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12/30/97 COMMONWEALTH PENNSYLVANIA v. DOROTHY

December 30, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DOROTHY BARTLETT, APPELLANT



Appeal from the Judgment of Sentence Dated December 13, 1996, In the Court of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 92 AUG. # 3687-3680, 93 MAY # 2851.

Before: Cavanaugh, Beck, and Brosky, JJ. Opinion BY Beck, J. Judge Brosky filed a Concurring Opinion.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.:

Filed December 30, 1997

In this appeal, inter alia, we consider Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987) and discuss whether a Commonwealth witness asserting an attorney-client privilege must always invoke the privilege in the presence of the jury. Under the facts of this case, we conclude the trial court did not err when it failed to require the Commonwealth witness to assert his attorney-client privilege in the presence of the jury. We therefore affirm.

Appellant Dorothy Bartlett was convicted of first degree murder, abuse of corpse and related offenses in the stabbing death of her husband, Odell Bartlett. The couple's son, Darren Bartlett, was the primary witness for the prosecution. At trial, Darren testified to the circumstances surrounding his father's murder and admitted his involvement. The record reflects that in the days before the murder, appellant was prohibited from entering the family home pursuant to a restraining order obtained by her husband. Darren, who had access to the house and was there to care for some pets, called his mother to inform her that his father was in the process of putting a lock on the front door. Appellant arrived shortly thereafter and Darren let her in. She went upstairs to a bedroom and began arguing with her husband. Darren walked into the room and watched as his mother stabbed his father with a butcher knife.

At his mother's request, Darren attempted to conceal the crime by cleaning the room with ammonia and disposing of the blood-soaked linens. Without bothering to ascertain whether his father was dead or alive, Darren wrapped the body in plastic, loaded it into his father's van and drove to an abandoned lot. He left the body there, hoping that authorities would think his father had been murdered by local drug addicts and prostitutes. Neighbors testified that they heard a woman screaming around the time of the murder and later saw appellant outside the residence in her car, speaking with another person.

Darren was arrested and charged in his father's death. It was only after his trial had begun and the Commonwealth's case was proceeding that he pled guilty to third degree murder. As part of his plea agreement, Darren agreed to testify against his mother in her subsequent trial for first degree murder. Appellant was found guilty of the charges, but her conviction was reversed and a new trial granted by this court due to an erroneous jury instruction. At his mother's second trial, Darren related the incidents described above. He was questioned by the prosecutor and defense counsel regarding his previous criminal trial, his plea agreement and his motive for testifying. At one point during Darren's cross-examination, counsel for appellant asked Darren the names of the witnesses he had intended to call at his own trial. The prosecutor objected and the court and counsel had an in camera Discussion regarding the propriety of counsel's inquiry.

Defense counsel argued that under the authority of Commonwealth v. Sims, 513 Pa. 366, 521 A.2d 391 (1987), he was entitled to continue his line of questioning regarding Darren's trial strategy. Defense counsel acknowledged that pursuant to Sims, Darren could refuse to answer the questions based on the attorney-client privilege. However, defense counsel insisted that Darren was required to invoke the privilege in the jury's presence. The court rejected defense counsel's argument and the issue is now before us on appeal.

In Sims, our supreme court reviewed the case of Bobby Sims, who had been convicted of first-degree murder and sentenced to death. At trial in that case, the Commonwealth relied on the testimony of Barry Hilton, who testified that he watched Sims shoot the victim in the back of the head at close range. Initially, Hilton was arrested for the crime, but charges against him were dismissed because the Commonwealth could not sustain its burden at the preliminary hearing. Many months later, Hilton was interviewed by police about the murder and he informed them that Sims was the trigger man. Hilton was granted immunity from prosecution in return for testifying against Sims.

Prior to trial, counsel for Sims filed a motion in limine requesting that he be permitted to question Hilton about his communications with his attorney during the time he faced the murder charges. In response to the motion, Hilton informed the court that he wished to assert the attorney-client privilege. The trial court ruled that counsel was prohibited from asking Hilton "any questions even touching upon his assertion of the privilege." Id. at , 521 A.2d at 393. On appeal, the supreme court held that while Hilton had a right, under the attorney-client privilege, to refuse to answer the questions, he should have been required to invoke the privilege in front of the jury.

In finding that Hilton was required to assert the privilege in the jury's presence, the court noted a number of factors, including the fact that it was a capital case and that counsel was unable to present other evidence that might have implicated Hilton in the crime. *fn1 Relying on the right of criminal defendants to confront witnesses who offer testimony against them, the Sims court held that:

To insulate such a witness from having to invoke his privilege in the jury's presence, as did the trial court in this case, unfairly bolstered the credibility of a witness whose testimony was crucial to the success of the prosecution . . . . The trial Judge's refusal to require Hilton to invoke the privilege in the presence ...


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