Clyde W. Waite, Bristol, for appellant.
Stephen B. Harris, 1st Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Eagen, C. J., concurs in the result. Roberts, J., filed a concurring opinion. Manderino, J., dissents.
On May 8, 1970, Raymond Richardson, appellant, gained entrance to the Bechter residence in Bristol, Pennsylvania, by using a ruse that he was having car trouble and needed the use of a telephone. Mrs. Jesse Bechter, aged 71, admitted him for the purpose of allowing him to use the telephone and directed him to the kitchen where the telephone was located. Appellant pulled out a gun and demanded money of Mrs. Bechter. He ordered her to lie down on the floor and when she was unable to comply because of physical infirmities resulting from a stroke, he hit her and knocked her to the floor. She was thereafter raped and stabbed by her assailant.
During this encounter, Ms. Evelyn Bechter, the daughter of Mrs. Jesse Bechter, entered the home. Mrs. Bechter testified that she saw Richardson hit her daughter as a result of which the daughter collapsed upon the floor. Evelyn Bechter subsequently died as a result of the injuries inflicted by Richardson. A search of the Bechter residence after the incident disclosed that certain pieces of jewelry had been taken from the home. This jewelry was later found to be in the possession of Hoyt Martin and Rosemary Radkin, who testified that Raymond Richardson had given these items to them.
After an intensive investigation, Raymond Richardson was arrested and charged with one count of murder, two counts of rape, two counts of robbery and burglary. A jury trial resulted in verdicts of guilty of murder of the first degree and all other charges. Motions for a new trial and in
arrest of judgment were filed and after argument, denied. This direct appeal followed.*fn1
The first objection relates to an alleged improper contact between the trial judge and several of the jurors. During voir dire and after some jurors had been selected, but before a complete jury had been empanelled and sworn, it was ascertained at the close of the court day that due to an administrative error, no transportation had been arranged for those jurors already selected to transport them from the courthouse to the hotel where lodgings were to be provided for them. In an effort to alleviate the situation, the trial judge drove several of those jurors to their destination. The next day the following record was made of this incident:
"Gentlemen, we will note the presence of the defendant in Court, and I want to put on the record what I told counsel in Chambers when I called them a few moments ago, and that is this. Last night when we recessed, there was to be a bus to transport the jurors from here to, that is the jurors that had been selected, from here to the Holiday Inn in New Hope for their lodging. The Court Administrator apparently had over-looked, or forgotten it, so he informed me, and subsequently there was no bus. Mrs. Slater, one of the tipstaffs, who had the jurors in charge had her car available. The Court Administrator was still here, but I attempted to have some of the courthouse personnel who might have cars available transport them, so that the jurors would remain in the presence of either Mrs. Slater or Mr. Young, the other tipstaff who has them in charge. I couldn't arrange such transportation through the courthouse personnel. Frankly, I forgot that Doylestown had a Taxi Service, it didn't occur to me to engage Taxis to make the Transportation. Mrs. Slater, accordingly volunteered she drive some of them in her car, and Mr.
Kester, who was here, although he had forgotten what he was supposed to do, volunteered he would drive some in his car. Mrs. Slater, I don't know how many she had with her. Mr. Young accompanied Mr. Kester in his car, and I drove three unaccompanied by any tipstaff. On the way from here to New Hope, Mr. Dwelley, who was seated beside me, asked me if I thought the case would be completed by October 22nd, saying that he did not recall Counsel telling them how long the case would be likely to last, and saying that he was expecting a visit from a friend or relative from Liverpool, England, on the 22nd of October. I told him that counsel had mentioned they anticipated a week being spent on the trial approximately, and that therefore, I would assume that the trial would be completed within a week or ten days; as counsel's estimate in the past very generally have been fairly accurate. And, consequently, I would rely on the statements made. That was the extent of any discussion concerning this case. I would be glad if counsel wishes to interrogate any of the three jurors to have them brought back for interrogation. . ." (emphasis added)
Counsel for the defendant declined the opportunity to examine the jurors as to the existence of any possible prejudice that may have arisen from this contact. Counsel, for the defendant, immediately moved for the withdrawal of a juror and that request was denied. This ruling is the basis for the first assignment of error.
Due process mandates that a fair trial be afforded in every cause regardless of the malevolence of the crime or the impressiveness of the evidence tending to establish guilt. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The touchstone of a fair trial is the mandate, "that a defendant have a panel of impartial, indifferent jurors" available to try his cause. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). We therefore must view the instant situation to ascertain whether this ...