(concurring).
I concur only because the record of the defendant’s prior conviction in Allegheny County was introduced in evidence without objection, and the record of his conviction by a court martial confirmed his own statement admitting this military offense which had been introduced in evidence with the consent of defense counsel.
As to the impropriety of the Pennsylvania practice of permitting a jury in a capital case to receive evidence of prior unrelated crime before it decides upon the guilt of the accused, the opinion of this court expresses the view “that it would be very much better practice to permit the jury to consider first the guilt of the accused and then, after rendering a verdict of guilty, to receive evidence and render a second verdict on the question of penalty.” I would go farther. Because men often cannot or will not channel their thinking as directed by another person, even a learned, solemn and berobed judge, there is always some risk that legally improper considerations, if known to the jurors, will influence their verdict. A procedure which greatly magnifies this risk, practically inviting the improper use of evidence, in a capital case raises a serious issue of fundamental fairness.
*923Pennsylvania has adopted a procedural scheme which in its nature makes it at least very probable that, despite any contrary admonition by the trial judge, the jury, in considering whether the accused is innocent or guilty, will be influenced by their knowledge of his prior conviction of unrelated crimes. Perhaps there are persons who can put this knowledge to one side until guilt is determined and then recall it to mind for the sole purpose of deciding what the sentence shall be. But certainly, there is the gravest danger that this feat will be beyond the psychological capacity of the jurors, however intelligent or fair minded they may be. Moreover, if Pennsylvania had chosen to do so, all of this could have been avoided, as this court points out, simply by submitting the evidence of prior conviction to the jury after, rather than before, decision upon the guilt of the accused. I am unable to avoid the conclusion that a procedure so likely to prejudice the accused and at the same time so easy to avoid without the sacrifice of any interest of the state is fundamentally unfair. This view of the matter finds strong support in opinions expressed from time to time about this very procedure by the present Chief Justice of Pennsylvania and by his colleagues, Justice Bell and Justice Mus-manno. See references in the dissenting opinion of Justice Musmanno in this case, Commonwealth v. Thompson, 1957, 389 Pa. 382, 405, 133 A.2d 207, 219. These considerations underlie my conclusion that only the acquiescence of the defense in the jury’s learning about the prior convictions prevents the present claim of denial of due process of law from being well taken.
Finally, were I vested with state executive power of commutation, and not under the technical limitations of very restricted federal power over state convictions, I would not hesitate to commute the death sentence in this case and in every other case where the jury has been encouraged to bring in a verdict of guilty of first degree murder by the introduction of prejudicial evidence of prior crime. In present circumstances such mitigation of punishment is the only relief available from a practice which judges have repeatedly deplored and disapproved as prejudicial even though the practice has not yet been outlawed.