No. 190 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Adams County, Criminal Division, at No. CC-98-79
Clayton R. Wilcox, Assistant Public Defender, Gettysburg, for appellant.
Gary Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ. McEwen, J., files concurring opinion.
[ 309 Pa. Super. Page 292]
This is an appeal from a judgment of sentence for possession of marijuana*fn1 and criminal conspiracy.*fn2 The dispositive issue before us is whether a new trial is required when a juror does not hear some testimony due to his being hard of hearing. The trial court held, inter alia, that since the problem was detected and efforts were made to cure it during the trial, a new trial was not necessary. We disagree and find that constitutional fair trial considerations mandate a reversal.
[ 309 Pa. Super. Page 293]
Appellant raises six issues on appeal. (1) Did the trial court err in granting the Commonwealth's request for an extension of time to try appellant under the provision of Rule 1100? (2) Did the trial court err in not quashing the information for failure of the Commonwealth to establish a prima facie case at appellant's preliminary hearing? (3) Did the trial court err in refusing appellant's motion for mistrial and overruling its objections to repeating testimony missed by a juror when the juror indicated that he had not heard a substantial portion of the testimony of the Commonwealth's chief witness? (4) Did the lower court err in refusing to suppress evidence seized from a locked automobile trunk immediately after appellant's arrest? (5) Did the lower court err in holding that there existed probable cause to arrest appellant and to search the vehicle? (6) Did the lower court err in not suppressing the contents of a bag seized from a trunk of a vehicle and searched without a warrant?
Issue number six was not raised in the pre-trial suppression motion and is therefore waived on appeal. Carl v. Kurtz, 255 Pa. Super. 198 at 203, 386 A.2d 577 at 579 (1978).
As we reverse on issue number three, it is unnecessary for us to reach issues two, four and five. The post-trial opinion of President Judge Spicer adequately addresses the Rule 1100 issue, this being issue number one.
In issue number three, appellant contends that the trial court erred in not declaring a mistrial when a juror admitted during the trial that he had not heard some testimony. The relevant facts are as follows.
The first witness in this trial by jury was Jerry Lawrence. Lawrence was, according to the prosecution, the Commonwealth's "chief witness" and an alleged coconspirator and coactor with appellant in the crimes with which he was charged. Twice during direct examination, the District Attorney asked Lawrence to raise ...