No. 226 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at No. 129 December Term, 1975
Lawrence S. Rosenwald, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Paul S. Diamond, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion.
Both article I, § 9 of our Constitution and the sixth amendment to the Constitution of the United States guarantee appellant Florencio Rolon "[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary . . . ." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).*fn1 We agree with appellant that the court of common pleas deprived appellant of his right of compulsory process by accepting the unsupported claim of privilege against self-incrimination of appellant's witness, Orlando Rodriguez. Accordingly, we reverse judgment of sentence and grant appellant a new trial.*fn2
Police charged appellant with killing Edward Muldor. At trial, appellant called Felix Ayala to confirm appellant's claim that he was merely a witness to the killing, and not a perpetrator. Just as Ayala began to testify on appellant's behalf, the Commonwealth interrupted Ayala's testimony, contending that Ayala may have been involved in the crime. Acting on the Commonwealth's assertion, the trial court delayed trial and summoned a public defender to assist
Ayala in determining whether to assert the privilege of self-incrimination.
The trial court's concern for the rights of appellant's witnesses was not limited to Ayala. The court also appointed counsel to represent Orlando Rodriguez, another of appellant's witnesses who had not yet testified. It did so only on the basis of its unspecified belief that the "same problem may exist."*fn3 Appointed counsel consulted with both witnesses and announced to the court that the witnesses intended to claim the privilege. The court accepted each witness's claim without affording appellant an opportunity, timely-requested, to establish even his proposed line of questioning.
Court then recessed for the day "to give [defense counsel] an opportunity to reassess [his] position. . . ."*fn4 Later that day, Ayala and Rodriguez
"were arrested in the courtroom. . . . They went to the Police Administration Building and both gave full statements with regard to this after having waived their Fifth Amendment rights . . . ."*fn5
Even though the jury was not charged until the next day, there is no indication on the record that the Commonwealth informed either the court or defense counsel that statements had been obtained. Likewise, there is on the record no indication that the content of either witness's statement substantiated the claim of privilege or implicated appellant. At no time during the more than three and one-half years since trial has either witness been prosecuted.
The day after both defense witnesses claimed the privilege, the court charged the jury. The jury found appellant guilty of murder of the third degree. Written post-verdict motions were denied ...