Appeal from judgment of sentence of Court of Common Pleas of Bucks County, Jan. T., 1970, No. 940, in case of Commonwealth of Pennsylvania v. George DuVal.
Bernard L. Segal, for appellant.
Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Manderino concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this concurring opinion.
Appellant George DuVal was convicted by a jury in 1968 of the crime of voluntary manslaughter and, following denial of post-trial motions, was sentenced to a term of six to twelve years. This direct appeal comes to us under the Act of March 31, 1860, P. L. 427, § 57, 19 P.S. § 1182.
Five reasons are advanced why appellant's conviction cannot stand. One of the five -- that the Commonwealth erred in not including a charge of involuntary manslaughter in the bill of indictment presented to the grand jury -- was not presented to the court below by post-trial motion and under settled principles will not now be decided by this Court. Of the remaining four reasons, one will in fact require that appellant's conviction be reversed. We will additionally reach and decide two of the remaining three contentions because they are almost certain to recur should the Commonwealth elect to retry appellant.
I. Invocation of the Privilege Against Self-Incrimination by the Witnesses McCabe and D'Ulisse
The victim of the crime, Phillip C. Springbett, Jr., was shot while visiting at the Levittown, Pennsylvania home of George DuVal, the defendant-appellant, and his mistress, Marilyn D'Ulisse. It was the Commonwealth's theory that Springbett had traveled to Levittown to effect a reconciliation with his mistress, Joan McCabe, with whom he had recently had a falling out and who had temporarily taken up residence with the defendant DuVal and Miss D'Ulisse. According to the Commonwealth, relations between Springbett and Miss McCabe deteriorated still further during Springbett's visit and while all four persons were together in the kitchen in the late afternoon, Springbett struck Joan McCabe in anger. This action so infuriated DuVal that he fetched a .45 calibre service revolver from the bedroom, returned to the kitchen and shot Springbett in the chest.
Answering a call for assistance placed by one of the two women, the local Rescue Squad appeared on the scene to find Springbett lying near death and to observe a man exiting the house and driving away. No member of the Rescue Squad was able to identify the defendant DuVal as that man. The murder weapon was found in a vacant lot along the road leading away from the DuVal/D'Ulisse residence.
At the preliminary hearing, at the Grand Jury proceedings, and during a habeas corpus hearing concerning defendant's bail, the two women witnesses to the shooting testified. Originally their explanation had been that an unknown burglar had entered the house and had murdered Springbett. Later, before the Grand Jury, both of them changed their stories to that detailed above. Between the time of the Grand Jury testimony
and the start of DuVal's trial, however, both women became concerned that perjury charges might be in the offing and they consulted a lawyer. That attorney contacted the assistant district attorney of Bucks County "three or four days before the beginning of the voir dire." In a hearing held after the trial on defendant's motion to supplement the record, the assistant district attorney recounted the conversation as follows:
"[He (the attorney of McCabe and D'Ulisee)] came up to me and said, 'I want you to know that I intend not to permit the girls to take the stand on trial.'
"I said, 'Do you represent them?' Because it stuck in my mind that they were represented by another attorney at the time.
"I don't recall what [his] answer was, but I believe that I elicited from him that he had not yet entered his appearance for them.
"And I said that -- I said to him that, 'I don't know how to take what you're saying, because as I understand what you are saying, it is your intention that they not take the stand in the trial, but I do not know what their intention is, and I'll not know what their intention is, until their intention is tested.'
"And then I reminded him of the fact that I was aware of the fact that they had testified at the preliminary hearing, one of them had testified at the Grand Jury, and two of them had testified at a habeas corpus hearing.
"I said to him, in very clear terms, that as far as I was concerned, these young women had waived their privilege, but in any event, whether they would or would not invoke this privilege at trial, I would wait and have to abide that moment." The assistant district attorney then stated that he ...