decided: March 25, 1974.
Appeal from order of Superior Court, Oct. T., 1970, No. 1824, affirming judgment of sentence of Court of Common Pleas of Lehigh County, Jan. T., 1969, No. 153, in case of Commonwealth of Pennsylvania v. George Hirsch.
Victor F. Cavacini, Assistant Public Defender, for appellant.
Thomas J. Calnan, Jr. and Howard R. Miller, Assistant District Attorneys, and George J. Joseph, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Author: Per Curiam
[ 455 Pa. Page 523]
Appellant and two co-defendants were charged with armed robbery. Prior to commencement of trial, defense counsel made a motion to challenge the jury panel on the grounds that prejudicial matter had been distributed to them. The information was that both co-defendants had numerous additional robbery charges pending against them. The jury was aware of this fact from the trial booklets which were distributed to each juror. The court denied the motion and the case proceeded to trial. Appellant and his co-defendants were found guilty as charged. On appeal the Superior Court, six judges having heard the appeal and being equally
[ 455 Pa. Page 524]
divided, the judgment of sentence was affirmed. Commonwealth v. Hirsch, 220 Pa. Superior Ct. 238, 281 A.2d 739 (1971) (Hoffman, J., wrote an opinion recommending reversal, in which Montgomery and Cercone, JJ., joined). We granted allocatur.
The primary question presented in this appeal is whether a new trial should be granted because of the potential prejudice created by the distribution to the jurors of the trial booklet which indicated that appellant's two co-defendants were under indictment for charges unrelated to those presently being prosecuted. We ruled in Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973), that where it appeared that there had been distributed to the panel of jurors trial booklets which indicated that the defendant and co-defendant were under indictment for charges unrelated to those being prosecuted a new trial should be granted because of potential prejudice created by the distribution of the trial booklets. See also, Commonwealth v. Trapp, 217 Pa. Superior Ct. 384, 272 A.2d 512 (1970).
The instant appeal, however, is distinguishable from Bobko and Trapp. Here, there is no mention of the appellant's name, except for those charges for which he was then being prosecuted.
While in Bobko we recognized the reference to co-defendants as an aggravation of the error, that was so because the accused was also included. From the other charges a prospective juror could reasonably be expected to conclude that the group had engaged in a series of such events. Where, as here, the name of the accused did not appear with the group in their other criminal episodes, the absence serves to ferment doubt as to his involvement even in the present instance. In any event there is no reasonable basis for concluding his participation in those activities where he was not accused of being involved. Appellant's contention provides no basis for relief.
[ 455 Pa. Page 525]
All other issues, having been considered, are found to be without merit and denied.
Judgment of sentence affirmed.
Judgment of sentence affirmed.
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