No. 30 E.D. Appeal Docket 1982, Appeal from the Order of the Superior Court of Pennsylvania dated January 5, 1982, at No. 2676, Philadelphia, 1980, reversing the judgment of sentence of the Court of Common Pleas of Lehigh County, Pennsylvania, Criminal Division, at No. 1463 of 1978, and granting the defendant a new trial,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., concurred in the result. McDermott, J., filed a dissenting opinion.
This is an appeal by the Commonwealth challenging the Superior Court's reversal of the Court of Common Pleas of Lehigh County's refusal to grant Appellee's Motion for a New Trial and/or in Arrest of Judgment.
The primary basis relied on by the lower court in refusing to grant Appellee a new trial was that her motion for a writ of habeas corpus ad testificandum, which was denied, would serve no purpose since the witness to be called would plead the Fifth Amendment and was thus barred from being called.
Our review of the record is in accord with that of the Superior Court, and we therefore affirm that court's decision.
The relevant facts are as follows:
Appellee was being tried on charges that she sold four packets of phencyclidine (PCP), a controlled substance, to one Tony Jaindl. Jaindl was purchasing the PCP for one Daniel Licklider, whom Jaindl had just met. Unbeknownst to Jaindl, Licklider was an agent of the Pennsylvania Department of Justice, Bureau of Drug Control. Jaindl turned the PCP over to Licklider and at some time subsequent to the buy was arrested for that and other buys. Pursuant to a plea bargain, Jaindl became a witness for the Commonwealth. His testimony proved most incriminating at Appellee's trial since Appellee's defense was based on the fact that someone else had sold the drugs in question.
During cross-examination of Jaindl, defense counsel elicited testimony that Jaindl knew one Guy Camioni but had never bought drugs from him. Following this disclosure, the Commonwealth's attorney, accompanied by Agent Licklider, went to the Lehigh County Prison and interviewed Camioni. On the next day of trial, defense counsel requested a conference with the court in chambers to discuss the possible exculpatory information the Commonwealth had obtained from the interview of Camioni. During this conference, it was learned that Camioni had, in fact, admitted he had sold marijuana to Jaindl on at least one occasion. When asked what his testimony would be if he was called as a witness in Appellee's trial, there is some confusion as to his actual response. The Commonwealth's attorney indicated Mr. Camioni would invoke his Fifth Amendment privilege (N.T. 334), while Agent Licklider related Camioni's response as "I could take the Fifth . . . ." (N.T. 342)
Following these disclosures, the trial court denied Appellee's request to bring Mr. Camioni over to chambers so that he might be interviewed and possibly called as a witness on behalf of the Appellee.
While we have consistently held that a witness may not be called to testify when it is known that he will invoke his Fifth Amendment privilege against self-incrimination, Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983), Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971), it was never intended that the rule apply where the basis for excluding the witness is the probability that the privilege will be invoked. In the instant case, the trial court refused to allow the writ of habeas corpus ad testificandum to issue based solely on the remarks of the Commonwealth's attorney that Camioni would invoke the privilege. Our review of these remarks indicates they were of a general nature and were based on somewhat uncertain recollection.
Under these circumstances, it was incumbent upon the trial judge to ascertain with some degree of certainty whether the witness would indeed invoke his Fifth Amendment privilege. Failing this, the trial court abused its discretion by denying ...