Nos. 11 and 38 March Term, 1978, Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal, of Erie County, at Nos. 1689A and 1689B of 1973
J. David Ungerman, Erie, for appellant.
Robert H. Chase, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts and Nix, JJ., concur in the result. Larsen, J., files a dissenting opinion.
Appellant, James Leroy Sutton,*fn1 was tried by a judge sitting with a jury in connection with the burglary-robbery of Czartoryski Cafe and the homicide of James Hogan, a well-known Erie personality and district justice. Appellant was convicted of murder of the second degree, burglary, robbery, criminal conspiracy and a violation of the Uniform Firearms Act. He was sentenced to life imprisonment for the conviction of murder of the second degree and a consecutive ten-to-twenty-year sentence on the robbery conviction. He appealed the judgment of sentence imposed on the homicide conviction to this court and the judgment of sentence for robbery to Superior Court, which certified that appeal to this court for disposition.
Appellant argues that the trial court erred in failing to sequester the jury. We agree.*fn2
Pa.R.Crim.P. 1111 provides:
"(a) The trial judge may, in his discretion order sequestration of trial jurors in the interests of justice.
"(b) When sequestration is ordered, each juror, including any alternate, shall be sequestered from the time of acceptance as a juror until discharged.
"(c) Nothing in subsection (b) shall prevent a trial judge from ordering sequestration, or vacating his order of sequestration, at any time during a trial when the interests of justice require."
On March 25 and April 2, 1976, a hearing was held on appellant's motion for change of venue. The basis of the motion was the publicity surrounding appellant's prior guilty
plea and this court's action in permitting withdrawal of the plea. The court below denied the change of venue motion.*fn3
On May 10, 1976, at the beginning of the jury selection process, defense counsel moved for the sequestration of the jury. The basis of this request was recent newspaper articles dealing with the beginning of appellant's trial.
The court denied the motion. During the three days of jury selection, defense counsel requested the court to reconsider its denial of the change of venue motion. In support of the motion, defense counsel introduced newspaper articles from the two newspapers in Erie, the Morning News and the Times. A review and short summary of the newspaper articles is necessary for a resolution of the issue:
1. The Erie News of August 23, 1973, the headline story concerned the arrest of four suspects in the Hogan slaying.
2. A May 10, 1976, story indicated that the "Sutton Murder Trial Tops Court Agenda." The story stated that appellant was the alleged "triggerman" and that he had pleaded guilty to the Hogan shooting. While serving a life sentence, the Supreme Court allowed him to withdraw his guilty pleas and go to trial. The article concluded by listing the names and the prison sentence of three other men involved in the Hogan shooting.
3. May 10, 1976, Erie Times. This article stated that jury selection began and appellant was led into court in handcuffs accompanied by three sheriffs. The article detailed appellant's guilty plea and this court's ordering of withdrawal of the plea and a new trial. The story concluded with a statement that the district attorney would allege that Sutton was the triggerman and then listed the names of the alleged three men convicted previously and their sentences.
4. May 11 Evening News. The story indicated tight security precautions and the placement of three deputy sheriffs in the courtroom. These measures were then described
as routine. The story continued that the judge cautioned prospective jurors not to discuss the selection process and that two jurors had been selected. The article went on to state that the Commonwealth expected to prove appellant fired the shotgun. In conclusion, the article detailed appellant's prior guilty plea and this court's reversal and remand for a new trial.
5. May 12, Morning News. The news story indicated that the trial court had rejected defense counsel's motion for a gag rule. The defense sought to have the court order the deletion from news articles of any reference to appellant's previous guilty plea and granting of a new trial, as well as the use of the word "triggerman" which appeared in articles of May 10 and 11. The article went on to quote the judge as follows:
". . . said that publicity in the case may be developing a jury whose members 'don't read newspapers, watch television news, or know what's ...