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COMMONWEALTH v. BROWN (12/11/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1974.

COMMONWEALTH
v.
BROWN, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 2145 of 1972, in case of Commonwealth of Pennsylvania v. Kenneth W. Brown.

COUNSEL

Arthur R. Sagoskin, Assistant Public Defender, for appellant.

Martin J. King, Deputy District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 231 Pa. Super. Page 433]

On March 27, 1973, after a jury trial, appellant was found guilty of burglary, aggravated robbery, larceny, wantonly pointing a firearm, carrying a firearm without a license, carrying a concealed deadly weapon, committing a crime of violence while in possession of a firearm, all related to the robbery of a food store in Bucks County. At the conclusion of the trial, after the jury had returned a verdict of guilty, defense counsel requested a poll of the jury. When juror seven was asked his verdict, he responded "not guilty" twice.*fn1

[ 231 Pa. Super. Page 434]

Immediately after the remaining jurors were polled, defense counsel requested a mistrial based on juror seven's responses. The motion was denied, but defense counsel's further voir dire of juror seven was granted.*fn2

[ 231 Pa. Super. Page 435]

During both periods of questioning of the juror, he indicated that he had difficulty hearing.

In this appeal, appellant contends that the hearing difficulties of the juror, discovered only upon the polling of the jury following the verdict, denied him a fair, impartial, and competent jury, resulting in less than a unanimous verdict as guaranteed by the Fourteenth and Sixth Amendments to the United States Constitution and Article 1, Section 9, of the Pennsylvania Constitution. We agree with appellant's contention, and, therefore, reverse and remand for a new trial.*fn3

The right to an "impartial" jury is guaranteed by the Pennsylvania Constitution*fn4 and the Sixth Amendment of the United States Constitution*fn5 applied to the states through the Due Process Clause of the Fourteenth Amendment. Thus, the minimal standard of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and "indifferent" jurors. See Witherspoon v. Illinois, 391 U.S. 510 (1968); Irvin v. Dowd, 366 U.S. 717 (1961). "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). See also Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972).

Fundamental to the right of an "impartial" jury is the necessity that participating jurors be competent and qualified. By statute, Pennsylvania requires that

[ 231 Pa. Super. Page 436]

    only "sober, intelligent and judicious persons," Act of April 10, 1867, P. L. 62, § 2 (17 P.S. § 942), and persons "able to understand the English language," Act of May 11, 1973, No. 12, § 1 (17 P.S. § 1333), be eligible as jurors. Implicit in these requirements is that a juror should be free from such physical infirmities as will interfere with or preclude the proper discharge of his duties. See 47 Am. Jur. Jury § 108 (1969); A.B.A. Project on Standards for Criminal Justice, Standards Relating to Trial by Jury § 2.1 (b) (ii) (Approved Draft 1968).

The appellant is entitled to a jury verdict arrived at by each and all of the jurors upon the evidence introduced. Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938). See Pa.R.Crim.P. 1120 (b) ("verdict shall be unanimous"). The presence of a juror with a physical impairment of such magnitude as to interfere with the juror's ability to hear and understand the presented testimony and evidence precludes a verdict by all jurors. Such a disability would render the juror incompetent to serve and would deny appellant's right to an impartial jury and a fair hearing. While a juror is not disqualified per se because of his deafness, Safran v. Meyer, 103 S. C. 356, 88 S. E. 3 (1916), where the deafness is of such degree as to indicate that the juror may have not heard material testimony, the juror must be disqualified, rendering any verdict he gave as meaningless.

In the instant appeal, we find that the record indicates that the juror in question had a hearing impairment so great as to deny appellant a fair, impartial trial and a unanimous verdict.*fn6 We recognize that it

[ 231 Pa. Super. Page 437]

    is quite difficult to determine the amount of prejudice suffered by the appellant because of the juror's hearing

[ 231 Pa. Super. Page 438]

    difficulties. However, the record substantiates that the juror had difficulty in hearing. He admitted inability to hear questions and his responses were inconclusive as to whether he had heard all the testimony. Thus, we are confronted with a situation where, in order to insure fairness and to alleviate any possibility of prejudice caused by the deaf juror, we must assume prejudice for the sake of insured fairness. Cf. Commonwealth v. Stewart, 449 Pa. 50, 56, 295 A.2d 303, 306 (1972) (even the possibility of jury prejudice requires reversal, because of the possibility of an infringement on the accused's right to due process of law); Sheppard v. Maxwell, 384 U.S. 333 (1966); Turner v. Louisiana, 379 U.S. 466 (1965). We, therefore, reverse the judgment of sentence of the lower court and remand for a new trial.

Disposition

Judgment of sentence reversed and case remanded.


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