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COMMONWEALTH v. HARKINS (08/10/72)

decided: August 10, 1972.

COMMONWEALTH
v.
HARKINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Mercer County, Dec. T., 1969, No. 124, in case of Commonwealth of Pennsylvania v. James F. Harkins.

COUNSEL

Michael J. Wherry, Assistant Public Defender, with him Warren R. Keck, III, Public Defender, for appellant.

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion in Support of Affirmance by Cercone, J. Wright, P. J., and Watkins, J., join. Dissenting Opinion by Hoffman, J. Montgomery and Jacobs, JJ., join.

Author: Per Curiam

[ 222 Pa. Super. Page 105]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Opinion in Support of Affirmance by Cercone, J.:

Defendant was tried by jury and convicted of the charge of prison breach. He has appealed to this court from the lower court's refusal of a new trial.

Defendant presents two issues on appeal. He first contends that the court erred in refusing to grant a mistrial because of a reply made by a prospective juror during the voir dire. According to the record, the complained-of reply was given as follows: When asked by the court whether any of the prospective jurors knew the prosecuting witness, Officer Raymond Magensky of the Pennsylvania State Police, Juror No. 6, Homer Buxton, responded, "I don't think I should sit on this case". When asked by the court, "Have you had some contact with Mr. Magensky that would not qualify you?", Mr. Buxton replied, "Yes, he stole my car".*fn1 After this response by the prospective juror, defense counsel moved for withdrawal of the juror and in the

[ 222 Pa. Super. Page 106]

    alternate to strike the jury panel. The court removed Mr. Buxton as a prospective juror but refused to grant defense's motion to strike the jury panel. Knowledge was later received that Homer Buxton's car had been stolen the evening Mr. Harkins had left jail and that Homer Buxton was referring to the defendant and not to the state trooper as the person who stole his car. ...


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