Dissenting Opinion by
Mr. Justice Cohen:While I do agree with the procedures clarified and set forth in the opinion of the majority as a guide for *36the future, nevertheless I must dissent for other reasons.
It requires no “stretch” of my “imagination” whatsoever to say that the testimony of the victim of the prior unassociated robbery played an essential part in the fixing of the penalty by the jury in the present case. Such testimony is so foreign to my concept of due process and fair play that I cannot gloss over it by dismissing it with the questionable phrase “harmless error.” In fact, the whole proceeding indulged in by the Commonwealth in the fixing of the penalty under the “Split-Verdict Act” was erroneous and deprived the defendant of the proper hearing to which he was entitled. Under the circumstances I would treat the errors as if the jury had not been able to arrive at a decision as to the penalty, and would impose life imprisonment as provided for in the Act.
Mr. Justice Bok joins in this dissent.