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COMMONWEALTH v. POWELL (03/15/68)

decided: March 15, 1968.

COMMONWEALTH
v.
POWELL, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Delaware County, Dec. T., 1966, Nos. 334 and 335, in case of Commonwealth of Pennsylvania v. Frank Powell.

COUNSEL

Rodger L. Mutzel, with him Kassab, Cherry, Curran & Archbold, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Bell

[ 429 Pa. Page 2]

This is an appeal from the Judgment of Sentence entered on a conviction of voluntary manslaughter after a jury trial which lasted two days. The crime for which defendant was convicted occurred on July 10, 1965. Defendant was arrested on August 20, 1966, and pleaded not guilty to the indictments charging him with the murder, voluntary manslaughter, and involuntary manslaughter of Dicky Willmore.

The most important contention made by defendant in this appeal is that the trial Judge abused his discretion in refusing to grant defendant's motion for sequestration of three out of the four Commonwealth witnesses. We note at the outset that two of the witnesses whom defendant requested to be sequestered had testified at a preliminary hearing, as well as at a habeas corpus hearing. The notes of both hearings were available to defendant and his counsel at trial. The

[ 429 Pa. Page 3]

    third witness was not present in Court at the time defendant's motion for sequestration was made, nor was he present during the testimony of the other witnesses. Sequestration was granted by the Court as to the fourth witness, who nevertheless refused to testify at the trial.

In Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861, in discussing the question of sequestration, we said (pages 217-218): "In nearly every criminal and civil case, one side or the other would like to have some or all of the witnesses of his opponent sequestered. The lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, make sequestration of witnesses ordinarily impractical or inadvisable, except in unusual circumstances.*fn* For the foregoing reasons the question of sequestration of witnesses is left largely to the discretion of the trial Judge and his decision thereon will be reversed only for a clear abuse of discretion."

Moreover, the record indicates that the proposed witnesses to be sequestered did not "mold" or "shape" their testimony to coincide with that of the witness preceding them, nor indeed was there, as defendant contends, repetitive or harmonious testimony elicited from the various witnesses. There is not the slightest merit in appellant's contention of an abuse of discretion on the part of the trial Judge in refusing to allow the sequestration of the aforesaid witnesses.

Appellant next contends that the trial Judge in his charge to the jury committed reversible error when he commented on the fact that defendant was a fugitive from justice, and that the jury could infer guilt ...


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