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COMMONWEALTH PENNSYLVANIA v. HORACE DAVIS (09/21/82)

submitted: September 21, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
HORACE DAVIS, APPELLANT



No. 198 Harrisburg, 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF JUNE 26, 1981 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, CRIMINAL, No. 73 Crim. Action 81

COUNSEL

John H. Chronister, Assistant Public Defender, York, for appellant.

Richard H. Horn, Assistant District Attorney, York, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ. Wieand, J., files a concurring statement.

Author: Cirillo

[ 308 Pa. Super. Page 400]

Appellant was convicted by a jury of robbery.*fn1 After motions for a new trial and in arrest of judgment were denied, he was sentenced to a term of not less than one and a half nor more than three years in a state correctional facility. He now appeals from said judgment of sentence. We affirm.

The record indicates that on or about 1:10 p.m. on a street in downtown York a woman walked by two black males, one of which was identified as the appellant. She testified at trial that appellant grabbed her shoulder-bag, slapped her in the face five or six times, and then fled the scene. She further testified that she was in fear of the appellant. She described the other man as having done nothing. Appellant was apprehended by the police about five minutes later and was immediately identified by the victim as her assailant.

Appellant denied being the one who assaulted the victim and said that the other man who was present, Clary Orr, Jr., was the real assailant. Clary Orr, Jr., after being advised of his rights by the court and upon advice of counsel, refused to testify. His father, Clary Orr, Sr., who was called by appellant, testified that appellant told him that the appellant and Clary, Jr., went out to snatch pocketbooks on the day in question.

Appellant contends that the trial court erred in refusing to allow appellant to call Clary Orr, Jr., as a witness because Clary, Jr., had claimed his Fifth Amendment right against self-incrimination. We disagree.

In Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) the Supreme Court of Pennsylvania stated that a jury may not draw an inference from a witness' exercise of his Fifth Amendment right to remain silent whether the inference be favorable to the prosecution or defense.

[ 308 Pa. Super. Page 401]

Again, in Commonwealth v. Duval, 453 Pa. 205, 307 A.2d 229 (1973) the Court stated that as it was reversible error for the prosecution to call a witness to the stand with prior knowledge that he would exercise his Fifth Amendment right to remain silent, so, too, was it improper for the defense to attempt to capitalize upon this same inference.

This identical proposition was cogently articulated by this Court as recently as Commonwealth v. Bellacchio, 296 Pa. Super. 468, 442 A.2d 1147 (1982) ...


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