No. 870 Philadelphia, 1980, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 422-78.
Stephen H. Serota, Philadelphia, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge and Hester and Wieand, JJ.
[ 296 Pa. Super. Page 472]
Santo Anthony Bellacchio, the appellant herein, was tried jointly with his brother, Michael Bellacchio, on charges of burglary,*fn1 theft by unlawful taking,*fn2 theft by receiving stolen property,*fn3 and criminal conspiracy with one Reba Walker to receive stolen property.*fn4 He was found guilty of theft by receiving stolen property and conspiracy. After post trial motions had been denied and sentence imposed,
[ 296 Pa. Super. Page 473]
trial counsel withdrew his appearance for appellant. Present counsel thereupon entered his appearance and has pursued this direct appeal. In addition to several alleged trial errors, appellant contends that trial counsel was constitutionally ineffective. We find no merit in any of these contentions; and, therefore, we affirm the judgments of sentence.
On February 7, 1978, at approximately 6:30 a. m., appellant and his brother, Michael, together with Vincent Card and Robert Meade, were observed walking through a snow storm carrying television and stereo sets. When Officer Richard J. Burke, Upper Darby Police, attempted to investigate, the young men dropped the items which they were carrying and ran. All were subsequently apprehended, and the items which they had been carrying were determined to have been removed from the Vanleer I. Bond Department Store, Drexel Hill, during a burglary which had occurred shortly after midnight. A search of appellant's home disclosed additional stolen television sets and a stolen radio. It also disclosed that the home was occupied by Reba Walker, who was then living with appellant.
This evidence was sufficient to prove defendant's guilt of theft by receiving stolen property, and the trial court properly refused a motion in arrest of judgment.
Appellant contends that the trial court erred in permitting Vincent Card and Robert Meade to assert the Fifth Amendment privilege against self-incrimination when called as defense witnesses.*fn5 Card, a juvenile, had previously given testimony during proceedings in which he was certified for trial as an adult; and Meade had entered pleas of guilty to charges of burglary and criminal conspiracy but had not yet been sentenced for his part in the burglary. Both had exonerated appellant from participating in the burglary.
[ 296 Pa. Super. Page 474]
The waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in an independent proceeding. Commonwealth v. Rodgers, 472 Pa. 435, 451 n.6, 372 A.2d 771, 778 n.6 (1977). See, e.g., United States v. Yurasovich, 580 F.2d 1212, 1220 (3rd Cir. 1978); United States v. Housand, 550 F.2d 818, 821, n.3 (2nd Cir. 1977), cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976). However, a witness who invokes the privilege against self-incrimination is unavailable for purposes of the hearsay exception permitting the introduction of the notes of testimony from a prior judicial proceeding. Commonwealth v. Rodgers, supra, 472 Pa. at 453, 372 A.2d at 779; Commonwealth v. Colon, 461 Pa. 577, 583, 337 A.2d 554, 557 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). In the instant ...