Benjamin S. Blakley, III, Clearfield, for appellant.
F. Cortez Bell, III, Assistant District Attorney, Clearfield, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ. Johnson, J., concurs in the result.
[ 300 Pa. Super. Page 225]
Appellant, John Reed, was charged with theft by unlawful taking, burglary, and receiving stolen property. After a jury trial, appellant was convicted of burglary. Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three nor more than seven years. He also was ordered to pay the costs of prosecution and to make restitution to the victim. This appeal followed.
In this appeal, appellant contends that a mistrial should have been granted when the prosecutor informed a witness in the presence of the jury, after having advised the witness of his constitutional right to remain silent, that no charges would be brought against the witness. We agree and reverse the judgment of sentence and grant appellant a new trial for the reasons herein stated.
[ 300 Pa. Super. Page 226]
The testimony of Dennis Hughes was essential to the prosecution's case. This witness implicated appellant and a co-defendant, Ron Orley, in securing and delivering a stove and refrigerator which eventually were sold to Mr. Hughes and which were stolen from a vacation home. Apparently, Dennis Hughes had testified at the preliminary hearing, and according to appellant's attorney, the witness had made incriminating statements which would tend to show that Dennis Hughes knew beforehand that the stove and refrigerator were stolen. The prosecutor disagreed with the attorney's characterization of the witness's testimony. The record sets forth the scenario of the trial in the following manner:
"MR. SEAMAN [The Prosecution]: Your Honor, the Commonwealth would call Mr. Dennis Hughes.
DENNIS JAMES HUGHES, having been duly sworn, was examined and testified as follows:
THE COURT: Will you pull the microphone in, please?
MR. LEES [Defense Counsel]: At this time we would request that this witness be instructed of his constitutional rights to remain silent. Contrary to the District Attorney's statement to the jury, there were incriminating statements made by this individual during the Preliminary Hearing in regards to the items in question.
THE COURT: Very well. Mr. Hughes, are you --
MR. SEAMAN: Your Honor, I'd just like to clarify something. The statement by Mr. Lees that the statements made by this witness at the Preliminary Hearing were incriminating, I believe it's a determination by Mr. Lees himself that they were incriminating; and it depends upon whose ears the statements fall whether or not they're incriminating.
THE COURT: Mr. Hughes, are you represented by Counsel?
[ 300 Pa. Super. Page 227]
THE COURT: Do you understand that there is at least a suggestion that your testimony may lead to incriminating statements by you?
THE WITNESS: I don't really understand it.
THE COURT: Mr. Seaman, will you proceed to explain ...