Commonwealth v. Fava ( 1982 )

SHERTZ, Judge,

dissenting:

The question before this Court is, as aptly stated by the majority: whether or not the court below erred, that is, abuse its discretion, in refusing to grant Appellant’s request for a writ of habeas corpus ad testificandum?¹ The record establishes that the lower court did not abuse its discretion in denying the request for the writ and I would therefore affirm.

The oral request by defense counsel for a writ of habeas corpus ad testificandum was made on the third and final day of trial despite the fact that counsel was aware, prior thereto, of Mr. Camioni and his whereabouts. This is evidenced by the fact that it was defense counsel, during the course of his cross-examination of the Commonwealth’s witness, Tony Jaindl, who initially introduced Camioni’s name, as well as his whereabouts, in the trial. N.T. at 76. In fact, it is obvious from the record that defense counsel’s trial strategy involved shifting criminal responsibility from the defendant to Camioni. N.T. at 75, 76. Counsel had sufficient opportunity to interview Camioni before and during the trial, to determine whether counsel wished to call Cam-ioni to testify on Appellant’s behalf. If such an interview had disclosed that Mr. Camioni could provide testimony beneficial to the defense, counsel could have pursued the proper procedure, of which he was well aware, as demonstrated by counsel’s last minute invocation of same, to secure the witness. Defense counsel had the opportunity and responsibility to question Camioni and to arrange for his appearance prior to trial. Under such circumstances, Appellant ought not now be allowed to complain she was improperly denied an opportunity to interview and possibly obtain testimony from Mr. Camioni.

It is well settled in Pennsylvania that motions to secure witnesses are within the discretion of the trial court. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979). The Sullivan case involved the trial court’s denial of defendant’s motion, in a murder prosecution, to have a witness brought from another city, at the Commonwealth’s expense, to testify on his behalf. The motion was made while the trial was in progress. Our Supreme Court held that the trial court had not abused its discretion in denying the motion as being untimely filed. Id., 484 Pa. at 135, 398 A.2d at 980. Accord: Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). In the instant case, defense counsel had knowledge of the existence and possible importance of the witness and had an opportunity to request a writ of habeas corpus ad testificandum. There was no denial of defendant’s constitutional right to have process for obtaining witnesses in her favor inasmuch as defendant had more than five months, from the time of her arrest to the time of trial, to arrange for the appearance of the witness, but failed to request compulsory process until the final day of trial. See also: Commonwealth ex rel. Jennings v. Maroney, 179 Pa.Super.Ct. 571, 118 A.2d 287 (1955).

“The court denied the motion, finding that it was untimely. The motion was a proper subject to a pre-trial motion. See Pa.R.Crim.P. 306. The motion was untimely unless there was no previous opportunity to make it or Appellant or his attorney were unaware of the grounds for it. Pa.R.Crim.P. 307.”

The absence of a particular witness, or the denial of permission to call him, does not, in itself, constitute a denial of compulsory process unless it also appears that the witness, if called, would have been favorable to the accused. Ex Parte Smith, 72 F.Supp. 935 (M.D.Pa.1947). Implicit in the accused’s right “to have compulsory process for obtaining witnesses in his favor” is the requirement that the defendant establish that the person to be produced has relevant or material testimony on the issues in question. Commonwealth v. Coffey, 230 Pa.Super.Ct. 49, 52, 331 A.2d 829, 831 (1974). In Coffey, this Court held that the trial court’s refusal to require the production of a witness, who was held as prisoner by the federal authorities, was not improper absent specific information as to what testimony the witness had to offer.

During the in camera hearing in the instant action, the court closely questioned the assistant district attorney, N.T. 335, 336, and the drug enforcement agent, N.T. 339, 341, concerning their interview with Mr. Camioni, in order to ascertain whether anything exculpatory to the accused was said. Neither they, nor defense counsel, gave any indication that Camioni had any relevant or admissible testimony to offer. Only then, when the court was convinced that the witness had said nothing which could be construed as exculpatory, did it deny the request for the writ.

The majority erroneously concludes that the lower court refused to issue the writ solely on the basis of the witness’ possible assertion of his fifth amendment privilege against self incrimination.² The record does not support this conclusion. The lower court, in denying the writ, stated:

“And the witness is available to the defense. He knows where he is and he knows the procedure to be taken with respect to securing a witness from prison. I am not so sure that there is a burden on the court to produce witnesses for the defendant or the Commonwealth. The Commonwealth isn’t hiding a witness. The witness’s location is known.” N.T. at 344.

Clearly, the lower court denied the request because it was untimely made and because the defense had a prior opportunity to secure the appearance of this witness. Consequently, the majority’s analysis of the degree of certainty required, in order to justify the exclusion of a witness on grounds that he will claim his privilege to remain silent, is neither pertinent nor dispositive.

1 . I agree with the majority that Appellant’s other claims are without merit.

2 . The majority states, “. .. the court relied on the hearsay testimony of the Assistant District Attorney and the drug enforcement agent to that effect that to the best of their recollection the proposed witness had told them T could take the fifth amendment’.” at 758. The record does not support this conclusion. The Assistant District Attorney testified that the witness said, “he would take the fifth” (emphasis supplied). N.T. at 334.