Commonwealth v. McGrogan
| Citation | 523 Pa. 614,568 A.2d 924 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Robert McGROGAN, Appellee. |
| Decision Date | 17 January 1990 |
| Court | United States State Supreme Court of Pennsylvania |
Argued March 10, 1989.
Robert E. Colville, Dist. Atty., Robert L Eberhardt, Deputy Dist. Atty., Scott A. Bradley, Asst. Dist Atty., Pittsburgh, for appellant.
Robert M. Barrett, Pittsburgh, (Court-Appointed), for appellee.
Before NIX C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
Appellee Robert McGrogan, was convicted of two counts of criminal solicitation, 18 Pa.C.S. § 902(a). He appealed this conviction to the Superior Court, which reversed the trial court and ordered a new trial, 367 Pa.Super. 394, 532 A.2d 1203. This appeal by the Commonwealth followed, and allocatur was granted to address the issue of the propriety of the Superior Court's disposition of this matter. For the following reasons, we now affirm the order of the Superior Court.
In April, 1974, the Pittsburgh police arrested Mary and Donna Hoegrel, mother and daughter, for possession and sale of a controlled substance. Mary Hoegrel agreed to cooperate with police efforts to arrest Robert McGrogan, her supplier, and at their request telephoned McGrogan to arrange delivery of a quantity of a controlled substance. The police were able to effectuate the arrest of McGrogan as he arrived at Hoegrel's home. [1] While awaiting trial on the drug charges, McGrogan was committed to the Allegheny County jail where the Commonwealth charges that he offered money and drugs to Roland Steele if, in return, Steele would kill the Hoegrels. As a result, McGrogan was arrested and subsequently convicted of criminal solicitation for his activity in connection with the alleged plan to kill the Hoegrels. This conviction is the subject of the instant appeal.
The evidence adduced at trial conflicted as to whether McGrogan or Steele had conceived the plot to murder the Hoegrels. The testimony of a prison inmate of McGrogan's and that of the Hoegrels supported the Commonwealth's theory that McGrogan had approached Steele with the proposition. An investigating officer then produced two slips of paper, given to him by Steele, upon which were written the names, address, and telephone number of the Hoegrels.
At that point, the Commonwealth announced its intention to read into evidence the preliminary hearing testimony of Roland Steele. This was done because, immediately before trial, the prosecutor informed the trial court that Steele would be unavailable to testify because he intended to invoke the Fifth Amendment. The following exchange took place in camera:
Defense counsel objected to the admission of the preliminary hearing testimony of Roland Steele in the trial of this matter, stating:
I'm going to object to [the prosecutor's] reading [the testimony] for lots of reasons. First of all, I believe that it denies the Defendant the right to confrontation in terms of the witnesses in the proceedings.
I'm denied the opportunity to cross-examine the man. The jury is denied an opportunity to observe his demeanor and to find out, you know, anything about his background, and for those reasons, I would object.
(N.T. 10/9/85, p. 57) [2]
Over objection, the trial court admitted the transcript. Steele's testimony at the preliminary hearing revealed that McGrogan had solicited Steele at least four times to kill the Hoegrels during Steele's stay at the prison between May 18, 1984, and May 22, 1984. Further, the transcript revealed McGrogan offered Steele drugs and increasing amounts of money to murder the witnesses. McGrogan supplied Steele with descriptions of the house and the intended victims. This testimony was corroborated by pieces of paper bearing descriptions of the house and intended victims; the papers were surrendered by Steele to the investigating officer. The transcript further indicated that he had repeatedly declined McGrogan's propositions.
Three inmates testified during the defense that Steele had offered his "services" to McGrogan, and that McGrogan mistrusted Steele and rejected his overtures. McGrogan himself testified in support of the latter version of events, stressing that he was never aware that the Hoegrels intended to testify against him.
The Commonwealth presents three issues for our review. The Commonwealth first alleges that the Superior Court erred in addressing the issue of whether Steele was properly allowed to invoke his Fifth Amendment privilege. According to the Commonwealth, this issue was waived by the defendant and should not have been reached by the Superior Court. The Commonwealth cites Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), in support of its contention that defense counsel's general objection at trial [3] was insufficient to preserve the more specific allegation that there was no factual basis to support Steele's invocation of the Fifth Amendment privilege.
Two issues are presented in this argument: first, whether the failure of the defense to object to the invocation of the privilege constituted a waiver of an objection to the admissibility of the preliminary hearing transcript; and second, whether the ruling permitting the invocation of the privilege by Steele was correct. Turning to the waiver question, we find it to be convoluted and meritless. The waiver argument is fallacious because it rests upon the mistaken premise that appellee herein had the responsibility of challenging the allowance of the invocation of the Fifth Amendment privilege by Steele. The appellee, as the defendant in the trial below, did not seek to call Mr. Steele as a witness. The party seeking to use the evidence to be supplied by Mr. Steele was the Commonwealth. It is the responsibility of the party who is offering the witness to respond to any objection that would prevent that witness' testimony. It should be self-evident that the party against whom the evidence is sought to be offered should not be expected to support its introduction.
Moreover, the Commonwealth's argument fails to perceive the distinction between the decision upholding Mr. Steele's right to not be compelled to testify and the subsequent ruling admitting the earlier testimony of Mr. Steele. The former ruling was not adverse to appellee's position, and thus appellee had no obligation to object. The subsequent ruling was adverse to Mr. McGrogan and a prompt objection was made. It is also to be noted that the Commonwealth did not object to the initial ruling, although they should have realized the basis for their subsequent request would depend upon the sufficiency of the record made in support of the first ruling. The fact that the original error provided the grounds for appellee's subsequent argument does not eradicate the Commonwealth's dereliction in failing to challenge the basis upon which the trial court premised its ruling sustaining the invocation of the Fifth Amendment privilege.
The concept of waiver in this context must be predicated upon an underlying premise that a party has failed, through inaction or inattentiveness, to preserve an objection that would be favorable to that party. In this instance there was no obligation upon the defense, when the court initially ruled upon the propriety of the invocation of the privilege, to attempt to correct an erroneous judgment where the result of that ruling would inure to the benefit of the defendant. When the Commonwealth proceeded to rely upon the prior ruling to the detriment of the defense, it was then appropriate for the defense to challenge its validity. To rule otherwise would completely ignore the adversarial nature of a trial.
We turn now to a consideration of whether the trial court properly admitted the transcript of Mr. Steele's testimony in the prior proceeding. The answer to this question hinges upon whether the trial court was correct in determining that the Fifth Amendment privilege was properly invoked. Under both our federal and state constitutions, an accused in a criminal trial has a right to confront witnesses bearing evidence against him. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct 2531, 65 L.Ed.2d 597 (1980); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Commonwealth v. Russo, 388 Pa. 462, 131 A.2d 83 (1957); Commonwealth v. Johnson, 348 Pa. 349, 35 A.2d 312 (1944); Commonwealth v. Cronin, 336 Pa. 469, 9 A.2d 408 (1940). However, it has been firmly established that where a witness properly invoked his or her Fifth Amendment privilege, testimony of that witness in an earlier proceeding may be used, under proper circumstances, in a subsequent proceeding without offending the right of confrontation. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); In re Corrugated Container Anti-Trust Litigation, 661 F.2d 1145 (7th Cir.1981), aff'd Pillsbury v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1981); United States v. Zurosky, 614 F.2d 779 (1st Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Commonwealth v. Sandutch, 498 Pa. 536, 449 A.2d 566 (1982); Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 393 A.2d 306...
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