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LEO WHALEY (01/31/86)

filed: January 31, 1986.

IN THE INTEREST OF LEO WHALEY, A CHILD. APPEAL OF LEO WHALEY


Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. J-226213, Petition 2205-84-3.

COUNSEL

Irene H. Cotton, Philadelphia, for appellant.

Wickersham, Brosky and Tamilia, JJ. Tamilia, J., concurs in the result.

Author: Brosky

[ 350 Pa. Super. Page 214]

The appeal is from the disposition ordered by the court below after it adjudicated appellant delinquent. Appellant contends that the trial court erred in refusing to grant use immunity to two of his witnesses. We disagree with appellant, and, accordingly, affirm the order of the hearing court.

In January of 1984, a bicycle was stolen from in front of a store at 9th and Christian Streets in Philadelphia. Two months later, the owner of this bicycle complained to police

[ 350 Pa. Super. Page 215]

    that the bicycle being ridden by the appellant was in fact his. As a result of this complaint, appellant was arrested by Philadelphia police. An examination of the bicycle revealed that it was, in fact, the one stolen in January. In a statement to police appellant admitted stealing the bicycle three or four months earlier from a residence on Seventh Street. Based on this statement, appellant was charged with theft and receiving stolen property.

Before the adjudicatory hearing, appellant petitioned the court to grant immunity to his two prospective defense witnesses, his brother and his mother. An offer of proof was made at that time to the effect that if the appellant's brother were to testify he would admit to stealing the bicycle and giving it to his mother so that she could give it to the appellant as a present; and that appellant's mother would testify that she paid appellant's brother $15 for the bicycle and gave it to appellant without telling him that anyone had stolen it.

At the adjudicatory hearing appellant's brother voluntarily testified without immunity. His mother, after answering one question about the bicycle, refused to answer any further question on the basis that she would have to incriminate herself. At the conclusion of the hearing, appellant was acquitted of theft, but adjudicated delinquent on the charge of receiving stolen property and placed on probation. This appeal timely followed.

Appellant argues that the court below erred in not granting his mother and brother use immunity. We note initially that this issue is moot as to appellant's brother since he did, in fact, testify at the hearing. Therefore, we will consider the issue raised by appellant only in the context of his mother's refusal to testify.

Appellant acknowledges the fact that the statute governing witness immunity, 42 Pa.C.S. ยง 5947, requires that the district attorney request ...


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