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COMMONWEALTH PENNSYLVANIA v. ROBERT PERCELL (12/21/79)

filed: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT PERCELL, APPELLANT



Nos. 319 & 320 SPECIAL TRANSFER DOCKET, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, as of November Term, 1975, Nos. 804 & 805

COUNSEL

Jack M. Myers, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn* Eagen, J., files a dissenting opinion.

Author: Per Curiam

[ 274 Pa. Super. Page 155]

Appellant contends that numerous instances of prosecutorial misconduct and trial error warrant granting him a new trial. We disagree and, accordingly, affirm the judgment of sentence.

Appellant was charged with voluntary manslaughter and possession of an instrument of crime generally in the shooting death of Isaac Bordley on June 22, 1975. A jury found appellant guilty of both charges, and, after denial of post-verdict motions, the lower court sentenced appellant to 11 1/2 to 23 months imprisonment on the voluntary manslaughter charge and a consecutive term of five years probation on the weapons charge.*fn1 These appeals followed.*fn2

Appellant contends first that the prosecutor violated the spirit of Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973), by suggesting that appellant's son had exercised his privilege not to testify in the present case. In DuVal, the Court held that

[ 274 Pa. Super. Page 156]

    the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person (co-defendant, accomplice, associate, etc.) likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose.

Id., 453 Pa. at 217, 307 A.2d at 234. In so holding the Court recognized that jurors might unjustifiably draw an inference of guilt from a witness' refusal to testify and transfer such negative inference to defendant because of his association with the witness. Id., 453 Pa. at 213-14, 307 A.2d at 232-33.

In the present case the prosecutor was aware that appellant's son would invoke his privilege against self-incrimination if called to testify. Although the Commonwealth never called appellant's son as a witness, appellant contends that the prosecutor circumvented DuVal by asking certain questions of a police detective, by asking appellant if he knew why his son did not wish to testify, and by commenting on the son's absence from the trial. We disagree. The prosecutor's questioning of the police detective concerning the son's role in the recovery of the homicide weapon in no way implied to the jury that the son had chosen to remain silent. Additionally, although during the cross-examination of appellant the prosecutor alluded to the son's unwillingness to testify, she did not intimate that this unwillingness resulted from fear of self-incrimination. Moreover, the trial court sustained appellant's objection to this line of questioning. Finally, although we strongly disapprove of the prosecutor's tactic during closing argument of commenting on the son's failure to testify, we are satisfied beyond a reasonable doubt that such error was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Appellant contends next that the prosecutor's attempt to impeach one of appellant's witnesses by evidence of prior bad acts not resulting in convictions was sufficiently prejudicial to warrant a new trial. At trial appellant ...


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