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submitted: October 3, 1983.


NO. 2478 PHILA. 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 2036-37; 2039-41 JUL80


John W. Packel, Chief Appeals Assistant Public Defender, Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Hester and Lipez, JJ.

Author: Spaeth

[ 323 Pa. Super. Page 34]

This is an appeal from judgments of sentence for rape and related offenses. Appellant argues that the trial court erred in not granting use immunity to a proposed defense witness.*fn1 The trial court held that only the Attorney General or a district attorney could request an immunity order, and that since here there had been no such request, no order could issue. This was error. The court itself, upon appropriate proof, had the power to grant immunity. We find, however, that the error was harmless, and therefore affirm.

[ 323 Pa. Super. Page 35]

The charges are based on an incident described at trial as follows: On July 1, 1980, at about 2:30 a.m., appellant and Daryl Jorden entered the residence of Kelly Mock and forced her at knife-point to go to the kitchen. Jorden held a hammer to her head and raped her, and then appellant raped her. As they were leaving the house, both Jorden and appellant were arrested.

After a common suppression hearing, on a motion by Jorden's counsel the cases were severed. Appellant's case was listed for trial first. At the trial, defense counsel asked the trial court to grant use immunity to Jorden. The court refused, the trial was held without Jorden testifying, and appellant was found guilty.

In support of its refusal to grant use immunity to Jorden, the trial court cited 42 Pa.C.S.A. § 5947(b), which provides:

(b) Request and issuance. -- The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney:

(1) the testimony or other information from a witness may be necessary to the public interest; and

(2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

In the court's opinion, these provisions afford the only basis for an immunity order:

Since the request and issuance of immunity is within the judgment of the Attorney General and district attorney, neither the Court nor defense counsel may force the prosecutor to compel the testimony of a defense witness. Accordingly, the Court properly denied Defendant's request for immunity.

Slip op. at 6.

Appellant relies on Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). In Smith, a group of young men assaulted and robbed the victim of some money.

[ 323 Pa. Super. Page 36]

A principal issue at trial was the identification of the assailants. One of the assailants, Ernesto Sanchez, made a statement to the police that he and three other men, who were nicknamed "Scotto", "Mon", and "Mouth", were the assailants. This statement in effect exculpated three of the defendants, for they had different nicknames. However, when the defendants called Sanchez to testify, he invoked his Fifth Amendment privilege against self-incrimination. The defendants then tried to use Sanchez's statement, but the court sustained the Government's objection that it was unable to cross-examine Sanchez. The defendants then requested that Sanchez be granted immunity. The Virgin Islands Attorney General's Office, which had exclusive jurisdiction over Sanchez because he was a juvenile, was willing to grant immunity if the United States Attorney consented. However, the United States Attorney did not consent, the trial proceeded without Sanchez's potentially exculpatory testimony, and the defendants were convicted of robbery. On appeal, the Court of Appeals for the Third Circuit held that in some circumstances, a grant of immunity is required to ensure a fair trial. The Court discussed

     two theories in which due process requires the testimony of defense witnesses to be immunized. When the court finds prosecutorial misconduct by the government's deliberate intent to disrupt the factfinding process, it should order the government to grant statutory immunity to the defense witness or face a judgment of acquittal. In addition, even if there is no evidence of such prosecutorial misconduct, when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity, the court should grant judicial immunity to the witness in order to vindicate the defendant's constitutional right to a fair trial.

Id. at 974.

Finding that on the facts before it, either theory might be available to the defendants, the court vacated the sentence

[ 323 Pa. Super. Page 37]

    and remanded for an evidentiary hearing to determine whether ...

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