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COMMONWEALTH PENNSYLVANIA v. DAVID BARBER (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID BARBER, APPELLANT



No. 1676 OCTOBER TERM 1976, Appeal from the Judgment of Sentence, Court of Common Pleas, Phila. County, Trial Division - Criminal Section, dated April 23, 1976, January Term 1975, No. 1378, 1379 and 1380.

COUNSEL

Mitchell S. Lipschutz, Philadelphia, for appellant.

James J. Wilson, Assistant District Attorney, Philadelphia, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Spaeth

[ 250 Pa. Super. Page 428]

Appellant must be awarded a new trial because of a violation of the rule of Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967).

At trial appellant took the stand. At the close of direct examination the court ordered a ten-minute recess, whereupon the following interchange occurred:

MR. YASKIN [Defense Counsel]: If the Court pleases during this recess I would like to have the opportunity, and if my client wishes, also that I consult with him.

THE COURT: Concerning his testimony on the stand?

MR. YASKIN: It may develop into that.

THE COURT: What do you wish to say, Mr. Keogh [District Attorney]?

MR. KEOGH: Off the record.

(Discussion off the ...


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