Commonwealth v. Stafford, Appellant.
Supreme Court of Pennsylvania
January 19, 1973
450 Pa. 252
Richard W. Rogers, for appellant.
William T. Nicholas, Executive Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
OPINION BY MR. CHIEF JUSTICE JONES, January 19, 1973:
On March 11, 1968, Concezio Cane was accosted by four individuals and repeatedly stabbed; he died with
Due to the great number of contentions advanced by appellant, we will discuss only those facts necessary for a complete understanding of each argument at the appropriate time.
Appellant first argues that the court below erred in granting the Commonwealth‘s plea of surprise. During the course of the trial, appellant cаlled William Brown, the bartender at the Norris Tavern where the appellant allegedly was drinking prior to the homicide. On direct examination by the defense, Mr. Brown testified that appellant was not present in the Norris Tavern on the night in question. Attempting to rebut Mr. Brown‘s testimony, the Commonwealth called Betty Gary in reliance upon her pretrial, sworn statement in which she specified that appellant was present at the Norris Tavern. However, once on the stand, Miss Gary testified that she was, “not too sure that I did or not [see the appellant].” Over defense objection, the court below granted the Commonwealth‘s plea of surprise and the Commonwealth proceeded to cross-examine its own witness.
We recently discussed this area of the law in Com. v. Knudsen, 443 Pa. 412, 278 A. 2d 881 (1971). In Knudsen, a witness called by the Commonwealth as part of its case in chief, testified that he did not know whether the accused had cocked the hаmmer of the gun before confronting the victim whereas this same witness had unequivocally stated prior to trial that the accused did cock the gun. As in this appeal, the trial
“The courts of this Commonwealth have been liberal in allowing a party to cross-examine his own witness when it is believed that the interest of truth and justice so require. [Citations omitted] In аll the cited cases, however, the witness sought to be cross-examined had made statements at trial which were directly contradictory to statements the witness had made earlier, and the in-court testimony, if believed, was such as to aid the opposing party.
“On the other hand, our courts have been loath to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that an in-court declaration does not harm the calling party nor aid the opposing party. [Citations omitted]. Hence, when a witness claims he does not know or cannot remember, the prior statements should not be introduced because of the danger that the prior statements will be considered as substantive evidence by the jury.” 443 Pa. at 414-15, 278 A. 2d at 882-83.
As in Knudsen, we beliеve the court below erred but that appellant was not prejudiced, “since the witness continued to adhere to [her] trial statements that [she] was unsure whether appellant [was present].”
Appellant‘s second contention is closely related to the first: the trial judge should have given cautionary instructions concerning the plea of surprise as well as the use of this pretrial statement. However, other than a general objection to the charge, cautionary instructions were not requested. Accordingly, there is no error. See, Com. v. Knudsen, 443 Pa. at 415 n.*, 278 A. 2d at 883 n.*.
While appellant does not contend that сertain photographs and clothing should have been excluded as gruesome, e.g., Com. v. Wilson, 431 Pa. 21, 244 A. 2d 734 (1968), cert. denied, 393 U.S. 1102 (1969), he does argue that the trial judge committed fundamental error by failing to instruct the jury as to why these items were admitted. However, the record clearly reveals the following discussion by the trial judge in his charge: “Members of the jury, allow me to comment at this time that these photographs are not before you for the purpose of inflaming your mind or your passions, but rather to enable you to see the nature and the gravity and the extent of the assault that was committed upon this victim, and you should consider them for the purpose and that purpose alone.” We find no error in this respect.
During the course of the trial, two of appellant‘s alleged accomplices testified against him without any constitutional warnings being given to them. For this reason, appellant contends that his constitutional rights were violated. It is axiomatic constitutional law that a witness’ constitutional rights are personal and cannot be claimed by or for another, including the party by or against whom he is called to testify. See, generally, 98 C.J.S. Witnesses, §451a (1957). If each accomplice‘s counsel saw fit to permit such testimony, appellant cannot object.
Owing to the testimony of these alleged accomplices, the trial judge, in his charge, defined “accomplice” and cautioned the jury as to the probative use of this testimony. However, appellant argues that these individu
Appellant next contends that the Commonwealth‘s comments during summation which disparaged appellant‘s alibi witnesses deprived the appellant of due process and a fair and impartial trial. In his summation, the District Attorney stated, “[a]s a matter of fact, ladies and gentlemen, when that Bible was sitting up here, I was afraid it was going to jump up and hit all three of them, because they took an oath.” Defense counsel immediately objected but later apologized for interrupting. Nonetheless, the trial judge did remind the jury that the witnesses were under oath when they testified.
In Com. v. Gordon, 431 Pa. 512, 521 n.5, 246 A. 2d 325 (1968), cert. denied, 394 U.S. 937 (1969), the prosecutor posed the rhetorical question to the jury, “[d]id you see those eyes on that killer.” While we condemned the Commonwealth‘s conduct, we did not believe the incident warranted the grant of a new trial. Even if we were to conclude that the prosecutor‘s remark in the instant appeal was improper, compared to Gordon, any error would be harmless. We also include in this category those statements made by the District Attorney during the course of the trial concerning appellant‘s counsel.1
Our existing case law is presently summarized in
Dealing with the last sentence of
Concluding it would be error to prohibit defense inspection of these reports at trial, we must next examine whether this error prejudiced the appellant. We think not. Appellant‘s clothing was not introduced; nor was there any scientific evidence, testimonial or otherwise, relating to appellant‘s clothing. Finally, there is no indication whatsoever in the record that the Commonwealth violated the teaching of Brady v. Maryland, 373 U.S. 83 (1963), by suppressing evidence favorable to appellant. Indeed, one of the laboratory technicians, not called by appellant, was among those potential witnеsses, discussed earlier, that were not called by the Commonwealth but were available to appellant.
Appellant lastly contends that the prosecutor‘s remarks during his summation concerning aрpellant‘s silence at the time of arrest and until taking the stand in his defense were prejudicial error. We agree. The prosecutor in his summation said: “And then you‘ve heard, this defendant at about 9:10, he‘s arrested, 9:00 o‘clock he‘s arrested, brought down to the District Attorney‘s office, advised of his rights; where were you, what did you do, he doesn‘t have to say a word, nothing. He can sit there in complete silence on his constitutional rights, and that‘s whаt he does. And you‘ve heard from his own mouth that that‘s what he‘s done, up until yesterday . . . up until yesterday. You weigh that, in your deliberations. And you heard the contents, in essence, of this statement.” The appellant
Judgment of sentence reversed. New trial granted.
Former Mr. Chief Justice BELL and the late Mr. Justice COHEN took no part in the decision оf this case.
Mr. Justice POMEROY concurs in the result.
I concur in the result reached by the majority. However, it is my view that the disposition of this case is controlled by this Court‘s recent decision in Commonwealth v. Haideman, 449 Pa. 367, 296 A. 2d 765 (1972). Although Haideman and the instant case are factually distinguishable,* the evil to be protected against is the same. In both cases, the prosecution attempted to create the impermissible inference that the accused‘s silence at the time of arrest may be taken as an expression of guilt. Haideman laid to rest any suggestion that such an inference is constitutionally permissible.
Moreover, I must disagree with the majority‘s holding that the violation in this case of the well-established rule that a party cannot plead surprise, and then proceed to cross-examine and impeach its own witness by use of prior statements when the witness cannot recall or remember matters which he spoke of with certainty before trial is harmless error. Surely it can nеver be harmless error when, as on this record, the improperly admitted evidence substantially and significantly advances the Commonwealth‘s case by undermining the defense.
Appellant was charged with conspiracy and murder. The Commonwealth tried to prove, on the basis of the testimony of two alleged accomplices, that appellant and three others were drinking together at a bar, and shortly thereafter аccosted and murdered the victim.
The majority, in the instant case, quoting from Knudsen properly notes: “. . . our courts have been loath to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does not know or that he cannot remember. This is so for the reason that such an in-court declaration does not harm the calling party nor aid the opрosing party. . . . Hence, when a witness claims he does not know or cannot remember, the prior statements should not be introduced because of the danger that the prior statements will be considered as substantive evidence by the jury.” Commonwealth v. Knudsen, 443 Pa. 412, 414-15, 278 A. 2d 881, 883 (1971) (citations omitted); see Commonwealth v. Turner, 389 Pa. 239, 256, 133 A. 2d 187, 195 (1957).
In Turner, supra, a co-defendant had been the principal Commonwealth witness at Turner‘s prior trial but after the trial that co-defendant denied anything to do with the crime. He further denied having any knowlеdge of Turner‘s participation in the crime. In spite of this recantation, the Commonwealth called the co-defendant to testify at the trial, pleaded surprise and was permitted to introduce his prior testimony. This Court, in reversing the conviction held: “It is wholly unrealistic to pretend that the jury was capable of eradicating from their minds Lofton‘s former testimony except for its effect in currently impeaching him. Even
In Knudsen, supra, and Commonwealth v. Linkowski, 363 Pa. 420, 70 A. 2d 278 (1950), this Court regarded as harmless error the admission of impeaching statements after a witness could not recall or remember matters which he spoke of with certainty before trial. Unlike the case at hand, both of those cases involved the erroneous admission of impeachment evidence which was not central to the determination of the key questions in dispute. In Knudsen, supra, the challenged impeaching statement tended to prove the premeditation requisite for murder, but the jury found the defendant guilty only of involuntary manslaughter. In Linkowski, admission of the impeaching statement was held to be harmless error “inasmuch as this testimony dealt only with the fight which, although important to supply motive, is not disputed, the real question being the identity of the slayer.” Id. at 424, 70 A. 2d at 280.
Here, however, the Commonwealth‘s case depends to a large degree on proof that appellant, together with three other defendants, visited the bar shortly before the murder. The key element in appellant‘s defense was the bartender‘s testimony that appellant was not at the bar on the night of the crime. Other than appellant‘s two alleged accomplices, Betty Gary was the only Commonwealth witness offered to rebut the bartender‘s testimony. The erroneously admitted prior
Thus, by the erroneous admission of the priоr statement, the jury‘s verdict was fully subject to the “danger that the prior statements will be considered as substantive evidence by the jury.” Commonwealth v. Knudsen, 443 Pa. 412, 415, 278 A. 2d 881, 883 (1971). Here, as in Turner, “. . . the harm to the defendant from improper cross-examination is . . . manifest. . . .” Commonwealth v. Turner, 389 Pa. 239, 256, 133 A. 2d 187, 195 (1957).
Although the majority properly recites the controlling law as enunciated in Turner and Knudsen, supra, it applies these principles, on this record, incorrectly.