Opinion by Strassburger, J.:
The defendant, a member of the Pagan's motorcycle gang, was informed by the Commonwealth that a confidential informant used in the investigation of his case might have exculpatory information. The informant, however, invoked his Fifth Amendment privilege against testifying, claiming that doing so would expose him to prosecution for, at a minimum, conspiracy to commit simple-assault. The Commonwealth declined to extend him use-immunity, and the defendant moved to dismiss the charges against himself on a theory that due process required that he be permitted to offer the informant's testimony. The trial court dismissed the case, and the Commonwealth appealed.
The Superior Court concluded that the prosecutor has absolute discretion in deciding whether to request immunity for a witness. The Court held that, where the Commonwealth refuses to offer a witness immunity and offers a rationale for doing so, absent prosecutorial misconduct, the defendant is not then entitled to dismissal. The trial court's dismissal was therefore an abuse of discretion, and the case was remanded for trial.
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