No. 512 January Term, 1977, Appeal from the Judgment of Sentence imposed June 14, 1977, by the Court of Common Pleas of Berks County, Pennsylvania, Criminal Division, to No. 77010801
David R. Eshelman, Asst. Public Defender, for appellant.
Charles M. Guthrie, Jr., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Eagen, C. J., concurs in the result. Roberts, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion. Manderino, J., did not participate in the consideration or decision of this case.
This is an appeal of appellant Aida E. Feliciano Tirado's criminal contempt conviction.
This conviction arose as follows: On June 13, 1977, a jury was sworn in the trial of Julio Ortiz Tirado, appellant's husband, who was charged with recklessly endangering another person, aggravated assault, and simple assault in connection with the beating of their 2 1/2-year old child. After the Commonwealth presented its opening argument, the jury was recessed and the court met with the prosecutor and
counsel for appellant's husband. At this meeting, the court allowed the Commonwealth to summon appellant (a Commonwealth witness) in order to "inquire . . . of her [appellant's] intentions with respect to testifying and competency". Appellant was sworn and testified as follows (in pertinent part):
Q . . . [Y]ou were served with a subpoena to appear in court in connection with this case; is that correct?
BY MRS. TIRADO [APPELLANT] A Yes.
Q And did you consult with me prior to selecting the jury this afternoon?
Q Did you indicate to me that you were not willing to testify in this case?
Q Now, did you give a statement to Officer Leon Krammes of the Bureau of Reading Police?
Q Reading Bureau of Police; do you remember giving a statement with regard to this incident at all?
Q Do you remember discussing this matter with the police?
A I discussed it, but I don't remember it, exactly the words I said in that.
Q Okay. Were you present at this time when Mr. Tirado entered the house and assaulted the young boy?
Q Mrs. Tirado, the law says that under normal circumstances, or usually, a husband and wife do not have to testify against one another.
A Yes, I understand that.
Q But in cases where violence is done or threatened to be done to the person of either of them, or of their children, or children in their custody, they are competent, and can be called to testify. I would tell you that as I understand the nature of the questions to be asked of you, that you would be competent to testify, and that if you refused to testify, you would be considered in contempt of court, and would be so held in contempt, and in the exercise of my judgment, I could have you imprisoned for a term of not longer than six months. Do you understand that?
Q Now, knowing this, would you be willing to testify?
A I exactly don't remember what happened. One reason was, I was drinking, and I don't exactly remember.
Q Well, do you remember anything about the incident involving your child, Julio Mirado, age approximately two and a half years? You ...