Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1968, No. 40, in case of Commonwealth of Pennsylvania v. David Terenda.
Wendell G. Freeland, with him Lichtenstein & Bartiromo, for appellant.
Robert L. Eberhardt, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones, Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Pomeroy concur in the result.
David Terenda, the appellant, was convicted in 1968 of voluntary manslaughter following a jury trial in Allegheny County. Post-trial motions were denied and a sentence was imposed of not less than six nor more than twelve years. The judgment of sentence was affirmed in Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969). The same private counsel, now deceased, represented the appellant during trial and on his direct appeal to this Court. In 1971 new counsel for the appellant filed a petition under the PCHA. Relief was denied and this appeal followed.
The appellant claims error in that two of his coindictees for the same crime, Ronald Bellan and George Johnson, who were called in rebuttal, invoked their privilege under the Fifth Amendment in the presence of the jury thereby unfairly creating prejudicial inferences
to the appellant. The appellant also argues that the unfair prejudice was not eliminated by cautionary instructions given to the jury. Additionally, the defendant claims that the failure to previously raise his claim does not constitute a waiver by the appellant because previous counsel's failure to raise the issue amounted to the ineffective assistance of counsel. We agree and remand for a new trial.
As rebuttal witnesses, the prosecution called Ronald Bellan and George Johnson, who were indicted along with the appellant for the same killing. They were to be tried at a later date. When Ronald Bellan was called as the first witness of the two, the trial judge requested a sidebar conference and inquired as to whether Bellan had legal counsel present. Bellan's attorney informed the court that his client would assert his privilege under the Fifth Amendment and give only his name and address. The prosecuting attorney was present at the sidebar conference and was aware of the information given to the court by Bellan's counsel.
Bellan took the stand and gave his name. When the prosecution asked about his age, Bellan invoked the Fifth Amendment. The prosecution continued and asked Bellan if he had been in the company of the appellant and the other co-indictee, George Johnson, during the period of time relevant to the killing. Bellan again invoked the Fifth Amendment. The prosecution continued the questioning and asked whether Bellan could identify certain weapons. Once again Bellan refused to answer invoking his Fifth Amendment privilege.
Bellan was then excused and the other co-indictee, George Johnson, was called to the stand by the prosecution. The record shows that Johnson was represented by private counsel and was aware of his right to remain silent. The record also shows that ...