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COMMONWEALTH v. DAVENPORT (07/02/73)

decided: July 2, 1973.

COMMONWEALTH
v.
DAVENPORT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Feb. T., 1970, No. 267, in case of Commonwealth of Pennsylvania v. Herman Miller Davenport.

COUNSEL

J. Peirce Anderson, with him Bean, DeAngelis, Kaufman & Kane, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts, Mr. Justice Nix, and Mr. Justice Manderino concur in the result. Mr. Chief Justice Jones dissents.

Author: Pomeroy

[ 453 Pa. Page 237]

Appellant, Herman Miller Davenport, was convicted by a jury of murder in the first degree for the killing of Milton Hawkins on January 14, 1970. Sentence of life imprisonment was imposed, and appellant brought the instant appeal. For reasons which follow, we reverse and remand for a new trial.

[ 453 Pa. Page 238]

    recognized the potential prejudice if a witness called by the prosecution and logically associated with the defendant is allowed to invoke the Fifth Amendment in the presence of the jury.*fn3 In two recent cases similar to the one at bar we have had occasion to indicate why such a practice is to be condemned. Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973); Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973). The calling of the witness whom the district attorney had reason to know would refuse to testify "presented the jury with an irrelevant event (invocation of the privilege) from which the jury could make fallacious deductions prejudicial to the defendant and not subject to cross-examination." DuVal, supra at 214.

The Commonwealth alleges that no error was committed in this case because when Bartlett was called to the stand, the prosecution believed in good faith that his right to invoke the Fifth Amendment had been lost by his earlier trial and conviction.*fn4 As we said in DuVal,

[ 453 Pa. Page 240]

    however, a case where the Commonwealth asserted that by testifying on prior occasions the witnesses had waived their Fifth Amendment rights, the validity vel non of the claim of privilege is immaterial. It is a question which can and should be settled outside the presence of the jury. It is also clear, as in DuVal, that the district attorney had actual notice of Bartlett's intention to take the Fifth Amendment; we therefore need not explore what steps, if any, the Commonwealth should be required to take in advance in order to ascertain the willingness of a witness to testify.

II

The proceedings below were infirm for a second reason. On January 20, 1970, at the instigation of the police, the Montgomery County Coroner extracted a blood sample from appellant to type and compare with that of the deceased. This action was taken without prior judicial authorization and while appellant was confined in the local jail. We conclude that appellant's rights under the Fourth Amendment were violated and that his ...


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