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COMMONWEALTH v. MARTIN (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
MARTIN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1968, No. 1548, in case of Commonwealth of Pennsylvania v. Philip Martin.

COUNSEL

Faust Mattioni, for appellant.

Arthur R. Makadon, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 440 Pa. Page 151]

On September 16, 1968, appellant was convicted by a jury of second degree murder. Post-trial motions were filed and denied, and appellant was sentenced to serve a term of five to twenty years. This appeal followed and we affirm.

The evidence produced at trial indicates that on the morning of January 20, 1968, appellant entered a

[ 440 Pa. Page 152]

    tavern in Philadelphia where decedent was tending bar. An argument developed between appellant and the decedent, during which the decedent came around from behind the bar, threw several punches at appellant, and then retrieved a club from behind the bar and swung it several times at appellant. Appellant then left the bar; he returned twenty or thirty minutes later and shot decedent in the chest. The testimony also indicated that appellant had been drinking.

Appellant asserts three grounds for a new trial: (1) the refusal of the trial court to allow a witness to testify on behalf of appellant because that witness had not followed a sequestration order; (2) the trial court's charge which allegedly overemphasized the question whether appellant was guilty of first or second degree murder, thereby effectively precluding a verdict of voluntary manslaughter; and (3) the trial court's asserted error in not charging that intoxication should be considered by the jury in determining whether appellant acted in the heat of passion. None of these grounds, however, entitle appellant to any relief.

As for appellant's first argument, appellant does not dispute the trial court's power to sequester the witnesses. See, e.g., Commonwealth v. Turner, 371 Pa. 417, 429, 88 A.2d 915, 921 (1952). Appellant urges, however, that the trial court abused its discretion when it refused to allow an unsequestered witness to testify, even though that witness had not intentionally disobeyed the sequestration order. The prospective witness, appellant's mother, was offered merely to testify to the frequency of appellant's drinking and to describe what he generally did under the influence of alcohol. The remoteness of such testimony, as the trial court pointed out in its opinion, makes the value and relevancy of such testimony doubtful. While a trial court may at times be permitted to allow a witness who has violated

[ 440 Pa. Page 153]

    a sequestration order to testify with a proper cautionary instruction, see Commonwealth v. Ross, 190 Pa. Superior Ct. 145, 152-53, 152 A.2d 778, 781 (1959), cf. Commonwealth v. Turner, 389 Pa. 239, 264, 133 A.2d 187, 198-99 (1957), we cannot say that the trial court's refusal to do so, in the circumstances of the instant case, ...


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