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COMMONWEALTH PENNSYLVANIA v. OCIELE HAWKINS. APPEAL KIM NELSON (09/09/83)

submitted: September 9, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
OCIELE HAWKINS. APPEAL OF KIM NELSON



No. 651 Philadelphia 1982, Appeal from the Order of January 22, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 626-629 September 1980.

COUNSEL

Barry H. Oxenburg, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.

Author: Hoffman

[ 322 Pa. Super. Page 201]

Appellant challenges the lower court's contempt order, arguing that he was justified in refusing to testify after being granted immunity because the Assistant District Attorney had threatened to prosecute him for perjury if his

[ 322 Pa. Super. Page 202]

    testimony failed to conform to his prior statement to the police. We disagree and, accordingly, affirm the contempt order and judgment of sentence.

Appellant was called as a witness for the prosecution in the Commonwealth's case against Ociele Hawkins, who was charged with the December 18, 1978 murder of James Hughes. On January 8, 1979, appellant gave a statement to the police concerning the incident. Prior to Hawkins' trial, after being advised that appellant would invoke the privilege against self-incrimination if questioned under oath, the Commonwealth petitioned for and was granted an immunity order pursuant to 42 Pa.C.S.A. ยง 5947.*fn1 On January 22, 1982, appellant was called to testify but refused to answer questions put to him by the prosecutor even though he had been advised of the grant of immunity and directed to answer by the court. Consequently, the trial judge found appellant in contempt and sentenced him to five months and twenty-nine days imprisonment, to run consecutively to the sentence appellant was then serving. This appeal followed.

Appellant contends that he refused to testify because the Assistant District Attorney threatened to prosecute him for perjury if his testimony failed to conform to his prior statement. We find appellant's contention meritless.*fn2 Appellant's

[ 322 Pa. Super. Page 203]

    account of his conversation with the Assistant District Attorney on January 20, as reported by appellant's counsel, is as follows:

[M]y client [appellant] advised me that he had a conversation with the Assistant District Attorney in this case, and while I was not party to that conversation, it is my understanding that Mr. Long [the Assistant District Attorney] indicated to my client that he wants him to tell the truth on one hand. On the other hand, he told him that if he in any way deviates on the witness stand his testimony from that which he told the police in his statement which was taken on January the 8th of 1979, that the District Attorney's office would ...


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