Commonwealth v. Scoleri

Concurring Opinion by

Mr. Chief Justice Bell :

Anthony Scoleri has been tried and convicted three times on bills of indictment charging him with murder. Not only did he commit a terrible murder, from his conviction whereof he is now appealing, but between January 13, 1948 and March 16, 1948 he pleaded guilty to indictments charging him with 24 armed robberies. He has made a mockery of the Courts and has made a travesty of Justice.

The question of whether a defendant who is actually on the -witness stand should be permitted to con-*581suit with. Ms attorney should be a, matter for the discretion of the trial Judge * with, of course, the right of appeal. In the instant case, (1) not only did Scoleri’s counsel fail to object to the admonition of the trial Court addressed to Scoleri, i.e., that he should not discuss his testimony with his counsel at recess time, but (2) I believe this admonition or restriction (a) was not error in this case, and (b) it was not an abuse of discretion, and (c) most important of all, it was certainly not basic and fundamental error which affects the merits or justice of the case and is the only ground upon which Scoleri on the present record may be entitled to a new trial. See Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301; Jackson v. Denno, 378 U.S. 368; Douglas v. California, 372 U.S. 353.

The right and power, and frequently the duty of a trial Court to restrict or prohibit conferences between a witness and his attorney during his direct testimony or cross-examination is inherent, not only to insure orderly procedure in the trial itself, but even more important (to attempt) to limit a witness’s testimony to the unquestionable truth and prevent testimony which is false or changed after or induced by conferences of the witness with his counsel. If such conferences were permitted without proper limitations, they could occur many times during the defendant’s (or any other witness’s) testimony and it would open wide the door to perjury and “framed” testimony.

If recent decisions of the Supreme Court of the United States compel us to grant a new trial to such a dangerous enemy of society, we should of course do so; fortunately, such a deplorable result is unnecessary and unjustified.

*582For these reasons, and particularly for the reason that there is no merit in any of Scoleri’s present contentions and certainly no basic or fundamental error, I would affirm the Judgment.

If Commonwealth v. Vivian, 426 Pa. 192, 231 A. 2d 301, is not overruled, it should be limited to the facts in that case, and should certainly not he retroactive.