Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1969, No. 76, in case of Commonwealth of Pennsylvania v. Marvin Collins.
J. Graham Sale, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Carol Mary Los, Assistant District Attorney, with her Robert L. Campbell, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case.
This is an appeal from the judgment of sentence of life imprisonment imposed on Marvin Collins following his conviction by a jury of murder in the first degree. We conclude a new trial is necessary because the trial court excluded certain testimony sought to be introduced by Collins at trial which should have been admitted to aid the jury in resolving one of the principal issues in the case.
According to the Commonwealth, Collins shot and killed Frank Butera, while attempting to commit a robbery in a small watch repair shop on Bedford Avenue in Pittsburgh owned and operated by the victim's brother, John Butera. Testifying on his own behalf, Collins denied any intent or attempt to rob. He said, that he conducted fencing transactions with John Butera on several occasions, and on the day of the killing he was in the Butera shop to demand payment for or the return of a quantity of stolen jewelry which he had previously given to John Butera to be fenced; that an argument developed and he was stabbed in the back by Frank Butera with a knife; that in an attempt to defend himself from being stabbed again he pulled a gun and Frank Butera was accidentally shot in a struggle
for possession of the knife.
The Commonwealth's case, in most part, depended on the testimony of John Butera who was an eyewitness. On cross-examination, the defense attempted to inquire if he ever engaged in fencing operations with others, particularly a Norman Turner and a John Staubitz. This line of inquiry was immediately shut off by the trial judge as having no relevance to the issue at trial. As part of its case in chief, the defense sought permission from the court to call Turner and Staubitz as witnesses, who were then incarcerated in state correctional institutions. The trial judge refused the request ruling the testimony would be irrelevant.
While what Turner and Staubitz would testify to specifically is not as clear in the record as proper trial technique requires, a reading of the record is persuasive that the adamant and spontaneous conclusion of the trial judge that the testimony was "highly improper" without an attempt to ascertain the details contributed to this deficiency. However, it does appear that Turner would testify he sold two stolen television sets to John Butera during the summer of 1969 (the killing occurred on March 17, 1969), and Staubitz would testify he fenced stolen articles with Butera on two occasions prior to the day of the killing.
While it is true that the attention of the jury should not be diverted from the issue on trial by collateral matters (Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288 (1941), and 3A Wigmore, Evidence $1003 (Chadbourn rev. 1970)) one of the most disputed issues in the instant case was whether or not the killing occurred in the attempt to commit a robbery or whether it took place while Collins was in the shop concerning a fencing transaction and shot Frank ...