No. 5 Harrisburg, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 2370 C.D. 1973.
Peter T. Campana, Williamsport, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, Wieand and Montemuro, JJ. Wieand and Montemuro, JJ., concur in result.
[ 302 Pa. Super. Page 205]
David Stewart, appellant, was convicted of voluntary manslaughter on August 5, 1980. Post-verdict motions were filed and subsequently denied. This appeal followed.
Stewart was tried before a jury. On the second and final day of his trial, one of the twelve jurors failed to appear. No objection was made at the time of the proceedings by Stewart. He did not complain about the number of jurors on the jury until after the jury rendered its verdict.
Stewart presents two questions on appeal:
1. Whether the lower court erred by continuing with Stewart's trial on the second day with only eleven jurors without securing Stewart's or his attorney's consent and agreement?
2. Whether trial counsel was ineffective in failing to object to the trial court continuing with Stewart's trial on the second day with only eleven jurors?*fn1
Pennsylvania Rule of Criminal Procedure 1103 states:
Rule 1103. Consent to be Tried by Less Than Twelve Jurors
In all cases the defendant at any time before verdict may agree, with the consent of his ...