Commonwealth v. McDuffie

382 A.2d 1191, 476 Pa. 321, 1978 Pa. LEXIS 817
CourtSupreme Court of Pennsylvania
DecidedJanuary 26, 1978
Docket415
StatusPublished
Cited by11 cases

This text of 382 A.2d 1191 (Commonwealth v. McDuffie) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. McDuffie, 382 A.2d 1191, 476 Pa. 321, 1978 Pa. LEXIS 817 (Pa. 1978).

Opinions

OPINION

MANDERINO, Justice.

Appellant, Odell McDuffie, was tried before a judge and jury and convicted of murder in the second degree. Post-verdict motions were denied and sentence of ten to twenty years imprisonment was imposed. This appeal followed.

Appellant contends that the trial court erred in not granting his motion to strike certain testimony given on cross examination by a prosecution witness. This testimony was to the effect that appellant had previously been convicted of another homicide. We agree and therefore reverse the judgment of sentence and grant a new trial.

The prosecution’s evidence at trial established that during the early evening of June 25, 1973, appellant and one Alvin Jordan confronted the decedent and a companion on the street in Philadelphia. The victim and his companion were sitting on some steps adjacent to the sidewalk when appellant and Jordan pulled up in a car, and, according to the testimony of the prosecution witnesses, appellant shot and fatally wounded the decedent as he attempted to escape by running up the street.

The prosecution called Alvin Jordan, appellant’s companion and driver of the car at the time of the incident, who testified that at approximately 8:30 p. m., on June 25, 1973, he was approached by appellant who asked him for a ride up 20th Street. Jordan testified that he drove appellant to Christian Street and stopped the car in front of appellant’s house while appellant went inside. Appellant then returned to the car and told Jordan to “go around the comer.” Following appellant’s instructions, Jordan went to 19th Street and Katherine Street where they met a third party, [324]*324one Fred Simms. Together Jordan, Simms, and appellant drove to Colorado Street and at that point Jordan noticed that appellant had a pistol. Again following appellant’s instructions, Jordan drove down the street and stopped in front of a house where some people were sitting on the steps. Jordan testified that appellant and Simms who were both armed, got out of the car and began “pistol whipping the boys with the guns.” Jordan testified that as the boys attempted to escape by running across and down the street, he saw appellant firing shots. After the shooting appellant and Simms got back in the car and left the scene, Jordan stating that he complied with appellant’s requests to drive away because he was afraid that if he did not comply he would be shot.

During the cross-examination of Jordan, defense counsel sought to establish that Jordan was presently incarcerated as the result of a series of robbery charges having been filed against him, and that he was awaiting disposition on these charges. The defense elicited testimony which indicated that the district attorney’s office had told Jordan that it would recommend a lesser sentence on several of these open robbery indictments in exchange for Jordan’s testimony in this case against the appellant. In the course of this cross-examination, Jordan responded to one of defense counsel’s questions by mentioning that appellant had received probation for a prior homicide in which appellant was involved. Such a reference to appellant’s prior criminal conduct is highly prejudicial. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

Defense counsel immediately requested to have Jordan’s answer stricken. This motion was denied with the court making the following observation:

“You asked for the conversation. You may not like the answers, but he is trying to answer you.”

The trial court’s denial of defense counsel’s motion to strike was reversible error.

In general, a party is not entitled to have stricken incompetent evidence which that party elicits. We are of [325]*325the opinion, however, that the instant case is not within the proscription of that rule. The response made by the witness to defense counsel’s questioning here cannot be said to have been elicited by defense counsel. In cross-examining Jordan, defense counsel made clear on several occasions that inquiry was being made about Jordan’s problems with the district attorney and not about appellant’s. The following questions were asked by defense counsel before the question which resulted in the reference to appellant’s prior criminal conduct:

Q. Did you discuss your particular circumstances in any way with the District Attorney at that time? (Emphasis added.)
A. I can’t answer that.
Q. I just wish to ask what else, as far as your circumstances were concerned, as far as the line of robberies that you had on you, whatever — what else, aside from Odell McDuffie’s problem, did you discuss with the District Attorney, in reference to your own problem ? (Emphasis added.)
Q. Now, you say that you came down — spoke with the District Attorney on two separate occasions, is that correct?
A. Right.
Q. Now, aside from Mr. McDuffie’s problem, — and you have already acknowledged that you have an interest in truth and justice prevailing.
Aside from that, sir, what did you discuss with the District Attorney, as concerns your own particular problems, which also necessitate truth and justice?
[ASS’T. DISTRICT ATTORNEY]: I’m going to object, your Honor, unless counsel is more specific to which time. There’s two interviews.
[THE COURT]: I thought we had that straightened out. Will you give him a chance to answer and try to keep your questions to the point?
[326]*326[DEFENSE COUNSEL]: Okay. Fine.
[BY DEFENSE COUNSEL]:
Q. We will start with the first contact you had with a member of the District Attorney’s office. On that occasion, aside from discussing the shooting and killing of George Rodgers, what did you discuss, with reference to your problem ?
A. I didn’t discuss nothing as far as my robberies are concerned. As far as Odell is concerned, yes, I discussed it. My lawyer told me — I told him what happened and after Odell told me that the boy died, you know, and being as though Odell beat — or got a probation of a homicide later on, I feel as though he can’t handle this one. (Emphasis added.)
[DEFENSE COUNSEL]: I request to have that stricken, your Honor.
[THE COURT]: Overruled.
[DEFENSE COUNSEL]:
Q. Now, will you try to be responsive?
[THE COURT]: You asked for the conversation. You may not like the answers but he’s trying to answer you. [DEFENSE COUNSEL]: Right. I was asking not with reference to what he discussed about Odell McDuffie. My specific question was what he discussed about his own circumstances.
Now, he has indicated that he had a string of robberies on him.

The record does not indicate the witness was responsive to defense counsel’s question.

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Commonwealth v. McDuffie
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Bluebook (online)
382 A.2d 1191, 476 Pa. 321, 1978 Pa. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mcduffie-pa-1978.