Com. v. Scoleri

• Decision Date: 27 November 1968
• Citation: 248 A.2d 295,432 Pa. 571
• Parties: COMMONWEALTH of Pennsylvania v. Anthony SCOLERI, Appellant.
• Court: Pennsylvania Supreme Court

Page 295

248 A.2d 295

432 Pa. 571

COMMONWEALTH of Pennsylvania v. Anthony SCOLERI, Appellant.

Supreme Court of Pennsylvania.

Nov. 27, 1968.

Rehearing Denied Jan. 2, 1969.

Edward J. Morris, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Joseph M. Smith, Asst. Dist. Atty., Chief, Litigation Div., Richard A. Sprague, First Asst. Dist. Atty., Benjamin H. Levintow, Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

On September 30, 1964, Anthony Scoleri was found guilty by a jury of murder in the first degree and the penalty fixed at death. A motion for a new trial was denied on July 26, 1965 and judgment of sentence entered. Scoleri did not appeal from that judgment of sentence.

Thereafter, on October 15, 1965, Scoleri filed a petition for a writ of habeas corpus which, after hearing, was denied on order of the Court of Common Pleas of Philadelphia County. From that order an appeal was taken to our Court. We vacated the order and remanded the record to the court below with directions to transfer the record to the Court of Oyer and Terminer of Philadelphia County, and, upon such transfer, directed that an appeal might be filed in our Court within 30 days as though such appeal had been timely filed. See: Commonwealth ex rel. Scoleri v. Myers, 423 Pa. 558, 562, 225 A.2d 540 (1967). In compliance with our directive the instant appeal has been taken. ¹

On this appeal, Scoleri raises six issues: (a) whether the trial court erred in its statement, made in the presence of the jury, restricting Scoleri's right to confer with his trial counsel during a noon recess?; (b) whether the trial court erred in permitting the Commonwealth, in rebuttal, to offer evidence of Scoleri's prior convictions on felony charges for the purpose of impeachment of Scoleri's testimony after Scoleri had taken the stand and testified?; (c) whether the trial court erred in refusing to permit Scoleri to call witnesses to impeach the credibility of a witness whom Scoleri previously had called as his own witness?; (d) whether there was any basis for a plea of double jeopardy?; (e) whether the trial court erred in admitting evidence of crimes allegedly committed during flight after the alleged crime?; (f) whether the trial court erred in refusing to permit Scoleri to testify as to conversations with his brother during the alleged escape from the scene of the crime, his brother being available as a witness?

The first issue raised involves remarks made by the trial judge, during the course of the trial and in the jury's presence, cautioning Scoleri not to confer with his counsel during a luncheon recess.

Scoleri took the stand on the third day of trial to testify on hiw own behalf. While direct examination was underway and just prior to the noon recess, the following colloquy took place:

'Mr. Carroll (defense counsel): We are going into a new incident sir. I realize it is the hour you usually adjourn for lunch.

'The Court: You are correct. You are not to discuss this Even with your lawyer during the lunch hour. Do you understand?

'THE WITNESS (Scoleri): Yes.

'THE COURT: And you are not to discuss it with anyone else and you are not to have any visitors during the lunch hour at all. We will return here at 2:00 o'clock.

'Ladies and Gentlemen, don't comment on it or discuss the case.

(The jury leaves the courtroom at 12:32 o'clock p.m.)

(Adjourned to 2:00 o'clock p.m. of the same day).'

(Emphasis added)

Scoleri's counsel did not object at the time to the admonition of the trial court addressed to Scoleri although he later informed the court that he had been unable to confer with Scoleri during the noon recess.

Most recently, the identical issue was presented to this Court in Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967). In Vivian, the trial court, in remanding the defendant to the custody of an officer during a noon recess, had instructed defendant's counsel that he would not be permitted to see Vivian or discuss the case with him. In Vivian, this Court unanimously ² stated: 'This case also poses the serious question of whether or not Vivian's right to the assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution was illegally restricted during the trial. It appears that on the fourth day of trial, while Vivian was under examination as a witness, the noonday recess interfered. The trial judge remanded him to the custody of an officer for the recess period, and instructed his counsel that he would not be permitted to see Vivian or discuss the case with him during this time. This was error. As pointed out in United States v. Venuto, 182 F.2d 519, 522 (3rd Cir. 1950), there is 'no justification for imposing a restriction of silence between accused and counsel during a trial recess.' Again as stated in Commonwealth v. Werner, 206 Pa.Super. 498, 501, 502, 214 A.2d 276, 278 (1965): 'The right to the assistance of (that) counsel is not a right which exists only from 9:00 a.m. to 4:00 p.m. and only in the courtroom and only concerning certain aspects of the case. * * * (L)imiting this right is reversible error.' (footnote omitted). See also, Commonwealth v. Peetros, 206 Pa.Super. 503, 214 A.2d 279 (1965), and Pendergraft v. State of Mississippi, 191 So.2d 830 (1966) (involving the imposition of such a restriction during a noonday recess). The fact that no prejudice resulted from such interference with the right to the assistance of counsel is, in our opinion, not controlling. Likewise, the fact that the period involved was of short duration does not alter the situation or obviate the error.' (pp. 196, 197, 231 A.2d p. 303.).

Determining that the trial court had committed reversible error in admonishing the defendant that he must not consult with counsel during the trial recess, on this ground (as well as other grounds), we reversed the judgment of sentence in Vivian. The Commonwealth does not challenge the apposition of Vivian to the case at bar but seeks a reconsideration by this Court of the soundness of the Vivian rule.

In Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966) it was said: 'The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer's help through the technical intricacies of a criminal trial * * * is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent.'

In Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276 (1965), while the defendant was on the stand under cross-examination, court was adjourned in the afternoon until the following morning. At that time the following colloquy took place:

"Mr. Werner, you are under cross-examination, so do not discuss the case until your cross-examination is resumed tomorrow morning.

'MR. CIRILLO: If the court please, in Mr. Yohn's presence, can I ask him a question--I just wanted to ask him if there are any other witnesses he wants me to call.

'THE COURT: He certainly has a right to confer with you but I don't want him to discuss this testimony with you. He is under cross-examination. But you may ask him about witnesses. There is no reason you cannot talk to him. I did not mean to cut off communication between you.

'MR. CIRILLO: All right, sir." (emphasis added)

Mr. Yohn represented the Commonwealth and Mr. Cirillo represented the defendant. (p. 500, 214 A.2d p. 277).

The Superior Court, relying on the rationale of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and United States v. Venuto, 182 F.2d 519 (1950) (CA 3), held that such limitation by the trial court of the right of an accused to discuss his testimony with his counsel violated the accused's constitutional right to the assistance of counsel and constituted reversible error even in the absence of any proof of actual prejudice to the accused.

In the trial court there is vested a discretion, albeit very limited, to impose certain restrictions on communications between an accused and his counsel, such as where the accused, testifying as of cross-examination, refuses to answer a question unless he be afforded an opportunity to consult with his counsel. However, such right of restriction on the part of the trial court, Aimed only at insuring orderly procedure in the trial itself, does not extend to trial recesses. Common sense dictates such a result. Where the rule otherwise, vague and ill-founded suspicions could well arise in the minds of the jurors as a result of hearing the trial court notify the accused and his counsel, for no apparent reason, that they may not communicate with one another during a trial recess and the jurors would well have reason to ponder why such a prohibition had been imposed. The mere act of consultation between the accused and his counsel might well be tainted, by such restriction, with an aura of treachery and deception. In the case at bar the admonition was not made in order to preserve the orderly procedure of the trial itself but it took place when Scoleri was undergoing direct examination by his counsel and at a time when a trial recess had been directed. Guaranteeing the right to full and free consultation between the accused and his counsel, we believe that the Vivian rule is sound and must be retained even without any proof that the trial court's admonition caused any prejudice to the accused.

The Commonwealth next urges that the Vivian ruling should not be given retroactive effect. We need not consider the retroactive effect of Vivian in the case at bar. No objection was made to the instructions of the trial judge at the time such instruction was made and, in fact, when a motion for a new trial was made the alleged erroneous instruction was not assigned as a reason for a new trial. Prior to this appeal, the issue was not raised and it is well settled that...