Commonwealth v. Fava , 503 Pa. 365 ( 1983 )

McDERMOTT, Justice,

dissenting.

The majority believes that because there was oscillatory recollection as to the degree of certainty of a prospective witness stating his intention to assert his 5th Amendment right against self-incrimination, the trial court should have granted the writ of habeas corpus ad testificandum. A review of the record discloses that the prospective witness would have indeed invoked his right against self-incrimination.

The sole reason for attempting to call Mr. Camioni as the prospective defense witness would have been to impeach the testimony of Mr. Jaindl by showing that the latter had purchased drugs from Mr. Camioni in the past, thereby inferentially transferring criminal culpability from appellee to Mr. Camioni. In order to accomplish this, Mr. Camioni would have had to admit selling drugs to Mr. Jaindl or plead his 5th Amendment right. If Mr. Camioni chose the former, which is highly unlikely, his testimony would have been inculpatory. Under these circumstances, to have required the trial judge to allow appellee to call Mr. Camioni just to have him invoke his 5th Amendment right would have been futile.

Moreover, the majority fails to consider that appellee was aware of Mr. Camioni’s whereabouts well before trial, but strategically waited until the end of trial to attempt to call him as as a witness.

A motion to procure a witness is within the sound discretion of the trial court. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). Furthermore, a request by a defendant to secure a witness will be deemed untimely when he is aware of the witness’ whereabouts prior to trial but does nothing. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). Appellee’s motion was a proper subject for a pretrial motion. Hence, the trial court acted within its discretion in refusing to entertain this belated motion.

Accordingly, I dissent from the majority’s decision.