Com. v. Belgrave, J.

2023 Pa. Super. 275, 307 A.3d 1240

• Court: Superior Court of Pennsylvania
• Decided: December 28, 2023
• Docket: 1480 WDA 2021
• Status: Published

Opinion

J-A08003-23

2023 PA Super 275

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERMAINE BELGRAVE : : Appellant : No. 1480 WDA 2021

Appeal from the Judgment of Sentence Entered November 19, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001015-2019

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*

DISSENTING OPINION BY PELLEGRINI, J.: FILED: December 28, 2023

In this case, the Commonwealth called a witness, Baizar, who could not

assert his privilege against self-incrimination because he had been immunized,

but had informed the Commonwealth that he was still going to refuse to

answer any questions if called to testify. There is no dispute that a jury would

have likely thought Baizar was associated with the Appellant, given the facts

as outlined by the majority. Nonetheless the Commonwealth called him and

asked him 18 questions which, as promised, he refused to answer.

Relying on Commonwealth v. Todaro, 569 A.2d 333 (Pa. 1990), the

majority holds that there was no prejudicial error because Baizar simply

refused to answer and was not refusing to answer based on his right against

self-incrimination. Because I would hold that Commonwealth v. Duval, 307

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* Retired Senior Judge assigned to the Superior Court. J-A08003-23

A.2d 229 (Pa. 1973) instead controls, I would hold that if the Commonwealth

calls a witness knowing that witness will refuse to answer, no matter what the

basis for that refusal is, that is prejudicial error, and I respectfully dissent.

The majority agrees that under Duval, it is prejudicial error for the

Commonwealth to call a witness to the stand knowing that the witness will

invoke their privilege against self-incrimination under circumstances where

the witness is likely to be considered associated with the defendant with

respect to the criminal charges being tried. In Duval, two witnesses were

called, invoked their right against self-incrimination out of the presence of the

jury, and the trial judge found that they had waived their rights and were

obligated to testify, but each witness continued to refuse to testify. Even after

they were held in contempt, when the Commonwealth questioned them and

they refused to testify, our Supreme Court held that calling the witnesses to

testify was prejudicial error due to “the risk that the jury would draw adverse

inferences against the defendant.” Duval at 232.

The majority finds that Duval does not apply but, instead, our Supreme

Court’s decision in Todaro, 569 A.2d 333 (Pa. 1990) controls because Baizar

was not refusing to answer based on his right against self-incrimination, but

simply refused to answer so that the jury could not invoke an impermissible

adverse interest against Appellant. Todaro is not applicable.

In Todaro, a witness was called to the stand and before any questions

were addressed to him, quietly turned to the trial judge and said that he

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wanted to invoke his right against self-incrimination. The trial judge called

counsel to side bar and informed them of the witness’s request, a recess was

called, the witnesses was excused, and, when the trial resumed, no

explanation was given to jury as to why he was excused and did not testify.

Our Supreme Court did not grant a mistrial because “t]here was nothing that

occurred that would be likely to cause the jury to infer anything, one way or

the other.” Id. at 336. “It is the expressed, highlighted reference to the Fifth

Amendment privilege that may prejudice or influence a jury, not mere silence

itself.” Todaro, 569 A.2d at 336.

I respectfully dissent because Duval controls, not Todaro. Unlike in

Todaro, where the witness was asked no questions, Baizar was asked 18

questions regarding the incident which he refused to answer. As in Duval,

the Commonwealth called Baizar knowing full well that he would refuse to

answer the questions evidencing an intent that it was not calling him to obtain

probative evidence but to prejudice the defendant so that the jury “would draw

adverse inferences against the defendant” based on Baizar’s refusal to answer.

Duval at 232.

Accordingly, because I would reverse, I respectfully dissent.

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