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COMMONWEALTH PENNSYLVANIA v. MARLO DIGIACOMO (10/03/75)

decided: October 3, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
MARLO DIGIACOMO, APPELLANT



COUNSEL

John J. Dean, Stephen P. Swem, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Louis R. Paulick, Asst. Dist. Attys., John M. Tighe, First Asst. Dist. Atty., Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Pomeroy, JJ., filed concurring opinions. Manderino, J., concurs in the result.

Author: Nix

[ 463 Pa. Page 452]

OPINION OF THE COURT

This direct appeal from a conviction of murder in the second degree results from an altercation which occurred in a tavern in Allegheny County during which the proprietor was fatally shot in the back seven or eight times by appellant. Appellant presses two assignments of error to justify the reversal of the judgment of sentence and the grant of a new trial. We do not agree and now affirm.

On October 28, 1974, appellant, Mario DiGiacomo, and his friend, John Hruska, went to the "Some Place Else" Tavern owned by Raymond Anderson, the victim. During the course of the evening, a fight erupted between Hruska and Anderson. In the sequence of events which followed, appellant fired the shots which caused Anderson's death. At trial, appellant admitted causing the death of Anderson but asserted that he fired the shots in an effort to protect his friend, Hruska, from serious bodily injury. The first assignment of error charges that the Commonwealth improperly prevented Hruska from testifying and thereby denied appellant his Sixth Amendment Right to Compulsory Process.

Is is unquestioned that our Federal Constitution assures the right of an accused to be provided with an adequate opportunity to present his version of the incident to the trier of fact. Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

In recognition of this right, this Court has required the Commonwealth to advise the defense of, and to make available to the defense is possible, all known eyewitnesses, Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Gray, 441 Pa. 91,

[ 463 Pa. Page 453271]

A.2d 486 (1970); Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). We have however held that the Commonwealth has no duty to call as its witness an eyewitness if there is reason to believe, after examination or investigation, that the testimony of that witness would be unreliable or unworthy of belief. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951).

Here the existence of the witness, Hruska, the knowledge possessed by him concerning the fateful events, and his whereabouts were known to the defense. The alleged violation of the Sixth Amendment in the instant appeal is the allegation that the Commonwealth improperly intimidated the witness and caused him to elect to invoke his Fifth Amendment privilege and thereby made him unavailable as a defense witness. If the record bore out these contentions, there would be substantial merit in appellant's position. Cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Smith, 156 U.S.App.D.C. 66, 478 F.2d 976 (1973).

The witness, Hruska, was subpoenaed by both the prosecution and the defense. The Commonwealth advised the court that it would not call Mr. Hruska as a witness because they were of the view that he was not worthy of belief. The Commonwealth concedes that during its trial preparation Mr. Hruska was interviewed. During that interview, Mr. Hruska was advised that evidence from other eyewitnesses strongly suggested that he might well have been an accessory to this crime. He was also advised of his right against self-incrimination. At some point after this interview, Mr. Hruska communicated to the defense his intention to invoke his Fifth Amendment privilege if he was called as a witness in the matter.

Although appellant alleged threats and intimidation, there is no evidence of what transpired during the pre-trial conference between the prosecutor and Mr. Hruska ...


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