Appeal from order of Court of Common Pleas of Chester County, June T., 1960, No. 287, in case of Commonwealth v. George Gooslin.
C. Barry Buckley, for appellant.
William Butler, 4th, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
In 1961, following a trial by jury at which he was represented by two court-appointed counsel, appellant George Gooslin was found guilty of murder in the second degree. Following denial of post-trial motions, he was sentenced to ten to twenty years in prison and fined $2,500 plus the cost of prosecution. On appeal, this Court affirmed the judgment of sentence in an opinion by Mr. Chief Justice Bell. Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963).
In 1968 appellant filed a petition under the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq. Counsel was appointed to represent Gooslin, and following an evidentiary hearing and argument the lower court denied relief and dismissed the petition. This appeal followed.
On the second day of appellant's trial there was a severe snowstorm, as a result of which the jury was excused to their homes, and the trial did not resume for approximately a day and a half. Appellant's trial counsel had not requested sequestration of the jury at the beginning of the trial nor did he do so at the time of the recess because of the storm. Appellant contends that the jury should have been sequestered throughout the trial since his was a capital case and that his counsel's failure to secure sequestration was proof that he was denied the assistance of competent counsel and his right to a trial by an impartial jury.
Initially, we note that appellant's present claim as to the incompetency of his trial counsel is clearly refuted by the transcript of his PCHA hearing from which the following is an excerpt: "Gooslin: I was not deprived of competent counsel. The Court: You think Mr. Stively [appellant's trial counsel] . . . Gooslin: I will say Mr. Stively is good, if not better than possibly 99 per cent. . . . The Court: And you are saying now
that he was competent, and you are satisfied that you did have competent representation. Gooslin: I will say anytime I will accept him any time, for my lawyer. . . . District Attorney: And you now say that you have no qualms about having had Mr. Stively as your attorney? . . . You don't question his competency in any way? Gooslin: No, sir."
Moreover, there is no objective basis to appellant's claim of incompetent counsel. It is clear that appellant was not entitled to have the jury sequestered. Prior to the adoption of Pennsylvania Rule of Criminal Procedure 1111 in 1968,*fn1 it was the general rule in this Commonwealth that the jury in a capital case, once sworn, was not to separate until their discharge. Commonwealth v. Gockley, 411 Pa. 437, 457, 192 A.2d 693 (1963). That rule was not without exceptions, but it is enough to note that it was inapplicable in appellant's case. Although the bill of indictment charged appellant with murder generally, the trial court submitted the case to the jury on a charge limited to second degree murder; that is the offense of which appellant was convicted. Second degree murder is not a capital offense. See Commonwealth v. Baker, 413 Pa. 105, 110, 196 A.2d 382 (1964); Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 ...