Nino V. Tinari, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion, in which Nix, J., joins.
This direct appeal*fn1 follows a jury trial in which appellant was found guilty of murder in the second degree. A sentence of 5 to 20 years was imposed. We affirm.
During the late evening and early morning hours of July 3 and 4, 1971, decedent and his friend were in the area of 32nd and York Streets in Philadelphia. Decedent walked over to a man named Tinsley and placed his arm around his neck and shoulders. Within a few moments, appellant approached and shot decedent. It is undisputed that appellant was the killer. He claims, however, that (1) the discharge of the gun was accidental, and (2) decedent was threatening Tinsley and that appellant came to Tinsley's defense.
At the opening of trial the defense moved for sequestration of the witnesses. The Commonwealth agreed, and all but one*fn2 of the witnesses were ordered
sequestered. The Commonwealth presented three eyewitnesses to the killing. On cross-examination, the third eyewitness, Jesse Scott, gave testimony which indicated that the prosecutor had violated the sequestration order by reviewing the testimony of the other two eyewitnesses with Scott. That violation*fn3 is the basis of this appeal.
The violation of the sequestration order was elicited by defense counsel at the opening of his cross-examination. After discovering the violation, however, he dropped the subject and conducted a thorough cross-examination of the witness. At the end of this cross-examination the defense moved for a mistrial and, upon denial of that motion, moved to have Scott's testimony stricken. Both motions were denied.
The Commonwealth contends that the delay between discovery of the violation and defense motions based upon the violation waived any objection that the defense might have made. We do not agree.
When the party offering a witness has violated a sequestration order and has already conducted direct examination before the jury, the opponent, under the waiver rule urged by the Commonwealth, would be faced with an impossible choice if the trial court refused to ...