dissenting.
Because I disagree with the majority’s attempt to retreat from the impartial jury provision set forth in Article I, Section 9 of our State Constitution, I dissent.
Under Article I, Section 9 of our State Constitution, an accused in a criminal proceeding has the absolute right to have his fate decided by an impartial jury. This does not mean that prospective jurors can have no knowledge of the facts and circumstances surrounding the incident which forms the basis of the trial, but rather, Article I, Section 9 guarantees that those prospective jurors will render a verdict solely based upon the evidence heard during the trial. *147Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979).
In response to the Appellant’s argument that he was denied effective assistance of counsel by his trial counsel’s failure to pursue the issue of the jury’s partiality on appeal, the majority relies heavily upon the trial court’s introductory instructions to the jury prior to the commencement of the trial. By instructing the jurors to “keep an open mind throughout the trial” and that their duty was to be “the kind of juror that if you were vitally interested in the outcome of this case, you’d want someone like yourself to be a juror,” the majority concludes that any prejudice from preconceived impressions or opinions has been vitiated. Finally, the majority concludes that any reliance upon our decision in Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985) is misplaced.
As the majority states in Commonwealth v. Kerpan, we outlined five reasons for prohibiting premature jury discussions. The underpining of all of these factors is an attempt to prevent a juror from reaching a judgment about a case without first hearing all the evidence. It is for this reason that we permit peremptory challenges and challenges for cause. Pa.R.Cr.P. 1106. In the later case, a judge makes a determination that some response has been given which demonstrates a prospective juror’s inability to determine the case to be heard on the record to be made, Commonwealth v. Ingber, 516 Pa. 2, 531 A.2d 1101 (1987) and Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509 (1982), while in the former instance, the attorney, rather than a judge, seriously questions a prospective juror’s objectivity.
Contrary to the majority’s conclusion, this is not a case of a prospective juror having preconceived notions and the ability to lay those notions aside to render a verdict on the evidence presented. See Opinion p. 145-146. Here the jurors emphatically expressed their opinion that Appellant was guilty and that it was an “open and shut case.” I am hard pressed to conclude in this instance as the majority has *148that the jurors’ statements reflect a lack of predetermination of guilt and an ability to set aside these preconceived impressions and opinions.
If these statements had been made during the voir dire process, there can be little doubt that these prospective jurors would have been dismissed for cause.1 To rule otherwise, would certainly have resulted in palpable error on the part of the trial judge. As such, it should make no difference that the jurors’ preconceived notions were not discovered until after the trial. The critical factor is not the lack of discovery, but rather the lack of impartiality and the effect of that lack of impartiality.
In its zest to affirm the actions of the lower courts, the majority parenthetically concludes that even if Appellant’s underlying claim of ineffectiveness had merit, the strategy chosen by trial counsel in pursuing a new trial on the basis of recantation of a witness’s testimony rather than the juror’s impartiality, though unsuccessful, was reasonable. Unfortunately, the majority reaches its conclusion without the benefit of any testimony from trial counsel explaining his reasoning for not pursuing the impartiality issue. Without trial counsel’s insight, the majority’s reasoning is based upon mere speculation and conjecture and thus flawed.
Finally, the majority points to the record and the results of the poll of the jury at the conclusion of the trial to support its determination that the jury was impartial. I fail to see how each juror’s declaration of guilt vitiates prejudice to the Appellant when several of the jurors had preliminarily indicated their final verdict.
Thus, I agree with the majority’s holding that our State Constitution does not require that prospective jurors be free from all knowledge of the incident. However, I read our Constitution as requiring that prospective jurors not be predisposed. Since it is arguable that several jurors were *149predisposed and trial counsel failed to pursue that issue, I would find that the lower court erred in dismissing the Appellant’s Post-Conviction Hearing Act Petition without a hearing and would remand this matter to the Court of Common Pleas for the development of a full record.
. In Commonwealth v. Ingber, supra, we expressed doubt as to the partiality of a juror who indicated that he could not be impartial because a defendant was charged with terroristic threats. Here we have a more definitive instance in which jurors expressed certainty as to the ultimate culpability of a defendant.