NO. 1275 PHILADELPHIA, 1983, Appeal from the Order of April 26, 1983 in the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 82 CR 442.
Thomas P. Kennedy, Assistant Public Defender, Scranton, for appellant.
Amil Michael Minora, Assistant District Attorney, Scranton, for Commonwealth, appellee.
McEwen, Beck and Hoffman, JJ.
[ 322 Pa. Super. Page 232]
Darlene Riffert appeals an order of the court of common pleas, Lackawanna County, which denied her Motion to Dismiss the charges against her. She claims that a new trial would violate her right to be protected against double jeopardy guaranteed by the Fifth Amendment to the United States Constitution.*fn1 Riffert contends that the prosecution's calling of a witness who, it was known, intended to invoke the Fifth Amendment guarantee against self-incrimination was prosecutorial misconduct sufficient to bar a retrial. For the reasons that follow, we affirm the order and remand for trial.
Riffert was charged with aggravated assault and recklessly endangering another person, and was being tried before a jury. In the course of the trial, Kevin Donahue, who had been subpoenaed to testify on behalf of the Commonwealth, notified the court and the prosecution that he intended to exercise his Fifth Amendment rights. An in camera hearing was held and the hearing court ruled that Donahue could properly claim the privilege against self-incrimination for a certain restricted area of questioning:
The Court: The only thing that's not fair game is that area around the gun. N.T. at 45.
For all other areas, questioning of the witness was allowed.
When Donahue took the stand he proceeded to invoke the Fifth Amendment for questions outside the restricted area,*fn2 N.T. 127-129, and the court declared a mistrial. Riffert thereupon moved to dismiss charges. She argues that
[ 322 Pa. Super. Page 233]
calling Donahue as a witness constituted prosecutorial misconduct designed to provoke a mistrial in order to secure a second, perhaps more favorable opportunity to convict her. She accuses the prosecution of bad faith and harassment and argues that the facts are controlled by Commonwealth v. Virtu, 495 Pa. 59, 432 A.2d 198 (1981), where prosecutorial questioning amounted to overreaching, bad faith misconduct sufficient to preclude holding a new trial.
In Virtu, however, unlike the instant case, the prosecution deliberately sought no ruling on the witness' privilege outside the hearing of the jury. Instead, the prosecution was guilty of deliberate misrepresentation of the facts surrounding the witness' exercise of the privilege during a side-bar conference. Here, in contrast, an in camera hearing was held and the court gave permission to the prosecution to question the witness in ...