Commonwealth of Pa. v. Doolin

24 A.3d 998

2011 PA Super 133

COMMONWEALTH of Pennsylvania, Appellant

v.Kevin DOOLIN, Appellee.

Superior Court of Pennsylvania.

Argued April 27, 2011.Filed June 27, 2011.

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth.Lee M. Rothman, Pittsburgh, for appellee.BEFORE: STEVENS, P.J., GANTMAN, and STRASSBURGER ^*, JJ.OPINION BY STRASSBURGER, J.

Appellant, the Commonwealth of Pennsylvania, appeals from the order dismissing charges against Appellee, Kevin Doolin (Doolin). After careful review, we reverse.

The trial court summarized the relevant factual and procedural history.

[Appellee], Kevin Doolin, [was] charged with the criminal homicide of Albert Kolano, on March 12, 2009, in the parking lot of the Longview Lounge. On March 1, 2010, the Assistant District Attorney assigned to the prosecution of Kevin Doolin, Lisa Pellegrini, received information from the Attorney General's Office (“AG”) concerning the death of Kolano. Ms. Pellegrini learned that the AG had begun an investigation of Richard Speciale, a member of the Pagan Motorcycle Club (“Pagan”). The AG's investigation included the use of a confidential informant, later revealed to be Ronald Petrichko, who is a member of the Pagans. In December of 2009, Petrichko informed the AG that he had information regarding Kolano's murder.

On March 8, 2010, Ms. Pellegrini disclosed the existence of the witness and the potentially exculpatory information to Doolin's counsel, Lee Rothman. At that point in time, the District Attorney's Office was only generally aware of the information because the AG refused to supply the witness's name or provide any access. Therefore, the District Attorney's Office was unaware of Petrichko's identity, location, or the exact nature of the information he had revealed to the AG.

The District Attorney's Office learned Petrichko's identity on March 17, 2010. On that date, liaisons from the AG arranged for an interview between detectives from the Allegheny County homicide unit and Petrichko. The detectives were informed that Petrichko retained the services of Donna McClelland as counsel. Ms. McClelland requested immunity for Petrichko before she would permit him to make any statements. The District Attorney's Office refused to provide immunity. Petrichko remained silent and refused to be questioned.

On March 18, 2010, Doolin filed a motion requesting a pretrial determination of whether Petrichko would have a Fifth Amendment ¹ right against self-incrimination in the event he [was] called to testify. Doolin also filed a motion to compel the release of oral and written statements Petrichko made to AG officers during their investigation. A hearing on those motions was held before [the trial court] on March 19, 2010. [The trial court] issued an order requiring the AG to disclose all written reports regarding statements made by Petrichko; if no reports existed, the order directed their generation. An order was also issued requiring the appearance of all relevant parties to discuss the issue of deciding whether Petrichko had a Fifth Amendment right to remain silent. That hearing was held on April 6, 2010.

At the conclusion of the April 6 hearing, [the trial court] ordered Mr. Rothman to submit legal authority permitting a trial court to determine prior to trial, whether a witness has a Fifth Amendment right to remain silent. On May 5, 2010, the [trial court] ordered a hearing to be held in chambers, outside the presence of the Commonwealth. Present in chambers were Ms. McClelland, Mr. Rothman, and Petrichko. During this hearing, Ms. McClelland made an offer of proof as to what information Petrichko would reveal on the stand. [The trial court] made the determination that Petrichko had a valid Fifth Amendment right against self-incrimination because his testimony would possibly subject him to a charge of conspiracy to commit simple assault. Ms. McClelland stated on the record that she agreed with that conclusion, but also expressed concern that Petrichko could be subject to charges of aggravated assault, felony murder, accomplice to murder, or a co-conspirator to any or all of those charges. Mr. Rothman asserted that any Fifth Amendment right was illusory. Ms. Pellegrini further commented that she had individually met with Ms. McClelland and Petrichko after the private in-chambers hearing. Ms. McClelland gave an oral offer of proof, which encompassed an apparent conspiracy by several Pagans to commit an assault that resulted in Kolano's death. Ms. McClelland confirmed that Petrichko will appear at trial to testify, but will invoke his Fifth Amendment right to silence.Trial Court Opinion and Order, 6/8/2010, at 1–3 (footnote omitted).

On May 13, 2010, Doolin filed a Motion to Dismiss/Motion for Use Immunity for Witness, arguing that “due process may require granting immunity to defense witnesses to safeguard [Doolin's] right to present essential exculpatory evidence and his right to compulsory process.” Motion to Dismiss/Motion for Use Immunity for Witness, 5/13/2010, at ¶ 10. After hearing argument on this issue, on June 8, 2010, the trial court granted Doolin's motion and dismissed the charges against him.

On the same day, the Commonwealth filed its notice of appeal.² Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925. The Commonwealth presents two issues for our review:

I. Whether the trial court abused its discretion in finding that the proffered defense witness, Petrichko, had a Fifth Amendment privilege not to testify in this case?

II. Whether the trial court abused its discretion in finding [that Doolin] would be denied a fair trial if Petrichko could not testify, and in dismissing the charges because the Commonwealth refused to grant the witness immunity?

Commonwealth's Brief at 4.

We first address whether the trial court abused its discretion in finding that Petrichko had a Fifth Amendment privilege not to testify in this case. After an in camera hearing outside the presence of the Commonwealth, the trial court concluded that Petrichko's testimony “would possibly subject him to a charge of conspiracy to commit simple assault.” Trial Court Opinion, 7/12/2010, at 2.³ The Commonwealth contends, however, that “the [trial] court could have required [Petrichko] to testify on [Doolin's] behalf and limit the testimony to observations of the conduct of [Doolin] and any other persons involved in the altercation.” Commonwealth's Brief at 11. Petrichko “could have asserted the privilege then the [trial] court could have limited the questions accordingly.” Id. at 12. We disagree.

“It is clear that under both our state and federal constitutions, a criminal defendant has a right of compulsory process to obtain witnesses in his favor. However, this right is qualified to the extent of existing testimonial privileges of witnesses, including the privilege against self incrimination.” Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624, 627 (1983) (citations omitted).

“There is no formula for determining when and how the Fifth Amendment privilege can be asserted (nor do we think one should be created).” Commonwealth v. Kirwan, 847 A.2d 61, 65 (Pa.Super.2004).

We are confident that trial courts can draw on their wealth of experience and fashion procedures appropriate to the practicalities of the case and that will allow the judge to make a sufficiently informed decision. We are likewise confident that lower courts will create a record sufficient to demonstrate the propriety of permitting or denying the privilege at the same time as preserving any Fifth Amendment right.

Commonwealth v. Treat, 848 A.2d 147, 148 (Pa.Super.2004).

Instantly, the trial court conducted an in camera hearing outside the presence of the Commonwealth. Additionally, all parties entered into a stipulation regarding Petrichko's testimony, which the trial court accepted, creating a sufficient record for the trial court to make a determination.

Thus, the crux of the Commonwealth's issue is that the trial court granted Petrichko a blanket privilege, rather than just the ability to assert his privilege for each question asked. Commonwealth's Brief at 12–13. We acknowledge that “[a] blanket privilege generally is not permitted.” Kirwan, 847 A.2d at 65. Alternatively, “a witness should not be placed on the stand for the purpose of having him exercise his [Fifth Amendment] privilege before the jury.” Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865, 867 (1971).

Instantly, the Commonwealth asserts that Doolin “could have extracted significant exculpatory details to further [Doolin's] defense without ever requiring Petrichko to implicate himself.” Commonwealth's Brief at 12. “However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency.” Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627, 629 (1967) (emphasis in original) (superseded by statute on other grounds). Under the present circumstances, we cannot conclude that the trial court abused its discretion by granting Petrichko a blanket Fifth Amendment privilege in this case.

Because we have concluded that the trial court did not err in granting Petrichko a Fifth Amendment privilege, we move on to consider whether the trial court subsequently abused its discretion by dismissing the charges against Doolin. In support of dismissing the charges, the trial court offered the following reasoning:

In light of the above, [the trial court] is reluctant to grant judicial immunity as it is not satisfied that it has this authority, but the circumstances as set forth are so fundamentally unjust as to require granting some relief to [Doolin] and [the trial court] is satisfied that, although this appears to be a case of first impression, a dismissal of the charges will bring...