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
DEL SOLE, Judge,
dissenting:
While I agree with my esteemed colleagues’ conclusion that Commonwealth v. Greene, 445 Pa. 228 , 285 A.2d 865 (1971) holds that neither the prosecution nor the defense may have a witness take the stand for the purpose of exercising his Fifth *371 Amendment privilege against self-incrimination, I must respectfully dissent.
The majority opinion states that “... even though appellee was in fact prejudiced, he cannot demonstrate the kind of prejudice required to sustain an ineffectiveness claim under the circumstances of this case”. This statement is followed by a footnote in which Judge Ford Elliott comments:
We note that defense counsel, at the very least, should have requested the trial court to give the jury a neutralizing instruction calculated to reduce the danger that the jury might draw an inference from the absence of Stevenson at the trial. See Greene. This is a borderline case and such an instruction might have tipped the scales in appellant’s favor. However, this issue has not been raised by appellant.
I cannot agree. In the present case, because of Appellant’s counsel’s ineffectiveness, Appellant lost his opportunity to request a neutralizing instruction. It is true that we must follow Greene because it is the law of the Commonwealth, but, from my review of Greene , it is apparent that the majority’s memorandum falls short of applying the case as a whole. The majority has overlooked the second half of the Greene analysis. Greene tells us that in order to extinguish any adverse inferences that the jury may have drawn from Stevenson’s absence at trial, Appellant should have had the benefit of a neutralizing instruction. Cognizant of the fact that a jury who has heard the defendant testify that another is responsible for the crime for which he is being tried, may draw a negative inference if the alleged true perpetrator is not called as a witness, the Greene court, quoting from Bowles v. United States, 439 F.2d 536, 542 (CAD: C 1970) held that, the “court, if requested, should have given [a] ‘neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness’ ”. Commonwealth v. Greene, 445 Pa. 228 , 285 A.2d 865, 867 (1971).
In Greene , like in the present case, the appellant was attempting to prove that the missing witness was, in fact, the *372 perpetrator of the crime. Unlike the present case however, the missing witness in Greene testified in camera. In the case sub judice, Appellant’s former counsel failed to locate Stevenson prior to trial and therefore there was no opportunity for Appellant to question Stevenson before the trial. As a result, Appellant lost his opportunity to request that the court offer a neutralizing instruction. I therefore conclude that by not locating Stevenson and having him assert his privilege against self incrimination outside of the jury’s presence, Appellant’s counsel lost Appellant’s opportunity to request a neutralizing instruction and thereby rendered ineffective assistance.
Accordingly, I would affirm the order of the trial court granting Appellant a new trial.