stating that “the trial court’s refusal to allow a witness for the defense to take the stand was proper where the witness had been indicted for the same crime, and counsel had informed the trial court that the witness had been advised to invoke his Fifth Amendment privilege…”
How later courts described this case
- stating that “the trial court’s refusal to allow a witness for the defense to take the stand was proper where the witness had been indicted for the same crime, and counsel had informed the trial court that the witness had been advised to invoke his Fifth Amendment privilege…”
- restating, if witness intends to claim Fifth Amendment privilege as to essentially all questions, [then] court may, in its discretion, refuse to allow witness to take stand; neither side has right to benefit from any inferences [fact finder] may draw simply from witness’ assertion of privilege
- trial court's refusal to allow witness for defense to take stand was proper where witness had been indicted for same crime and counsel had informed trial court that witness had been advised to invoke his Fifth Amendment privilege against self-incrimination
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
concurring.
Without disagreeing with much of what is contained in my learned colleague’s Opinion, I feel I must concur in the result. The only issue is whether defense trial counsel was ineffective for not securing and calling Leroy Manuel Stevenson as a defense witness at Curt A. Collins’ trial.
The burden rests upon Collins to establish ineffectiveness. To establish ineffectiveness for failure to call a witness, Collins must present evidence, inter alia, that Stevenson was both (1) available and (2) prepared to cooperate and testify for Collins at trial. Commonwealth v. Franklin, 397 Pa.Super. 265, 272 , 580 A.2d 25, 29 (1990). At the evidentiary hearing on January 22, 1991, Stevenson was called and testified. However, when asked concerning the only evidence that would have been consistent with Collins’ defense at the December 1990 jury trial and helpful to Collins, Stevenson invoked the Fifth Amendment and refused to testify.
There was absolutely no evidence submitted by Collins at the evidentiary hearing that Stevenson was either available or prepared to cooperate and testify for the defendant at the earlier trial. Having invoked the Fifth Amendment, it appears obvious that Stevenson was legally “unavailable.” Franklin, supra at 273 , 580 A.2d at 29 . Inexplicably, the most distinguished trial judge, the Honorable William E. Breene, does not discuss the witness’ unavailability or the total lack of positive evidence that he (Stevenson) would have appeared, at all, at the December 1990 trial, even though the Opinion and Order of Court granting a new trial were filed April 18, 1991, almost three months following the evidentiary hearing.
The reason for the evidentiary hearing is to afford the petitioner — in this case Collins — the opportunity to establish that (1) the witness existed, (2) the witness had been available at time of trial, (3) trial counsel knew or should have known of the witness’ existence and the necessity of the witness’ testi *370 mony, (4) the witness was prepared to cooperate and testify for the defendant at the time of trial, and (5) the absence of the testimony brought forth at the evidentiary hearing so prejudiced defendant as to deny him a fair trial. All five of these elements are conjunctive. A review of the evidentiary hearing transcript of January 22, 1991 leads this writer to conclude that the petitioner failed to establish elements (2), (4), and (5) above.
Having failed to meet his burden under the Franklin criteria, the claim of ineffectiveness must necessarily fail. I believe the Commonwealth is entitled to reinstatement of the verdict based solely upon the defendant’s failure to carry his burden at the evidentiary hearing. I, therefore, would decline to undertake the type of thorough analysis which my esteemed colleague has so ably presented reviewing Commonwealth v. Greene, 445 Pa. 228 , 285 A.2d 865 (1971) and Commonwealth v. Sims, 513 Pa. 366 , 521 A.2d 391 (1987).
I am unable to agree with my colleague’s conclusion that Collins was in fact prejudiced nor do I believe that defense counsel should have requested a “neutralizing instruction calculated to reduce the danger that the jury might draw an inference from the absence' of Stevenson at the trial.” The facts of this case as developed through the evidentiary hearing fall short, I believe, of requiring a revisitation of Commonwealth v. Greene by our supreme court. Regardless of the tactics claimed to have been used by the prosecution and the defense, the defendant has simply not met his burden of showing that Stevenson would have been an effective witness at the December 1990 trial.
Accordingly, I concur that the order granting a new trial should be reversed and the matter remanded for reinstatement of the verdict and for sentencing.