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UNITED STATES EX REL. YATES v. RUNDLE

January 20, 1971

UNITED STATES of America ex rel. John YATES
v.
Alfred T. RUNDLE, Supt.


John W. Lord, Jr., Chief Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, JR., Chief Judge.

 Relator, a state court prisoner, was tried before the Honorable Theodore B. Smith, Jr., sitting without a jury, in the December sessions, 1967, of the Philadelphia County Court of Common Pleas, on bills of indictment Nos. 170 and 173, and found guilty of aggravated robbery and carrying a concealed deadly weapon. The court imposed sentences of two to ten years on the robbery charge, and a concurrent term of one year on the concealed weapon charge. Although the issues raised herein are not identical to those raised on the state court appeals, the Commonwealth concedes that they are sufficiently similar to justify a finding that the state appellate courts have been given an opportunity to consider the merits of relator's case, so that this Court's jurisdiction is properly invoked.

 Relator asserts that he was convicted as the result of the Commonwealth knowingly coercing his co-indictee into testifying against him over the co-indictee's claim of his privilege against self-incrimination.

 The crime itself took place as follows. At 5 o'clock P.M. on November 1, 1967, John Yates was a participant in a dice game with several other men, in a room over the barber shop at 1428 South Street, Philadelphia. The owner of the shop, Amos Florence, testified at relator's trial that Yates drew a gun during the course of the game, and stole the money in play. Florence testified that Yates ordered Nathaniel Williams to pick up the money. Yates, Williams and a third man left the game, and were apprehended ten minutes later.

 Williams, when called to the stand, said, "I'm not testifying" (Notes of Testimony 13; hereinafter N.T.), basing his refusal to do so on his right to avoid self-incrimination. The Court then inquired of him if he had been indicted, tried, and found not guilty of the crimes charged in this matter. When Williams replied that he had, the Court discussed at length with defense counsel and the District Attorney the possibility of the witness incriminating himself on any other charge. At the conclusion of this discussion, the court said,

 
"I do not see any possibility of this man incriminating himself.
 
* * *
 
"I can't think of a single charge that might be placed against him at this point.
 
* * *
 
"You will have to testify or else go to prison. So you better speak up and do it fast." (N.T. 16).

 The District Attorney then said, "I will make life easy for you. I will give you a chance to keep yourself out of jail." He then asked the witness two questions:

 
"You heard Mr. Florence testify, ...

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