Appeal, No. 321, Jan. T., 1956, from judgment of Court of Oyer and Terminer of Philadelphia County, June T., 1946, No. 646, in case of Commonwealth of Pennsylvania v. Clarence Lofton. Judgment reversed.
Edwin P. Rome, for appellant.
Thomas M. Reed, Assistant District Attorney, with him Victor H. Blanc, District Attorney and James N. Lafferty, First Assistant District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal is from a judgment of sentence for alleged contempt growing out of the fifth trial of Aaron Turner for murder which is the subject of our decision in Commonwealth v. Turner at p. 239 ante. Most, if not all, of the substantive and procedural facts material to the disposition of the instant appeal are set forth in the Turner opinion in detail. Some will necessarily have to be repeated here for a proper understanding of the issue.
At the Turner trial, the Commonwealth called Clarence Lofton, the present appellant, as a witness for the prosecution. Lofton had also been indicted for the same felonious homicide but had entered a plea of guilty and was sentenced to life imprisonment. He had not against Turner at the latter's first trial on September 26, 1946, nor against Jasper Johnson, the third indictee for the same killing, at his trial on January 27, 1947. Turner and Johnson, both of whom pleaded not guilty, were convicted of murder in the first degree with penalty fixed at death. Their convictions were based on confessions which the Supreme Court of the United States later invalidated upon a review of Turner's trial: see 338 U.S. 62; also, Johnson v. Pennsylvania, 340 U.S. 881. After Johnson's conviction, Lofton, on January 31, 1947, withdrew his plea of not guilty and entered a plea of guilty and received a sentence of life imprisonment on the recommendation of the district attorney.
Thereafter, at the subsequent retrials of Turner and Johnson, the Commonwealth, with the confessions eliminated as evidence, called Lofton, who was then serving his life sentence in the Eastern Pennsylvania State Penitntiary, as a witness for the prosecution. In addition to having Lofton thus testify at Turner's second and third trials, he was also produced as a witness for the Commonwealth at Turner's fourth trial, but on that occasion he flatly refused to testify against the defendant. Subsequent to the fourth Turner trial but before the court en banc had passed upon the defendant's motions in arrest of judgment and for a new trial (Turner having again been convicted), Lofton made a formal affidavit at the penitentiary in which he recanted his prior testimony against the defendant and disclaimed any knowledge that Turner had had any part in the felonious homicide for which he had been
indicted, tried and convicted. This affidavit, which had been notarized before a prison official, was filed with the trial court in support of the defendant's afterverdict motions then pending. A new trial was granted but solely because of improper remarks by the district attorney, within the hearing of the jury, relative to the defendant's three prior convictions.
At the ensuing fifth trial, the district attorney again called Lofton as a witness for the Commonwealth, although he knew full well of Lofton's steadfast refusal to testify against Turner at the fourth trial, his formal recantation affidavit, which had been filed with the court, and his persistently announced refusal to testify against Turner. And, as had been conclusively forecast, Lofton refused to testify to the effect which the district attorney strove to get him to do, and the trial judge twice held him in contempt for his refusal. This happened at the morning session of Turner's trial on February 19, 1954. The next day the trial terminated with the jury's verdict finding Turner guilty of murder in the first degree with penalty fixed at life imprisonment. It was not until August 22, 1956, however, that the trial judge called Lofton before him for sentence for the adjudged contempts. Lofton being unrepresented by counsel, the court requested Edwin P. Rome, Esq. (then present for the sentencing of his client, Turner) to represent Lofton in respect of his being sentenced for contempt. Rome promptly assumed the responsibility. The court thereupon imposed sentence on Lofton for the contempts whereof he had been adjudged guilty two ...