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COMMONWEALTH v. BROWN (12/11/74)

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 ...


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