concurring:
I agree with the results reached by the majority. However, I write separately to explain why I believe the trial court was well within its discretion when:
1) it did not grant a mistrial subsequent to Mr. Fred Smallhoover’s exercise of his right against self-incrimination and refusal to testify;
2) it declined to grant a mid-trial one week continuance to secure the attendance of a witness whose testimony would have been of dubious utility to the defense and whose presence or deposition counsel had not previously attempted to procure.
As the majority has explained, counsel for the defense had been prepared to introduce testimony by Mr. Fred Smallhoover, father of the defendant and initial purchaser, principal shareholder and secretary-treasurer of R.W. Geiser Company, Inc. As represented by the defense, the substance of his testimony was to describe the degree of authority he exercised over the defendant. In addition, he would testify that Revenue Agent Fullerton, an important Commonwealth witness, incorrectly reported the date on which Fred Smallhoover said he learned of the tax delinquency in a typed memorandum Mr. Fullerton prepared subsequent to an investigatory meeting attended by Mr. Fullerton, the Smallhoovers, and the Smallhoovers’ attorney, Robert Bilstine. Specifically, Mr. Fullerton reported that Fred Smallhoover said he did not know of the delinquency until March, 1986, three months after the delinquen*597cy period was over, while Mr. Smallhoover would claim that he had told the agent he knew about non-payment by September, 1985, three months into the delinquency period.
The majority’s interpretations to the contrary representations by defense counsel illustrate that the value of Fred Smallhoover’s testimony did not lie solely in its concededly remote exculpatory potential, but rather in the possibility that Mr. Fullerton’s reliability and credibility would be impeached thereby. Nonetheless, appellant’s arguments must fail because the Commonwealth, far from intimidating the witness to deprive defendant of his rights, properly called to the attention of the trial court the very real possibility that Fred Smallhoover might inculpate himself by testifying.
Appellant may be accurate in pointing out that the Commonwealth was mistaken when the latter hypothesized that Fred Smallhoover might be liable for unsworn falsification to authorities. However, it is incorrect in stating that Fred Smallhoover’s testimony could not have inculpated him for violating the same tax statute under which his son was charged. During the course of trial, defense counsel attempted to show that Kurt Smallhoover, who was in his early 20’s, did not have sufficient corporate control and domination for liability to attach. It did so by introducing evidence that his father had ultimate oversight and control of the corporation’s activities. Now appellant seeks to persuade us that Fred Smallhoover’s full-time job elsewhere and his lack of day-to-day involvement in Geiser evinced a lack of corporate control and domination, categorically placing him outside the reach of the tax statute’s penalty provisions, to illustrate that the Commonwealth lacked any reasonable basis for suggesting that Fred Smallhoover consult with independent counsel. This inconsistency alone renders appellant’s contentions suspect.
Nevertheless, as a practical matter, even the evidence adduced in the trial of his son would probably be adequate for a trier of fact to find beyond reasonable doubt that Fred Smallhoover, in addition to his son, maintained sufficient *598control to be convicted under the statute as a principal, accomplice, or accessory. The element which the Commonwealth would then need to prove is whether Fred Smallhoover possessed the requisite intent, that being a willful failure to pay the tax.
It is apparent from the in-chambers discussion (on the record) concerning Fred Smallhoover’s possible testimony that the Commonwealth might very well have sought prosecution of father as well as son, at least on some of the same counts, if it previously had evidence that Fred Smallhoover knew about the non-payment of the tax during, instead of after, the period when it was supposed to be paid. Fred Smallhoover’s testimony might actually have provided the Commonwealth with a prima facie case against him.
It matters not what the “true” motives of the prosecutor were in suggesting that Fred Smallhoover be given opportunity to seek independent counsel; the prosecutor’s actions in notifying the trial court and defense counsel of the possibility of prosecution were presumptively proper because prosecution was a licit possibility, not a “hollow” threat. Thus, the court was correct in denying the motion for mistrial.
Related to Fred Smallhoover’s last minute decision not to testify is the issue of whether the trial court was within its discretion in refusing a mid-trial week long continuance so that the defense could secure the presence of a witness, Mr. Robert Bilstine, who was present at the meeting with Revenue Agent Fullerton and the two Smallhoovers and whose testimony, in lieu of Fred Smallhoover’s, might have impeached Mr. Fullerton’s credibility.
Initially, I disagree with the majority when it finds as one justification for the trial court’s denial of the continuance the fact that the testimony Mr. Bilstine would have related was identical to that for which Fred Smallhoover claimed a privilege against self-incrimination. The majority’s implication that a privilege against self-incrimination can be exer*599cised to prevent another party from testifying is without foundation.1
I also question whether it is correct to say that Mr. Bilstine’s testimony would have been “merely cumulative of the representations made by Mr. [Fred] Smallhoover at the interview, which representations were part of the Agent’s memorandum,” as the majority has characterized the situation. Rather, the defense sought to call Mr. Bilstine hoping that he would contravene the accuracy of Mr. Fullerton’s memorandum transcription of Fred Smallhoover’s statements, thus impeaching the credibility of Mr. Fullerton’s testimony based on that memorandum. Keeping in mind that this is a criminal prosecution, the combination of Fred Smallhoover’s continuing unavailability and Mr. Bilstine’s absence from the country may have warranted the grant of a continuance had Fred Smallhoover’s unavailability been an unfair surprise -which unnecessarily deprived defendant of the ability to defend himself.
The fact is, however, that prior to trial the defense possessed all of the information by which counsel could reasonably have anticipated that Mr. Bilstine’s presence was desirable. Defense counsel knew that Mr. Bilstine attended the meeting. It had a copy of Mr. Fullerton’s memorandum. It sought to call Fred Smallhoover for the precise purpose of contradicting representations made in that memorandum to the effect that Fred Smallhoover knew nothing until after the delinquency period. Given that defense counsel expended considerable effort at trial proving that father, not son, controlled the Geiser corporation, it should have come as no surprise when Fred Smallhoover ultimately decided to exercise his right not to incriminate himself with respect to his knowledge that the tax was not being paid during the relevant period. Thus, defense counsel could reasonably have anticipated that a back-up witness was necessary.
*600Yet defense counsel did not seek to interview Mr. Bilstine on this precise issue before trial and, as a consequence of this failure alone, could not even represent to the trial court the anticipated substance of his testimony, let alone produce him for trial. Conjecture as to whether Mr. Bilstine’s testimony would have aided the defendant is mere speculation; nevertheless, I do agree with the majority that the lack of diligence on the part of defense counsel was responsible for Mr. Bilstine’s unavailability. Under these circumstances, the trial court was amply justified in refusing to continue the trial.
. Since the majority and myself agree that the trial court did not err in refusing to continue the trial, we need not discuss whether Mr. Bilstine’s testimony was otherwise admissible.