Commonwealth v. DuVal

• Decision Date: 02 July 1973
• Citation: 307 A.2d 229,453 Pa. 205
• Parties: COMMONWEALTH of Pennsylvania v. George DuVAL, Appellant.
• Court: Pennsylvania Supreme Court

307 A.2d 229

453 Pa. 205

COMMONWEALTH of Pennsylvania v. George DuVAL, Appellant.

Supreme Court of Pennsylvania.

July 2, 1973.

Bernard L. Segal, Philadelphia, for appellant.

Ward F. Clark, Dist. Atty., Stephen B. Harris, Asst. Dist. Atty Doylestown, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY Justice.

Appellant George DuVal was convicted by a jury in 1968 of the crime of voluntary manslaughter and, following denial of post-trial motions, was sentenced to a term of six to twelve years. This direct appeal comes to us under the Act of March 31, 1860 P.L. 427, § 57, 19 P.S. § 1182.

Five reasons are advanced why appellant's conviction cannot stand. One of the five--that the Commonwealth erred in not including a charge of involuntary manslaughter in the bill of indictment presented to the grand jury--was not presented to the court below by post-trial motion and under settled principles will not now be decided by this Court. Of the remaining four reasons, one will in fact require that appellant's conviction be reversed. We will additionally reach and decide two of the remaining three contentions because they are almost certain to recur should the Commonwealth elect to retry appellant.

I. Invocation of the Privilege against self-incrimination by the Witnesses McCabe and D'Ulisse

The victim of the crime, Phillip C. Springbett, Jr., was shot while visiting at the Levittown, Pennsylvania home of George DuVal the defendant-appellant, and his mistress, Marilyn D'Ulisse. It was the Commonwealth's theory that Springbett had traveled to Levittown to effect a reconciliation with his mistress, Joan McCabe, with whom he had recently had a falling out and who had temporarily taken up residence with the defendant DuVal and Miss D'Ulisse. According to the Commonwealth, relations between Springbett and Miss McCabe deteriorated still further during Springbett's visit and while all four persons were together in the kitchen in the late afternoon, Springbett struck Joan McCabe in anger. This action so infuriated DuVal that he fetched a .45 calibre service revolver from the bedroom, returned to the kitchen and shot Springbett in the chest.

Answering a call for assistance placed by one of the two women, the local Rescue Squad appeared on the scene to find Springbett lying near death and to observe a man exiting the house and driving away. No member of the Rescue Squad was able to identify the defendant DuVal as that man. The murder weapon was found in a vacant lot along the road leading away from the DuVal/D'Ulisse residence.

At the preliminary hearing, at the Grand Jury proceedings, and during a habeas corpus hearing concerning defendant's bail, the two women witnesses to the shooting testified. Originally their explanation had been that an unknown burglar had entered the house and had murdered Springbett. Later, before the Grand Jury, both of them changed their stories to that detailed above. Between the time of the Grand Jury testimony and the start of DuVal's trial, however, both women became concerned that perjury charges might be in the offing and they consulted a lawyer. That attorney contacted the assistant district attorney of Bucks County 'three or four days before the beginning of the voir dire.' In a hearing held after the trial on defendant's motion to supplement the record, the assistant district attorney recounted the conversation as follows:

'(He (the attorney of McCabe and D'Ulisse)) came up to me and said, 'I want you to know that I intend not to permit the girls to take the stand on trial.'

'I said, 'Do you represent them?' Because it stuck in my mind that they were represented by another attorney at the time.

'I don't recall what (his) answer was, but I believe that I elicited from him that he had not yet entered his appearance for them.

'And I said that--I said to him that, 'I don't know how to take what you're saying, because as I understand what you are saying, it is your intention that they not take the stand in the trial, but I do not know what their intention is, and I'll not know what their intention is, until their intention is tested.'

'And then I reminded him of the fact that I was aware of the fact that they had testified at the preliminary hearing, one of them had testified at the Grand Jury, and two of them had testified at a habeas corpus hearing.

'I said to him, in very clear terms, that as far as I was concerned, these young women had waived their privilege, but in any event, whether they would or would not invoke this privilege at trial, I would wait and have to abide that moment.'

The assistant district attorney then stated that he related the substance of the above quoted concersation to the district attorney.

On the first day of the trial, the Commonwealth called Joan McCabe, at which time her lawyer (the same person who had previously spoken with the assistant district attorney) introduced himself to the court and entered an appearance on behalf of the witness, thereby eliminating whatever doubts may have existed in the mind of the district attorney as to whether in fact he represented Miss McCabe. When called to the stand, Miss McCabe would state nothing but her name and address, and to all else claimed her Fifth Amendment privilege against self-incrimination. Out of the hearing of the jury, the trial judge decided that the witness had waived her privilege by testifying on prior occasions. The jury was returned and the witness was directed to testify. She refused, was declared in contempt of court, and was led off in the custody of the sheriff. Defense counsel made objection throughout.

Miss Marilyn D'Ulisse was then called, the same attorney entered an appearance on her behalf, and the same events followed as with the witness McCabe. Miss D'Ulisse also was escorted from the courtroom by the sheriff. Again defense counsel made timely objection.

We view the above as reversible error under our recent decision in Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973). ^[1] In that case it was held, in accord with the prevailing law in many jurisdictions, ^[2] that it is prejudicial error for a prosecutor to summon a witness to the stand in a criminal trial with foreknowledge that the witness intends to invoke a privilege against self-incrimination. The opinion in Terenda emphasized the risk that the jury would draw adverse inferences against the defendant; we take the present occasion to add further explanation as to why inferences drawn from a refusal of a witness who is not a defendant are improper.

Although appellant frames his argument in terms of the Due Process Clause of the Fourteenth Amendment, we note that no jurisdiction in which a procedure such as that set out above has been condemned as error has done so on constitutional grounds. Indeed, on the only occasion on which the Supreme Court of the United States has considered the propriety of such conduct, the Court emphasized that '(n)o constitutional issues of any kind are presented,' and that '(a)ll . . . this case involves, in short, is a claim of evidentiary trial error.' Namet v. United States, 373 U.S. 179, 185, 83 S.Ct. 1151, 1154, 10 L.Ed.2d 278 (1963). But see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), where the Sixth Amendment right to confront witnesses, made applicable to the states by the Fourteenth Amendment, was held violated by procedures which permitted the jury to learn the substance of uncross-examined, extrajudicial statements of alleged co-felons. The prejudice to the defendant of statements placed before the jury which by their terms directly connect him with the crime (as in Pointer, Douglas and Bruton, supra) is of a different order from the prejudice present in the case at bar. Here the risk is not that the jury will misuse evidence which directly states that the defendant is the criminal, but rather that the jury will make improper inference from the mere refusal of the witness called to testify at all. Here, unlike Pointer, Douglas and Bruton, supra, the witnesses McCabe and D'Ulisse have made no statement, written or oral, before the jury that directly implicates DuVal; they have said nothing at all. Whether or not the error which we find to have occurred in this case is error under the federal constitution as well is a question which it is not necessary for us to reach on this appeal.

It is clear beyond question that no inference can be taken against the person invoking the privilege. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Although it could be argued that under certain circumstances, a refusal to testify on grounds of self-incrimination might have probative value in establishing an issue in a matter to which the witness was not a party, we have recently held that it is not permissible for either defense or prosecution to attempt to capitalize on such refusal. Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971). Where it is the prosecutor who attempts to use such a device, there is a special vice: the inference to be drawn from the refusal to testify of the defendant's co-defendant, accomplice or associate has No probative value whatsoever in establishing the guilt of the defendant. It is rather an effort to cause the jury to think 'guilt by association.'

In the case at bar the appellant and the two women, McCabe and D'Ulisse, were known by the jury (evidence having been introduced to that effect) to have beeen present in the room in which Springbett was shot and killed. Accepting that these...