Commonwealth v. Greene

285 A.2d 865, 445 Pa. 228, 1971 Pa. LEXIS 660

• Court: Supreme Court of Pennsylvania
• Decided: December 20, 1971
• Docket: Appeal, 251
• Status: Published

Opinions

Opinion by

Mb. Justice Jones,

Appellant and two co-defendants were charged with murder, voluntary manslaughter, involuntary manslaughter, robbery and conspiracy. Tried separately before a jury, appellant was found guilty of first degree murder and sentenced to life imprisonment. This appeal followed.

The most interesting contention presented on this appeal is whether the court below erred when it permitted a witness to be questioned outside the presence of the jury. During the course of the trial, defense counsel called one Earl Williams,—who was indicted for the same crimes,—to testify on appellant’s behalf. Because of the pendency of identical charges against Williams, his counsel informed the court that his client had been advised to invoke his Fifth Amendment privilege against self-incrimination. Attempting to forestall any possible detriment to Williams and realizing the inference adverse to the Commonwealth’s case which was likely to be drawn by the jury from Williams’ refusal to testify, the court below permitted him to be questioned in the jury’s absence. As expected, every question asked of this witness received a Fifth Amendment response. Earl Williams was eventually excused, the jury returned and no mention of this incident was made.

It is obvious from the record that one facet of defense counsel’s trial strategy involved shifting criminal responsibility from appellant to Williams. To achieve this end, defense counsel ingeniously sought to question Williams, knowing well in advance that he would continually claim his Fifth Amendment privilege against self-incrimination. In this manner, unless there were careful cautionary instructions, the jury would possibly infer that Williams and not the appellant was the killer. Appellant contends the jury should have been permitted to observe and hear Williams’ repeated invocation of the Fifth Amendment.

In Namet v. United States, 373 U.S. 179 (1963), the Supreme Court was faced with the question whether a federal prosecutor could question accomplices likely to claim their Fifth Amendment privilege. Reviewing the case law on the subject, the Court concluded there was no reversible error for the principal reason that the prosecutor justifiably believed that these accomplices did not have a valid Fifth Amendment claim. Unlike Namet, the instant appeal involves defense questioning where the witness would have a valid Fifth Amendment claim. Without suggesting either proper procedures or curative devices to be employed in the future, the Supreme Court did note the Government’s testimony should be preliminarily screened outside the presence of the jury. 373 U.S. at 190 n. 9. See also, United States v. Maloney, 262 F. 2d 535 (2d Cir. 1959).

A recent opinion by the Court of Appeals for the District of Columbia, provides the only analogous precedent. Bowles v. United States, 439 F. 2d 536 (D.C. Cir. 1970). In Bowles, the accused’s defense, buttressed by the testimony of another witness, involved placing sole responsibility for a homicide on another. As in the instant appeal, Bowles attempted to question the other individual but the trial judge refused as he had ascertained that the witness would invoke his privilege against self-incrimination. A “missing person” instruction was refused and the incident was never brought to the jury’s attention. Reviewing the principle that the jury may not draw any inference from a witness’ exercise of his constitutional rights whether the inference be favorable to the prosecution or the defense, the court applied the corollary to this rule that a witness should not be placed on the stand for the purpose of having him exercise his privilege before the jury. We are in agreement with these principles and we conclude that the court below properly refused to allow Williams to take the stand.

However, our inquiry does not terminate at this point. Viewing appellant’s trial strategy to place responsibility on Williams, the jury might draw an adverse inference from appellant’s failure to call Williams. Thus, while the court below properly refused to permit Williams’ testimonial assertion of his constitutional right, the court, if requested, should have given “neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness.” 439 F. 2d at 542. In the instant appeal, there was no request and, hence, no error.

Appellant also contends: (1) trial counsel was ineffective; (2) the names of confidential informants were improperly withheld; and (3) the charge of the court below was erroneous. We have reviewed each of these arguments on the record facts and we are of the opinion that they are devoid of merit.

Judgment of sentence affirmed.