# Commonwealth v. McGrogan

> Supreme Court of Pennsylvania · October 21, 1987 · 367 Pa. Super. 394

URL: https://www.frixlaw.com/law-library/cases/9761805

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Robert McGROGAN, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 21, 1987
- **Citations:** 367 Pa. Super. 394; 532 A.2d 1203; 1987 Pa. Super. LEXIS 9526
- **Precedential status:** Published
- **Opinion:** Dissent by Popovich
- **Judges:** Cirillo, President Judge, and Rowley and Popovich
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761805

## Opinion text

POPOVICH, Judge,
dissenting:
I would note that, with the vacation of the judgments of sentence and the awarding of a new trial, the result being accomplished exceeds the remedial measure necessary to rectify the shortcomings affecting the trial proceedings.
I see no reason why a vacation of the judgments of sentence and a direction that an evidentiary hearing take place to ascertain, by the trial court’s incisive questioning, *411 if, in fact, Mr. Steele would be exposing himself to criminal repercussions if forced to testify against the defendant, and, thus, is truly “unavailable” and entitled to invoke the Fifth Amendment could not be accomplished.
If the trial court concludes that Mr. Steele would be justified in exercising his right to remain silent, his preliminary hearing testimony would be considered admissible, as was the case instantly, the judgment of sentence could be reimposed and the appellant would then be afforded the opportunity to appeal the ruling without either side having to proceed through the rigors of another trial.
However, were the trial court to conclude, following a hearing on remand, that the Commonwealth’s key witness (Steele) was not exposing himself to criminal liability if forced to testify, then a new trial could be awarded by the trial court—a result consonant with that sought by the Majority here.
I see no need to direct a new trial on remand absent the conducting of an evidentiary hearing beforehand. As for the criteria referred to by the Majority as the standard by which an evidentiary hearing is to be justified in such a case as poised for our review, I find it to be unpersuasive.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761805. Public record. Not legal advice.