Commonwealth v. Dukes

MANDERINO, Justice

(dissenting).

I dissent. For more than a week, the panel of prospective jurors from which the jury that convicted appellant for the Brooks murder was selected had been in more or less continual contact with prospective jurors from which the jury that acquitted appellant of a separate murder charge had been selected. Citing Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973), the majority concedes that an accused is deprived of his right to a trial before a fair and impartial jury where it Is possible that the jury “may know” that he has been charged with another crime. The majority then concludes that Bobko is Inapposite because in the instant case the trial court questioned the members of the jury as to whether they had ever heard of the defendant or his case before, and because this questioning elicited no positive responses.

The majority opinion, however, overlooks Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972). In Stewart, we expressly rejected the prosecution’s argument that there was no taint on the jury panel because each juror selected for trial responded negatively to voir dire questioning as to whether or not they knew anyone connected with the case. In Stewart we said,

“[ajssuming this to be true, the possibility still remains that some Incident occurred during their assocatiom on the jury panel with the victim’s father, which was so Inherently prejudicial that It rendered impartiality Impossible.” Id. at 57-58, 295 A.2d at 307. Likewise In the instant case, the “possibility remains”

that some incident or comment about the defendant by a member of the panel from the previous murder trial could have “predisposed” the mind of a juror selected for the second murder trial. Impartiality could thus have been rendered Impossible. See Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974). Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973).

The guarantee of a fair and Impartial jury is fundamental to our criminal justice system, and the remedy of postponing until the next criminal court term so simple, that a defendant should not be required to risk presenting his case to a jury drawn from the same panel as a jury before which he has previously been tried. Cf. Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).