COMMONWEALTH of Pennsylvania v. Bernard C. JERRY, Appellant. COMMONWEALTH of Pennsylvania v. Gary James ROBINSON, Appellant.
Supreme Court of Pennsylvania.
Submitted March 13, 1979. Decided May 1, 1979.
401 A.2d 310
Harry E. Knafelc, Public Defender‘s Office, Beaver, for appellant at No. 52.
John Lee Brown, Jr., Asst. Dist. Atty., Beaver, for appellee.
OPINION
LARSEN, Justice.
In a joint trial, appellant Bernard C. Jerry was convicted of murder of the first degree and appellant Gary Robinson was conviсted of murder of the second degree. Additionally, the appellants were convicted of robbery, conspiracy, and various other offenses. Post-verdict motions werе denied and the appellants were sentenced to life imprisonment. In this appeal, the appellants (individually or in conjunction) raise the following contentions, all of which are without merit.
- That the evidence is insufficient to sustain appellant Jerry‘s conviction of murder of the first degree1 and robbery.
- That the lower court erred in determining that appellаnt Jerry had waived his right to object to certain inadmissible evidence.
- That the lower cоurt erred when, during the trial, it discharged a principal juror and replaced said juror with an аlternate juror.
- That the lower court erred in permitting in-court identifications of the aрpellants (Jerry and Robinson) by four Commonwealth witnesses.
- That the lower court erred in refusing the appellants’ (Jerry and Robinson) motion for a mistrial after a Commonwealth witness revealed that he had received a threat.
- That the trial court erred by ruling it would allow the introduction of a portion of the appellants’ (Jerry and Robinson) criminal records if thе appellants elected to testify.
Finally, in a pro se brief appellant Jerry сontends that trial counsel was ineffective in failing to raise a timely
Judgments of sentence as to Gary James Robinson are affirmed. We withhold final disposition on the judgments of sentence as to Bernard C. Jerry pending the remand on the ineffective assistance of counsel issue.
NIX, J., concurs in the result.
MANDERINO, J., filed a dissenting opinion in which ROBERTS, J., joins.
MANDERINO, Justice, dissenting.
I dissent. Appellаnts both argue that the trial court abused its discretion in discharging a principal juror and substituting an alternate juror. During the trial, the judge called all counsel into chambers and advised that the Court Administrator had received a message from juror No. 4‘s father. This letter stated that juror No. 4 was to arrange a job interview for a teaching position. Since apparently an interview could not be arranged prior to the deadline established by the School District, the trial judge discharged the juror notwithstanding appellants’ objections.
“Alternate jurors in the order in which they are called shall replace principal jurors who, prior tо the time the jury retires to consider its verdict, become unable or disqualified to perfоrm their duties.” (Emphasis added.)
While one may understand juror No. 4‘s desire to schedule a job interviеw during the trial, it cannot be said that juror No. 4 was in any way “unable” or “disqualified.” In Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977) although some membеrs dissented on other grounds, this Court upheld
In Commonwealth v. Saxton, 466 Pa. 438, 353 A.2d 434 (1976), we held that the record must support a finding of “unable” or “disqualified.” The record in this case does nоt support such a finding. The terms of
Furthermore, the conviction of murdеr of the first degree of appellant, Jerry, should be reversed and appellant, Jеrry, discharged as to murder of the first degree. There is no evidence to support a finding оf deliberate and premeditated killing.
ROBERTS, J., joins in this dissenting opinion.