No. 113 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action No. 1 of 1975 dated February 11, 1977
Gary N. Altman, Pittsburgh, for appellant.
Gerald R. Solomon, Ralph C. Harman, Uniontown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Nix, J., concurred in the result. Pomeroy, J., filed a dissenting opinion in which O'Brien and Larsen, JJ., joined.
Appellant Hugh Fant, a black male, was tried before a judge and jury and convicted of two counts of murder of the third degree in connection with the shooting deaths of two men in a Uniontown nightclub. Post-verdict motions were denied, and appellant was sentenced to two terms of imprisonment of 10 to 20 years, the terms to run consecutively. This direct appeal followed.
Appellant raises five assignments of error, only one of which we need address here. Appellant claims he was denied due process of law when the trial court refused his request to sequester the prosecution's witnesses, some of whom placed Fant at the scene of the killings and others who testified they witnessed Fant actually do the shooting. We agree with appellant that under the circumstances of this case, in which appellant was never identified at a
pretrial lineup, photographic lineup, showup, or other pretrial identification procedure, the trial court's refusal to sequester witnesses was an abuse of discretion which dictates that appellant be granted a new trial.
According to prosecution witnesses, several men were involved in a minor skirmish inside the Wishing Well Lounge in Uniontown, Pennsylvania at approximately 1:30 a.m. on December 15, 1974. Three of the men, whom prosecution witnesses identified at trial as appellant and two companions, were ejected from the nightclub. Another altercation then took place in the parking lot. The nightclub's owner, Bruce Fisher, sprayed some mace into the scuffling group in order to restore order. The three men left by automobile, vowing to return.
Shortly thereafter four men returned. Two of the men were black and two were white. One was brandishing a rifle; one carried a handgun. The four men entered the nightclub through the front door. Fisher approached the four and was struck on the head with a beer bottle. As Fisher turned and began to walk away, one of the men shot him in the back. The same man then fired several more shots, killing one of the nightclub's patrons.
Appellant was arrested the following morning. Between the time of appellant's arrest and trial -- approximately nine months -- no identification procedures were utilized in an effort to have any of the prosecution's witnesses identify appellant as the person responsible for the killings at the Wishing Well Lounge. The prosecution has not offered an explanation for its failure to utilize a photographic array, to conduct a lineup or showup, or to make any other efforts to obtain an identification of appellant prior to the initiation of judicial proceedings. At the preliminary hearing, however, the record indicates that the only witnesses who testified stated that they could not identify appellant as the killer.
Rather than make an effort to have the prosecution witnesses identify appellant via some type of objective pretrial identification procedure, the prosecution chose to have these witnesses identify appellant for the first time in open
court. Because defense counsel's motion to have the witnesses sequestered was denied, appellant was repeatedly identified by witnesses who had heard numerous other witnesses testify during the trial that appellant was present at the Wishing Well Lounge or was the one who fired the fatal shots. These witnesses identified appellant for the first time not from a lineup including other black males of similar physical characteristics, but while he was seated at counsel's table in open court, the only black man present, and ...