John J. Dean, Louis Dadowski, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Manderino, J., filed a dissenting opinion.
This is an appeal from an order of the trial court denying appellant relief under the Post-Conviction Hearing Act*fn1 following an evidentiary hearing ordered by this Court. See Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975).
In his first appeal to this Court, Wilder contended, inter alia, that he had been denied his right to confront Harold DeWolf, the victim of the robbery-murder with which Wilder was charged, after he had been shot and before he died. (DeWolf was immediately hospitalized after the robbery, during which he was shot twice in the abdomen; he survived for twenty-four days thereafter.) We determined that appellant was entitled to such a confrontation absent "exceptional and compelling reasons,"
such as the victim's physical or mental condition. Id. at 604, 337 A.2d at 568. Because the record before us at that time did not contain any evidence of the victim's condition, we remanded the case to the trial court for an evidentiary hearing to ascertain whether his condition "could justify the authorities' failure to afford appellant confrontation." Id.
Pursuant to our order of remand, the court below held a hearing*fn2 at which testimony was taken of Dr. Daniel Brooks, the victim's physician during the period in question. Based upon his testimony and the hospital's medical records relative to DeWolf, which were received into evidence, the court found as "facts that Harold DeWolf was both mentally and physically unable to cooperate, and further, that any attempt to force confrontation upon him would have been both unreliable and dangerous in its effect."
In Commonwealth v. Minnick, 432 Pa. 462, 464, 247 A.2d 569, 571 (1968), we stated that findings of fact by the trial judge in a hearing under the Post-Conviction Hearing Act "if supported by evidence in the record may not be overturned." See also Commonwealth v. Wright, 232 Pa. Super. 470, 334 A.2d 766 (1975). Having reviewed the record, we find ample evidence to support the court's findings.*fn3