OPINION AND ORDER
TROUTMAN, District Judge.
This is a petition for a writ of habeas corpus in which relator seeks to have his judgment of conviction and sentence set aside because his Fourteenth Amendment right to due process was allegedly violated during the course of his trial in the following particulars:
1. The prosecution called a witness to the stand and elicited a Fifth Amendment claim of privilege against self-incrimination in the presence of the jury, the prosecution knowing in advance that the witness would refuse to testify and making no attempt to request a ruling on the claim out of the presence of the jury;
2. The prosecution used testimony which was compelled from a witness who had properly claimed the Fifth Amendment privilege against self-incrimination;
3. In the trial court's instructions to the jury, the trial judge failed to adequately instruct the jury concerning evidence which was no longer properly before them and he also revived and emphasized a portion of that very same evidence.
The Commonwealth was ordered to show cause why a writ of habeas corpus should not be granted. Both the Commonwealth and relator's counsel have agreed that the merits of relator's contentions may be disposed of without the necessity of conducting an evidentiary hearing in this Court. Both sides filed briefs in support of their respective positions and oral argument was heard, at which time there was offered and admitted into evidence a copy of the record of the proceedings in the trial court.
An examination of the trial court record indicates that relator was indicted in the Court of Quarter Sessions of Lancaster County on Bill No. 65, March Term 1966, for conspiring to commit an abortion on one Melody McFarland; on Bill No. 64, March Term 1966, for conspiring to commit an abortion on one Elaine Ressler; and on Bill No. 63, March Term 1966, for being an accessory before the fact to an abortion performed on Elaine Ressler.
In support of the charges against relator, the prosecution introduced evidence indicating that relator is a practicing osteopathic physician in Lancaster, Pennsylvania. The principal prosecution witnesses were Melody McFarland and Elaine Ressler. They both testified that independent of one another and while pregnant they visited relator's office and asked him to abort them. He refused to do so, but offered to refer them to Helen Harris, a female abortionist living in Philadelphia. He advised them that the cost of the abortion would be two hundred dollars to him for his advice and for making the necessary arrangements and a like amount to Helen Harris for performing the abortion. They further testified that independent of one another and on instructions from relator they proceeded to Philadelphia, contacted Helen Harris by telephone when they arrived, and introduced themselves as "tonsils". Pursuant to that telephone conversation, they took a cab to the 200 block of East Upsal Street and walked to the home of Helen Harris at 369 East Upsal Street. Elaine Ressler testified that she paid two hundred dollars to relator for his advice and the same amount to Helen Harris for services rendered. Melody McFarland testified that she also paid relator two hundred dollars for his advice, but she paid nothing to Helen Harris because the police arrived before Helen Harris had any opportunity to take any steps to induce the abortion.
Arlene Scheetz, a sister of Elaine Ressler, testified that she accompanied her sister on the first visit to relator's office. She further testified that she was present when relator offered to make arrangements to have her sister aborted by a female abortionist in Philadelphia for four hundred dollars, two hundred to relator and the same amount to the abortionist.
Helen Harris testified that she first met relator when she took her child to him to have the child's tonsils removed. She advised him at that time that if he were ever in need of the services of an abortionist to call her. She further testified that relator did contact her and did make the necessary arrangements to have her perform an abortion on Elaine Ressler and that she did in fact do so. As to Melody McFarland, however, she testified that relator made no contact and made no arrangements to have her aborted.
Policewoman Martin of the Philadelphia Police Department testified that on information she followed Melody McFarland from Coatesville, Pennsylvania, to North Philadelphia by train and, together with Detective Corr of the Philadelphia Police Department, from North Philadelphia to the 200 block of East Upsal Street in Philadelphia by cab and from there to 369 East Upsal Street on foot. Detective Corr obtained a search warrant and they proceeded into the house. She further testified that once in the house she observed Melody McFarland and who later proved to be Elaine Ressler and Helen Harris. She also observed surgical instruments and certain devices commonly used for the purpose of performing abortions. Detective Corr also testified and itemized in detail the instruments and devices found in the house. The remainder of his testimony corroborated that of Policewoman Martin.
The Commonwealth having thus concluded its case, the defense demurred to the evidence on all indictments. The demurrer was sustained as to Bill No. 65 and was overruled as to the remaining Bills. Relator then took the stand in his own defense and denied the Commonwealth's testimony in all of its essential particulars. In concluding its case the defense produced many character witnesses on relator's behalf.
The jury returned a verdict of guilty on the charge of conspiring to commit an abortion on Elaine Ressler and on the charge of being an accessory before the fact to the same abortion. The constitutional questions now being pressed in this Court were raised in the State courts on direct appeal and relief was denied.
1. FIFTH AMENDMENT PLEA
The first argument advanced by relator is that the prosecution called Melody McFarland as a witness at a time when the District Attorney and the Court knew that she would claim her privilege against self-incrimination. After answering as to her name and address she invoked her privilege against self-incrimination and refused to answer any further questions. The District Attorney attempted to question the witness as to whether she had the right to invoke the privilege. On objection by defense counsel, the Court excused the jury and in their absence resolved the question of whether she was entitled to assert her privilege against self-incrimination. Relator contends that requiring a witness to invoke the privilege against self-incrimination in the presence of the jury created an aura of suspicion and connivance in their minds which was prejudicial to him. He further contends that this prejudice rises to the level of a deprivation of due process where the prosecution and the Court have advance notice that the witness intends to plead the Fifth Amendment.
In United States ex rel. Fournier v. Pinto, 408 F.2d 539, at page 541 (3rd Cir. 1969), the Court of Appeals for this Circuit stated:
"Many courts that have considered episodes of this kind in varying circumstances have found that the refusal of a prosecution witness to answer all, or all but the most innocuous, questions tends to prejudice the defendant. United States v. Tucker, 3rd Cir. 1959, 267 F.2d 212; Fletcher v. United States, 1964, 118 U.S.App.D.C. 137, 332 F.2d 724; United States v. Amadio, 7th Cir. 1954, 215 F.2d 605. 'When a witness claims his privilege, a natural, indeed an almost inevitable inference arises as to what would have been his answer if he had not refused. If the prosecution knows when it puts the question that he will claim the privilege, it is charged with notice of the probable effect of his refusal on the jury's mind.' United States v. Maloney, 2d Cir. 1959, 262 F.2d 535, 537.
"At the same time we are mindful of the observation of the Supreme Court that 'none of the several decisions dealing with this question suggests that reversible error is invariably committed whenever the prosecution causes a witness to claim his privilege not to answer in the presence of the jury. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege. * * * A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and this unfairly prejudiced the defendant.' Namet v. United States, 1963, 373 U.S. 179, 186-187, 83 S. Ct. 1151, 10 L. Ed. 2d 278. Cf. Douglas v. Alabama, 1965, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934."
A due process violation therefore is not automatically made out whenever the prosecution has advance notice that a potential witness intends to invoke the privilege and calls the witness to the stand which necessitates the invocation of the privilege in the presence of the jury. Rather, the circumstances of a given case must be examined to determine whether there is either prosecutorial misconduct by the District Attorney or unfair prejudice to the defendant.
In the case at bar, after having reviewed the trial court record, we are satisfied that the District Attorney did not engage in prosecutorial misconduct as that term is used in the decided cases. Admittedly, the prosecution with advance notice did call Melody McFarland to the witness stand and did compel her to invoke her Fifth Amendment claim in the jury's presence. But for the action of the District Attorney to constitute prosecutorial misconduct and thereby rise to the level of a due process violation a significant factor is whether an attempt was made by the prosecution to build its case out of inferences arising from the use of the testimonial privilege. No such attempt was made in this instance.
Nor do we believe that relator was unfairly prejudiced by Melody McFarland's having to invoke her privilege in the presence of the jury. The prejudice allegedly resulting to relator is the aura or odium of suspicion and connivance created in the minds of the jurors by the claim of constitutional privilege. Once the claim of privilege is asserted, an inevitable inference of suspicion and connivance arises in the minds of the jurors as a natural consequence of the witness' refusal to answer. But the aura of suspicion or connivance must be viewed in the context of the strength or weaknesses in the prosecution's case to determine the degree of prejudice. We are satisfied, after reviewing the trial court record with care, that the prosecution established a very strong case against relator and any prejudice resulting to relator as a consequence of this incident is far from sufficient to make out a due process violation.
Moreover, any prejudice allegedly created in the minds of the jurors when a witness in their presence refuses to testify is dispelled, or at least substantially diminished, where, as in this case, the claim of privilege is overruled and the witness is directed to testify. This may not be true in all cases. But certainly where the testimony of the witness fully implicates the defendant in the crime for which he is charged, as did Melody McFarland's testimony, any aura or odium of suspicion generated by the initial refusal of the witness to testify is thereby substantially reduced.
We do not mean to suggest that we condone the actions of the prosecutor in eliciting a Fifth Amendment plea in the presence of the jury. Where the prosecution has advance notice that a witness intends to invoke the privilege against self-incrimination a preliminary ruling out of the jury's presence should be requested. It was improper for the prosecution to have done otherwise in this case. But in our view the circumstances of this case are such that this impropriety standing alone does not rise to the level of a due process violation.
2. OVERRULING THE FIFTH AMENDMENT PLEA
The next argument advanced by relator is that after Melody McFarland invoked her Fifth Amendment claim of privilege the jury was excused and counsel argued whether she was entitled to claim the privilege. Her attorney argued that her testimony would implicate her in a number of crimes, primarily the charge of fornication. The trial court overruled her claim of privilege and purported to grant her immunity from prosecution on a charge of fornication. Relator contends that the trial court was in error in concluding that she was not entitled to claim the privilege against a possible charge of fornication and had no power to grant her immunity. Relator further contends that the erroneous overruling of the Fifth Amendment claim of privilege of this witness resulted in a trial which was fundamentally unfair to him and, therefore, a denial of due process.
It is clear under Pennsylvania law that an unmarried woman who has or attempts to have an abortion performed upon her is subject to possible prosecution on a charge of fornication. In Commonwealth v. Carrera, 424 Pa. 551 at page 554, 227 A.2d 627 at page 629 (1967), the Pennsylvania Supreme Court stated:
"Assuming arguendo, as the Commonwealth contends, that the victim cannot be prosecuted for her part in the abortion, there is nothing in the law to prevent her prosecution for a crime unrelated to the abortion itself, such as fornication. Further unless unusual circumstances exist as, e.g., rape, common sense dictates that an unmarried female who admits an abortion has been performed upon her acknowledges and admits she has committed fornication. * * *"
The testimony sought to be elicited from Melody McFarland clearly would have established that she attempted to have an abortion performed upon herself and, therefore, would have subjected her to possible prosecution for fornication. Thus, she had every right to invoke her Fifth Amendment privilege against self-incrimination.
The Commonwealth suggests that the decision by the Pennsylvania Supreme Court in Carrera was prospective only, and therefore since Carrera was decided a few months after relator was tried and convicted it has no application to the case at bar. There is no suggestion that fornication was not a crime in Pennsylvania prior to Carrera and there is no contention that the Fifth Amendment was not then protected under the Fourteenth Amendment against abridgement by the states. Nor is there anything in the decision which would indicate that the Court intended to so limit its holding and we, therefore, find no merit in this argument.
Relator further contends that once it is established that Melody McFarland had a right to assert her Fifth Amendment privilege, the trial court was in error in purporting to overrule the assertion of privilege by a grant of immunity. The Commonwealth apparently concedes that there is no constitutional or statutory authority in Pennsylvania for the grant of such immunity; in the absence of which, District Attorneys in this Commonwealth have no right to grant it. Commonwealth v. Carrera, supra. Nor do we believe that members of the judiciary have the right to grant immunity in the absence of statutory authority. To conclude otherwise would be to permit the judiciary to circumvent the intentions of the Legislature. Consequently, in our opinion the trial court's order directing this witness to testify was error and violated the constitutional rights of the witness.
The issue we are faced with is now brought into sharper focus. Where a prosecution witness properly asserts a Fifth Amendment claim of privilege and the trial court erroneously overrules the claim of privilege by purporting to grant immunity, what constitutional right does the defendant have to object to any testimony thereby elicited from the witness. In Bowman v. United States of America, 350 F.2d 913 at pages 915 and 916 (9th Cir. 1965) the Court stated:
"* * * It has long been settled that the privilege against self-incrimination is personal to the witness. ( Hale v. Henkel, 1906, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652; McAlister v. Henkel, 1906, 201 U.S. 90, 26 S. Ct. 385, 50 L. Ed. 671; United States v. Murdock, supra [284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210]; United States v. White, 1944, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542; Rogers v. United States, 1951, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344; Communist Party of United States v. Subversive Activities Control Board, 1961, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625.) It is equally well settled that the witness can waive the privilege. Thus if Davie (witness) and Reves (witness) had each failed to assert the privilege, this would be nothing about which Bowman (defendant) would be entitled to complain.