Commonwealth v. Werner

• Decision Date: 11 November 1965
• Citation: 206 Pa.Super. 498,214 A.2d 276
• Parties: COMMONWEALTH of Pennsylvania v. Michael WERNER, Appellant.
• Court: Pennsylvania Superior Court

214 A.2d 276

206 Pa.Super. 498

COMMONWEALTH of Pennsylvania v. Michael WERNER, Appellant.

Superior Court of Pennsylvania.

November 11, 1965.

Louis Lipschitz, Joseph Hakun, Lipschitz &amp Chalfin, Philadelphia, for appellant.

L Francis Murphy, Asst. Dist. Atty., Richard S. Lowe, Dist Atty., Norristown, for appellee.

Before ERVIN, P. J., and WRIGHT, MONTGOMERY JACOBS and HOFFMAN, JJ.

JACOBS, Judge.

Appellant Michael Werner, hereinafter called defendant, was found guilty by a jury of the crimes of robbery, burglary and conspiracy. Motions for a new trial and in arrest of judgment were promptly filed and dismissed, without argument, by the trial judge. Sentence was imposed and the defendant appeals from the sentence.

The trial occurred in December, 1964. At the end of the third day of trial the defendant was on the stand being cross-examined. Court was adjourned at 3:45 p. m. until the following morning at 9:00 o'clock. At the time of adjournment the following appears in the notes of testimony:

'THE COURT: Then we will adjourn until tomorrow morning at 9:00 o'clock. Come in at that time please and take the seats which you now occupy. Remember my admonition not to discuss the case with anyone or permit it to be discussed in your presence. You may go now and return tomorrow morning at 9:00 o'clock.

'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.

Defendant claims that it was fundamental error for the trial judge to direct the defendant not to discuss his testimony with his counsel during this seventeen hour recess. With this contention we agree.

The Supreme Court of the United States made it clear in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that a defendant in a felony prosecution in a state court is entitled to the assistance of counsel at trial. The court thus held that the Fourteenth Amendment of the Constitution of the United States makes obligatory on the states the Sixth Amendment's provision that 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.' The United States Court of Appeals for the Third Circuit made it clear in United States v. Venuto, 182 F.2d 519 (1950), that forbidding defendant and his counsel to consult with each other during an eighteen hour court recess was a deprivation of the defendant's Sixth Amendment right to counsel, even if no actual prejudice was proved. ^[1] Guided by these two decisions, we think the conclusion inescapable that Werner's constitutional right to the assistance of counsel was denied in this case.

Aware that Venuto was a criminal prosecution in a federal court, we are of the opinion that its holding is a proper one for our State courts. In so deciding, we are persuaded that we should not require affirmative proof of the exact prejudice produced by such an injunction in our State courts. As was said in Venuto: 'Not only would this require them to disclose what would have been privileged communication between attorney and client, but, as stated in Glasser v. United States, supra, 315 U.S. 60 at page 76, 62 S.Ct. 457 at page 467, 86 L.Ed. 680: 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.''

Nor will this court engage in nice calculations as to precisely what the trial judge meant to do or did not mean to do by his statement. An admonition 'I don't want him to discuss this testimony with you', given by a judge to an officer of the court, is not cured by the statement, 'But you may ask him about witnesses * * * I did not mean to cut off communication between you.' It is not the function of the trial judge to decide what a defendant's defense should be, nor when or how that defense should be planned, nor how much consultation between a defendant and his retained counsel is necessary to adequately cope with changing trial situations. That is the function of counsel. The right to the assistance of that counsel is not a right which exists only from 9 a. m. to 4 p. m. and only in the court room and only concerning certain aspects of the case. The defendant had the right to discuss the entire case, including his own testimony, with his attorney, even after 4 p. m. Discussion of this testimony might have been very important in determining the future course of his defense. An admonition limiting this right is reversible error. ^[2]

In holding that actual prejudice need not be proved by the defendant to claim this...