COMMONWEALTH of Pennsylvania v. Florencio ROLON, Appellant.
Supreme Court of Pennsylvania.
Argued April 17, 1979. Oct. 24, 1979.
406 A.2d 1039
I believe Mr. Reed met this test. He was a professional counselor, concerned with the problems of troubled youths. He was in no way connected with the prosecution, so there was no risk that his interest would be swayed from the side of the appellant to the side of the prosecution. It cannot be said, as a matter of law, that a prison counselor is so connected with the interests of the prosecution as to render him uninterested in the welfare of the prisoner. Accordingly, I would affirm the judgment of sentence.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Paul S. Diamond, Philadelphia, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
ROBERTS, Justice.
Both
Police charged appellant with killing Edward Muldor. At trial, appellant called Felix Ayala to confirm appellant‘s claim that he was merely a witness to the killing, and not a perpetrator. Just as Ayala began to testify on appellant‘s behalf, the Commonwealth interrupted Ayala‘s testimony, contending that Ayala may have been involved in the crime. Acting on the Commonwealth‘s assertion, the trial court delayed trial and summoned a public defender to assist
The trial court‘s concern for the rights of appellant‘s witnesses was not limited to Ayala. The court also appointed counsel to represent Orlando Rodriguez, another of appellant‘s witnesses who had not yet testified. It did so only on the basis of its unspecified belief that the “same problem may exist.”3 Appointed counsel consulted with both witnesses and announced to the court that the witnesses intended to claim the privilege. The court accepted each witness‘s claim without affording appellant an opportunity, timely-requested, to establish even his proposed line of questioning.
Court then recessed for the day “to give [defense counsel] an opportunity to reassess [his] position . . . .”4 Later that day, Ayala and Rodriguez “were arrested in the courtroom . . . . They went to the Police Administration Building and both gave full statements with regard to this after having waived their Fifth Amendment rights . . . .”5
Even though the jury was not charged until the next day, there is no indication on the record that the Commonwealth informed either the court or defense counsel that statements had been obtained. Likewise, there is on the record no indication that the content of either witness‘s statement substantiated the claim of privilege or implicated appellant. At no time during the more than three and one-half years since trial has either witness been prosecuted.
The day after both defense witnesses claimed the privilege, the court charged the jury. The jury found appellant guilty of murder of the third degree. Written post-verdict motions were denied and appellant was sentenced. This appeal followed.
In Commonwealth v. Carrera, supra, this Court made clear that:
“[w]hen an individual . . . is called to testify . . . in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected.”
By accepting Rodriguez‘s mere assertion of the privilege on a record both lacking any indication that appellant‘s line of questions would have required the privilege to be invoked and containing no evidence which links Rodriguez to the crime, the trial court erred under Carrera. Appellant must therefore be awarded a new trial.6
Judgment of sentence reversed and new trial granted.
NIX, J., filed a dissenting opinion.
NIX, Justice, dissenting.
In my judgment the trial court had sufficient basis to accept the invocation by both Felix Ayala and Orlando Rodriguez of their privilege against self-incrimination as guaranteed by
During the presentation of the defense, appellant‘s counsel called Felix Ayala to testify. After a few preliminary questions by defense counsel, the prosecutor requested a sidebar conference during which he advised the court and defense counsel that there was a substantial likelihood that Mr. Ayala was one of the unapprehended co-defendant‘s sought in connection with the victim‘s death. After this
After reviewing the case with Messrs. Ayala and Rodriguez, their attorney informed the court and counsel in chambers as follows:
MR. LEVY: Yes. That, in my opinion, there was a substantial danger of self incrimination with each of these men. Based upon that, I have advised both of them that they should exercise their privilege under the Fifth Amendment of the United States Constitution and under article 1 section 9 of the Pennsylvania Constitution, and it is my understanding at this time that each of these witnesses will follow my advice and will decline to answer questions on the basis of those constitutional rights that they have.
Following this discussion in chambers, the jury was removed and Messrs. Rodriguez and Ayala then took the stand and both said that they would invoke their rights against self-incrimination and refused to testify concerning the incident.
The court accepted the witnesses’ claims of privilege and excused them from testifying. The court then granted a defense request for a continuance until the following day. The jurors were returned to the courtroom and cautioned to avoid any references to the case which might appear in the news media. Messrs. Ayala and Rodriguez were subsequently arrested in the courtroom and taken to the Police Administration Building where they waived their constitutional rights and gave statements. Both were released and, apparently, neither was subsequently charged with any crime, arising out of this incident.
The mere advising of one individual of his rights where there is a justifiable occasion for doing so, does not in turn infringe upon the constitutional rights of another even though the election to exercise those rights may deprive the other of a possible advantage in his defense. Here, there was a proper occasion for advising . . . of the possible consequences of his testimony and thus the fact that he subsequently elected to invoke his privilege if called as a witness was not an impermissible infringement upon appellant‘s constitutional rights. Id., 463 Pa. at 455, 345 A.2d at 607.
It was proper for the court on its own motion to advise the two witnesses of their constitutional rights. “[I]t is the court‘s function to advise a witness of his rights against self-incrimination when he feels the witness is about to give such testimony.” Commonwealth v. Jennings, 225 Pa.Super. 489, 493, 311 A.2d 720, 722 (1973). Accord, Schwinger Appeal, 181 Pa.Super. 532, 539, 124 A.2d 133, 137 (1956) (“the judge ought to advise the witness of his privilege,” emphasis added, quoting Ralph v. Brown 3 Watts & Serg. 395, 400 (1842). Cf., United States v. Morrison, 535 F.2d 223, 228 (3d Cir. 1976) (“[a]lthough as a general rule there is no duty to advise a witness in court or at a grand jury proceeding of his right not to incriminate himself, . . . it is entirely proper for the court in its discretion to issue such warnings“); United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1892, 36 L.Ed.2d 401 (it was proper for trial judge to warn prospective defense witnesses, who were arrested while occupying the automobile in which defendant had fled from the scene of the crime, that they should engage an attorney, that their testimony could be used against them, and that they could be charged with being accessories, despite defendant‘s claim that the witnesses were thereby intimidated). This case is
It was not inappropriate for the prosecutor to suggest, and the court agree, that an attorney should be appointed for the two witnesses. Where it was clear that the witnesses had probably participated in the attack upon the victim, there was nothing improper in suggesting the need for or the providing of legal assistance to the witnesses as a means of insuring that they understood the nature of their constitutional rights and the consequences of a waiver of those rights.
Appellant‘s second argument is that the court should have held a hearing in which to test the validity of the witnesses’ claims of privilege. The standard by which the validity of a claimed fifth amendment privilege is to be measured is set forth in Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967), where the Court stated:
When [a witness is called to testify], he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answer demanded cannot possibly have such tendency. (Emphasis in the original, citations omitted).
In determining whether a claim of privilege is proper, the trial judge should be guided as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). We believe that the trial
Faced with this situation, the trial judge wisely halted the trial with a view towards protecting the constitutional rights of Messrs. Ayala and Rodriguez. Although at the time it appointed Mr. Levy to represent Ayala and Rodriguez the court was acting under the representation that the dilemma confronting Mr. Ayala was also facing Mr. Rodriguez, this representation was born out both by Mr. Levy‘s statement to the court that Mr. Rodriguez faced a substantial likelihood of self-incrimination if he testified, and by Mr. Rodriguez‘s subsequent testimony that he would invoke his privilege against self-incrimination. The trial court is in an awkward position in such a situation. It is forbidden by the state and federal constitutions to inquire too deeply into the basis for the witnesses’ invocation of the privilege for fear that such an inquiry would subvert the very protection sought to be provided. That is, an in-depth inquiry into the basis for the privilege might result in opening the door and thereby waiving the privilege. U. S. v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325, cert. den., 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1971). On the other hand, the court is charged with the responsibility of making sure that the privilege is invoked in proper instances. In the situation confronting the trial judge in the present case, I cannot say that it was “perfectly clear from a careful consideration of all the circumstances, that the witness [was] mistaken in the
The Opinion of the Court puts great emphasis on the fact that, although Messrs. Ayala and Rodriguez were arrested, apparently neither has subsequently been formally charged or tried in connection with this incident. This fact is not controlling. Many factors aside from an individual‘s complicity in a criminal act determine whether prosecution will be pursued. “It is sufficient if the person questioned has reasonable cause to apprehend such danger.” Commonwealth v. Carrera, 424 Pa. at 553, 227 A.2d at 629. A fact which is of much greater significance, and ignored by the majority, is that counsel after conferring with his clients concurred in the view that their proposed testimony tended to incriminate them. Where a court has been advised by the prosecution that a proposed defense witness may be about to offer testimony that would tend to incriminate the witness, and the court supplies the witness with counsel, I do not believe it can be said that the court improperly accepts the invocation of the privilege where counsel confirms the legitimacy of the invocation of the privilege.
Appellant also contends that his rights to have compulsory process to obtain witnesses in his favor were violated by the court‘s acceptance of the witnesses’ claims of privilege. Appellant‘s sole citation in support of this proposition is the dissent of Mr. Justice Roberts in Commonwealth v. Greene, 445 Pa. 228, 232-35, 285 A.2d 865 (1971). The starting point of our analysis is Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) which held the compulsory process clause to be incorporated into the fourteenth amendment‘s due process clause and applicable to the states. Specifically, the Court struck down two Texas statutes that prohibited participants in a crime from testifying on behalf of a co-participant. In interpreting the compulsory process clause, the Court stated:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the
right to present a defense, the right to present the defendant‘s version of the facts as well as the prosecution‘s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution‘s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. * * * * * *
We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. 388 U.S. at 19, 23, 87 S.Ct. at 1923, 1925 (footnote omitted).
The Court was careful to limit its holding, however, by stating that “[n]othing in this opinion should be construed as disapproving testimonial privileges, such as the privilege against self-incrimination . . . which are based on entirely different considerations . . . .” Id., 23 at n.21, 87 S.Ct. at 1925.2 Thus, it cannot be said that the Court has expressed a preference for compulsory process as an aid in the truth-finding process of the jury, over the individual witness’ right to invoke the privilege against self-incrimination. Accordingly, appellant‘s rights to compulsory process were not violated by the proper invocation of the testimonial privilege against self-incrimination by the two witnesses.