dissenting:
The premise of the majority opinion is that the appropriate rule is Rule 1106(e)(2) (“List System”). At 171-172. The record demonstrates, however, that the appropriate rule is Rule 1106(e)(1) (“Challenge System”). When Rule 1106(e)(1) is applied, it is apparent that a new trial should be granted.
The essential feature of the list system, provided by Rule 1106(e)(2), is that the prospective jurors are examined and challenges for cause are exercised first, so that counsel may thereafter exercise their peremptory challenges in whatever order they wish. This is accomplished by passing a list of the names of those prospective jurors who have not been *182removed for cause back and forth between the prosecutor and defense counsel, each alternately exercising a peremptory challenge. Thus, for example, one counsel may first strike Prospective Juror No. 17, then No. 3, then No. 6. The essential feature of the challenge system, provided by Rule 1106(e)(1), is that prospective jurors are examined and challenged in numerical order, with “[challenges, both peremptory and for cause, [being] exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen.” Pa.R.Crim.P. 1106(e)(1)(B).
Here, contrary to the majority, the record demonstrates that the list system was not used, and the challenge system was. After Prospective Juror No. 10 was examined for cause, defense counsel “accepted” him and passed the list to the prosecutor. The prosecutor then wrote “acceptable” after No. 10, and proceeded in his turn to No. 11, and marked No. 11 “acceptable.” Thus challenges were not exercised randomly as in the list system but in numerical order as in the challenge system. It is, moreover, apparent from the record that both the trial court and counsel thought they were proceeding by the challenge system. The court specifically required counsel to accept or reject the prospective jurors in numerical order. N.T. 3/2/8.1 at 6-8. Also, the Commonwealth’s argument is not that Rule 1106(e)(1) is not applicable but that it was not violated. Brief for Commonwealth at 5-6. The argument that Rule 1106(e)(2) is applicable originates with the majority. I think it inappropriate to decide a case on the basis of an argument suggested by neither side and inconsistent with their conduct at trial.
When Rule 1106(e)(1) is applied, it is apparent that a new trial should be granted.
Prospective Juror No. 10 was a Catholic priest. In response to questions by appellant’s counsel, he said that the rectory of his church, in Germantown, had been burglarized three or four years ago. The court pointed out that this case also involved the burglary of a church, and asked whether he would “set aside that incident that happened to *183your church and decide this case solely on the evidence presented in court,” to which the priest replied, “I think I would be able to do that.” N.T. 3/2/81 at 3. Appellant’s counsel said he had no further questions, and the assistant district attorney took up the questioning. This questioning disclosed that the assistant district attorney remembered that the priest had appeared before another judge. The priest said that he didn’t remember the assistant district attorney but he acknowledged his appearance before the other judge, explaining that he worked with youth groups and was trying to help a young man who had been in prison.
After the assistant district attorney’s questioning, a sidebar discussion occurred:
MR. McGOVERN [the assistant district attorney]: Your Honor, Father Rock doesn’t remember me. In all fairness, I didn’t realize it because he was in clerical garb the last time I saw him, but I know him and I had some dealings with him on a case. I just want to alert the Court to that. He didn’t remember me.
THE COURT: He doesn’t remember you and he didn’t give any indication in his responses that he would be anything but fair. I think it goes without saying he is a Catholic priest. I think without any question most people, certainly Catholics, would say he would be more than fair.
MR. McGOVERN: Fine, Your Honor.
N.T. 3/2/81 at 4-5.
It was appellant’s counsel’s turn to vote first. He marked on the voting form that he accepted Prospective Juror No. 10, and then passed the form to the assistant district attorney. The assistant district attorney also marked on the form that he accepted Prospective Juror No. 10. Then, proceeding in his turn, the assistant district attorney marked on the form that he accepted Prospective Juror No. 11. After passing the form back, N.T. 3/2/81 at 6, so that appellant’s counsel could indicate whether he too accepted Prospective Juror No. 11, the assistant district attorney told the court that he had made “a mistake,” id., and that he *184wished to remove Prospective Juror No. 10 by exercising a peremptory challenge. (The record is clear that the assistant district attorney made this request after he had accepted both Prospective Juror No. 10 and Prospective Juror No. 11 and had given the voting form to a “Mr. DuBeck”—pre-sumably a court officer who then handed the form to appellant’s counsel. N.T. 3/2/81 at 6. In colloquy, appellant’s counsel indicated in addition that he had already accepted Prospective Juror No. 11, when the assistant district attorney made his request to be permitted to remove Prospective Juror No. 10. N.T. 3/2/81 at 7, 8.) Appellant’s counsel objected to the assistant district attorney’s request, but the trial court granted it, and the assistant district attorney removed Prospective Juror No. 10 by exercising a peremptory challenge.
Pa.R.Crim.P. 1106(e)(1)(B) provides:
Challenges, both peremptory and for cause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all .jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by dll parties, a prospective juror shall not be removed by peremptory challenges. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate____
(Emphasis added.)
No rule could be clearer. Nor could the record be clearer that the rule was violated: the Commonwealth did not exercise a peremptory challenge “immediately after” Prospective Juror No. 10 was examined; and once he was accepted, Prospective Juror No. 10 was removed by peremptory challenge.
In support of its belated peremptory challenge, the Commonwealth relies heavily on Zell v. Commonwealth, 94 Pa. 258 (1880). There, “the first juror ... was passed without challenge by the Commonwealth’s counsel, over to the prisoner, and the prisoner accepted him. He was then, at the request of the district attorney, ordered to stand aside, *185and was not again called until the whole panel had been gone through with, when he was challenged peremptorily by the Commonwealth, and the challenge sustained against the objection of the prisoner’s counsel.” Id., 94 Pa. at 264. On appeal, the Supreme Court upheld this procedure.
Zell has no relevance to the present case, for the procedure approved by it has long since been expressly abolished, as appears from our decision in Commonwealth v. Brown, 23 Pa.Super. 470 (1903). There the trial court ruled that when the Commonwealth accepted a juror, defense counsel had to state whether he exercised a peremptory challenge, and that if he did not exercise his challenge then, “he waives his challenge, and, having waived it, he is bound by it.” Id., 23 Pa.Superior Ct. at 482. In support of this ruling the trial judge relied on the Act of March 16, 1901, P.L. 16, as amended by the Act of July 9, 1901, P.L. 629. We affirmed. We noted that the Act of 1901 was intended to abolish the practice of asking a juror to “stand aside,” and went on to hold:
By this act the commonwealth and the defendant are put on an equality, both as to the number of peremptory challenges, and as to the time when the right to make them is to be exercised. The right is to be exercised, not “when the jury is called,” not “when the juror comes to the book,” not “at any time before the impaneled jury is sworn,” but “when the juror is called.” If the legislature had intended that either the prosecuting officer or the defendant might hold his peremptory challenges in reserve until there were twelve jurors in the box as to whom no specific cause of challenge could be assigned, we are confident that they would not have used this expression, “when the juror is called.”
Id., 23 Pa.Superior Ct. at 500.
The same observation may be made here. If the authors of Rule 1106 had intended to permit counsel, either for the Commonwealth or the defense, to exercise a peremptory challenge after a prospective juror had been accepted, I am confident that they would not have said that “[cjhallenges *186shall be exercised immediately after the prospective juror is examined,” and that “[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge."
The old practice of asking a juror to “stand aside” was abolished, and the present practice adopted, first by the Act of 1901, supra, and now by Pa.R.Crim.P. 1106, for reasons of fairness. Each party is permitted only so many peremptory challenges. If a party is permitted a belated peremptory challenge—if he is not bound to exercise it at once or forever lose it—he will be tempted to gamble: he may think, “I don’t really want this prospective juror, but maybe the Commonwealth [the defense] doesn’t either. I’ll accept him for the moment, and thereby save one of my peremptory challenges. That way maybe I can jockey the Commonwealth [the defense] into using up one of its peremptory challenges. If they accept him, then I’ll ask leave to exercise a belated peremptory challenge, and get rid of him that way.”
The danger of such unfair maneuvering has been expressly recognized by the courts. In Commonwealth v. Evans, 212 Pa. 369, 61 A. 989 (1905), the trial court ruled that after a party—the defendant—had questioned and then accepted a prospective juror, and had turned the juror over to the Commonwealth for questioning, it was too late for that party to exercise a peremptory challenge. The case arose under the Act of 1901, supra, discussed in Commonwealth v. Brown, supra. Affirming, the Supreme Court said:
He [the defendant], therefore, knew that after the juror had passed the ordeal of his examination, the commonwealth might be content to ask no further questions, and to accept him as not being liable to challenge for cause. This is just what happened, and when the juror was so accepted by the commonwealth, the defendant, who had the right in the first instance to challenge without cause—peremptorily—then insisted upon so challenging. To have allowed him to do so would, as is forcefully put by the court below, have given him “a distinct advantage *187in excess of what the statute accords him____ and the result would have been precisely the same as if the defendant had been speculating on the chance of saving a challenge.”
Id., 212 Pa. at 371, 61 A. 989.
We similarly commented on the unfairness of permitting a belated peremptory challenge in Commonwealth v. DiFi-lippo, 176 Pa.Super. 608, 109 A.2d 224 (1954). There, “[a]s additional jurors were called, appellant’s counsel continued to exercise his right of [peremptory] challenge, without any corresponding exercise on the part of the Commonwealth, until he had exhausted his quota of twenty peremptory challenges. It became apparent that, as a matter of tactics, the defense had succeeded in securing an all male jury. The District Attorney was then permitted by the trial judge to exercise his right of challenge, and proceeded therewith until he had exhausted his original quota of peremptory challenges.” Id., 176 Pa.Superior Ct. at 610, 109 A.2d at 225. Reversing, we said:
While a defendant is “entitled to a trial by a fair and impartial jury, but not to a trial by any particular juror or jurors,” he nevertheless has the right to select that jury in a manner designed to accord, both to him and the Commonwealth, that fundamental equality which the Act of 1901 was designed to secure.
Id., 176 Pa.Superior Ct. at 615, 109 A.2d at 227 (footnote omitted).
The Commonwealth argues, however, that the assistant district attorney was not speculating—was not attempting to save a peremptory challenge at the defense’s expense— but, rather, that he requested permission to exercise a belated peremptory challenge only because he had mistakenly marked the voting form, indicating his acceptance of Prospective Juror No. 10 when he had intended to indicate his rejection. This explanation seems inconsistent with the assistant district attorney’s response (“Fine, Your Honor”) to the court’s statement, after Prospective Juror No. 10 had been questioned, that the court was convinced that the *188prospective juror would be fair. However, the explanation may nevertheless be correct; the assistant district attorney told the court that he had mistakenly marked the voting form, and that he had not been “fishing.” N.T. 3/2/81 at 7. The court accepted his explanation, N.T; 3/2/81 at 7, and I do too. Nevertheless, the dispositive fact, established by the record, is that the assistant district attorney did accept Prospective Juror No. 10, and then, Prospective Juror No. 11—in other words, that he did not do what Rule 1106 requires: object peremptorily to Prospective Juror No. 10 before accepting him, or lose the right to remove him except for cause.
The Rule is absolute: it makes no allowance for “mistake.” It informs counsel, for the Commonwealth and the defense, that if they wish to remove a prospective juror by exercising a peremptory challenge, they may do so only if they proceed in a certain way. These absolute terms both reflect and arise from the nature of a peremptory challenge.
A peremptory challenge is by nature an arbitrary decision. Counsel cannot demonstrate by his questioning any reason for a ruling by the court that the prospective juror will not be fair and should therefore be removed for cause. Counsel nevertheless doesn’t want the prospective juror as a juror. He has a hunch that the prospective juror won’t be sympathetic to, or will dislike, his client. The hunch may be shrewd, and based on close observation and long experience. Its accuracy, nevertheless, cannot be demonstrated— and any trial lawyer of experience can tell a story of having rejected, or accepted, someone on a jury, only to learn later that his appraisal of that person’s attitude toward his client was entirely mistaken.
The decision whether to exercise a peremptory challenge is thus a sort of game. It’s a game we permit counsel to play because of our belief that thereby some beneficial flexibility is introduced into trial by jury. In every trial by jury, but especially perhaps in a criminal trial by jury, it is important, not only that the persons on the jury appear to be fair, as shown by their response to questions asked them *189on voir dire, but that the parties feel they will be fair. If a party, for whatever intuitive reasons, feels, suspects, that a prospective juror will be unsympathetic, or worse, isn’t it better to let the party remove the prospective juror peremptorily? We have answered this question by saying that it is better, up to a point. Plainly, limits must be set, or else we should have cases in which one party was never satisfied with the composition of his jury, and the trial could never be held. The right to be tried by a jury of one’s peers is not the right to be tried by a jury of people one likes. See Commonwealth v. Crow, 303 Pa. 91, 100, 154 A. 283 (1931) (“A defendant is entitled to an impartial jury, but not to any particular juror or jurors”); Commonwealth v. Antico, 146 Pa.Super. 293, 22 A.2d 204 (1941). And so we allow a limited number of peremptory challenges. You may remove prospective jurors arbitrarily, we say, but only a few of them.
The essentially arbitrary—game-like—nature of peremptory challenges is illustrated by the facts of Commonwealth v. DiFillipo, supra, where defense counsel’s hunch—theory—was that women would be unsympathetic jurors, and so he exercised his peremptories with the aim of achieving an all-male jury. An even clearer illustration is in the cases involving race. Suppose the prosecutor exercises his peremptories so as to remove all prospective jurors who are black. May the defendant, who is black, complain of racial prejudice? Our Supreme Court has held that he may not—that so long as the prosecutor exercises his peremptories in the manner prescribed by the Rule, he may strike whomever he pleases, without any obligation to say why. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh’g denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Accord, Swope v. State, 263 Ind. 148, 325 N.E.2d 193 (1975) cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); State v. Smith, 55 N.J. 476, 262 A.2d 868 (1970) cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970). Contra, People v. Wheeler, 22 Cal.3d *190258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979) cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). See generally 79 A.L.R.3d 14.
The Commonwealth should not, as the majority permits, have it both ways. It should not be able to invoke Rule 1106 against the defendant, but then seek to avoid the Rule. The situation is precisely as in a card game: you may not change your play of a card because you played by “mistake.” Rule 1106 provides that if you want to play your peremptory challenge card, you must play it at a certain time or you may not play it at all. If the defendant does not play his card in time, he must accept the prospective juror—unless he can challenge for cause. Commonwealth v. Evans, supra. The same should be true of the Commonwealth. For the very purpose of the practice embodied in Rule 1106 is to ensure that as to the exercise of peremptory challenges, the Commonwealth and the defendant are in a position of equality. Commonwealth v. Brown, supra, 23 Pa.Superior Ct. at 500.
Since Rule 1106(e)(1) was violated, a new trial should be granted at which appellant will have the opportunity to have the jury selection proceed according to the rules. The majority, citing Commonwealth v. Moon, 389 Pa. 304, 132 A.2d 224 (1957), cert. dismissed, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 270 (1957) suggests that a new trial is not the proper remedy because any error in violating Rule 1106(e)(1)(B) was harmless. At 177-179. Moon, however, was decided before the promulgation of Rule 1106. So far as a violation of Rule 1106(e)(1)(B) is concerned, a harmless error analysis is inapposite. To determine whether an error was harmless, the court must decide whether the error was so serious as to affect the outcome of the trial. That isn’t the question here, for one can never know whether the outcome would have been different. The question here is what sanction to impose for the violation of a mandatory rule (“shall be exercised immediately after ...;” *191“shall not be removed____”). The only sanction available is to grant a new trial. Not to impose any sanction, as does the majority, makes the rule meaningless.
The judgment of sentence should be vacated and the case remanded for new trial.