Appellee from the Order of the Superior Court at No. 270 Pittsburgh 1987, Entered October 28, 1987, Affirming the Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, at No. 30 of 1985, Entered on January 28, 1987. Pa. Superior Ct. , A.2d (1987).
James T. Davis, Davis & Davis, John M. Purcell, Uniontown, for appellant.
Alphonse P. Lepore, Jr., Dist. Atty., Mark E. Morrison, First Asst. Dist. Atty., Jack R. Heneks, Jr., Uniontown, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos, JJ.
Appellant alleges that his constitutional right to a fair trial was denied by the refusal of the trial court to permit a witness to testify on surrebuttal after that witness had given full testimony at the preliminary hearing which later was read at trial, but claimed the Fifth Amendment privilege
as to certain questions by both sides during the trial itself.
Appellant was convicted of murder in the third degree and sentenced to prison for a term of ten to twenty years. The crime grew out of an argument involving Appellant, a male victim, and Sandra Veatch, the critical witness in these proceedings. Following an argument in a local bar, the trio proceeded to the victim's trailer where the victim was shot to death after a quarrel concerning the company of the female. The murder weapon was found in Appellant's home. A neutron activation test indicated that the Appellant had fired a weapon but proved negative as to Sandra Veatch.
At the preliminary hearing, as well as throughout the entire proceedings, Appellant maintained his innocence by insisting that he had been knocked unconscious by the victim and could not have committed the act, or that a fourth unknown person in the trailer was the true killer. At the same hearing, however, witness Veatch testified freely that after the Appellant had pushed her and ripped her clothes, she started through a hallway to the bathroom and heard the Appellant say, "I'm leaving." (H.T., p. 11). She further testified that she heard "Boom, Boom," sounds which she identified as "gunshots." After that she heard a car start outside and drive away. She stated that it was the Appellant's car:
Q. You're sure it was Mark's car?
A. Um Hum. Nobody else was there, so who else's would it be? And I heard the muffler.
As to the crucial question of whether another unknown party was in the car, therefore, the testimony of witness Veatch appeared to directly contradict the Appellant's argument in his defense.
In the defendant's case in chief, Appellant's lawyer, who had examined Veatch at the preliminary hearing, called her as a witness. Appearing with her own attorney, the witness stated that although she would answer some questions,
she would exercise her Fifth Amendment privilege as to any specific questions pertaining to whether any other person was in the trailer, or whether she could identify the Appellant as the person who left in the car, or any other questions about those issues. While she gave extensive testimony (T.T., pp. 361-430) on other facts, she steadfastly refused to answer questions from both sides on what happened in the trailer as to those specific matters. In spite of defense counsel's pleas to the court to instruct her to answer, the court ruled repeatedly that she need not break her silence. She then refused to respond to these matters on numerous occasions. (See, for example, T.T., p. 382 ff., especially pp. 415-422). The court's rulings were based on its judgment, as explained to the witness, that if she were to testify presently in any way inconsistent with her prior testimony at the preliminary hearing, she could be subject to a charge of perjury. (T.T., pp. 365-366). While defense counsel continued to press the court to force an answer because counsel believed that a fourth unknown person was in the trailer, the court insisted in particular that in her prior testimony that no other person was there possibly could be construed as self-incrimination if she now changed her testimony on that point. (T.T., p. 410-412). Defense counsel's strategy of getting such information from the witness was frustrated by the continuing silence.
The defense's final witness was the Appellant himself. Once again he repeated his claim that either he had been pushed by the victim into a door where he hit his head and fell unconscious or had been knocked unconscious by an unknown assailant. In either case, the victim was alive at ...