Paul R. Gettleman, Welsh S. White, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.
Vincent X. Yakowicz, Sol. Gen., Peter B. Foster, Deputy Atty. Gen., Harrisburg, for intervenor.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., took no part in the consideration or decision of this case. Roberts, J., filed a concurring opinion.
Appellant, Clifford Futch, was convicted by a jury of murder of the first degree for the killing of Charles Ganss and the punishment was fixed at death. Following the denial of post-verdict motions the sentence was imposed as the jury had directed. This direct appeal from the judgment of sentence followed. A new trial is required because the trial court erred in refusing to allow a question requested by the defense for the voir dire examination of prospective jurors.*fn1
On February 26, 1975, at approximately 7:20 a.m., Charles Ganss, an inmate at the State Correctional Institution
at Pittsburgh, was stabbed to death in the south yard of the prison. The incident was witnessed by two prison guards who identified Clifford Futch, also an inmate, as the assailant. The testimony of these two prison guards provided the crucial evidence for the prosecution's case against Futch. The thrust of Futch's defense was that he was not in the south yard at the time the stabbing took place and that the identification by the guards was erroneous. The defense put forward the testimony of a number of other inmates regarding the movements, whereabouts, and physical description of Futch at or about the time of the incident.*fn2
Futch contends that he was denied the opportunity of having an impartial jury by the trial court's refusal to allow the following proposed questions for the voir dire of prospective jurors:
"(1) Would the fact that all of Mr. Futch's material witnesses are incarcerated at Western Penitentiary make their testimony less believable than any witness that the ...