Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 1181, in case of Commonwealth of Pennsylvania v. Kevin Jennings.
Marvin R. Halbert, for appellant.
John H. Isom and David Richman, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Wright, P. J., and Watkins, J., would affirm the judgment of the court below.
[ 225 Pa. Super. Page 490]
On the night of April 14-15, 1972, two opposing groups of boys from two Philadelphia communities gathered on opposite banks of Wissahickon Creek awaiting the opening of trout season. Name calling, rock throwing and sporadic small fights inevitably led to a massive retaliatory attack by the group to which the appellant Jennings belonged. During the assault one youth, Gerald Clemson, was beaten and stabbed several times. While no one could positively identify Jennings as being directly involved in the beating and stabbing of Clemson, he was identified as having chased the victim across the creek immediately thereafter while brandishing a weapon*fn1 and shouting, "If you want more, come back."
During the trial the appellant called one Thomas Vecchione who had been present on the night in question, and who was to be the principal defense witness.*fn2 Before the witness entered the courtroom, the assistant district attorney informed the court that there was an unexecuted complaint outstanding against the witness and that if he testified "he (would) no doubt incriminate himself." The assistant district attorney then advised the court that whether an arrest warrant would issue depended in large part on whether the witness testified. The Commonwealth admitted that it was only charging Vecchione with being a participant in the general assault, a role which twenty to thirty other
[ 225 Pa. Super. Page 491]
youths had also played, and for which no one had been prosecuted theretofore. Thus, virtually every exculpatory witness that the appellant could call was susceptible to a similar threat. When Vecchione entered the courtroom he was apprised of the complaint and its implications. The discourse between the district attorney and the court led Vecchione to state on the stand that he was "intimidated" and "scared of" the prosecutor. The court advised Vecchione to confer with an attorney during a recess period. After a noon conference with a member of the public defender's office, Vecchione went home and did not return to court. Out of consideration for Vecchione's plight, the appellant expressly declined the court's offer to issue a bench warrant to procure Vecchione's return.
The events which occurred at trial surrounding the circumstances and significance of the criminal complaint against Vecchione led the trial judge to express some rather harsh words for the assistant district attorney: "Frankly I have never had this experience before, either. I don't think I have ever seen a more blatant abuse of the criminal process than what occurred here this morning. I am really shocked. . . . Threatening with an arrest. In my many years as a Judge and seven years as a prosecutor myself, and -- I have never had an experience like this. . . . I want to turn this tactic. . . . I am going to have the notes transcribed. I will refer it to the proper authority. . . . This is outrageous."
The appellant argues that the actions of the prosecutor constituted a denial of the appellant's Fourteenth Amendment rights to due process and a fair trial. We agree. The district attorney contends that his remarks were meant solely as a matter of protection for Vecchione against testimony which might incriminate him.
Pyle v. Kansas, 317 U.S. 213 (1942), established that abuse by the state of its ...