Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia May T., 1971, No. 1207, in case of Commonwealth of Pennsylvania v. Calvin Logan.
A. Benjamin Johnson, Jr., for appellant.
James Garrett, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.
Appellant, Calvin Logan, was tried by a judge and jury and found guilty of murder in the second degree. Post-trial motions were denied and appellant was sentenced to a term of eight to eighteen years in a state correctional institution. This appeal followed.
During the course of appellant's trial, while he was on the witness stand, the trial judge called a recess for the convenience of one of the jurors. When the recess was called, appellant left the witness stand and approached his attorney at counsel table, for the purpose of asking his counsel questions. The district attorney, upon seeing this, objected to appellant's conference with his attorney, and the judge thereupon ordered appellant back to the witness stand. Appellant's counsel then moved for a mistrial, which was denied.
Appellant now urges this court to reverse his conviction upon the basis that the trial judge's ruling denied him effective assistance of counsel and cites Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967), to support his contention. In Vivian, supra, we held it was reversible error for a trial judge to prohibit a defendant from speaking to his attorney during a court recess. In so holding, we stated: "The fact that no
prejudice resulted from such interference with the right to assistance of counsel is, in our opinion, not controlling. Likewise, the fact that the period involved was of short duration does not alter the situation or obviate the error." At page 197.
In the instant case, as in Vivian, supra, we are led to the conclusion that appellant was denied his right to effective assistance of counsel.
The Commonwealth contends that the instant case is controlled by Commonwealth v. Christman, 432 Pa. 455, 247 A.2d 451 (1968), rather than Vivian, supra. We do not agree. In Christman, we held that absent a showing of prejudice, a defendant was not denied effective assistance of counsel by a judge's ruling that he was not to speak with his attorney during the testimony of other witnesses at his trial. We sustained that ruling on the basis of the need to keep order in the courtroom. In the instant case, no such need was present. The jury had been excused and all court business had been suspended during the jury's absence.
Having decided that the trial judge's order denied appellant his right to effective assistance of counsel, we need not discuss ...