No. 913 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 81-10-1456, 1460.
John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Spaeth, President Judge, and Wieand and Cirillo, JJ.
[ 339 Pa. Super. Page 98]
Randolph Johnson was tried by a jury which found him guilty of robbery*fn1 and criminal conspiracy.*fn2 On direct appeal, he contends that it was error to deny a defense request to interrogate a co-defendant out of the hearing of the jury and to allow the Commonwealth to place the co-defendant on the witness stand and interrogate him before the jury when it was known that the co-defendant would assert his Fifth Amendment right to remain silent and refuse to answer questions. We agree and reverse.
The holdup which gave rise to criminal charges in this case occurred at or about 10:40 p.m. on August 21, 1981 at the 7-Eleven Store at 69th Avenue and Old York Road in
[ 339 Pa. Super. Page 99]
Philadelphia. Monica Ritinski, the cashier, testified that a man identified as Darryl Montoute had held a shotgun, which he pointed at her, while a companion, whom she could not identify, removed the drawer from the cash register. As the two men beat a hasty retreat from the store, they encountered Roger Oliver who was about to enter. He was told to get out of the way, and the man carrying the shotgun, whom he identified as Darryl Montoute, menacingly pointed the gun in his direction. Oliver saw the two men get into a red Ford; before they drove away, he was able to obtain and record the license number of the vehicle. With this information the police were able to determine that Ronald Stephens was the registered owner of the car. When they went to Stephens' residence, they found Stephens, Montoute, Johnson, and a person known as "Box", who was intoxicated. A sawed-off shotgun was found in the red Ford, and the drawer of the cash register was found in a trash can at the rear of the residence. Oliver, who unequivocally identified Montoute as the person who had held the gun, was unable to identify the other man who had fled from the scene of the robbery. Stephens testified that on the night of the robbery he had leased his car to Montoute and Johnson.
Montoute filed a pre-trial motion to sever the charges against him from those pending against Johnson. During a hearing thereon, he testified that Johnson had been the other robber but that he, Montoute, would not testify as a Commonwealth witness if Johnson were present. Johnson had threatened him, he said, and he feared for his life. After the motion to sever had been denied, Montoute entered a plea of guilty to the charges which had been brought against him.
At trial on the charges against Johnson, the Commonwealth announced its intention to call Montoute as a witness. Objections were made by counsel for Montoute and also by the attorney for Johnson. The trial court, however,
[ 339 Pa. Super. Page 100]
approved a Commonwealth grant of immunity to Montoute*fn3 and said that he would be allowed to testify. Defense counsel objected and requested the court to interrogate Montoute out of the hearing of the jury because it was believed that Montoute would refuse to testify. To claim the privilege against self-incrimination in the presence of the jury, it was argued, would be prejudicial to Johnson, especially so because Montoute would be appearing in prison garb. The trial court overruled the objection and required Montoute to testify before the jury.*fn4 The following is what occurred:
Q. Mr. Montoute, good afternoon.
Q. Mr. Montoute, on August 21, 1981, were you arrested?
A. I don't wish to answer any questions.
Q. You refuse to answer ...