John S. Manos, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Paul Sullivan, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Nix, JJ., concur in the result. Manderino, J., filed a dissenting opinion.
On May 7, 1971, the appellant, John Taylor Dukes, was arrested and charged with the murder of Thomas Brooks. Appellant was tried before a jury and found guilty of murder in the second degree. Motions for a new trial and in arrest of judgment were denied, and Dukes was sentenced to not less than five nor more than twenty years imprisonment. This direct appeal followed.*fn1
At trial the Commonwealth introduced evidence that at approximately 4:25 p. m. on September 26, 1970, one Thomas Brooks, who was sitting on the steps outside a building at the corner of 3rd and Callowhill Streets in Philadelphia, was fatally struck twice on the head by a man wielding a two-by-four plank. At trial a Philadelphia police officer, Leonard Indelicato, identified appellant as being the same person whom he had arrested nearby shortly after the time Brooks was attacked, carrying a "two-by-four" and apparently intoxicated. Two additional witnesses testified that they had seen appellant in the vicinity of 3rd and Callowhill Streets about the time of the Brooks attack, and that he was swinging a "two-by-four" at various people. Medical testimony established that Brooks died as a result of head injuries. Appellant's defense was alibi: he testified that he was living in Harrisburg on September 26, 1970, and introduced evidence that he had been in the Harrisburg Department of Public Assistance on September 25 and September 28.
Appellant asserts that four errors on the part of the trial court deprived him of a fair trial. We disagree, and will affirm.
Appellant's first contention is that he was denied due process of law. The basis of this claim is that the jurors before whom he was tried for the Brooks murder were drawn from the same panel of veniremen as were the jurors before whom he had been previously tried (and acquitted) on another charge of murder. Although none of the jurors in the instant case had in fact served on the jury in the previous case, it is argued that they may well have become aware, through contact with their fellow panel members, that appellant had been accused of another crime.
There is no doubt that a defendant who is tried before jurors who know or may know that he has been charged with another crime is deprived of his right to a trial before a fair and impartial jury. Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973); Commonwealth v. Rivers, 218 Pa. Super. 184, 279 A.2d 766 (1971); Commonwealth v. Trapp, 217 Pa. Super. 384, 272 A.2d 512 (1970); Commonwealth v. McDaniel, 217 Pa. Super. 20, 268 A.2d 237 (1970); Commonwealth v. Free, 214 Pa. Super. 492, 259 A.2d 195 (1969). In the case last cited, for example, the Superior Court held that the defendant was entitled to a new trial because the jury had been selected from the same panel from which the jury for a previous trial of the same defendant had been drawn; indeed, seven of the petit jurors had actually participated in the voir dire examination in connection with the first trial, and apparently no precautionary measures had been taken by the trial court.
In the case at bar, contrary to the situation in Free, supra, the trial judge was meticulously careful to ascertain that no member of the jury was aware of the previous trial. The late Judge Reed presided at both trials. Prior to the voir dire in the instant case, he asked any panel member who had ever seen him before to step forward, and those ...