Martin R. Fountain, Philadelphia, for appellant.
William P. Boland, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., C. Temin, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.
Appellant, Gary Blair, was arrested on July 26, 1972, and charged with the murder of one Willie Lee Edwards. Blair's first trial commenced on April 23, 1973, and ended in a mistrial when the jury informed the trial court that it was unable to reach a verdict.
Appellant was retried before a jury in August, 1973. The jury convicted him of first degree murder and appellant was sentenced to life imprisonment. Post-trial motions were filed*fn1 and denied. This appeal ensued.*fn2 We affirm.
At appellant's second trial, one of the prosecution's key witnesses, appellant's girl friend, failed to appear. Consequently, the court permitted the witness's testimony at appellant's first trial to be read to the jury. Appellant asserts this was error.
Under the Act of May 23, 1887, P.L. 158, § 3, 19 P.S. § 582 (1964),
"[w]henever any person has been examined as a witness, either for the commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness . . . cannot be found . . . notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue . . . ."
Appellant alleges that the Commonwealth's efforts to obtain the witness's presence was inadequate and that the prosecution failed to establish that the witness "cannot be found." Therefore he ...