Appeal from order of Superior Court, Oct. T., 1970, No. 934, affirming order and judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1967, No. 1189, in case of Commonwealth of Pennsylvania v. Albert White.
Francis S. Wright, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Deborah E. Glass, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.
At approximately 1:30 on the morning of May 8, 1967, two men armed with a shotgun and a toy sheriff's badge forced their way into the home of one Frank White at 811 Summer Street in Philadelphia and robbed him of $2,400. Appellant, no relative of Frank White, was apprehended in connection with the crime and indicted for carrying a concealed deadly weapon, unlawfully carrying a firearm without a license, impersonating an officer, aggravated robbery and conspiracy. A timely motion to suppress the physical evidence seized at the time of his arrest was denied, and on August 23, 1968, a jury found appellant guilty of aggravated robbery. Following the denial of post-trial motions, sentencing was deferred pending a psychiatric examination. On May 15, 1970, appellant was sentenced to 2 1/2 to 12 years at the State Correctional Institution. On appeal, the Superior Court affirmed per curiam. We granted allocatur and now reverse.
On the second day of the trial one of the jurors reported to the court that one Herman Hall, manager of the Royal Theater where she previously had worked and where appellant's wife, Ruth White, was presently employed as a cashier, had sought to discuss the case with her. Out of the presence of the rest of the panel, the juror told the court that while walking to the courthouse that morning, she passed the Royal Theater; that Mr. Hall was standing in front of the building; that Hall stopped her and said: "I heard that you was on the White case." The juror stated that when she appeared not to recognize the reference, Mr. Hall explained, "It's the cashier". He then made inquiry whether the jury thought the defendant was guilty, and whether he was carrying a deadly weapon. Then, related the juror, without waiting for a response, Hall told the juror that she should be moving on, for court
was to begin in fifteen minutes. Following this disclosure, the juror was dismissed, and a bench warrant was issued for Mr. Hall.*fn1
Later at trial, Mrs. White was called to the stand as an alibi witness. On direct examination she testified that on May 8, 1967, the day of the robbery, she and her husband attended a double-feature motion picture at the Royal Theater from 4:30 p.m. to 10:30 p.m., at which time they returned home, played Monopoly with their children, and retired to bed. On cross-examination, Mrs. White was asked by the Commonwealth whether she knew the juror who had previously been dismissed and who at one time had been an employee of Mr. Hall, her present employer. Admitting a nodding acquaintance, Mrs. White was then asked by the district attorney, "Ma'am, did you happen to call Mr. Herman Hall sometime yesterday after juror No. 8 was selected. Juror No. 8 is the former cashier, who used to work for Mr. Hall, and did you inform him that one of his old cashiers happened to be in your husband's jury?" An objection to this question was sustained and a partial answer was stricken.
The matter of possible corruption of a juror was raised a second time. Herman Hall was called to the stand by the Commonwealth to refute the alibi given by Mrs. White. He testified that two movies, "The Game Is Over" and "The Rage", together with one seven-minute "short", were playing at his theater on May 8, 1967. If appellant and his wife were there, as they testified, from 4:30 to 10:30 p.m., Hall stated that
they would have had to see one feature twice and the other feature one and one-half times.*fn2 This directly conflicted with Mrs. White's recollection that they had seen each picture but once in that six-hour time span. During the defense's presentation, Hall was recalled to the stand in an attempt to elicit information which would lessen the impact of his earlier testimony. He was first asked: "Mr. Hall, would the testimony you gave yesterday concerning the time schedule at the theater which you are manager of, was that testimony accurate?" The witness answered: "No, sir. I was in error." Further examination, however, revealed that Hall was incorrect only as to the order in which the ...