Appeal from judgment of sentence of Court of Common Pleas of Butler County, June T., 1974, No. CA 101, in case of Commonwealth of Pennsylvania v. Samuel Fratto.
A. R. Cingolani, Jr., with him August T. Costanzo, and Cingolani & Cingolani, for appellant.
Robert F. Hawk, First Assistant District Attorney, with him John H. Brydon, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Dissenting Opinion by Cercone, J.
[ 237 Pa. Super. Page 584]
The appellant, Samuel Fratto, was convicted in a jury trial of several gambling offenses proscribed by the Crimes Code.*fn1 After denial of post-trial motions, he was fined $1,500.00 and sentenced to six to twelve months imprisonment.
In this appeal, Fratto advances several contentions which are identical to those raised by Peter Betres, appellant in No. 79, April Term, 1975, 237 Pa. Superior Ct. 361, 352 A.2d 495 (1975). These arguments have been exhaustively discussed, and rejected, by Judge Cercone in his majority opinion in the Betres appeal. In addition, however, Fratto contends that he was deprived of his
[ 237 Pa. Super. Page 585]
right to a trial by an impartial jury.*fn2 We agree with this contention, and therefore award a new trial.
Appellant's trial was held on July 1, 1974. The trial of Peter Betres occurred on June 26 and 27, 1974. Four of the first nine jurors called for Fratto's trial had served as jurors in the Betres case. Since Betres, like Fratto, had been tried for gambling offenses,*fn3 Fratto's counsel unsuccessfully sought to have the jurors challenged for cause because of the similarity of the cases. Several more jurors were then called; three of them had served as jurors in the Betres prosecution. It was necessary for Fratto's counsel to use all six of his peremptory challenges to exclude the Betres jurors from the Fratto jury. Nonetheless, since seven Betres jurors had been empaneled in the Fratto case, one, a Mrs. Wogan, still remained.
The charges against Betres arose out of gambling which had occurred at the German Beneficial Society in Lyndora, Pennsylvania, while Fratto's gambling activities took place at Dino's Bar in Penn Township. Betres and Fratto were not co-defendants, and the offenses for which they were tried arose out of distinct transactions. Nonetheless, the evidence at the Betres trial was such that the juror who was common to both trials almost certainly perceived a connection between the two men.
At the Betres trial, on direct examination by the Commonwealth, Trooper Riley, who along with Trooper Shaffer was an undercover agent in both the Betres and Fratto cases, testified to the gambling that he and Shaffer had done at the German Club:
"Q. How many games did you play?
A. During the course of the night we played a total of ten games. Nine were with Mr. Betres and ...