Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1969, No. 175, in case of Commonwealth of Pennsylvania v. James Thomas Greene, a/k/a Bobby Greene.
Arnold E. Rubin, with him Mowatt, McErlean, Pinto, Theodore & Rubin, for appellant.
O. Warren Higgins, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.
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 ...