The opinion of the court was delivered by: TROUTMAN
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.
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.
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 ...