*1 584 register. Accepting
tempted
open
as true this
arising
all
there-
evidence and
reasonable inferences
quite
properly
a
could and did
return
from the
charge
robbery.
guilty
aggravated
on
verdict
450 Pa.
327,
v. Williams,
329,
Commonwealth
(1973);
Wright,
358,
867
Commonwealth v.
2d
(1972).
James Assistant District Stein, Attorney, bim M. Milton James D. Crawford, Deputy District Richard Attorney, First Sprague, Assistant District and Ar- Attorney, len Specter, District Attorney, for Commonwealth, ap- pellee.
Opinion 1973: July 2, Justice Nix, Appellant was guilty first-degree found murder and aggravated after denial of his robbery, and, post-trial motions, imprison- he was sentenced to life ment for the murder and ten to for twenty years aggravated the sentences to robbery, concurrently. run on judgment sentence the murder conviction was appealed here and the judgment of sentence the ag- on gravated robbery conviction was to the appealed Supe- rior Court. The Court Superior certified the latter ap- peal to this Court order that might we both consider *3 matters together.
A serious question raised concerning the court’s of the handling prosecution’s interrogation of Cornell who had initially been and arrested the for charged the commission of these crimes and in subsequently acquitted a separate trial of jury charge the of murder.1 Berry had been called as a witness the Commonwealth in anticipa his testimony tion that would conform with his state ments his trial where he during had entire placed the for the murder responsibility upon the appellant. The facts pertinent the surrounding incident were: On February 11, 1969, someone, rob attempting James Costello the men’s room of the Thea- Family stabbed Philadelphia, Costello in the ter neck. Cos- the tello later died of wound. Appellant, Allen Tucker, at the time, old and twenty-years Berry were seen run- from the the stairs bathroom ning up soon after the robbery jury. not before the bill was charged with killing arrested and later both were being of his warned constitu- after Tucker, crime. the description police of rights, gave an accurate the tional originally place, claimed took but the crime how when con- commit Later, had someone else it. he seen placed given by Berry by a which fronted statement gave con- the statement, Tucker a Tucker, blame on stabbing attempted of admitted the tents robbery of the deceased. request took of
When the stand first identified the assistant he was (with- attorney participant in the incident as district pro- a disclosure to the outcome out response questioning ceeding) he and then in ad- early Family being present Theater mitted in the February morning be- 11th. He testified that hours of four-thirty morning and five in the he tween o’clock appellant- general in the had seen the and the victim if then area where crime occurred. He was asked seen, responded he knife, he had to which unsuccessfully pro- attempting to after invoke first Fifth Amendment tection of the United States juncture Common- It at this that the Constitution. sought granted objection by and was without wealth light to cross-examine the witness. The defense following colloquy ensued: “By Q. Mb. Do Stevens: top page—Mr. say- you of the recall—near Machen you your ing right, trial, the course ‘All what happened?’ thing Then in- is the next the Court *4 you something finally and said and tervened made this way two-thirds of the is about answer—this down Berry, page. is the answer Charles ‘Purnell This Squeaky going get upstairs, I am said to some went hurting nobody.’ money. you for I am not I said Do re- your saying trial? at : Your Hon- call Mb. Baban 588 at
or, this time we see at bar may you please? side Court: All right. (Whereupon a side bar discussion was held as If follows.) Your Honor Mr. Baran: this I please, object ques- am Stevens’ going tions on the fact he is this using cross-examination for the purpose of entire tes- introducing evidence, the of Mr. I think timony previous at a unfair is purpose of—” Unquestionably, present under Pennsylvania law, testimony of at the time that witness, Berry, plea surprise was entered did not provide prop- er for basis the allowance of the impeachment of witness by the that had him. party called
“The courts of this Commonwealth have been liberal
allowing
party
cross-examine his own witness
when it is believed that
jus
the interest
truth and
tice
require.
so
v.
424 Pa.
E.g., Commonwealth
Smith,
(1967);
544,
2d 653
Commonwealth
Turza,
v.
340 Pa.
“On other hand, our courts have been loath allow cross-examination purposes for of impeachment prior use of when statements a witness states or does not know that he cannot remember. This so for the reason that such an in-court declaration
589 opposing nor aid the calling party harm the does not 218 420 439, 442, Pa. Bros., Gimbel Goodis v. party. 24 149 235, Pa. Hart, 232, 574 Fisher v. (1966); A. 2d Co., Life Ins. 225 v. Metropolitan Atl. Selden (1892); see A. 2d 571 509, (1945); Pa. Ct. 43 Superior 157 Pennsylva §§38-39; Laub, McCormick, Evidence, also claims Hence, Trial when witness Guide, nia §46.5. the state remember, prior cannot he does not know or danger be because of the ments should not introduced considered as substan that statements will be prior Commonwealth v. Knud jury.” evidence tive v. 414-415. Commonwealth See also sen, supra, Pa. 2d (1973). 452 364 Dancer, allowance of the right No made to the objection was rather the latitude allowed cross-examination but prosecutor to the the cross-examination. during did the intro- only prosecutor record discloses that also that Berry’s duce a statement testimony had been taken officials Ms arrest to re- by police upon Ms did not see a knife at fute assertion he his version of the entire event scene, but also introduced in these earlier which fastened the given as statements Beyond refuting blame state- appellant. he the earlier knife, ment that had not seen were used establish that he had at one and statement the one in appellant pos- time maintained that appellant expressed had an weapon, session rob had (Berry) intention to at- someone, restrain the but that deceased tempted been fatally wounded. already “The end aimed at use of self-contra- prior [the ... be in to show witness to general dictions] in his testimony;” errors IIIA capable making Wig- rev. (Ohadborn 1970). prior Thus, more §1017 be is not used as substantive statement evidence. v. Knudsen, supra at 415 n*; See, 2d 574 Bros., 439, 442, Goodis Gimbel (1966).2
Viewing Berry’s testimony it is mind, this prosecutor permissible clear exceeded lim- that the *6 only its cross-examination. The of statement occasion- surprise ing during that this uttered trial was, very prose- “I no knife.” didn’t see most that the bring in cutor was entitled to the view of defense’s out, object initially surprise plea, to failure to the the previously fact that had testified that he had prosecu- seen a knife. The additional facts the which possibly tor elicited could not been to have relevant any portion Berry’s testimony that of show was mis- point Berry given taken, because that had no testi- mony concerning facts. in those find error Thus, we scope prose- of cross-examination afforded to the cution. presented
Unlike the situations cases of Com- supra, v. monwealth Dancer, Commonwealth v. Staf- (1973) ford, 2d 590 and Common- supra, wealth v. Knudsen, we cannot conclude under the facts of this case error that the In was harmless. objec- Dancer, Knudsen the thrust of the Stafford right tion was the allowance of the to cross-examine today objection whereas case before us that appellant been waived because of the failure of the interpose timely objection. complaint a Here fo- scope cused of that cross-examination which permitted pieces damaging a number of of evidence to jurisdictions note that several We commentators and a few permit prior the use inconsistent statements as substantive evi dence because witness is available for cross-examination and such rule not violate the would Confrontation of the Clause California, Creen, Sixth Amendment. 399 U.S. n. 5-7 154-55 Pennsylvania (1969). However, majority continues to adhere to the rule that such statements are not to be used as substantive evi dence. unrelated totally were
be before the placed impeachment allowed. for which to the statement that, Knudsen the court concluded Stafford cross-examine right to the objection went since cases adhered respective and the witnesses was suffered prejudice no testimony, their Here cross-examination. erroneous allowance of court’s to be impeached unrelated to the statement completely knife”-—the erroneous latitude “I didn’t see no —i.e., the introduction the Court permitted granted prior had on two fact the only eyewitness, knife that he had seen the occasions stated not only in the hands appellant, appellant but that it was an intention of committing robbery had expressed he had although attempted and that intervene here did fact stab the victim. Although *7 repudiated prej- too the these prior statements, witness udice from the introduction of facts which the resulted trial specifically witness did not controvert at permissible evidentiary purpose. which served no Nor are in a as position conclude, we this Court did in that “this error was in Dancer, harmless the face of the the overwhelming guilt.” Berry evidence was only the other only eyewitness; testimony respect appellant to the intention of the and the circumstances incident itself surrounding supplied was by appel- lant’s statement whose was pretrial veracity con- hotly In trial. that this error deciding tested at did preju- and was not harmless dice the we are not un- evidence Tucker against mindful Ber- that without testimony substantially was same as in- ry’s in trial in against Berry which troduced resulted an acquittal. raised numerous other has objections.
Appellant of the disposition case, we need of our not pass view time. at this objections those a sentence is reversed and new judgment trial awarded. Pomeroy
Mr. Justice dissents. Dissenting Opinion by Mr. Justice O’Brien : I con- must dissent from the respectfully majority’s error clusion that court committed reversible when it extensive cross-examination permitted ap- pellant’s Cornell statements friend, Berry, concerning had made Berry prior to at own trial, Berry’s trial, during period Berry when was It custody. might be helpful Berry’s to recount events surrounding testimony. had been called stand
Berry witness Com- Commonwealth with which the expectation, he previously monwealth had noted conference, at give would same which he had given he Berry his own when trial, acquitted, the entire placed responsibility for the murder on appellant. However, when took the he Berry stand, was evasive about whether he had seen appellant at crime scene of the the time it occurred or at whether he had seen the victim at go downstairs time. was asked When whether time had seen any being after unsuccessful in- knife, attempting to Amendment, Berry voke the Fifth stated that he did not see the knife. The Commonwealth, sur- claiming then to cross-examine permitted con- prise, he had made cerning specific whether statements to the *8 at his own trial. When contrary confronted with these statements, “I Berry responded, as to each prior one, say.” told me to The my lawyer said what Common- much of through Berry’s previous wealth went trial tes- asked finally he was whether he had timony until said: “Q. ‘Question—you Mr. walked in Now, where? Question—into area. the second walked Answer—I Answer—yeah. Ques- where the toilets were? the room you knife Answer—I seen the did see? tion—what you say I [appellant’s] Q. Yeah, Did that? hand.’ ‘Question—yes. when then Q. Answer—so said that. [appellant] grab I seen I back in went I walked you coughing. that man cut Jack done man said upstairs.’ Q. Did all of went I three us out, walked Berry say ad- you I That what said.” that? A. is quote his he said at that the above what mitted yet ex- although his retracted he had not trial, own say lawyer planation him that.” “had told that his Berry began question The Commonwealth next appellant’s prior seen occasions when he had about Berry and hostile to the to be evasive knife. continued questions. Commonwealth’s at- Commonwealth’s police Berry torney had told the asked whether he then Berry replied “They happened. knew When what had “sleepy” and I and claimed he was than did,” more police, he he had told the remember what couldn’t portion his statement which concerned read the appellant’s hands and was asked whether knife in the Berry responded: “Like I said, he said that. had my my I I and what said at statement, what said they they thought they put it how felt there went.” majority apparently
Appellant and the contends, opinion trial court erred in the latitude of the Berry. cross-examine given Ad- the Commonwealth testimony prior mittedly and the statement which police were not limited to neutraliza- made to denying Berry’s at trial tion of killing at the a knife time of the with seen previous but instead occasions, dealt given the However, facts in this crime. case, the entire per- Court abused its discretion in not believe I do cross-examination. When mitting broad such de- *9 594 on mur
nied, direct lie bad seen tbe examination, that piece appellant’s der knife in this denial became a band, jury of substantive tbe could consider evidence wbicb determining Berry’s testimony in its verdict. Since totally light unexpected, testimony bis tbe of tbe at perfectly proper per own it for tbe to trial, was court Berry pre mit tbe Commonwealth to confront with bis purposes impeaching vious statement for tbe credi bility actually of bis denial that be seen tbe knife.1 bad Berry’s If matter bad ended admission there, tbe previous might per of bis it have been error to remarks, any subject. mit further cross-examination on How tbe Berry tbe matter ever, did not end there. next claimed lawyer say that bis him had told what to trial. at bis perfectly permit proper It was then to tbe Common testimony wealth to confront with all of bis trial substantially previous and bis similar tbe statement to police credibility to attack tbe of his claim that bis lawyer say him told what to tbe time bis trial. (After lawyer all, could not claim that bis also say police, lawyer told him what to tbe since bis present time.) not at that DiPasquale,
Commonwealth v. (1967), 2d 449 cannot relies, help him because tbe instant unlike tbe situa- case, 1 distinguishable This ease is thus from Commonwealth v. Dancer, (1973). Dancer, Pa. 305 2d 364 the Common- wealth’s witness testified on direct examination that she could not stabbing because see her line of vision was blocked. heldWe testimony justify permitting did this not the Commonwealth impeach prejudicial injurious its it witness because was not or contrast, case, Berry, to the Commonwealth’s case. In in the instant admittedly although view, specifically had an unobstructed tes- appellant, tified that he saw no knife on the which clear- ly prejudiced the Commonwealth’s case because it could lead the contrary that, jury ap- to infer to the contention, Commonwealth’s pellant knife. had no great pains court went DiPasquale, tion Berry’s statements previous inform the of impeachment, for purposes be considered only could Moreover, DiPasquale, as evidence. substantive at the Common- court, the witness was called *10 Commonwealth decided after suggestion, wealth’s she she had told them witness after to call testimony. DiPasquale, by Thus, her change would concerning witness, the recalcitrant cross-examining of previous statement, contents her items into to introduce evidence attempting able be to introduce. it knew it would not otherwise the Common- hand, on the other case, In instant change his tes- did not know that would wealth took stand. timony until he I even if the court opinion that, am of the Moreover, erred in the Commonwealth so much latitude granting of under the standard its cross-examination Supreme Court by the United States established error U.S. such Chapman California, (1967), harmless doubt. beyond reasonable view full appellant’s evidence in this case, particularly of various confession, eye- and detailed occurring events before and soon after witnesses to the discovery weapons murder murder, be residence, there can no doubt appellant’s place have would been convicted even if the stand. had not been called to joins Mr. Chief Justice this dissenting Jones opinion.