Robert M. Fellheimer, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., join.
ROBERTS, Justice (dissenting).
I dissent. Appellant was on trial for murder. Our Rules of Criminal Procedure, in conformity with the legislative mandate, provide that each side in a murder trial shall have twenty peremptory challenges during the selection of a jury.*fn1 The rule and the underlying statute allow the trial court no discretion either to raise or lower this allotment. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975).
Despite the clear mandate of the rule, the trial court, over appellant's objection and at the request of the Commonwealth which had exhausted its peremptory challenges, granted each side two additional peremptory challenges. It attempted to justify this action by stating:
"Near the termination of the jury selection process, and admittedly at a time when the Commonwealth had exhausted its peremptory challenges, the court granted two peremptory challenges to the Commonwealth and also two additional peremptory challenges to the defense. The impelling reason for such action by the
Court was the Court's awareness, independently of the Commonwealth's observations of 'the rather odd behavior' of two of such remaining veniremen. Bluntly, they impressed the Court as being 'weirdos' of the first degree and the Court felt that not only were they sublimely unfit for jury service but would also contaminate any jury of which they were a part. Several alternatives for dealing with this situation were available but the Court decided upon the option of granting two additional peremptory challenges to each side."*fn2
The trial court's choice of "option" was flagrantly in error. The rules of criminal procedure provide that if a prospective juror is unqualified for some reason, either party is free to challenge for cause. Pa.R.Crim.P. 1106. The only requirement is that "cause" be shown to exist.*fn3 The trial ...