Commonwealth v. DiGiacomo

OPINION OF THE COURT

NIX, Justice.

This direct appeal from a conviction of murder in the second degree results from an altercation which occurred in a tavern in Allegheny County during which the proprietor was fatally shot in the back seven or eight times by appellant. Appellant presses two assignments of error to justify the reversal of the judgment of sentence and the grant of a new trial. We do not agree and now affirm.

On October 28, 1974, appellant, Mario DiGiacomo, and his friend, John Hruska, went to the “Some Place Else” Tavern owned by Raymond Anderson, the victim. During the course of the evening, a fight erupted between Hruska and Anderson. In the sequence of events which followed, appellant fired the shots which caused Anderson’s death. At trial, appellant admitted causing the death of Anderson but asserted that he fired the shots in an effort to protect his friend, Hruska, from serious bodily injury. The first assignment of error charges that the Commonwealth improperly prevented Hruska from testifying and thereby denied appellant his Sixth Amendment Right to Compulsory Process.

Is is unquestioned that our Federal Constitution assures the right of an accused to be provided with an adequate opportunity to present his version of the incident to the trier of fact. Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In Re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

In recognition of this right, this Court has required the Commonwealth to advise the defense of, and to make available to the defense is possible, all known eyewitnesses, Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970); Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). We have however held that the Commonwealth has no duty to call as its witness an eyewitness if there is reason to believe, after examination or investigation, that the testimony of that witness would be unreliable or unworthy of belief. Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951).

Here the existence of the witness, Hruska, the knowledge possessed by him concerning the fateful events, and his whereabouts were known to the defense. The alleged violation of the Sixth Amendment in the instant appeal is the allegation that the Commonwealth improperly intimidated the witness and caused him to elect to invoke his Fifth Amendment privilege and thereby made him unavailable as a defense witness. If the record bore out these contentions, there would be substantial merit in appellant’s position. Cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Smith, 156 U.S.App.D.C. 66, 478 F.2d 976 (1973).

The witness, Hruska, was subpoenaed by both the prosecution and the defense. The Commonwealth advised the court that it would not call Mr. Hruska as a witness because they were of the view that he was not worthy of belief. The Commonwealth concedes that during its trial preparation Mr. Hruska was interviewed. During that interview, Mr. Hruska was advised that evidence from other eyewitnesses strongly suggested that he might well have been an accessory to this crime. He was also advised of his right against self-incrimination. At some point after this interview, Mr. Hruska communicated to the defense his intention to' invoke his Fifth Amendment privilege if he was called as a witness in the matter.

Although appellant alleged threats and intimidation, there is no evidence of what transpired during the pre-trial conference between the prosecutor and Mr. Hruska beyond that conceded by the Commonwealth and set forth above. Interestingly, there was no effort on the part of the defense to introduce additional evidence which would support their claim that the witness had been coerced to remain silent.¹ See Commonwealth v. Sistrunk, 460 Pa. 655, 334 A.2d 280 (1975).

We do not believe under the facts of this case that the conduct of the prosecutor was improper or that he violated the Sixth Amendment rights of appellant. First, it is significant that the prosecutor did in fact have evidence from other sources which would tend to establish Mr. Hruska’s criminal involvement in this murder. Secondly, there was no evidence to suggest that the decision to prosecute would depend upon whether his version of the event was favorable to the defense or the Commonwealth. The mere advising of one individual of his rights where there is a justifiable occasion for doing so, does not in turn infringe upon the constitutional rights of another even though the election to exercise those rights may deprive the other of a possible advantage in his defense. Here, there was a proper occasion for advising Mr. Hruska of the possible consequences of his testimony and thus the fact that he subsequently elected to invoke his privilege if called as a witness was not an impermissible infringement upon appellant’s constitutional rights.

The appellant’s reliance on Webb v. Texas, supra is clearly misplaced. In that case the trial judge gratuitously singled out the only defense witness and proceeded to admonish him as to the possible punishment for perjury. As a result of these remarks the witness refused to testify. That Court properly concluded that the selection of this particular witness, the excessively strong admonition, and the unwarranted assumption that this witness intended to lie, violated defendant’s right to due process in that it “effectively drove witness off the stand.” Here, where the occasion for the admonition was obvious and its nature was not that of a threat, there is no basis for finding a parallel with the facts in Webb, supra.

In his brief, appellant alludes to a more serious problem concerning the prosecutor’s reference, during summation, to the failure of the defense to call Mr. Hruska, the appellant’s friend, and the prosecutor’s suggestion thereby that this omission would justify an inference that if called, the witness would have testified adversely to appellant’s position. While defense counsel objected to these remarks when they were made, the objection to the propriety of the remarks and suggested inference was not properly preserved on post-trial motions and accordingly it is waived. Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973).

Appellant’s second and final argument concerns the trial judge’s refusal to permit the introduction of certain hospital records where the doctor who made the records was unavailable to testify. The records were permitted to prove the fact of hospitalization and the duration of the hospital stay, but not to show diagnosis or medical opinion. Appellant asserts that they were admissible to show Mr. Hruska’s injuries as well.

The law is clear that hospital records are admissible to show the fact of hospitalization, treatment prescribed, and symptoms given. Act of May 4, 1939, P.L. 42, No. 35, § 2, 28 P.S. § 91b; Commonwealth v. Mobley, 450 Pa. 431, 201 A.2d 622 (1973); Platt v. John Hancock Mutual Life Insurance Co., 361 Pa. 652, 66 A.2d 266 (1949). Medical opinion contained in the records and proffered as expert testimony is not admissible however where the doctor is not available for cross-examination. See Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). Here, appellant attempted to have the custodian of records testify as to the admitting diagnosis of the injuries sustained. Such testimony is in the nature of expert opinion testimony and accordingly was properly excluded. See, generally, McCormick, Handbook of the Law of Evidence, 732 (2d ed. 1972).

Judgment of sentence affirmed.

ROBERTS and POMEROY, JJ., filed concurring opinions. MANDERINO, J., concurs in the result.

1 . The fact that Mr. Hruska may have properly invoked his Fifth Amendment privilege to avoid questions concerning the shooting did not prevent him from being called to establish that he had been intimated or threatened by the Commonwealth.