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COMMONWEALTH PENNSYLVANIA v. JOHNNY ALLEN (07/01/83)

decided: July 1, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHNNY ALLEN, APPELLANT



No. 81-3-368, Appeal from the Order of the Superior Court dated October 10, 1980, entered at No. 3033 October Term 1978, Affirming the Judgments of Sentence of the Court of Common Pleas of Philadelphia Trial Division, Criminal Section, December Term 1977, Nos. 474, 476, 477 and 478, 289 Pa. Superior Ct. 593, 429 A.2d 82 (1980)

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Ronald Eisenberg, Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Nix

[ 501 Pa. Page 527]

OPINION

This is an appeal, by allowance, from the order of the Superior Court, 289 Pa. Super. 593, 429 A.2d 82, which affirmed the judgments of sentence*fn1 imposed upon appellant by the Court of Common Pleas of Philadelphia sitting without a jury. Appellant alleges four grounds upon which he claims warrant a new trial.

[ 501 Pa. Page 528]

Appellant claims the trial court erred in permitting a defense witness, Allen Page, to be excused from testifying because of the witness' assertion of his Fifth Amendment privilege. In this context, appellant alleges that the trial court should not have excused the witness without first establishing the factual basis of the asserted privilege; that the prosecutor engaged in misconduct by threatening prosecution which coerced the witness into invoking his privilege; and that trial counsel was ineffective*fn2 for failing to establish on the record the nature of the defense witness' anticipated testimony and in failing to question the witness to ascertain whether the threat of prosecution influenced the witness' decision not to testify. Finally, appellant claims counsel was ineffective for failing to call a co-defendant as a defense witness after the court entered a directed verdict of not guilty in favor of the co-defendant upon the conclusion of the Commonwealth's case. For the reasons that follow, we affirm the judgments of sentence.

The underlying facts of the instant appeal are as follows:

[ 501 Pa. Page ]

In the early morning hours of November 15, 1977, Allen Page met Luther McCray in a restaurant and asked if McCray and another individual, Carlos Heath, who was with McCray, would assist Page in removing the remainder of Page's belongings from McCray's apartment. Page had lived in McCray's apartment but previously moved to another apartment on north 20th Street in Philadelphia.

[ 501 Pa. Page ]

When Page, McCray and Heath arrived at Page's new residence on 20th Street, Page yelled up to the second floor window. Appellant, Johnny Allen, also a resident at the 20th Street location, looked out the window and subsequently came down to admit the three men. Page was the last to enter. Immediately thereafter, appellant slammed the door behind McCray, Heath and Page and proceeded to pull out a butcher knife. Appellant searched and then took McCray's money, coat and watch. Another individual, Charles Carter

[ 501 Pa. Page 529]

    appeared at the top of the stairs. Heath was also searched by appellant, but nothing was found. Page was neither searched nor robbed.

[ 501 Pa. Page ]

Appellant then allowed McCray, Heath and Page to leave after warning them not to call the police. McCray called the police from a nearby set of public telephones. Page simultaneously used another telephone and made a call, the contents of which could not be determined because "he tried to keep his voice down" although Heath was standing near Page. While waiting for the police, McCray flagged down a patrol car and informed the officer of the robbery. Upon arrival at the 20th Street apartment with the police, McCray identified ...


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