No. 1730 Philadelphia 1981, Appeal from the PCHA Order of June 16, 1981 in the Court of Common Pleas of Montgomery County, Criminal Division at No. 1614-76.
Richard J. Hodgson, Norristown, for appellant.
Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
Johnson, Montemuro and Montgomery, JJ.
[ 310 Pa. Super. Page 534]
Appellant was found guilty of Robbery*fn1 and Criminal Conspiracy*fn2 on October 28, 1976. Following a denial of post-trial motions, he was sentenced to eight to twenty years incarceration. On direct appeal*fn3 to this court, the case was remanded to the trial court for a hearing concerning Pa.R.Crim.P., Rule 1100. Following said hearing, the trial court reaffirmed judgment of sentence and on a second appeal, this court affirmed.*fn4 A Post Conviction Hearing Act (PCHA)*fn5 Petition was filed, and dismissed on June 16, 1981 by the trial court. This appeal follows.
Appellant urges on appeal that trial counsel was ineffective in failing to demand a mistrial: (1) following alleged prosecutorial misconduct during cross-examination of a defense witness, and (2) upon discovering that a juror had not heard some of the testimony presented. Because of our determination that counsel was indeed ineffective with respect to the latter issue, we need not discuss the former.
During the course of the appellant's trial, it came to the attention of the trial judge that one of the jurors had not heard the testimony of all of the Commonwealth witnesses. At that time, the following exchange took place:
THE COURT: "Before we swear this witness, (To Juror Number One) Mrs. Creighton, you have followed that which has been going on in this case; have you not?
[ 310 Pa. Super. Page 535]
MRS. CREIGHTON: Not everything.
THE COURT: Of any of the witnesses?
MRS. CREIGHTON: Most of what the witnesses said, yes. This girl was very good; I ...