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decided: April 23, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Erie County, May T., 1963, No. 3, in case of Commonwealth of Pennsylvania v. Miguel Maldonado Santiago, alias Justiliano Ocasio Santiago.


A. L. Gambatese, for appellant.

Frank L. Kroto, Jr., Assistant District Attorney, and R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.

Author: Manderino

[ 456 Pa. Page 266]

The appellant, Miguel Maldonado Santiago, was convicted in 1963 of first degree murder. Post-verdict motions were filed but later withdrawn and a sentence of life imprisonment was imposed. No appeal was filed. Collateral proceedings followed which are reported in Commonwealth ex rel. Santiago v. Myers, 440 Pa. 543, 271 A.2d 216 (1970), and Commonwealth ex rel. Santiago v. Myers, 419 Pa. 326, 214 A.2d 206 (1965). In 1970, following an evidentiary hearing ordered by this Court, the trial court found that the appellant had not waived his post-verdict rights or his appeal rights and granted those rights to the appellant. Post-verdict motions were then filed and denied. This appeal followed in which we reverse the judgment of sentence and grant a new trial.

Appellant was charged with the murder of Domingo Alvarez, who was shot in a barroom fight. The selection of the jury began on September 16, 1963, and was completed the following day, September 17, 1963. At about 2:00 p.m., on September 17, 1963, the prosecution made its opening statement. After two witnesses for the prosecution had testified, the trial court, at about 3:15 p.m., announced a fifteen minute recess. In the ladies room, during that recess, one of the alternate jurors, Anne McCarthy, in the presence of three other female jurors, reported to a female tipstaff an incident which had occurred in the ladies room during the luncheon recess several hours earlier in the day. The tipstaff, after telling the jurors not to talk about the incident with any other jurors, reported to the trial judge, who then informed counsel at side bar about the reported incident. Defense counsel immediately moved for a mistrial, but the motion was denied. The trial judge then said to the jury: "Members of the jury, a matter has come up that will take a little time. You will not be excused and you will not be recessed for the

[ 456 Pa. Page 267]

    time being. Arrange for the defendant to be taken into my chambers with the interpreter."

The alternate juror was then called into chambers and reported the following incident which occurred during the luncheon recess just before she was sworn as a juror: "We came back from lunch and we walked in and didn't really know what time it was, another girl and myself, who was excused, or rejected I guess, and we turned around and looked at the clock and said, 'we have lots of time, it is only ten after one,' and this woman sitting there said, 'no, you don't have lots of time.' I said, 'well, it starts at 1:30,' and she said, 'yes,' and then that was all that was said, and with nothing else, she said, ' he has killed an innocent boy and it isn't the first one he has killed,' and I looked at her and we just walked away from her. She said, ' I am a witness.'" (Emphasis added.)

The alternate juror said that she did not know the witness's name, but could identify the witness who was sitting out in the courtroom. The trial court indicated to counsel that the alternate juror would be excused but again denied defense counsel's request for a mistrial. The trial judge then called into chambers, one at a time, the three jurors who were in the ladies' room when the alternate juror reported the incident to the tipstaff. One juror said that she heard the alternate juror say that "she was approached by one of the witnesses saying that the defendant had killed somebody else, too, or had shot somebody else -- wasn't that it? -- I thought you said shot or killed -- killed somebody else." The second juror said she heard the alternate juror say "that she was talking to a lady in the back and that she said that he was a killer and that he had killed somebody else." The third juror said "she [the alternate juror] said that this woman . . . started talking about the defendant and said that this wasn't the first time that he had been in trouble and, I don't know, she made

[ 456 Pa. Page 268]

    some remarks about him to [the alternate juror]." Two of the three jurors, when questioned, indicated they would not be prejudiced against the defendant as a result of what they had heard. The third juror also indicated that she would not be prejudiced, but at one point when questioned by defense counsel about the ...

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