Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1968, No. 49, in case of Commonwealth of Pennsylvania v. Larry J. McDaniel.
Gerald E. Ruth, Public Defender, for appellant.
Gary M. Gilbert, Assistant District Attorney, with him Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., would affirm on the opinion of President Judge Atkins.
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Appellant was convicted by a jury of aggravated assault and battery with intent to ravish. Following the trial, one of the jurors brought to the attention of the judge that during deliberations in the above matter, another juror had displayed to the panel a copy of the trial list for that session prepared by the District Attorney. That list indicated that in addition to the case being tried before them, appellant was charged with two other unrelated crimes.
The jurors were then called into a conference room and were deposed on this issue. As a result of the conference with the court, counsel questioned the jurors as to their awareness of the presence of the trial list. Several of the jurors admitted that they were aware that appellant was charged with other crimes during their deliberation as a result of this trial list. Nonetheless, the lower court denied appellant's motion for a new trial and entered judgment. This appeal followed.
The question in this case, therefore, is whether the judge should have granted a new trial as a result of the potential prejudice of the trial list.
It is clear that "[e]vidence which shows or tends to show that the accused is guilty of a commission of other crimes and offenses at other times is incompetent and inadmissible." Commonwealth v. Free, 214 Pa. Superior Ct. 492, 495, 259 A.2d 195, 197 (1969). Cf. Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A.2d 666 (1969); Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A.2d 901 (1968); Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967).
Our decision in Commonwealth v. Free, supra, is particularly relevant here. In Free, seven of the twelve jurors had earlier participated in a voir dire in another prosecution against Free. They had, possibly, informed
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other members of the jury of this fact. We held that in such circumstances, where the potential prejudice was so great and the court was without opportunity to eliminate it, a new trial should be granted.
Similarly here, the trial list which indicated that appellant was accused of committing other crimes might well have prejudiced him by predisposing the jurors to believe the accused guilty, thus, ...