Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 3337-3343 Oct. 83.
Edward J. Daly, Philadelphia, for appellant.
Suzan Willcox, Assistant District Attorney, Philadelphia, for Com., appellee.
Rowley, Wieand and Montemuro, JJ.
[ 376 Pa. Super. Page 358]
Raymond Yabor was tried by jury and was found guilty of aggravated assault, conspiracy, possession of an instrument of crime and carrying firearms on a public street. Post-trial and supplemental post-trial motions were denied, and Yabor was sentenced to serve two consecutive terms of imprisonment of not less than five (5) years nor more than ten (10) years for aggravated assault and of not less than one (1) year nor more than two (2) years for conspiracy, to be followed by a consecutive two year period of probation
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for possessing an instrument of crime.*fn1 An appeal was filed but later dismissed due to counsel's failure to file a brief. Thereafter, in response to a P.C.H.A. petition, Yabor was granted leave to file an appeal nunc pro tunc. Now, on direct appeal from the judgment of sentence, Yabor raises the following issues for our consideration: (1) whether the trial court erred by allowing the preliminary hearing testimony of the victim to be introduced into evidence without establishing on the record that the victim had a valid basis for asserting the privilege against self-incrimination; (2) whether the trial court erred by allowing the victim to assert the privilege against self-incrimination outside the presence of the jury; and (3) whether trial counsel rendered ineffective assistance. Finding no basis for a new trial, we affirm the judgment of sentence.
The facts which gave rise to appellant's conviction were summarized by the trial court as follows:
On July 27, 1983, Defendant arrived nearby 3206 Fordham Road in Philadelphia in the rear passenger seat of a brown cadillac (N.T. 5/22/86 p. 22). He emerged from the automobile attired entirely in white; carrying a twelve gauge shotgun (N.T. 5/22/86 p. 22). Defendant treked [sic] accross [sic] two front lawns arriving at the front door of 3206 Fordham Road (N.T. 5/22/86 p. 23). Minutes later two shots rang out. Someone who had witnessed Defendant's dramatic arrival promptly called the police (N.T. 5/22/86 p. 23). Meanwhile, the brown cadillac sped away (N.T. 5/22/86 p. 23). Moments later, Mr. Yabor exited the house. He was still clutching the now disassembled shotgun (i.e. "broken" into two pieces). Blood spattered his clothes (N.T. 5/22/86 p. 23). A local contractor stopped Defendant, ordering him to halt as police were on their way (N.T. 5/22/86 p. 23). However, the brown cadillac suddenly reappeared and Defendant, ignoring the warning, leaped in the car which once again sped away (N.T. 5/22/86 p. 24). A mailman who had
[ 376 Pa. Super. Page 360]
been cowering by his mailbox, managed to copy down the cadillac's license plate number before the perpetrators drove away (N.T. 5/22/86 p. 24). The complainant, who had sustained two close range shotgun blasts then stumbled outside and down his front steps (N.T. 5/26/86 p. 25). Police arrived immediately thereafter (N.T. 5/22/86 p. 25).
A short distance away from the Fordham Road incident, a passerby observed the "get away car" screech to a halt in another residential neighborhood (N.T. 5/22/86 p. 44). A person in the front passenger seat exited the car and Defendant handed him the partially disassembled shotgun (N.T. 5/22/86 p. 45). This person attempted to "break" or further disassemble the shotgun over his knee but was unsuccessful (N.T. 5/22/86 p. 45). Apparently frustrated, Mr. Yabor jumped out, broke the gun himself and threw the pieces into a city inlet (N.T. 5/22/86 p. 46). Both men entered the car and for the third time it sped off (N.T. 5/22/86 p. 47). Defendant, the driver, and the third cohort were apprehended virtually minutes afterward (N.T. 5/22/86 p. 57). Five twelve-gauge shotgun shells, (the appropriate size for the gun in question), were recovered from Mr. Yabor during his arrest (N.T. 5/22/86 p. 57). Said shotgun was recovered from the sewer and through ballistics studies was determined to be the only gun which could possibly have fired the near-fatal shots (N.T. 5/23/86 p. 116).
Finally, although Complainant was unavailable for trial, the jury heard no less than three separate statements by Complainant identifying Defendant as his assaultant [sic]. The first statement was made as Complainant was about to undergo emergency treatment (N.T. 5/23/86 p. 16). The second, made during Mr. Yabor's preliminary hearing, was read to the jury during the Commonwealth's case (N.T. 5/23/86 p. 94). Mr. Yabor was implicated a third time during a co-defendant's trial. This statement was presented during this Defendant's case-in-chief (N.T. 5/27/86 p. 30).
[ 376 Pa. Super. Page 361]
At trial, the Commonwealth intended to call the victim, Joseph DeLeo, as a witness to establish appellant's identity as the man who had shot DeLeo. Before DeLeo was to testify, however, his attorney informed the trial court, the prosecuting attorney, and defense counsel that his client intended to invoke the privilege against self-incrimination if asked any questions concerning the identity of the person who had shot him. Thereafter, DeLeo was examined outside the presence of the jury and did, indeed, refuse to answer inquiries about the person who had shot him. The trial court concluded that DeLeo was unavailable as a witness and ruled that his preliminary hearing testimony could be used by the Commonwealth. The court also refused to allow defense counsel to call DeLeo as a witness for the purpose of allowing the jury to observe that DeLeo had invoked the privilege against self-incrimination.
We find no merit in appellant's contention that he was denied the right of confrontation because the trial court refused to allow DeLeo's invocation of the privilege against self-incrimination before the jury. The Supreme Court's decision in Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971) is controlling.*fn2 In Greene, the Supreme Court held that a witness should not be placed on the stand for the purpose of having him exercise the privilege against
[ 376 Pa. Super. Page 362]
self-incrimination in front of the jury. More recently, this Court said:
A witness should not be placed on the stand solely for the purpose of having him exercise his privilege against self-incrimination before the jury. "If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness' assertion of the privilege . . ." United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974), quoting United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973). See also: Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Commonwealth v. Greene, 445 Pa. 228, 231-232, 285 A.2d 865, 867 (1971); Commonwealth v. Pritchard, 270 Pa. Super. 461, 468, 411 A.2d 810, 814 (1979); Commonwealth v. Hackett, 225 Pa. Super. 22, 24, n. 2, 307 A.2d 334, 335 n. 2 (1973).
Commonwealth v. Cieri, 346 Pa. Super. 77, 91, 499 A.2d 317, 324 (1985), quoting Commonwealth v. Bellacchio, 296 Pa. Super. 468, 474-475, 442 A.2d 1147, 1150 (1982). It is readily apparent, therefore, that the trial court did not err by refusing to allow appellant to call DeLeo as a witness solely for the purpose of ...