Calvin S. Drayer, Jr., Asst. Public Defender, John P. Gregg, for appellant.
Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Bert M. Goodman, Norristown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result.
This appeal arises from the holding of appellant, Mark Wilmore, in direct criminal contempt of court for invoking
his Fifth Amendment right against self-incrimination at the trial of Donald Reese.
The facts surrounding this appeal are as follows. On August 20, 1972, Parnell Butler was found murdered in his cell at Graterford Prison. On October 24, 1972, appellant was called as a witness by the Commonwealth during the preliminary hearing for Donald Reese, who was accused of the murder of Butler. Appellant's testimony implicated Reese as the assailant, placed himself in the cell during the altercation which caused Butler's death, and implicated himself as a participant in the slaying. Appellant was cross-examined by Reese's attorney but he was not represented by counsel. On September 19, 1974, appellant was called as a witness at the trial of Reese for the murder of Butler. Appellant was sworn and testified that he had been "residing" at Graterford for the past two (2) years. Appellant then testified as follows:
Now, directing your attention to August the 20th, 1972, were you in Graterford at that time?
Well, I'm not going to testify to this case here. You see I'm going to take the Fifth Amendment. I'm going ...