Timothy J. Savage, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case.
Appellant, Leroy Saxton, was indicted for murder, aggravated robbery, burglary, conspiracy and violation of the Uniform Firearms Act arising out of the robbery and murder of Michael Kerrigan at a service station in Philadelphia. Appellant was tried by a judge and jury and was found guilty of first-degree murder, aggravated robbery and conspiracy. Post-trial motions were denied and appellant was sentenced to life imprisonment on the first-degree murder conviction, and ten to twenty years on the aggravated robbery charge.*fn1 This appeal followed.
Appellant argues that the court below erred in dismissing Juror No. 6 in violation of Pa.R.Crim.P. 1108(a), without a showing that the juror was "unable or disqualified to perform their duties." We agree.
Pa.R.Crim.P. 1108(a) provides:
"(a) The trial judge may direct that not more than two jurors in addition to the principal jurors he called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace principal jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a principal juror shall be discharged before the jury retires to consider its verdict."
The facts surrounding the dismissal of Juror No. 6 are as follows. On the fourth day of appellant's trial, the trial judge sua sponte called a conference in chambers. The participants included the district attorney, William T. Cannon, defense counsel, Timothy Savage, and Juror No. 6.
During the conference the trial judge asked Juror No. 6 the ...