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COMMONWEALTH PENNSYLVANIA v. ALAN C. GRAY (07/23/79)

submitted: July 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ALAN C. GRAY, APPELLANT



No. 172 Special Transfer Docket Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Philadelphia at No. 602 September Term, 1976

COUNSEL

Gilbert B. Abramson, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 270 Pa. Super. Page 22]

Appellant, Alan Gray, was convicted by a jury of murder of the third degree and possessing instruments of crime for the stabbing death of Willie Allen. Post-verdict motions were denied and appellant was sentenced to a prison term of seven to twenty years for the murder conviction. This direct appeal followed.

Appellant first argues that the trial court erred in permitting the testimony of an eyewitness, who, before trial,

[ 270 Pa. Super. Page 23]

    was told by the Commonwealth's attorney that he did not have to talk to defense counsel if he chose not to do so. On the morning of trial, the Assistant District Attorney introduced the Commonwealth's witnesses to appellant's trial counsel and stated that they did not have to talk to counsel if they did not wish to do so. During a recess, defense counsel asked the only eyewitness, John Allen, if he would speak with him. Shortly after the pair began speaking, the prosecutor interrupted and stated: "John, I am advising you that you do not have to speak to defense counsel if you don't want to." Although the witness continued to talk with defense counsel, appellant nonetheless requested that the court not permit Allen to testify because of the prosecutor's comments.

Appellant relies on Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (1969) in support of his proposition. Said reliance, however, is misplaced. In Lewis, the prosecutor advised a witness not to speak to defense counsel despite a court order which expressly precluded the prosecutor from prohibiting the interview. In chambers, defense counsel admitted ". . . any witness has the right to talk or not to talk to either side."

In the instant case, the prosecutor only informed the eyewitness that he need not talk to defense counsel if he did not wish to do so. The prosecutor was simply telling the witness what rights were available to him. The prosecutor's conduct in this case clearly falls short of the proscribed conduct in Lewis. Further, after the eyewitness was so informed, he continued his conversation with defense counsel. As appellant suffered no prejudice, his assertion of error is meritless.

Appellant next argues that the court erred in asking certain questions of appellant while he was testifying on direct examination. After appellant testified that he saw the victim make a purchase in the liquor store, defense counsel asked "And did you see what he got?" After the court suggested that counsel "not ...


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