Commonwealth v. Fratto

352 A.2d 499, 237 Pa. Super. 583, 1975 Pa. Super. LEXIS 2493

• Court: Superior Court of Pennsylvania
• Decided: December 1, 1975
• Docket: Appeal, No. 80
• Status: Published

Opinions

Opinion by

Spaeth, J.,

The appellant, Samuel Fratto, was convicted in a jury trial of several gambling offenses proscribed by the Crimes Code.¹ After denial of post-trial motions, he was fined $1,500.00 and sentenced to six to twelve months imprisonment.

In this appeal, Fratto advances several contentions which are identical to those raised by Peter Betres, appellant in No. 79, April Term, 1975, 237 Pa. Superior Ct. 361, 352 A.2d 495 (1975). These arguments have been exhaustively discussed, and rejected, by Judge Cercone in his majority opinion in the Betres appeal. In addition, however, Fratto contends that he was deprived of his right to a trial by an impartial jury.² We agree with this contention, and therefore award a new trial.

Appellant’s trial was held on July 1, 1974. The trial of Peter Betres occurred on June 26 and 27, 1974. Four of the first nine jurors called for Fratto’s trial had served as jurors in the Betres case. Since Betres, like Fratto, had been tried for gambling offenses,³ Fratto’s counsel unsuccessfully sought to have the jurors challenged for cause because of the similarity of the cases. Several more jurors were then called; three of them had served as jurors in the Betres prosecution. It was necessary for Fratto’s counsel to use all six of his peremptory challenges to exclude the Betres jurors from the Fratto jury. Nonetheless, since seven Betres jurors had been empaneled in the Fratto case, one, a Mrs. Wogan, still remained.

The charges against Betres arose out of gambling which had occurred at the German Beneficial Society in Lyndora, Pennsylvania, while Fratto’s gambling activities took place at Dino’s Bar in Penn Township. Betres and Fratto were not co-defendants, and the offenses for which they were tried arose out of distinct transactions. Nonetheless, the evidence at the Betres trial was such that the juror who was common to both trials almost certainly perceived a connection between the two men.

At the Betres trial, on direct examination by the Commonwealth, Trooper Riley, who along with Trooper Shaffer was an undercover agent in both the Betres and Fratto cases, testified to the gambling that he and Shaffer had done at the German Club:

“Q. How many games did you play?

A. During the course of the night we played a total of ten games. Nine were with Mr. Betres and one with Mr. Sam Fratto.

A. . . . We played two more games at twenty dollars each, which I won at this time. We were even as far as money won-lost. At this time Mr. Sam Fratto said he would play.” Betres Record, 21a (emphasis added).

At this point, counsel for Betres objected to any reference to Fratto, and was sustained. The jury, however, had already heard the testimony, which must have been impressive, being given by a state trooper who had investigated both cases and who testified for the Commonwealth at both trials. Therefore, even though Betres gambled at the German Club and Fratto gambled at Dino’s Bar, nonetheless it was to be anticipated that Mrs. Wogan, the juror common to both panels, would, when passing upon Fratto’s guilt or innocence, connect Fratto with Betres.

The link connecting Betres and Fratto was forged even more strongly by testimony given later in the trial by Betres himself (Betres record, 76a):

“Q. Okay. Now, then, you own this building [the German Club] with who else?

A. Phil Fratto.

Q. And Mr. Sam Fratto has been around the courthouse this week. That is not the man you own it with?

A. No.

Q. Is Sam the brother of Phil ?

A. Younger brother.” (Emphasis added).

Finally, the trial judge’s own questioning of the juror revealed that Fratto suffered prejudice from Mrs. Wogan’s presence on both juries. At page 18a of the Fratto record, the judge stated the question he would pose to each juror:

“Q. . . . Any of you have such knowledge of the underlying facts that would prevent you from rendering an impartial verdict?”

The court then systematically asked each juror, first, whether he recalled the question the court had asked, and second, what the juror’s answer was. Each juror except Mrs. Wogan answered “Yes” to the first question and “No” to the second (Fratto record, 18a-20a). In contrast, the colloquy with Mrs. Wogan was as follows (at 20a) :

“The Court: Mrs. Wogan, do you recall the questions I asked?

Mrs. Wogan: Yes, sir.

The Court: Your answers?

Mrs. Wogan: Yes.

Mr. Cingolani [defense counsel]: I do have to formally request you permit me to challenge Mrs. Wogan for cause.

The Court: Overruled.”

Thus the court’s own voir dire had brought out Mrs. Wogan’s inability to render an impartial verdict in the Fratto case. See Pa. R. Crim. P. 1107 (B) (2) (examination of the jurors may be conducted by the judge); cf. Commonwealth v. Celli, 153 Pa. Superior Ct. 88, 92, 33 A.2d 97, 99 (1943). Any further voir dire by counsel was unnecessary.⁴

It is unquestionably true that “the mere fact that a juror has sat on a prior case involving similar issues and some of the same witnesses does not, absent some showing of resulting prejudice, disqualify the juror.” Virgin Islands v. Cruz, 478 F.2d 712, 715 (3d Cir. 1973). See also United States v. Daniels, 64 F.R.D. 397, 398 (E.D. Pa. 1974); Commonwealth v. Celli, supra at 91-92, 33 A.2d at 98; but cf., United States v. Cooper, 332 F.2d 790, 791 (3d Cir. 1964) (by implication). The foregoing discussion, however, amply demonstrates actual prejudice, and belies the Commonwealth’s contention that “ [t] here is no evidence on the record that would indicate that this one juror had any means or methods of swaying the decisions of the other jurors . . .” (Commonwealth’s Brief, at 2).

The judgment of sentence is reversed with a venire facias de novo.

1 . Act of December 6, 1972, P.L. 1482, No. 334, §1, 18 Pa. C.S. §5513 (a) (2), (a)(3), (a)(4).

2 . U.S. Const, amends. VI, XIV; Pa. Const, art. I, §§6, 9.

3 . See note 1, supra.

4 . The dissent’s heavy reliance on Celli, supra at 92, 33 A.2d at 98, is misplaced. In Celli, unlike the situation here, there was no indication that Ms. Celli’s name was mentioned in the six other vice cases heard by the jury who tried her. This distinction is very important.