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filed: October 21, 1987.


Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC8504300A.


Robert M. Barrett, Pittsburgh, for appellant.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Rowley

[ 367 Pa. Super. Page 397]

This is an appeal from judgments of sentence for two counts of criminal solicitation to commit murder.

On April 18, 1984, Pittsburgh Police Officers, working undercover, purchased Dilaudid from Mary and Donna Hoegrel at the women's home in Pittsburgh. Both women were arrested. Mary Hoegrel agreed to cooperate with the police and telephoned her supplier (appellant) and asked him to come to her house and bring fifty Dilaudid tablets. Upon his arrival at the house, appellant was stopped by police officers, who searched him and found Dilaudid tablets on his person. The appellant was arrested, arraigned, and committed to the Allegheny County Jail in default of bail.

A jury trial before the Honorable Robert Horgos began on October 8, 1985. The evidence presented at trial established the following facts. While at the Allegheny County Jail, appellant approached a fellow inmate, Roland Steele, on May 18, 1984, and offered him $1500 if he (Steele), whom appellant believed was to be released from jail, would kill Mary and Donna Hoegrel. Appellant stated he wanted the two women killed because they were to testify against him on drug charges. Appellant asked Steele four more times if he would kill the two women. Appellant also gave Steele a

[ 367 Pa. Super. Page 398]

    note on which he had written the address of the Hoegrels and had furnished a description of them.

On May 20 or 21, Steele telephoned Mary Hoegrel and told her of appellant's intentions and suggested that she contact the police. Mrs. Hoegrel notified the police, and as a result of a subsequent investigation, appellant was charged with two counts of criminal solicitation to commit murder.

The most damaging evidence against appellant was in the form of Roland Steele's prior testimony from a preliminary hearing, which was read into the record due to Steele's alleged unavailability. The circumstances of Steele's unavailability are as follows. On the morning of the trial, the prosecution informed the court that Commonwealth witness Roland Steele would claim the Fifth Amendment privilege against self-incrimination if called to testify. This information was relayed to the prosecution by Mr. Steele's attorney. Steele was then placed under oath and asked by the court whether he would claim the Fifth Amendment privilege on the witness stand. Steele answered yes. No further questions were asked, and trial commenced.

During trial, the Commonwealth made a motion at sidebar for the admission of Roland Steele's testimony given earlier at appellant's preliminary hearing. Defense counsel objected on the ground that the reading of Steele's prior testimony would deny appellant his Sixth Amendment right of confrontation. The trial court overruled the motion and Steele's testimony was read into evidence in its entirety. On October 10, 1985, appellant was found guilty of both charges. A timely motion for new trial and arrest of judgment was filed on October 21, 1985, and denied on January 29, 1986. On January 29, 1986, appellant was sentenced to an aggregate period of incarceration of ten to twenty years. Appellant then filed this timely appeal.

Appellant asserts*fn1 that the trial court erred in allowing the prior testimony of Roland Steele to be read into evidence

[ 367 Pa. Super. Page 399]

    because the introduction of such testimony violated his United States and Pennsylvania Constitutional right to confront witnesses.*fn2 The Commonwealth responds by contending: (1) appellant's objection at trial to introduction of the prior testimony based on the constitutional right to confrontation of witnesses is not sufficient to preserve the issue of whether the witness was truly unavailable;*fn3 and, (2) if it is determined that the court lacked a sufficient basis upon which to admit the prior testimony of Mr. Steele, then a harmless error analysis must be applied, and the case should be remanded to the trial court for a hearing based on available evidence as to whether or not Mr. Steele had a sufficient basis for claiming the privilege. We agree with appellant that it was error for the trial court to allow the prior testimony to be read into evidence. Because we find neither of the Commonwealth's arguments to be persuasive, we reverse the judgments of sentence and remand for a new trial.

Although the United States and Pennsylvania Constitutions guarantee an accused the right to confront the witnesses against him, the Constitutions also guarantee that no person shall be compelled "to be a witness against himself" or "give evidence against himself." U.S.Const. Amend. V; Pa.Const. Art. I, § 9. Thus, the right to confront witnesses is qualified by existing testimonial privileges

[ 367 Pa. Super. Page 400]

    of witnesses, including the privilege against self-incrimination. See Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983). It is the clash of defendant's right to confront his accusers and the witness' right to remain silent which results in the conflict now before us.

The law provides that when a witness is unavailable for trial, his or her prior recorded testimony from a preliminary hearing may be introduced, provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980), Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). A witness who properly invokes his constitutional right against self-incrimination is "unavailable" for this purpose. However, it must first be determined by the trial court whether a witness is entitled to invoke the privilege.

Our Supreme Court has set forth the parameters of the necessary inquiry:

When [a witness is called to testify], he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all circumstances that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency. [Emphasis in the original; citations omitted.]

Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967). The statutory provision specifying privileges and immunities of witnesses underscores the duty of the trial judge to make the determination as to the validity of the claim: "Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate

[ 367 Pa. Super. Page 401]

    him . . . ." 42 Pa.C.S. § 5941(a) [emphasis added]. Further, the United States Supreme Court has noted that "[t]he trial judge in appraising the [Fifth Amendment] claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), cited in Commonwealth v. Allen, 462 A.2d at 627. In Hoffman, the Court added that it must be "evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. at 486-87, 71 S.Ct. ...

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