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COMMONWEALTH v. PRICE (06/21/73)

decided: June 21, 1973.

COMMONWEALTH
v.
PRICE, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Delaware County, May T., 1971, Nos. 540, 541 and 542, in case of Commonwealth of Pennsylvania v. Marvin Price.

COUNSEL

David E. Auerbach, Assistant Public Defender, for appellant.

Philip J. O'Malley, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 225 Pa. Super. Page 58]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant contends that the trial court erred in not declaring a mistrial upon learning that one juror had made an unauthorized visit to the scene of the crime and then conveyed his impressions to several other jurors.

Appellant and a co-defendant were tried before the Honorable John V. Diggins in Delaware County on charges of burglary, larceny, receiving stolen goods, and aggravated robbery. On the evening of January 24, 1971, two or three men entered a Honeysuckle Farms Ice Cream Parlor in Chester and robbed the employees at gunpoint. Shortly thereafter, the police apprehended the appellant, his co-defendant, and a third man and returned them to the scene of the crime. The appellant and his co-defendant were indicted and tried. The Commonwealth presented all of its evidence and the jury retired to deliberate on October 20, 1971. When the jury could not reach a verdict, the judge, over defense counsel's objection, sent the jurors home that evening after instructing them not to discuss the case with anyone. The following day, the foreman of the jury informed

[ 225 Pa. Super. Page 59]

    the judge that one of the jurors had visited the scene of the crime and had conveyed his impressions to several other jurors. The judge instructed the jury not to consider the unauthorized view in reaching a verdict. The jury resumed deliberations and later returned a verdict finding appellant guilty and his co-defendant not guilty of ...


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