decided: October 29, 1981.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
DELGARDO SCOTT, APPELLANT
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.
[ 496 Pa. Page 80]
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
[ 496 Pa. Page 81]
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.
[ 496 Pa. Page 82]
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 court, without making any independent determination of relevancy, excluded the testimony of a defense witness solely because that witness violated such an order.
Absent a showing of fault on the part of the party or counsel who called a witness, the overwhelming weight of authority is that a trial court should not deprive a criminal defendant of a witness' testimony solely because he violated a sequestration order. Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1898); United States v. Torbert, 496 F.2d 154 (9th Cir. 1974), cert. den., Torbert v. United States, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974); United States v. Schaefer, 299 F.2d 625 (7th Cir. 1962), cert. den., 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962) (witness should be disqualified only when he has violated the
[ 496 Pa. Page 83]
sequestration order with "the consent, connivance, procurement or knowledge of the [accused] or his counsel"); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), cert. den., Norris v. Arkansas, 435 U.S. 970, 98 S.Ct. 1610, 56 L.Ed.2d 61 (1978); State v. Slone, 40 Ohio App.2d 523, 69 Ohio Ops.2d 453, 320 N.E.2d 720 (1974). To deny an accused the opportunity to present relevant and competent evidence in his defense would constitute a violation of his fundamental constitutional rights to compulsory process for obtaining witnesses in his favor and to a fair trial. U.S. Const. amend. VI and XIV; Pa. Const. art. 1, § 9; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972).*fn6
Because of the availability of alternative sanctions to enforce a sequestration order and because of the fundamental constitutional basis for an accused's right to present relevant testimony in his favor, it ordinarily would be an abuse of discretion to disqualify a witness unless either the accused or his counsel has somehow cooperated in the violation of the order. See United States v. Torbert, supra. If the trial court concludes that the Commonwealth has been substantially prejudiced by the defense witness' violation, a mistrial may be declared. If the violation is less serious, the trial court may conclude that a cautionary instruction to the jury would be sufficient to prevent prejudice to the Commonwealth. Cf. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957) (where a witness disobeys an order excluding witnesses from the courtroom during trial, his disobedience may be considered by the jury as bearing on his credibility). Only where a defense witness' testimony is clearly irrelevant
[ 496 Pa. Page 84]
to a defendant's case, and is therefore excludable on the independent ground of irrelevancy, should a trial judge completely exclude that witness' testimony for an inadvertent violation of a sequestration order. Cf. State v. Slone, 40 Ohio App.2d 523, 69 Ohio Ops.2d 453, 320 N.E.2d 720 (1974); People v. Johnson, 47 Ill.App.3d 362, 6 Ill.Dec. 66, 362 N.E.2d 701 (1977) (since testimony of violating witness was material to defendant's case, its exclusion constituted reversible error).
Given the present state of the record, we cannot conclude that Kirsch's corroborative testimony would have been irrelevant to the issues raised at trial.*fn7 The time and manner in which appellant acquired the gun might be relevant to his denial of premeditation. Moreover, testimony corroborating that appellant found the gun on a bus just prior to the killing could be relevant to appellant's claim of self-defense.*fn8 This testimony could suggest that appellant did not intentionally arm himself in anticipation of his meeting with Rudolph on the evening of the shooting, and thus could bolster his assertion that he did not provoke the incident which resulted in Rudolph's death, a material element in his claim of self-defense. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980).*fn9
Since we cannot conclude that Kirsch's corroborative testimony is excludable on the independent ground of irrelevancy, the only appropriate and fair remedy for his apparently
[ 496 Pa. Page 85]
inadvertent violation of the sequestration order would have been for the trial court to grant a mistrial or to give a cautionary jury instruction. These lesser remedies were readily available and would have totally protected the Commonwealth from any resulting prejudice. Under the circumstances, the trial court's complete exclusion of Kirsch's testimony effectively deprived appellant of fundamental constitutional rights, and thus was clearly an abuse of discretion.
Accordingly, we vacate the judgment of sentence and remand for a new trial.*fn10
ROBERTS, Justice, concurring.
I agree with the majority that the defense witness' inadvertent violation of the trial court's sequestration order was not a basis for the exclusion of the witness' testimony, and that an appropriate instruction to the jury would have sufficed. I wish to point out, however, that because of the availability of such an instruction the majority's suggestion that a mistrial would have been a "less extreme" remedy is not necessary. In any event, a mistrial alone, without an appropriate instruction, would have no effect on the likelihood that on retrial the problem of the witness' exposure to trial testimony would remain.
Additionally, the majority's exploration only of whether the proposed defense testimony is irrelevant should not be viewed to pre-empt the possibility that the proffered testimony would be excludable on other traditional bases for the
[ 496 Pa. Page 86]
exclusion of evidence. Had the record revealed, for example, that the witness' testimony was inadmissible hearsay, the court's exclusion would not have been reversible error.
Because the inadvertent violation of the sequestration order could have been cured by a proper cautionary instruction to the jury, and no independent basis has been shown to support the exclusion of the proffered testimony, appellant must be granted a new trial.