No. 980 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northumberland County, No. 437 of 1976.
Peter T. Campana, Williamsport, for appellant.
R. Michael Kaar, Assistant District Attorney, Milton, for Commonwealth, appellee.
Price, Wieand and Hoffman, JJ. Price, J., dissents.
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Jerry Fawcett was tried by jury*fn1 and found guilty of rape,*fn2 involuntary deviate sexual intercourse,*fn3 and involuntary servitude.*fn4 Post trial motions were dismissed, and Fawcett was sentenced to prison for not less than four nor more than fifteen years. On appeal, he alleges numerous trial errors. All will be considered; only one has merit.
Appellant's first contention is that the trial court erred when it denied a defense request to sequester the alleged victim. There is no merit in this contention. In Pennsylvania it has long been established that the sequestration of witnesses is a matter within the discretion of the trial judge. Commonwealth v. Fant, 480 Pa. 586, 591, 391 A.2d 1040, 1043 (1978), cert. denied, 441 U.S. 951, 99 S.Ct. 2180, 60 L.Ed.2d 1056 (1979); Commonwealth v. Martin, 479 Pa. 609, 616, 388 A.2d 1361, 1365 (1978); Commonwealth v. Yount, 455 Pa. 303, 318, 314 A.2d 242, 250 (1974); Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861, 870-871 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961); Commonwealth v. Turner, 371 Pa. 417, 429, 88 A.2d 915, 921 (1952); Commonwealth v. Kaye, 232 Pa. Superior Ct. 513, 518, 335 A.2d 430, 433 (1975); Commonwealth v. Howard, 226 Pa. Superior Ct. 22, 26, 312 A.2d 54, 56 (1973), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). "The purpose of sequestration of witnesses is to reduce the possibility that a witness may, from what he hears in the courtroom, improperly mold his testimony to fit some plan not riveted to the standards of truth." Commonwealth v. Smith, 424 Pa. 9, 14, 225 A.2d 691, 694 (1967). Accord, Commonwealth v. Fant, supra 480 Pa. at 592, 391 A.2d at 1043. "A request for sequestration of a witness or witnesses should be specific and should be supported by some reason or
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reasons demonstrating that the interests of justice require it." Commonwealth v. Kravitz, supra 400 Pa. at 218 n.7, 161 A.2d at 870 n.7. Accord, Commonwealth v. Holland, 480 Pa. 202, 213, 389 A.2d 1026, 1031 (1978); Commonwealth v. Turner, supra 371 Pa. at 429, 88 A.2d at 921.
In the instant case, defense counsel's request to sequester prosecution witnesses was granted, but the court excluded from its order the alleged victim. Defense counsel was not able to support the request to sequester this witness with any facts or argument that such action was necessary or required by the interests of justice. Neither has he assigned on appeal any prejudice as a result of the court's refusal to sequester the alleged victim.
Appellant's identification was not an issue in this case. The occurrence of sexual acts was conceded by the defense. The most significant issue and the one contested most heatedly was whether the alleged victim had consented to the acts in which she and appellant had engaged. They were the only persons present at the time of the alleged offenses. Consequently, there was little likelihood that the prosecuting witness' testimony would be molded to conform to other testimony received. This was peculiarly so where, as here, she was preceded on the witness stand only by a physician and police officers, none of whom were able to testify concerning the issue of consent. Thus, there was no compelling reason to sequester the alleged victim of the rape. Indeed, under the circumstances of this case, it could be argued with persuasiveness that the sequestration of the alleged victim would have unnecessarily hampered the prosecuting attorney's efforts to represent the interests of the Commonwealth. In any event, in the absence of prejudice to appellant, we find no abuse of discretion by the trial court in denying the defense request to sequester the prosecuting witness.
We also find lacking in merit appellant's contention that the trial court should have granted defense motions for mistrial because of the prosecutor's comment during final
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argument that "the evidence warrants and demands that you bring in a verdict of guilty on all counts." This is not an expression of personal opinion, as appellant contends, and was well within the bounds of legitimate advocacy. Commonwealth v. Smith, 490 Pa. 380, 387-88, 416 A.2d 986, 989 (1980); Commonwealth v. Wilcox, 316 Pa. 129, 139, 173 A. 653, 657 (1934); Commonwealth v. Woods, 275 Pa. Superior Ct. 392, 405, 418 A.2d 1346, 1352-1353 (1980); Commonwealth v. Oglesby, 274 Pa. ...