Commonwealth v. Long

483 A.2d 876, 334 Pa. Super. 554, 1984 Pa. Super. LEXIS 6437
Superior Court of Pennsylvania·Decided October 26, 1984·No. No. 3294·Published·Cited by 2 cases

Opinion

BROSKY, Judge:

Three issues are raised in this appeal but essentially the question before us is whether the trial court erred in prohibiting appellant’s counsel from eliciting from a Commonwealth witness that the witness was, at the time of trial, incarcerated.1 We reverse.

Frank Long took this appeal following his conviction by a jury on charges of recklessly endangering another person2 and possession of an instrument of crime.3 Appellant was sentenced to a term of imprisonment of six to twenty-three months. The charges filed against him arose out of an incident that occurred on October 15, 1981. A Commonwealth witness, James Baxter, testified that on that date he lived in the home of Morris Carter; that he was in the house, to which he had returned after an altercation with appellant; and that approximately 3:00 a.m. appellant drove to the house, shouted threats at Mr. Baxter and fired a gun shot at him which struck the storm door. Mr. Baxter, who said that he had gone out on the porch of the house before the shot was fired, testified that appellant drove away after firing the gun.

On cross-examination appellant’s trial counsel sought to elicit from Mr. Baxter that he was, at the time of trial, incarcerated in the Bucks County Prison. He argues that he might have been able to show bias on the part of the [556] witness because of his incarceration. The following exchange took place:

BY MR. GRAHAM:
Q. Mr. Baxter, if I’m not mistaken, you said your current address is 211 Buckley Street?
A. Yes.
Q. I thought your current address was Bucks County Prison. Is that your current address?
A. Right now at this moment it is.
Q. You live at Bucks County Prison, not 211 Buckley Street?
MR. WILLIAMS: Your Honor, I object to this entire line of questioning.
THE COURT: Objection sustained.
May I see counsel at side bar, please?
(Side bar discussion out of hearing of the court reporter.)
THE COURT: Take the jury out, please. (Jury leaves courtroom.)
THE COURT: Mr. Graham, are you prepared to present evidence to show that he is now in the Bucks County Prison serving a sentence for the purpose of going to the question of his credibility based upon his prior conviction of record?
MR. GRAHAM: No, Your Honor.
THE COURT: You are not?
MR. GRAHAM: No, I’m not. My point was, he announced his address as 211 Buckley Street. That is not the case.
I believe that — without going into the case, Your Hon- or, I believe that is relevent [sic] in that he — first of all, he testified that his address is 211 Buckley Street, which it isn’t. And I would submit that—
[557] THE COURT: It isn’t because he’s now in prison, do you mean?
MR. GRAHAM: Yes. But I also have — I have information to indicate that he wished to withdraw the charge in this case, that he had no intention to prosecute this case but for—
THE COURT: Go ahead.
MR. GRAHAM: But for the fact he was arrested and incarcerated he would not even be here today. I think this is relevant, the fact that he is in custody.
THE COURT: Mr. Graham, that is about as outrageous a representation as I’ve heard in this courtroom in a very long time. I presume from what you have said he is in the prison because he has been arrested for something. Obviously, he has not been tried for it. The mere fact that he is in prison because he cannot make bail does not affect what his residence is. His residence is 211 Buckley Street and in any event perhaps his residence at this moment is totally irrelevent [sic]. The question is when and where anything happened with regard to him; and according to his testimony that was at 211 Buckley Street.
The obvious purpose of this question is to import [sic] something to the jury with regard to this witness in the nature of some kind of hidden persuader which you know full well you can’t ligitimately [sic] argue to them, but notwithstanding that, attempting to get such information to them they may not consider and which is irrelevant. That skates very close to the edge of ethical conduct on the part of an attorney. In fact, maybe it falls over the edge. Maybe the disciplinary board will have something to say about it when the trial is over.
Bring the jury back in.
MR. WILLIAMS: Your Honor, I would request some type of instruction. I don’t know what else to do.
THE COURT: There isn’t much else you can do.
I have some trouble with that kind of tactics.
(Jury returns to courtroom.)
[558] THE COURT: Members of the jury, you heard some reference in the few questions asked by defense counsel of this witness to the fact that he is or may be presently a resident of some kind in the Bucks County Prison. I instruct you, members of the jury, that that fact is totally irrelevant to this case for any and all purposes, at least on the basis of the present record. It is totally irrelevant and has no meaning whatsoever with regard to the matter of this witness’ credibility, that means his believability-
The reason why he is or may be in the Bucks County Prison at this time has nothing to do with this case and is of no interest to us whatsoever at this time, and is to be totally disregarded by you in your deliberations on this case.
Now, go ahead, Mr. Graham.

Appellant contends that the trial court erred in prohibiting his attorney from asking Mr. Baxter his address.

It is generally the rule that although the fact that a witness has been convicted of a crime in the nature of crimen falsi may be brought out as bearing on his credibility, there must be a conviction before such evidence is relevant, because there is a vast difference between a conviction and a mere accusation. Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). In Ross our Supreme Court explained that an exception to the general rule exists insofar as the courts have held that if a witness is under indictment for the same crime, or a crime growing out of .it, or a crime closely related to the very offense for which the defendant is being tried, so as to form part of the same occurrence, then evidence of this indictment is relevant as bearing on the witness’ interest in the immediate matter. Ross, supra 434 Pa. at 169-171, 252 A.2d at 662-663. The Ross court declined to expand the rule to permit evidence merely of arrest.

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Commonwealth v. Long, 483 A.2d 876, 334 Pa. Super. 554, 1984 Pa. Super. LEXIS 6437 (Pa. Ct. App. 1984).

483 A.2d 876 (Commonwealth v. Long) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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