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June 28, 1954


Appeals, Nos. 180 to 186, Jan. T., 1954, from judgment of Superior Court, Oct. T., 1953, Nos. 212 to 218, inclusive, affirming judgment of Court of Quarter Sessions of Lehigh County, Sept. T., 1952, Nos. 56 to 61, inclusive, and No. 65, in case of Commonwealth of Pennsylvania v. Roscoe Diehl. Judgment affirmed. Same case in Superior Court: 174 Pa. Super Ct. 280. Indictments charging defendant with assault and battery, assault and intent to maim and to kill, attempt with intent to kill, playfully and wantonly pointing a deadly weapon, and aggravated assault and battery. Before DIEFENDERFER, J. Verdict of guilty and judgment of sentence thereon. Defendant appealed to the Superior Court, which affirmed the judgment of the court below. Appeal by defendant to Supreme Court allowed.


Paul A. McGinley, for appellant.

George J. Joseph, First Assistant District Attorney, with him M. Jack Morgan, District Attorney, for appellee.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 378 Pa. Page 215]


Appellant was charged with seven criminal offenses, four of which were felonies. The charges arose out of the same transaction and the cases were jointly tried by a jury which found appellant guilty on all counts. A motion for new trial was dismissed and sentences imposed.

At the trial no evidence was produced by the appellant to controvert the facts established by numerous witnesses called by the Commonwealth. On the night of July 15, 1952 following an altercation in a cafe in the City of Allentown, appellant was ejected therefrom. He went to his home, returned with a highpowered rifle and fired two shots through the window of the cafe. Fortunately these shots did not strike anyone. While fleeing from the scene, he attacked police attempting to arrest him. The police followed the defendant to his home and finally onto the roof where on that and other rooftops there was an exchange of shots between him and the officers. During the shooting the appellant shot a neighbor who had directed police officers through his house to the roof. This victim was seriously and permanently injured. After being felled by a shot, the appellant was captured. Appellant's defense was that he was insane at the time of the commission of these acts and as a consequence did not know the difference between right and wrong.

In his motion for new trial appellant complained only of error in the trial judge's charge. On appeal to the Superior Court from the refusal of this motion, appellant raised for the first time the contention that he had been deprived of constitutional rights in that

[ 378 Pa. Page 216]

    he was not present in court when additional instructions were given to the jury, and that there was fundamental error in not having a record made of the proceeding when these additional instructions were given. We allowed an appeal from the decision of the Superior Court which overruled this contention and as well appellant's other assignments of error based on the charge of the trial judge. Before us appellant presses only the contention based on infringement of his constitutional rights under Section 9 of Article I of the Pennsylvania Constitution.*fn1

It is admitted that although his attorney was present, appellant was not present when the additional instructions were given, and that no record was made of what then occurred. It is also admitted that defense counsel and the district attorney were notified that the jury was about to return and that both were present throughout this phase of the trial. The versions of the district attorney and of defense counsel as to the event vary in detail, but it is not denied or disputed by the latter that the jury retired in the afternoon after the charge of the court and returned in the evening; that the jury then requested and received additional instructions; that there was no objection made to the giving of the instructions in the appellant's absence nor any objection or exception taken to the instructions given; that there was no request for added instructions and no request that the proceedings

[ 378 Pa. Page 217]

    or any part thereof be recorded. As before stated, no complaint that the additional instructions were erroneous or prejudicial, or that the appellant was not personally present when they were given, was made in appellant's motion for new trial.

In capital cases the defendant's presence is necessary at every stage of the trial, whether he is at liberty on bail or in custody. In Prine v. The Commonwealth, 18 Pa. 103, the same was stated to be true in the case of non-capital felonies. But later decisions are to the contrary when the defendant is at liberty on bail. In Lynch v. The Commonwealth, 88 Pa. 189, the defendant had been indicted and tried for larceny, a felony. While the jury was deliberating, the defendant who was out on bail, left the court room. The verdict of guilty was received and recorded while defendant was absent. Nevertheless this Court sustained the overruling by the trial court of a motion in arrest of judgment based upon this alleged error. In the recent case of Commonwealth ex rel. Milewski v. Ashe, Warden, 363 Pa. 596, 70 A.2d 625 (1950), this Court definitely stated that where the defendant charged with a non-capital felony is at liberty on bail, his absence from the court room may be construed as a voluntary waiver of his right to be present when the verdict is rendered.*fn2 Since the announcement of the

[ 378 Pa. Page 218]

    verdict is one of the most important stages of the trial, it follows that the absence of the defendant at any stage of the proceeding may be construed as a voluntary waiver of his right to be present. It has been expressly so held by the Supreme Court of the United States. In Diaz v. United States, 223 U.S. 442, Mr. Justice VAN DEVANTER who delivered the opinion of the Court, in referring to a defendant's right to be present under the Sixth Amendment to the Constitution of the United States which is the substantial equivalent of Section 9, Article I of the Constitution of Pennsylvania, said (p. 455): "... In cases of felony our courts, with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present...". [Citing many cases from various jurisdiction].

Appellant calls attention to the view expressed by Mr. Chief Justice MAXEY that even when a defendant

[ 378 Pa. Page 219]

    in the case of a non-capital felony is at liberty on bail, he and his counsel should, if it is practical so to do, be notified that the jury is about to return its verdict (see Footnote 2, supra). This language may be considered advisory rather than mandatory. In any event we hold that in a non-capital felony case where, as here, competent counsel for the defendant is present and he makes no request that his client also be present during the giving of additional instructions to the jury, the defendant's absence will be construed as a voluntary waiver of his right to be present.

The district attorney asserts that it was expressly agreed that the additional instructions be given without making a stenographic record thereof. Whether or not there was an express agreement, the same counsel who tried the case argued the appeal to the Superior Court and to this Court, and in neither Court has he denied that he made no request that the proceeding be recorded when the additional instructions were given. In the absence of such request, there was no violation of constitutional rights: Commonwealth ex rel. Turk v. Ashe, Warden, 167 Pa. Superior Ct. 323, 74 A.2d 656 (1950), certiorari denied by the United States Supreme Court sub. nom. Turk v. Claudy, Warden, 340 U.S. 907.

We are satisfied that there was no infringement of appellant's constitutional rights or any reversible error, and that the Superior ...

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