Dusan Bratic, Steven Foldes, Joshua D. Lock, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., Reid H. Weingarten, Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Manderino, J., concurs in the result.
Appellant, Euzzell Angelo Sylvanus Scott, was convicted of murder in the first degree and robbery. After denying post-trial motions, the court imposed a life sentence for the murder conviction and a consecutive term of ten to twenty years for the robbery conviction. These appeals followed.*fn1
The charges against appellant arose from the robbery of Louie's Dream House in Harrisburg on November 9, 1973, during which Vivian Proctor was shot and killed. Appellant was arrested in May of 1974 following his extradition from Ohio. On this appeal, he raised several issues for our consideration.
Appellant argued that the denials of his motions for a continuance, for appointment of an investigator, and to secure a material witness under the Uniform Act to Secure Attendance of Witnesses*fn2 were violative of due process. It was asserted that these denials deprived appellant of adequate preparation for his trial particularly because he was unable to properly investigate potentially exculpatory witnesses in Ohio.
It is settled that such pre-trial applications for relief are within the discretion of the trial court.*fn3 See Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958). In a criminal case, this Court should look to the nature of the crime and its surrounding circumstances to determine if the denial of a continuance was an abuse of this discretion. Commonwealth v. Deni, 317 Pa. 289, 292, 176 A. 919, 921 (1935); see Commonwealth v. Schurtz, 337 Pa. 405, 10 A.2d 378 (1940). Neither the surrounding facts nor the nature of the defense's case were so intricate or involved as to warrant a finding of abuse of discretion in this instant case. However, appellant has stressed that the extra time and investigator were required in order to investigate out-of-state witnesses, and that the denials therefore violated due process.
Nonetheless, a motion for a continuance to secure a material witness is still within the confines of the lower court's discretion. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). In Smith, this Court set out the criteria to determine the proper exercise of this discretion: (1) the necessity of the witness to strengthen the defendant's case; (2) the essentiality of the witness to defendant's defense; (3) the diligence exercised to procure his presence at trial; (4) the facts to which he could testify; and (5) the likelihood that he could be produced at the next term of court. Id. at 270, 275 A.2d at 101. The record reveals that alibi witnesses were produced who testified to the whereabouts of appellant on the night of the crimes. It also appears that there was considerable uncertainty as to both the content and relevance of the testimony of the potential witnesses. Furthermore,
appellant had sufficient time to investigate and prepare his case prior to trial. He was aware of these potential witnesses prior to trial, in some cases for nine months. Appellant also had the assistance of counsel for four months prior to the trial, although not the counsel who represented him at trial. However, trial counsel was familiar with the case for one month prior to the date. This was not a complicated case. There was no clear showing that the desired witnesses were material, and, even so, appellant had sufficient time to investigate them. For these ...