No. 80-1-83, Appeal from the Judgment of Sentence entered on April 8, 1980, in the Court of Common of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC7901315 and CC7901215A
John H. Corbett, Jr., Paulette J. Balogh, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Dara A. DeCourcy, Asst. Dist. Attys., Pittsburgh, for appellee.
O'Brien, C. J. and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., concurred in the result. Roberts, J., filed a concurring opinion.
The sole issue presented by this appeal is whether a trial court may exclude the relevant testimony of a defense witness in a criminal trial solely because of that witness' apparently inadvertent violation of a sequestration order. Because less extreme remedies were available, we conclude that total exclusion of the defense witness' testimony deprived appellant of fundamental constitutional rights and was a clear abuse of discretion. Accordingly, we vacate the judgment of sentence and remand for a new trial.*fn1
Appellant, Delgardo Scott, was charged with criminal homicide and a weapons offense in connection with the shooting death of Stanley Rudolph ("Rudolph") on the evening of February 13, 1979, outside a bar in the Northside area of Pittsburgh. At a jury trial in the Allegheny County Court of Common Pleas, appellant testified that he had acted in self-defense, claiming that Rudolph had threatened him with a knife.*fn2 Eyewitness testimony concerning the incident was conflicting.
During the course of his testimony, appellant claimed that he did not own the gun with which Rudolph had been shot, but had found it on a bus returning to Pittsburgh from Johnstown on the day of the shooting. When the prosecution contested appellant's testimony as to how he acquired the gun, he offered as corroboration the testimony of John Kirsch ("Kirsch"), who allegedly had accompanied him on the bus trip. As appellant's counsel attempted to call Kirsch to the witness stand, however, the prosecutor objected, arguing that Kirsch, in violation of a sequestration order, had been in the courtroom during appellant's testimony. Although appellant's counsel admitted at side bar that he had seen Kirsch in the courtroom during the direct examination of appellant, he stated that he had immediately ordered Kirsch outside.*fn3
The prosecutor insisted, however, that Kirsch's anticipated corroborative testimony may have been affected by his presence in the courtroom during appellant's testimony. The trial court agreed and, without further hearing, refused to permit Kirsch to testify. The jury subsequently found appellant guilty of third degree murder and the weapons offense, for which he received sentences of 7 1/2 to 15 years and 2 1/2 to 5 years, to be served concurrently. Post-verdict motions were denied, and this appeal followed.
Citing the criteria articulated in Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975), the Commonwealth argues that Kirsch's testimony was properly excluded at trial because it "was tainted by exposure to [appellant's] testimony" and "would have had no bearing on the ultimate issue of appellant's state of mind at the time of the incident."*fn4 Pennsylvania courts, however, have heretofore employed the Smith criteria only in evaluating instances in which trial courts have admitted prosecutorial evidence notwithstanding a Commonwealth witness' violation of a sequestration order.*fn5 Here, by contrast, the trial ...