Commonwealth v. Rolon

OPINION OF THE COURT

ROBERTS, Justice.

Both article I, § 9 of our Constitution and the sixth amendment to the Constitution of the United States guarantee appellant Florencio Rolon “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary . . . .” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).¹ We agree with appellant that the court of common pleas deprived appellant of his right of compulsory process by accepting the unsupported claim of privilege against self-incrimination of appellant’s witness, Orlando Rodriguez. Accordingly, we reverse judgment of sentence and grant appellant a new trial.²

Police charged appellant with killing Edward Muldor. At trial, appellant called Felix Ayala to confirm appellant’s claim that he was merely a witness to the killing, and not a perpetrator. Just as Ayala began to testify on appellant’s behalf, the Commonwealth interrupted Ayala’s testimony, contending that Ayala may have been involved in the crime. Acting on the Commonwealth’s assertion, the trial court delayed trial and summoned a public defender to assist Ayala in determining whether to assert the privilege of self-incrimination.

The trial court’s concern for the rights of appellant’s witnesses was not limited to Ayala. The court also appointed counsel to represent Orlando Rodriguez, another of appellant’s witnesses who had not yet testified. It did so only on the basis of its unspecified belief that the “same problem may exist.”³ Appointed counsel consulted with both witnesses and announced to the court that the witnesses intended to claim the privilege. The court accepted each witness’s claim without affording appellant an opportunity, timely-requested, to establish even his proposed line of questioning.

Court then recessed for the day “to give [defense counsel] an opportunity to reassess [his] position. . . . ”⁴ Later that day, Ayala and Rodriguez

“were arrested in the courtroom. . . . They went to the Police Administration Building and both gave full statements with regard to this after having waived their Fifth Amendment rights . . . .”⁵

Even though the jury was not charged until the next day, there is no indication on the record that the Commonwealth informed either the court or defense counsel that statements had been obtained. Likewise, there is on the record no indication that the content of either witness’s statement substantiated the claim of privilege or implicated appellant. At no time during the more than three and one-half years since trial has either witness been prosecuted.

The day after both defense witnesses claimed the privilege, the court charged the jury. The jury found appellant guilty of murder of the third degree. Written post-verdict motions were denied and appellant was sentenced. This appeal followed.

It is true that “for the court to properly overrule the claim of privilege, it must be ¡perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency.” Commonwealth v. Carrera, 424 Pa. 551, 553-554, 227 A.2d 627, 629 (1967). Accord, Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). But it cannot be concluded here, where Rodriguez never took the witness stand, that the trial court’s acceptance of Rodriguez’s claim was justified. At no time did the trial court permit appellant to establish the line of questions he would have put to Rodriguez. Instead, the court merely acceded to Rodriguez’s desire not to answer any questions. Compare Commonwealth v. Greene, 445 Pa. 228, 230, 285 A.2d 865, 866 (1971) (trial court permitted defendant to question defense witness claiming privilege). And there is no evidence in the seven volumes of trial transcript which links Rodriguez to the crime. Even the Commonwealth’s eyewitness, Manuel Rolon, named the group of persons who attacked the victim, but made no mention of Rodriguez’s presence at the scene.

In Commonwealth v. Carrera, supra, this Court made clear that:

“[w]hen an individual ... is called to testify . in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected.”

By accepting Rodriguez’s mere assertion of the privilege on a record both lacking any indication that appellant’s line of questions would have required the privilege to be invoked and containing no evidence which links Rodriguez to the crime, the trial court erred under Carrera. Appellant must therefore be awarded a new trial.⁶

Judgment of sentence reversed and new trial granted.

MANDERINO, J., did not participate in the consideration or decision of this case. NIX, J., filed a dissenting opinion.

1 . Article I, § 9 of the Constitution of Pennsylvania provides that “[i]n all criminal prosecutions the accused hath a right ... to have compulsory process for obtaining witnesses in his favor . . . .” The sixth amendment contains identical language.

2 . This opinion was reassigned to this writer on September 21, 1979 for the purpose of preparing an opinion expressing the views of a majority of this Court.

We reject appellant’s contention that the evidence is insufficient to sustain a verdict of murder of the third degree. Eyewitness testimony and appellant’s statement directly linked appellant to the killing.

In view of our disposition, we have no occasion to address appellant’s claims that (1) appellant’s inculpatory statement to police should have been suppressed, (2) appellant should have been permitted to question his brother, Manuel Rolon, regarding both Manuel’s statement to police providing probable cause to arrest appellant and police intimidation, (3) appellant’s criminal record should not have been used at the suppression hearing, (4) appellant should have been permitted to question witnesses concerning community feelings toward “gang wars,’’ and (5) the trial court improperly charged the jury.

3 . Record at 6.41.

4 . Record at 6.83.

5 . Stipulation, Transcript of Motion for a New Trial and/or in Arrest of Judgment at 4.

6 . Because we hold under Carrera that the court erred in accepting the claim of privilege of defense witness Rodriguez, we express no view on the following issues: (1) whether, under Carrera, the court correctly accepted defense witness Ayala’s claim of privilege; (2) whether the Commonwealth would be obliged under principles embodied in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Washington v. Texas, supra, to report either to the court or defense counsel that Ayala and Rodriguez gave police statements exculpating appellant or casting doubt on the witnesses’ claims of self-incrimination; (3) whether, if the statements were exculpatory, as would appear to be the case in light of the Commonwealth’s failure to this day to charge either witness with any offense, there could be a basis for the claims of privilege; and (4) whether, assuming each witness inculpated himself in giving the statement, the trial court should have considered the undisputed fact that, in giving the statement, each witness waived his privilege against self-incrimination (see text accompanying supra note 5).

We note that appellant’s trial began before the effective date of 42 Pa.C.S. § 5947(c) (“district attorney may request an immunity order” in specified circumstances). See generally Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 73, 166-70 (1974) (right of compulsory process includes right to obtain immunity for witnesses).