*1
Argued 1991.
Filed Oct. Harrisburg, Robert A. Berry, appellant. Harrisburg, for Deputy Atty., Dist. Wingert, Kathy G. Com., appellee. CERCONE, JOHNSON, JJ. HUDOCK
Before *2 CERCONE, Judge: in entered from of sentence appeal judgment a
This is an For the of Common Pleas. County Dauphin Court the follow, of sentence judgment vacate the we reasons that new remand for a trial. and case, sought prove to that Commonwealth
In the this Rog-M. Ms. Bonnie Cobb had assaulted Kenneth appellant appellant trial, that alleged victim testified At the ers. demanded one hundred in face after she the punched Rogers explained that from him. Ms. ($100.00) dollars Philadelphia to to obtain appellant driven previously had According for sum. in the aforementioned drugs exchange in places, two broke Rogers, appellant jaw Ms. to swelling and pain severe and causing bleeding, profuse necessitating surgery. of 12, 1989, appellant guilty a found jury
On December post-trial motions Subsequently, appellant’s assault. simple appeal This followed. he was sentenced. denied and were review, for our raises seven issues appellant While the concerning claim lower only appellant’s need address we of a Common his cross-examination restricting court’s on new trial based grant our a because wealth witness the that lower appellant argues Specifically, issue.1 this brief, following for our appellant contentions In raises the his review: [appellant’s] denying motion to erred in A. Whether the trial court 1100; of Rule violation dismiss based on Commonwealth’s [the] denying [appellant’s] in motion trial court erred in B. whether the making drugs repeated in prohibit to to reference[s] limine references to drugs; failing inquiry allow full into erred in C. whether the court contradictory state- for the victim’s inconsistent and the reasons her; against having capias issued victim’s a ments and [the] weight against the the D. whether the verdict reached evidence and law; contrary court in him refusing question alleged erred allow capias victim about a issued her arrest. Appellant maintains that evidence was admissible to show agree. potential witnesses’ bias. We to such our regard inquiries, Supreme With has stated as follows: a prosecution may
whenever witness biased favor of prosecution outstanding charges because criminal or of any disposition because non-final criminal bias, him jurisdiction, possible within the same that fairness, must be made known Even if the prosecutor no promises, has made either on the present matters, case on pending or other criminal the witness hope for may favorable treatment from the if prosecutor presently way testifies helpful exists, prosecution. possibility And the jury *3 should know about it.
The to jury may choose believe the even it after promises of actual learns made or of possible promises leniency future, may which be made in the but defen- dant, under the right guaranteed in the Pennsylvania him, Constitution to confront witnesses must have opportunity at least to raise some in the doubt the jury mind of as to whether the prosecution witness is It not biased. for the court to determine whether the n cross-examination for bias would affect the jury's deter- of mination the case. Evans,
Commonwealth v. 214, 224-25, 511 Pa. 512 A.2d 626, (1986) (footnote omitted). 631-32 instance, In such an however, the of motive or possibility bias must be more Mines, 321 than mere speculation. Commonwealth v. 533, 529, 1115, Pa.Super. (1983). sum, 468 A.2d 1117 In “[tjhere must a logical be connection between the facts to proven be and the inference to be from the drawn facts.” verdict; E. whether the evidence was insufficient sustain a judges F. whether prejudicial comments were so as to consti- trial; warranting
tute error a new [appellant] G. whether was denied effective assistance counsel.
171 535 A.2d Gay, Pa.Super. Commonwealth omitted). (citation (1988) attempted Rogers, appellant cross-examining Ms. While the witnesses’ issued for a warrant had been that prove sum, appellant hoped In matter. separate arrest a of Ms. under this Rogers: on the possible part bias show that Ms. sought to demonstrate theory, appellant prosecution with helpful in a manner testified from favorable treatment might that later receive hope Evans, supra, light Accordingly, the Commonwealth. to conclude that required are its we progeny, and court erred in and that the lower relevant evidence was refusing its introduction. permit trial. Jurisdiction is new
Reversed and remanded retained. not J.,
JOHNSON, opinion. a dissenting files JOHNSON, dissenting. Judge, cross- entitled to defense counsel was agree I that trial victim/witness, to her Rogers, the as examine Bonnie M. agree also contradictory statements. inconsistent she was Rogers could cross-examined as whether establishing possi- purpose for the subject prosecution However, I be- outstanding charges. to any ble bias due par- on occurred adequate cross-examination lieve error, any, of this case and that ticular facts Therefore, I re- was harmless. limiting cross-examination spectfully dissent. *4 Argu ofC the argues,
Kenneth Cobb
within subsection
Brief,
of a
of
that cross examination
portion
ment
his
in an at
charges pending
to
prosecution witness relevant
permissible
of the witness
tempt
part
to show bias on
Common
correct.
clearly
This is
under
law.
Pennsylvania
Common
Hill,
v.
(1989);
A.2d 252
wealth
523 Pa.
Evans,
(1986). Al
214,
about the victim’s which was withdrawn contem- poraneous matter, trial purpose for the establishing bias.
A critical issue at trial credibility Bonnie Rogers, the victim of the assault and battery. Rogers testified that had lied in her initial of the report assault against her. When she had detailed the incident both to her mother and the police, had Rogers initially implicated not assailant, Cobb as her gave but rather story about an apartment. intruder Rogers Subsequently, told an- other version that implicated Cobb in the assault.
Other Commonwealth witnesses also testified Rog- ers initially had told one which was story inconsistent with at trial. testimony There was no attempt hide from jury clear inconsistencies Rogers’ stories. With backdrop, this as the following occurred during the cross- examination of E. by Nancy Goldberg, defense counsel:
BY MS. GOLDBERG:
Q. Rogers, Miss is it true you gave now the Harrisburg Police two different stories?
A. Can’t I answer tell yes and why?
Q. lied, You didn’t you? Yes,
A. I lied. I told you was scared.
Q. officer, You lied to a police correct? *5 isn’t God. Yeah. He
A.
Q. You lied— Objection. [Deputy
MR. RUSSO D.A.]: two differ- police she told We know THE COURT: her mother told stories, originally we know ent her. man assaulted unidentified some next Now, on to the area. go let’s BY MS. GOLDBERG: you had time of the incident it that at the
Q. Isn’t true medical insurance? no No, I
A. didn’t. now living And in North Carolina Q. you’re [?]. Yes, in North Carolina now. living I’m A. you— issued for it there is a warrant
Q. Isn’t true Your Honor. Objection, MR. RUSSO: relevance; all, I First see the THE don’t COURT: all, line, completely I think that is out of and, second of of line. out Honor, go the relevance would Your
MS. GOLDBERG: treatment she wants favorable that credibility; from the Commonwealth— help? How
THE COURT: case, assisting in this That she’s MS. GOLDBERG: or— bargain to a pursuant plea either Well, any— she has can ask you THE COURT: May approach? we MR. RUSSO: No, no, no. THE COURT: objection. I’ll sustain of her— it’s none say THE WITNESS: line, out of it, getting Hold now. We’re THE COURT: here. other case. any to know about
I don’t want record, my note Honor, for the Your MS. GOLDBERG: line of pursue I’m not allowed objection questioning. Yes.
THE COURT: Look, we aggravated have an assault. getting We’re things. into all kinds of *6 right,
All go. let’s
BY MS. GOLDBERG:
Q. you Are here testifying pursuant to some today sort of deal with the Commonwealth?
A. No.
Q. here testifying today expectation You’re of obtain- ing some favorable treatment from Commonwealth— MR. RUSSO: Your Honor. Objection, A. No. I’m testifying because Kenny something did wrong. if
Gee, he hit you, you get time, would want him to goodness. wouldn’t you? My right. THE COURT: All it. That’s THE My WITNESS: God.
BY GOLDBERG: MS.
Q. Isn’t it true Kenny after was arrested told you Tony Cobb, brother, Kenny’s you drop charges these Kenny pay you you he’d or get $600 some cocaine? $9,000?
A. my You know doctor bill is you Are kid- ding? Would you do that?
Q. Is true or not?
A. No.
MS. Thank you. GOLDBERG: nothing have further. right. THE COURT: All Redirect.
Transcript Proceedings, 11-12, pages December 92-95.
While prevented defense counsel was from asking one question, concerning had whether warrant been issued for Rogers’ arrest, Bonnie permitted pursue was indeed the line of as questioning, by to whether inquiring any deal Rogers had been offered to by the Commonwealth. De- permitted ask, fense counsel was also over the albeit objection of the Deputy Attorney, District whether some favorable obtaining in expectation testifying was Commonwealth. from the treatment of the witness whether inquired further Defense counsel charges against Cobb the criminal drop she had offered respons- received cocaine. Counsel or exchange $600 in the all questions, all of these from the witness es indicated that counsel had Defense of the presence was outstanding warrant about inquiring reason for that the witness suggest and to Rogers’ credibility to test Proceedings, Transcript of treatment. favorable wanted this offer of It after 11-12, page 93. December to cross-examine permitted indeed that counsel was proof any expec- or deals with the Commonwealth concerning any Id., page at treatment. Rogers of favorable tation *7 exactly what we determine in the record can Nowhere the issuance prompted have Rogers, any, may conduct assert counsel does Trial defense alleged capias. of the testimony Rogers’ court, the conclusion after the “the trial, was that there day of the first at the end and the skipped she [Rogers] and that outstanding warrant De- Proceedings, Transcript making bail.” state after on, Goldberg goes 1989, Attorney 124. 11-12, page cember Rogers the court however, inform apparently in the testify Pennsylvania arrest while exempt from to the court: Goldberg stated Ms. prosecution. Cobb ..... MS. GOLDBERG: on Section going rely
I the Commonwealth believe [Rog- exempt Judicial Code which 5965 of the however, fact is she the point; at this from arrest ers] and she left arrested, she made bail already been has Your Honor Commonwealth, like and would Miss and have outstanding capias enforce time. at this custody taken into page Proceedings, December Transcript of said, in Lipsitt William W. the Honorable response, In part: pertinent
THE COURT: I’m not Anyway, going to be concerned. If the District Attorney’s Office feels she should be arrested, up that’s to the District Office. Attorney’s Just because she’s a against your client does not seem to give me to you authority to demand she be put jail.
Id. The court did not accede to defense counsel’s demand that the witness taken into custody.
The appeal issue before us on this is whether the inability of the specific defense to ask one question concerning the issuance of capias trial, warrants a new where the record reveals that numerous other questions were asked and place answered to the special interest or credibility of the client before the The cross-examination and recross- witness, examination of this Rogers, spans pages seventeen record, Transcript of Proceedings, 11-12, December 84-95, pages 97-101, and delves into the witness’ insurance, medical her possible deals with the Common- wealth, her expectation treatment, of favorable her false police officers, statements to the implausibility of her sec- ond version of transpired, what and her willingness to drop charges for either cash or cocaine. Two other Common- wealth witnesses testified to the fact Rogers, victim, had changed story. Was trial court’s sus- taining single of the objection question concerning whether a capias had been issued of sufficient gravity trial, compel a new where other relevant questions along *8 the same line were subsequently asked and I answered. would conclude it was not.
I find this case to
similar
Sneed,
be
to Commonwealth v.
(1987),
514 Pa.
177 (1974), Supreme A.2d our Carr, 459 Pa. 328 512 at aimed cross-examination the curtailment approved made possible the bias was otherwise showing bias where error harmless thereby rendering any clear to jury, doubt. a reasonable beyond Carr, us in I find the record before
As Sneed witness/victim, Rogers, Bonnie M. establishes that and that her incon- cross-examination exposed extensive fact, were, bias before possible sistencies and error, record, any, I find upon Based the entire would single sustaining objection Judge Lipsitt by capias to have concerning unparticularized question harmless. been I also find the six issues raised Cobb other
Since merit, sen- judgment I would without affirm dissent. Accordingly, respectfully tence. A.2d COMPANY, Attorneys in Fact for
ERIE INDEMNITY Exchange, Appellee, Erie Insurance Subscribers McGAUGHEY, Appellant. Gail Pennsylvania. Superior Court of Argued May 8, 1991. Decided Oct.