Opinion
October 8, 1970.
January 7, 1971.
Criminal Law — Evidence — Prior inconsistent statements of witness — Necessity of laying grounds for admission of impeaching testimony by calling witness' attention to contradictory statements — Discretion of trial judge — Discretion exercised subsequent to trial — Admission of contradictory statement of witness — Failure of Commonwealth to interrogate witness about statement during cross-examination — Evidence that codefendant was tried and acquitted on same indictment.
1. In this case, in which it appeared that defendant and two codefendants, indicted in the same bill for murder and voluntary manslaughter committed in the course of a robbery, were separately tried; that codefendant, D, was acquitted; that D had previously made a statement in which he had said that he, defendant, and the other codefendant had planned and taken part in the robbery; that, at defendant's trial, D, called to testify by the defense, corroborated defendant's testimony that the latter's presence at the scene of the robbery was just an innocent coincidence; that, during his cross-examination at defendant's trial, D was not asked by the Commonwealth about the statement which he had given, nor was it mentioned, but during rebuttal and after D had left the courthouse, the Commonwealth introduced the statement into evidence, without objection, to attack the credibility of D's trial testimony; and that the majority of the court below, including the trial judge, concluded that the admission of D's statement for impeachment purposes without giving him the opportunity to explain was unfair in view of all the circumstances in the case, and granted a new trial; it was Held that, despite the fact that the trial judge failed to exercise his discretion until after trial, the appellate court would not interfere with the exercise of that discretion.
2. Where it is sought to impeach the credibility of a witness by proof of statements contradictory to his trial testimony, it is not mandatory to lay grounds for the admission of the impeaching testimony by calling the witness' attention to the contradictory statements and inquiring if he had made such; such matter is within the sound discretion of the trial judge, subject to reversal if the discretion is abused. [338]
3. It was Held that, upon retrial, whether evidence that D had been tried and acquitted on the same indictment was admissible for the limited purpose as bearing on D's credibility should be considered in the light of the decision in Commonwealth v. Quaranta, 295 Pa. 264.
Criminal Law — Practice — New trial — Action by court sua sponte — Discretion of trial court — Appellate review — Issue raised sua sponte at time of oral argument.
4. If sufficient cause exists, a court may grant a new trial sua sponte, and its discretion will not be reversed in the absence of a clear abuse thereof. [338]
5. In this case, it was Held that the trial court did not abuse its discretion in raising sua sponte at the time of oral argument an issue not asserted in defendant's motion for a new trial.
Mr. Justice ROBERTS concurred in the result.
Mr. Justice COHEN took no part in the decision of this case.
Argued October 8, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 157, March T., 1970, from order of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1968, No. 96, in case of Commonwealth of Pennsylvania v. Homer Dennison. Order affirmed.
Indictment charging defendant with murder and voluntary manslaughter. Before WEIS, JR., J.
Verdict of guilty of murder in first degree; motion by defendant for new trial granted, opinion by WEIS, JR., J., dissenting opinion by SMITH, JR., J. Commonwealth appealed.
Terrence F. McVerry, Assistant District Attorney, with him Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellant. John J. Dean, Assistant Public Defender, for appellee.
Homer Dennison, Roger DeVaughn and Russell Sewell were indicted on the same bill by a grand jury in Allegheny County for murder and voluntary manslaughter. Motions for severance were later granted and separate trials ensued. DeVaughn was tried before a jury and was acquitted. Subsequently, Dennison was tried and convicted by a jury of murder in the first degree with the punishment fixed at life imprisonment. A motion for a new trial was filed and argued before a three-judge court sitting en banc. The motion was granted with one judge dissenting. The Commonwealth filed this appeal from the new trial order.
The Commonwealth charged that Dennison, seventeen years of age, served as the "lookout" outside of a grocery store while DeVaughn and Sewell attempted to rob the store, and that during the attempted robbery, the proprietor, Michael DeLuca, was fatally shot by Sewell. The only proof connecting Dennison with the robbery consisted of oral admissions of participation which he made to the police during questioning in the Juvenile Detention Home. Later, the same day, he gave a formal statement to the police in the Public Safety Building, but this statement failed to detail any participation on his part in the robbery.
Dennison testified at trial and denied any part in the robbery. He stated that he was walking by himself from his mother-in-law's home to the store involved to make a purchase when he met DeVaughn running down the street; that the latter told him not to go to the store because "Russell" [Sewell] had just shot "Mike"; and, that he turned around and went back with DeVaughn to his mother-in-law's home.
DeVaughn was called to testify by the defense, and while he admitted being in the grocery store at the time of the shooting, he denied any knowledge of or participation in a robbery. He also corroborated Dennison's testimony that the latter's presence in the area was just an innocent coincidence.
Two days after the robbery, DeVaughn was taken into custody and following questioning by the police, he made a statement which was recorded on a typewriter. This statement was completely at variance with his testimony at the Dennison trial. In this statement DeVaughn said that he, Dennison, and Sewell planned the robbery, and that in the course thereof Dennison aided by acting as the "lookout".
At his trial, DeVaughn testified that this statement was coerced by the police, and the jury evidently believed him as the verdict of acquittal indicates.
During his cross-examination at trial, DeVaughn was not asked by the Commonwealth about the statement, above referred to, nor was it mentioned. However, during rebuttal and after DeVaughn had left the courthouse, the Commonwealth introduced the statement into evidence, without objection, to attack the credibility of DeVaughn's trial testimony. In awarding a new trial, a majority of the court below concluded that the admission of this statement was prejudicial error because: (1) It violated the rulings of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074 (1965); and (2) If the Commonwealth intended to impeach DeVaughn's trial testimony exculpating Dennison, he should have been interrogated about the statement during cross-examination and given the opportunity to deny or explain it.
In view of the circumstances, we will affirm the action of the court below in awarding a new trial on the basis of reason No. 2.
The majority of the court below, including the trial judge, indicated the post-trial conclusion that admission of DeVaughn's statement for impeachment purposes without giving him the opportunity to explain was unfair in view of all the circumstances in the case.
It was once held that in order to impeach the credibility of a witness by proof of statements contradictory to his trial testimony, it was first necessary to lay grounds for the admission of the impeaching testimony by calling the witness's attention to the contradictory statements and inquiring if he had made such. However, it has been established for some years in Pennsylvania that such procedure is not mandatory and is now a matter within the sound discretion of the trial judge, subject to reversal if the discretion is abused. Commonwealth v. Powell, 303 Pa. 104, 154 A. 287 (1931), and Commonwealth v. Dilsworth, 289 Pa. 498, 137 A. 683 (1927). See also, 2 Henry Pa. Evidence § 803 (4th ed. 1953), and 3 Wigmore, Evidence § 1028 (3d ed. 1940). Despite the fact that the trial court failed to exercise its discretion until subsequent to trial, we will not interfere with the exercise of that discretion.
The Commonwealth complains that the issue under discussion was raised by the trial court sua sponte at the time of oral argument and not asserted in appellant's motion for a new trial. As we stated in Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108 (1968): "[I]f sufficient cause exists, a court may grant a new trial sua sponte. Trerotola v. Phila., 346 Pa. 222, 29 A.2d 788 (1943); Bergen v. Lit Bros., 354 Pa. 535, 47 A.2d 671 (1946). This power may be exercised even in the absence of a motion for a new trial by any party involved. Fisher v. Brick, 358 Pa. 260, 56 A.2d 213 (1948)." And such discretion will not be reversed in the absence of a clear abuse thereof. Dempsey v. First Natl. Bank of Scranton, 353 Pa. 473, 46 A.2d 160 (1946).
Since the case must be retried, one further matter must be noted. At trial, the court refused to permit the defense to show DeVaughn had been tried and acquitted on the same indictment. Whether or not this evidence is admissible for the limited purpose as bearing on DeVaughn's credibility at trial should be considered in the light of our decision in Commonwealth v. Quaranta, 295 Pa. 264, 145 A. 89 (1928).
Order affirmed.
Mr. Justice ROBERTS concurs in the result.
Mr. Justice COHEN took no part in the decision of this case.