dissenting.
The majority concludes that any damaging inference drawn by the jury would be mere speculation and therefore the Appellant suffered no prejudice. I must dissent.
As the majority correctly recites, in Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973) we held that a *71harmful error occurs if a witness claiming a privilege against self-incrimination takes the stand before the jury when that witness is likely to be associated with the defendant. We based our holding on the fact that the jury may infer that the witness’s testimony would be harmful to the defendant, thereby causing his silence. This appeal goes one step further. Here, the witness did not actually assert the privilege but merely disappeared without explanation. The majority concludes that any inference of “guilt by association”, which was the evil we attempted to preclude in DuVal, is speculative in that the jury was “as likely to conclude that Mr. Kinsey had decided at the last minute to testify against the Commonwealth and was dismissed for that reason.” (Maj. Opinion at p. 70). Such speculation on the part of the majority is not reasonable. If Kinsey intended to present evidence unfavorable to the Commonwealth and favorable to the Appellant it is more reasonable to conclude that the Appellant would have attempted to call Kinsey as a witness.
Furthermore, I disagree with the majority’s argument that to permit a new trial in this matter would result in “the discharge of every defendant who appeared in court but declined to testify on his own behalf because the jury could always ‘improperly’ infer that silence connotes guilt.” (Maj. Opinion at 336). In most instances, the jury is advised by defense counsel that the defendant’s failure to testify shall not be considered as an admission of guilt, and is usually instructed as such by the court. Thus, adhering to the rationale of DuVal will not “open the floodgates”.
I realize that there are significant factual differences between this appeal and DuVal. However, the evil we attempted to preclude in DuVal exists here, i.e., the possibility that the jury will infer “guilt by association”. Here the jury was aware that Kinsey possessed certain items from the various burglaries. The fact that the jury did not hear Kinsey assert the magic words of the privilege against self-incrimination does not relegate his mysterious disappearance to a nullity. Kinsey was called as a witness, took *72the witness stand and then did not testify. In DuVal, we preferred “to give the defendant the benefit of the doubt as to whether or not the error could have been cured by an instruction”. 453 Pa. at 218, 307 A.2d at 235. I believe that the Appellant was entitled to no less in this instance. Therefore, I dissent.