matcheson.
Following the return of a verdict of guilty by the jury, both defendants submitted themselves for sentence without filing any post-trial motions and sentences were imposed from which these appeals were taken. The verdict was rendered on October 3, 1968, and the sentences were imposed on February 7, 1969. Both appellants were represented by counsel at all times.
The well-established doctrine followed by our appellate courts is that, generally, they need not entertain arguments raised for the first time on appeal. Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Commonwealth v. Ludlow, 206 Pa. Superior Ct. 464, 214 A.2d 282 (1965). Thus, where no post-conviction motions have been filed, the general rule applies, and no appeal lies to this Court. Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530 (1956).
[ 215 Pa. Super. Page 373]
Occasionally our appellate courts have relaxed this rule. See Commonwealth v. Williams, supra; Commonwealth Page 373} v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966); Commonwealth v. Price, 208 Pa. Superior Ct. 354, 222 A.2d 610 (1966); Commonwealth v. Dulacy, 204 Pa. Superior Ct. 163, 203 A.2d 587 (1964); Commonwealth v. Gary, 193 Pa. Superior Ct. 111, 163 A.2d 696 (1960). However, we do not consider the present case as falling within the exceptions set forth in the above and other similar cases.
The withdrawal of a juror*fn1 and the declaration of a mistrial was within the discretion of the trial judge. Commonwealth v. Smith, 432 Pa. 517, 248 A.2d 24 (1968).