dissenting.
The majority of this court has held that trial counsel was not ineffective in the instant case for failing to pursue, on appeal, the issue of partiality of the certain members of the jury after being informed by an alternate juror about conversations she overheard by members of the jury concerning their belief as to the guilt of the defendant. I must respectfully disagree with the majority.
In the case of Commonwealth v. Kerpan, 508 Pa. 418, 498 A.2d 829 (1985) we held:
First, since the prosecution’s evidence is presented first, any initial opinion formed by the jurors are likely to be unfavorable to the defendant, and there is a tendency for a juror to pay greater attention to evidence that confirms his initial opinion, [cites omitted] Second, once a juror declares himself before his fellow jurors he is likely to stand by his opinion even if contradicted by subsequent evidence, [cite omitted] Third, the defendant is entitled to have his case considered by the jury as a whole, not by separate groups or cliques that might be formed within the jury prior to the conclusion of the case, [cite omitted] Fourth, jurors might form premature conclusions without having had the benefit of the court’s instructions concerning what law they are to apply to the facts of the case, [cite omitted] Fifth, jurors might form premature conclusions without having heard the final arguments of both sides, [cites omitted].
In that well crafted and well reasoned analysis, Mr. Justice McDermott articulated the reasons why we regard with such concern jurors who form opinions and state them before the time when they are charged with the duty to deliberate.
*150In his brief in the case sub judice, the appellant alleges the following:
He was informed by her [Beatrice Butler, an alternate juror] that two of (sic) three of the jurors, shortly after their arrival in the jury room on the morning of the trial, in the presence of all the jurors, including the alternate juror, state that they did not like sex offenders. They stated that they were going to vote for the conviction of Mr. Tressler and that they wanted the trial to be concluded in a short period of time so that they could go home.
In the reproduced record, the appellant sets forth the transcribed telephone conversation counsel for the appellant had with Ms. Butler. Among the statements that Ms. Butler made, the following are pertinent:
Only that I just couldn’t understand why people would could make a decision before a trial started and when they said they were, it was going to be a shut and closed case, that uh they were going to find him guilty so that they could get out of there.
Uh, to begin with, there was a couple people late and they, there was a couple there that wanted to hurry up and get it over with, they wanted to do it even though, go ahead with the case, get started before they got there since they already had two alternates and because they had to get back to work and that so it was going to be shut and closed case anyways because he had no business doing that, (emphasis supplied).
I believe that this unequivocal expression by certain jurors as to the guilt of the defendant — prior to the commencement of the evidence — mandates a hearing on the matter. I do not agree that the fact that these conversations ostensibly occurred before the jury was sworn requires a different result. The concerns we voiced in Kerpan are just as pertinent in this case. If we countenance such behavior by the jury, we do violence to the notion of impartial juries; the cornerstone of our constitutional jurisprudence. We should not and must not cavalierly dismiss such statements as unimportant because they are suscepti*151ble of being curable by instruction. It ignores both the law and the sanctity of jury trial to do so. Additionally, it should be remembered that these jurors had, prior to making these statements, answered voir dire questions under oath to ascertain that they could be fair and impartial in the case.
Furthermore, I take exception to the majority’s statement [t]hat several jurors voiced their distaste for crimes of the nature in issue, their desire to conclude the matter with all due haste and their initial belief that the appellant was perhaps guilty, are not factors which constitute a denial per se of a fair trial by an impartial jury, (emphasis supplied).
This interpretation of the statements in the record is much too mild. “It was going to be a shut and closed case and they were going to find him guilty” is not coterminous with “their initial belief that the appellant was perhaps guilty.”
Based on the record before us, I am constrained to find that the unequivocal expression of the appellant’s guilt requires a hearing to determine whether there is sufficient reason to warrant a new trial. To find otherwise is to ignore the plain meaning of the words of Ms. Butler and the precedent we established in Kerpan.
In addition to finding that the underlying claim for ineffectiveness has merit, I must also disagree with the majority that trial counsel was
[f]aced with the dilemma of either attempting to seek a new trial based upon a subsequent recantation of testimony or the pursuit of a new trial through the discovery of innate bias and prejudice possessed by several jurors, we are not prepared to say that the avenue chosen by trial counsel, though unsuccessful, was unreasonable or not made with the best interest of his client in mind.
I do not believe that there was any “dilemma” faced by trial counsel. There was no reason that I can discern that trial counsel could not have pursued both of these avenues. *152Thus, because I believe that the course of action chosen by counsel had no reasonable basis designed to effectuate his client’s interest, Commonwealth v. Hentosh, 520 Pa 325, 554 A.2d 20 (1989), I would find that trial counsel’s actions were ineffective.
Accordingly, I would remand this case to the trial court for a full hearing on the claim that certain jurors expressed their opinion as to the guilt of the appellant. I dissent.