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COMMONWEALTH v. SCOLERI (11/27/68)

decided: November 27, 1968.

COMMONWEALTH
v.
SCOLERI, APPELLANT



Appeals from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Sept. T., 1958, Nos. 838, 839, 840, 841 and 842, in case of Commonwealth v. Anthony Scoleri.

COUNSEL

Edward J. Morris, for appellant.

Richard A. Sprague, First Assistant District Attorney, with him Benjamin H. Levintow and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen dissents. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts.

Author: Jones

[ 432 Pa. Page 573]

On September 30, 1964, Anthony Scoleri was found guilty by a jury of murder in the first degree and the penalty fixed at death. A motion for a new trial was denied on July 26, 1965 and judgment of sentence entered. Scoleri did not appeal from that judgment of sentence.

Thereafter, on October 15, 1965, Scoleri filed a petition for a writ of habeas corpus which, after hearing, was denied on order of the Court of Common Pleas of Philadelphia County. From that order an appeal was taken to our Court. We vacated the order and remanded the record to the court below with directions to transfer the record to the Court of Oyer and Terminer of Philadelphia County, and, upon such transfer, directed that an appeal might be filed in our Court within 30 days as though such appeal had been timely filed. See: Commonwealth ex rel. Scoleri v. Myers, 423 Pa. 558, 562, 225 A.2d 540 (1967). In compliance with our directive the instant appeal has been taken.*fn1

[ 432 Pa. Page 574]

On this appeal, Scoleri raises six issues: (a) whether the trial court erred in its statement, made in the presence of the jury, restricting Scoleri's right to confer with his trial counsel during a noon recess?; (b) whether the trial court erred in permitting the Commonwealth, in rebuttal, to offer evidence of Scoleri's prior convictions on felony charges for the purpose of impeachment of Scoleri's testimony after Scoleri had taken the stand and testified?; (c) whether the trial court erred in refusing to permit Scoleri to call witnesses to impeach the credibility of a witness whom Scoleri previously had called as his own witness?; (d) whether there was any basis for a plea of double jeopardy?; (e) whether the trial court erred in admitting evidence of crimes allegedly committed during flight after the alleged crime?; (f) whether the trial court erred in refusing to permit Scoleri to testify as to conversations with his brother during the alleged escape from the scene of the crime, his brother being available as a witness?

[ 432 Pa. Page 575]

The first issue raised involves remarks made by the trial judge, during the course of the trial and in the jury's presence, cautioning Scoleri not to confer with his counsel during a luncheon recess.

Scoleri took the stand on the third day of trial to testify on his own behalf. While direct examination was underway and just prior to the noon recess, the following colloquy took place: "Mr. Carroll (defense counsel): We are going into a new incident, sir. I realize it is the hour you usually adjourn for lunch. The Court: You are correct. You are not to discuss this even with your lawyer during the lunch hour. Do you understand? The Witness (Scoleri): Yes. The Court: And you are not to discuss it with anyone else and you are not to have any visitors during the lunch hour at all. We will return here at 2:00 o'clock. Ladies and Gentlemen, don't comment on it or discuss the case. (The jury leaves the courtroom at 12:32 o'clock p.m.) (Adjourned to 2:00 o'clock p.m. of the same day)." (Emphasis added)

Scoleri's counsel did not object at the time to the admonition of the trial court addressed to Scoleri although he later informed the court that he had been unable to confer with Scoleri during the noon recess.

Most recently, the identical issue was presented to this Court in Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967). In Vivian, the trial court, in remanding the defendant to the custody of an officer during a noon recess, had instructed defendant's counsel that he would not be permitted to see Vivian or discuss the case with him. In Vivian, this Court unanimously*fn2 stated: "This case also poses the serious ...


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