by David M. Reutter

In a unanimous opinion the Supreme Court of Pennsylvania held that a prosecutor commits misconduct, and reversible error occurs, when the prosecutor summons and questions a witness before a jury despite having clear reason to expect the witness will refuse to answer questions, regardless of whether the witness explicitly invokes the Fifth Amendment privilege in the jury’s presence. Reversing the Superior Court and vacating the defendant’s judgment of sentence, the Court reaffirmed that Commonwealth v. DuVal, 307 A.2d 229 (Pa. 1973), is controlling authority, and it rejected the Superior Court’s reliance on Commonwealth v. Todaro, 569 A.2d 333 (Pa. 1990), as “deeply flawed.” In a significant clarification of governing law, the Court expressly qualified any prior precedent suggesting that this rule applies only when the witness invokes the Fifth Amendment before the jury, declaring that permitting such a formalistic distinction to control the outcome “would mark the triumph of form over substance.”

Background

The prosecution arose from a February 7, 2019, drug transaction at a Marriott Hotel in Erie, Pennsylvania, that ended in a shooting. Four men, including defendant Jermaine Belgrave and Charles Baizar, traveled from Chicago to Erie. Hotel surveillance footage showed Baizar exiting a Chevrolet Impala and walking toward a nearby SUV. When Baizar attempted to enter the SUV, its driver exited and opened fire. Belgrave then left the Impala and discharged two shots toward the SUV before sustaining serious gunshot wounds. A package that Baizar dropped during the confrontation contained 239 grams of heroin. Baizar later pleaded guilty to conspiracy to commit possession of a controlled substance with intent to deliver.

Belgrave faced charges including possession with intent to deliver, aggravated assault, and other offenses. The day before his June 2021 jury trial, Baizar filed a motion to quash the Commonwealth’s subpoena, unequivocally asserting that he would invoke his Fifth Amendment privilege if called. Belgrave simultaneously filed a motion in limine to prevent the prosecution from referencing Baizar’s prior statements. The Commonwealth responded by granting Baizar immunity, thereby eliminating any Fifth Amendment basis for his silence. Despite the immunity grant and the trial court’s warnings about contempt sanctions, Baizar confirmed outside the jury’s presence that he would not answer questions under any circumstances.

The prosecutor nonetheless proceeded to call Baizar before the jury. During his opening statement, the prosecutor previewed Baizar’s expected testimony while openly acknowledging his anticipated refusal, telling jurors that Baizar “knows exactly what happened” but would attempt not to cooperate. On the stand, Baizar stated his name, declared he would not answer any questions, and remained silent as the prosecutor posed approximately 18 predominantly leading questions. Several of those questions contained factual assertions directly implicating Belgrave in drug trafficking, including whether Baizar had told police the incident was a “drug deal gone wrong” and whether both men traveled to Erie together to sell heroin. Defense counsel lodged repeated objections. At sidebar, the trial court acknowledged the danger of this approach, recognizing that the prosecutor was “basically reading [Baizar’s] statement to the jury” but permitted the questioning to continue. The trial court then delivered a limiting instruction advising the jury that only a witness’ answers, not the questions, constitute evidence.

During closing argument, the prosecutor compounded the prejudice by inviting the jury to draw meaning from Baizar’s silence, arguing that Baizar could have cleared Belgrave simply by saying the defendant was not involved, but he “refused to say that.” The jury convicted Belgrave of possession with intent to deliver, reckless endangerment, and carrying firearms without a license.

The Superior Court affirmed, distinguishing DuVal and the plurality decision in Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973), on the sole ground that Baizar never uttered the words “Fifth Amendment” in the jury’s presence. Drawing an analogy to Todaro, where a witness was quietly excused before any questioning occurred, the Superior Court concluded there was nothing for the jury to infer from Baizar’s mere silence.

Analysis

The Court began by reviewing its foundational precedents governing the practice of calling witnesses expected not to answer questions. In Terenda, a plurality concluded that calling co-indictees with foreknowledge of their intent to invoke the privilege was improper and prejudicial. The concern was that jurors could draw adverse inferences from the co-indictees’ refusals to testify and transfer those inferences to the defendant. Making matters worse, the defendant was powerless to challenge those adverse inferences through cross-examination because the witnesses refused to speak. The plurality characterized the prosecution’s conduct as prosecutorial misconduct as well as a violation of the defendant’s confrontation rights, identifying each as an independent basis for invalidating the convictions.

Later that year in DuVal, a majority of the Supreme Court reinforced these principles. The DuVal Court declared that a co-actor’s refusal to testify possesses “no probative value whatsoever” in establishing the defendant’s guilt. Importantly, the DuVal Court identified the prejudicial error as residing in the prosecutor’s decision to call the witness, not in what the witness did or said once on the stand. Even the prosecution’s good-faith belief that the witness lacked a valid basis for asserting the privilege did not excuse calling the witness without first resolving the issue through proceedings outside the jury’s presence. The DuVal Court mandated a pretrial procedure in which the prosecution must alert the court when a witness is expected to refuse to testify, the court should test the witness’ intentions outside the jury’s hearing, and the matter must be resolved before the witness appears before jurors. The Court stated that this aspect of DuVal was reaffirmed in Commonwealth v. Virtu, 432 A.2d 198 (Pa. 1981), and Commonwealth v. Davenport, 308 A.2d 85 (Pa. 1973).

Turning to Todaro, the Court determined that the Superior Court’s analogy to that decision was fundamentally unsound. In Todaro, the prosecutor claimed to have believed the witness intended to testify based on prior representations. When the witness unexpectedly informed the judge of his intent to invoke the Fifth Amendment immediately after being sworn, the jury was excused, no questions were posed before jurors, and the witness left the courtroom permanently. The Todaro Court reasoned it was unclear how jurors could draw any inference from such a brief and uneventful appearance.

The Court stated that the circumstances in the present case bore no resemblance to that scenario. The “silences” in the two cases “categorically differ,” the Court explained. Todaro involved a complete absence of activity before the jury, while this case involved willful, defiant silence in the face of accusatory questioning that directly implicated the defendant. Additionally, unlike Todaro, the prosecution here had unequivocal advance notice of Baizar’s intentions and nevertheless insisted on calling him before jurors.

The Court then squarely addressed the Superior Court’s central analytical premise that the governing prohibition applies only when a witness explicitly invokes the Fifth Amendment in the jury’s hearing. Rejecting this distinction, the Court reasoned that the prejudicial harm arises from a witness’ refusal to deny accusations, which jurors can reasonably treat as an implied admission. That harm exists independent of whether the witness articulates a particular legal basis for remaining silent, although an express invocation of the Fifth Amendment may intensify the prejudice. The Court characterized this as an untenable elevation of form over substance and expressly qualified any contrary precedent.

In addition, the Court concluded that the Commonwealth failed to establish that the error was harmless beyond a reasonable doubt under the framework set forth in Commonwealth v. Fitzpatrick, 255 A.3d 452 (Pa. 2021). The Court observed that the prosecution’s own conduct demonstrated how central Baizar’s appearance was to its case. Notably, the Commonwealth secured immunity directly from the District Attorney, previewed Baizar’s testimony in opening statements, and argued the significance of his silence during closing. Through this episode, the prosecutor became what the Court called “the de facto testifying witness,” imputing criminality through leading questions that Belgrave could neither confront by cross-examining Baizar nor challenge by cross-examining the prosecutor.

Conclusion

Accordingly, the Court reversed the Superior Court’s decision, vacated Belgrave’s judgment of sentence, and remanded without prejudice to the Commonwealth’s prerogative to retry Belgrave. See: Commonwealth v. Belgrave, 353 A.3d 550 (Pa. 2026).  

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