Opinion by
Aрpellant, William Johnson, was tried September 11-18, 1968, by a judge and jury on charges of assault and battery, burglary and resisting arrest. He was convicted of assault and battery and resisting arrest, but the jury was discharged as to the burglary charge, as it was unable to reach a verdict on that point. Appellant was sentenced to one and one-half to three years, and the Superior Court, in а per curiam opinion, affirmed the judgment of sentence. We granted allocatur and now we reverse.
Appellant raises four arguments in his appeal. Two of these arguments relate to alleged improprieties by the court in the way it handled the problems created by numerous sensational and inflammatory items relat
The crimes for which appellant was being tried were committed in October, 1967. On August 22,1968, Johnson was accused of having attacked Assistant Superintendent Kelly of the Pittsburgh Police Department during a ¡meeting between black citizens from Pittsburgh’s Homewood section and city officials at thе City Council. Chambers in Pittsburgh. During the next two weeks the newspapers and the radio and television stations in Pittsburgh produced a steady flow of news items mentioning the appellant, some of them highly inflammatory and prejudicial. In his applications for a continuance (first on August 29 and later on September 11), appellant’s counsel presented the following news items, allegedly prejudiсial to the appellant, as reasons why his trial should be delayed:
(1) A copy of the Pittsburgh Press, hereinafter referred to as the Press, of August 22, 1968. The headline on Page 1 stated: “Black Mob Beats Top Cop Kelly” and a substantial article described the aforementioned incident in the City-County Building and identified the appellant as Kelly’s assailant.
(2) A copy of the Pittsburgh Post-Gazette, herеinafter referred to as P.G., for August 23, 1968. On Page 1, the headline stated: “Blacks Beat Assistant Sitpebintendant Kelly.” Appellant was identified on the Page 1 article as Kelly’s assailant and his and Kelly’s photos were reproduced on Page 1 side by side. Also on Page 7 of the same issue, the appellant’s previous arrest record was published right next to the continuation of the previоusly-mentioned Page 1 article.
(3) A Press article of August 23, 1968, featuring a Page 1 editorial on the Kelly incident depicting the assailants as a “vicious mob,” “hoodlums,” and color
(4) A Prеss article of August 24, 1968, headlined: “Kelly Assailant Held In New Attack.” This headline appeared on Page 1. Also on Page 1 an article alluded to the district attorney’s characterization of the appellant as a hoodlum and recited the alleged new misconduct of appellant in an automobile incident. The article continued on Page 3 and disclosed more of Mr. Duggan’s inflammatory commentary about the appellant.
(5) An article on Page 1 of the P.Gr. of August 24, 1968. Again, Mr. Duggan’s characterization of the appellant as a hoodlum and criminal was published. Also, an article in the same paper related that appellant was arrested for a new charge and pointed out that he was charged with assaulting a police officer nine days previous to the publication of the article. (This latter charge was a third charge and in no way related to the Kelly incident or the automobile incident. ) The newspaper article, of course, indicated that
(6) An article in the Press, August 25, 1968, featuring aрpellant’s photo, and Mr. Duggan’s criticism of a magistrate for allowing the appellant low bail after his arrest in the Kelly incident. Appellant was portrayed as a man with a long history of violations. His previous record was again divulged.
(7) An article in the P.G-. of August 26, 1968, featuring Mr. Craig, Safety Director of the City of Pittsburgh, and Ms criticism of District Attorney Duggan for failure to try appellant for burglary and othеr offenses which had been pending for at least eight months. Appellant’s more recent alleged misconduct was set forth in the same article.
(8) A Page 1 article in the Press of August 25, 1968, in wMch District Attorney Duggan intoned that hoodlums shall be removed from the streets. Specifically mentioned along with two others was appellant, who, in the district attorney’s words, had a long criminal record. Further in the article the district attorney was quoted as referring to the appellant as a spokes^ man for arsonists, hoodlums, and insurgents, and a false leader “who would go to any extreme to avoid living under the laws of our Commonwealth.”
(9) A Press article of August 26, 1968, revealing that the instant case was to be tried September 10, 1968. Listed for public consumption were the following charges: (a) Burglary, fraudulent use of credit card; (b) Burglary, aggravated assault and battery on a police officer, resisting arrest; (c) Burglary, assault and battery and resisting arrest; (d) The Kelly incident charges and alleged attempt to run down a police officer (automobile incident) were mentioned as pending indictments; (e) Also mentioned were charges of burglary, larceny, receiving stolen goods and fraudulent use of a credit card. Further emphasis was given
(10) AP.G. editorial of August 27, 1968, in which appellant was named and it was suggested that “in the case of a defendant who repeatedly assaults police officers, a psychiatric examination might well be in order. Perhaps he belongs in an institution other than a prison.”
(11) An article on the first page of the second section of the P.G. of August 30, 1968. Again the appellant was mentioned in connection with an assault on officer Kelly.
(12) A Press article of August 29, 1968, referring to appellant’s involvement in the Kelly incident and referring to a separate assault on some others with a shotgun by the defendant.
(13) A P.G. article of September 4,1968, in which Mayor Barr оf the City of Pittsburgh commented as to his extreme displeasure with the alleged attack on Kelly in the City-County Building.
(14) A Press article of August 30,1968. On Page 1 the article divulged that District Attorney Duggan asserted that appellant was a hoodlum. Also in the article it was pointed out that a local churchman, Msgr. Charles O. Bice, was critical of the district attorney’s handling of the problem. The article pointed out that the churchman himself was critical of appellant’s alleged conduct in the Kelly incident. Also, the churchman stated that appellant also had a credit card charge against him.
(15) A Press article of September 4, 1968, with the folloAving headline on Page 1: “Domestic War On Grand Jury Told.” Also on Page 1 an article related how a local judge made an address to the Grand Jury about the criminal activity of civil rights militants and a need for punishing them.
(17) A. P.Gr. editorial of September 6, 1968, criticizing tbe aforementioned judge for Ms remarks to tbe Grand Jury as explained in tbe preceding two paragraphs. The paper disputed the judge’s linking of civil rights and the criminal element.
(18) An article in the Pittsburgh Catholic of August 30, 1968, discussing the appellant’s alleged conduct in the Kelly incident and condemning it. Also, it revealed that there was a charge of fraudulent use of credit card pending against the appellant.
(19) A group of transcripts of various radio broadcasts on radio station WWSW in Pittsburgh, Allegheny County, on August 22, 24, 25 and 26. All of the events covered in the newspapers including the reviewing оf appellant’s arrest record and the inflammatory commentary of public officials was given.
(20) A group of transcripts of television broadcasts on television station KDKA on August 22, 6 o’clock p.m. and 11 o’clock p.m., August 23, 12 o’clock noon, 7 o’clock p.m., and 11 o’clock p.m., August 27, 6 o’clock p.m. These broadcasts revealed appellant’s arrest recоrd, displayed Ms photograph and conveyed inflammatory commentary of various public officials including but not limited to District Attorney Duggan.
(21) A transcript of WTAE television news broadcast at 11 o’clock p.m., on September 11, 1968, alluding to appellant’s participation in the Kelly incident by way of announcing to the public that the instant case would be tried.
(22) A transcript of a KDKA telеvision broadcast of September 11, 1968, at 7 o’clock p.m., alluding to appellant’s participation in the Kelly incident.
(23) In addition to the foregoing television broadcasts, one witness (Msgr. Charles O. Rice) testified
The record also discloses that the trial date for the charges in the instant case had originally been scheduled for November, 1968. Then the newspapers publicized a charge by Safety Director Craig that District Attorney Duggan had been lax in allowing the instant case to be delayed as long as it had been. Shortly thereafter, on August 26, 1968, although counsel for appellаnt had been assured by the district attorney’s office before going on vacation in August, 1968, that the indictments would not be tried until after November, 1968, a trial date of September 10,1968, was announced in the newspapers.
On August 29, 1968, in a hearing asked for by appellant to request a postponement, the court denied appellant’s request.
On September 11, 1968, appellant reapplied for a continuance. Again, the appellant’s application for a continuance was denied. Then selection of a jury commenced pursuant to requests that voir dire be had under Pennsylvania Rule of Criminal Procedure 1106(b), which reads as follows: “(b) The voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.”
Although interrogation proceeded on an individual basis, interrogation of each juror was in the presence of all other prospective jurors. Consequently, each juror was asked whether he had heard anything or read anything about the appellant, and whether as a result of such information he was prejudiced against the appellant in the particular case at bar. But no juror was asked specifically what he had read or heard because
Appellant argues that the trial court erred in refusing a continuance when there was a reasonable likelihood at the time of trial that appellant could not receive a fair trial as a result of the extensive and inflammatory pretrial publicity about him and that the trial court erred in refusing interrogation of prospective jurors out of the hearing of other prospective jurors.
The United States Supreme Court spoke emphatically and at length оn the question of protecting the defendant’s right to a fair trial in the face of prejudicial publicity, either during or before the trial, in its opinions in the cases of Sheppard v. Maxwell,
However, the pretrial publicity afforded appellant consisted of much more than the accounts of his encounter with the Assistant Superintendent. First, it
As we said in Commonwealth v. Cicere,
The Commonwealth argues that even if the pretrial publicity was inflammatory, the lower court did not err in refusing the appellant’s motion for a continuance where the record rеveals no clear evidence that the prospective jurors were familiar with the particularly inflammatory publicity and, therefore, no clear evidence that their prejudices had, in fact, been aroused.
Under the circumstances, it was incumbent upon the court to take steps to insure that the trial would not be prejudiced. One such step, as outlined in Rule 1106(b) of the Eules of Criminal Procedure was to permit the appellant to conduct voir dire of each juror on an individual basis outside the hearing of the other prospective jurors.
The Commоnwealth argues that the right which the appellant seeks under Rule 1106(b) is clearly discretionary with the trial judge. It emphasizes the use of the word “may” rather than “shall” in the second part of the rule: “The voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.” (Emphasis supplied.)
While the use of the word “may” indicates that voir dire of each juror in isolation is discretionary, it is difficult to imagine circumstances where the need for such isolation could be more urgent.
If the action of the trial court in arbitrarily refusing to allow voir dire out of the hearing of other jurors were upheld, it would have the effect of writing into the rule a provision that a trial judge need not take an easy precaution which might prevеnt a trial from being prejudiced by pretrial publicity if he doesn’t want to. When there is present in a case inflammatory pretrial publicity which creates the possibility that a trial could
Although it is not necessary in reaching the result we reach today, we will briefly discuss one other issue raised by the appellant.
We held in Commonwealth v. Collemacine,
Notes
According to appellant’s brief, during voir dire three jurors who were actually impaneled and who deliberated on this case had admitted that they were exposed to some pretrial publicity concerning the defendant. Just how much publicity and the nature of the publicity could, of course, not be ascertained in the presence of the other jurors.