Commonwealth v. Mullins

665 A.2d 1275, 445 Pa. Super. 583, 1995 Pa. Super. LEXIS 3177

• Court: Superior Court of Pennsylvania
• Decided: October 5, 1995
• Docket: 03094
• Status: Published

Opinions

CERCONE, Judge.

This is an appeal from a judgment of sentence entered after the lower court, sitting without a jury, found appellant Anthony Mullins guilty of aggravated assault. After thoroughly considering the issues presented, we vacate the judgment of sentence and remand for a new trial.

The lower court set forth the relevant facts:

On May 8, 1994 at approximately four-forty five p.m. (4:45) Philadelphia Police Officer John McGuire responded to a radio call to investigate an alleged criminal matter at 24th and Norris Streets, in Philadelphia, Pennsylvania. When McGuire arrived on the scene he was met by Sergeant Lafayette Caison and Buster Demps, the complainant. The complainant told the officers that he had been robbed at 24th and Norris Streets. Specifically, Demps stated that prior to going to 24th and Norris Streets he had gone to the 23 Center at 23rd Street and Lehigh Avenue to get his foodstamps and his disabled veteran’s check. While at the 23 Center, the complainant was approached by [appellant Anthony Mullins]____ Mullins asked Demps for some money and Demps responded he did not have any money.

After leaving the 23 Center, Demps, accompanied by a lady friend decided to go to the [C]hinese restaurant located at 24th and Norris Streets, when he came in contact with the [appellant] again. The [appellant] approached Demps and said, “Give me some money.” Demps responded to [appellant] he did not have any money.

Again, Mullins asked the complainant for money. Demps, again responded no and then he noticed Mullins picked up a pepsi-cola bottle. As the complainant turned to walk away, the [appellant] swung and hit Demps over the head, and the bottle broke. While Demps stood there bleeding he asked Mullins, “why did you hit me?”. Whereby, the [appellant] responded, “you are not going to let me have no money?” Demps replied, “I told you I didn’t have any money to give you.”

Subsequently, Mullins picked up a broom stick laying down by the curb, and said, “you are not going to give me nothing?” After Mullins picked up the broom stick Demps pulled a pocket knife with a blade about three and a half (3/é ) inches long out of his pocket. The [appellant] swung the stick and it broke as he hit Demps across his left shoulder. The complainant then swung the knife as the defendant turned and cut him across the back with the knife. After being cut the [appellant] ran up on some steps located at 24th and Norris Street. The complainant had seen the [appellant] going in and out of this residence for approximately two years.

Demps ran to 22nd and Crosky Street and called 911____ [P]olice were dispatched to the area. Demps did not notice until after he called the police that his $100.00 was missing.

An investigation ensued based on the complainant’s allegation of being robbed. Caison and McGuire went to a house located at 1948 N. 24th Street. Upon arriving the officers observed on the railing of the house, a gray hooded sweatshirt, marked with “Raiders” on the front, with cuts on the back and left sleeve. The sweatshirt had a blood stain on the left sleeve. Additionally, McGuire observed a white tee shirt, marked with “Real Men Recycle,” ... which was also cut and had blood stains on it.

Trial court opinion dated 1/30/94 at 1-4 (citations to the record omitted).

Appellant was arrested and charged with Robbery,¹ Aggravated Assault,² and Possession of an Instrument of Crime (PIC).³ The trial court, sitting without a jury, found appellant guilty of aggravated assault, not guilty of robbery, and acquitted him of PIC. Appellant filed an unsuccessful post-verdict motion arguing that the trial court had erred by improperly restricting cross-examination of the alleged victim regarding suspected drug use and an outstanding drug charge. In this timely appeal, appellant again challenges the circumscribed cross-examination. According to appellant, cross-examination as to the victim’s possible expectation of leniency with respect to an outstanding drug charge was relevant to establish the victim’s potential bias and possible motive for testifying favorably to the Commonwealth. Further, appellant claims that the preclusion of such examination violated his state and federal right to confront adverse witnesses. We agree.

Preliminarily, we recognize that the scope and limits of cross-examination are within the discretion of the trial court and its rulings will not be reversed absent a clear abuse of that discretion or an error of law. Commonwealth v. Buksa, 440 Pa.Super. 305, 311, 655 A.2d 576, 579 (1995); Commonwealth v. Gentile, 433 Pa.Super. 381, 387, 640 A.2d 1309, 1313 (1994). Nevertheless, a witness may be cross-examined as to any matter tending to show interest or bias. Commonwealth v. Davis, 438 Pa.Super. 425, 430, 652 A.2d 885, 887 (1995).

[When] a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.

The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise some doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Commonwealth v. Smith, 436 Pa.Super. 277, 289, 647 A.2d 907, 912-13 (1994) (quoting Commonwealth v. Evans, 511 Pa. 214, 224-26, 512 A.2d 626, 631-32 (1986)).⁴ Moreover, “[t]he right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party.” Id., 647 A.2d at 912-13 (relying on Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884 (1908)).

The opportunity to impeach a witness is particularly important when the determination of a defendant’s guilt or innocence depends on the credibility of the questioned witness. See Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992) (when prosecution and defense witnesses presented conflicting versions of the facts and the credibility of the prosecution’s chief witness was therefore pivotal, the trial court committed reversible error by restricting cross-examination as to that witness’ potential bias). Furthermore, a witness’ status as accuser does not obviate the need for full cross-examination. To the contrary, “the victim, as accuser, must be subject to the utmost scrutiny if his accusations are to fairly form the basis of the criminal prosecution at hand.” Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989). See also Commonwealth v. Simmon, 521 Pa. 218, 224, 555 A.2d 860, 863 (1989) (holding that “a prosecution witness’s juvenile probationary status is relevant to show bias regardless of whether the person appears as the victim/complainant”).

During cross examination, appellant attempted to question the complainant as to his potential bias and possible motive to testify unfavorably to appellant. Specifically, appellant sought to demonstrate that the complainant had testified in a manner helpful to the Commonwealth to curry favorable treatment on his outstanding drug charges. The challenged testimony suggested that Mr. Demps had been in the area of the altercation to purchase drugs and that the police possessed an outstanding warrant for his arrest:

Q: MR. DEMPS, IN FACT YOU WERE NOT IN THE AREA TO BUY CHINESE FOOD, BUT YOU WERE IN THE AREA TO BUY SOME DRUGS, RIGHT?

MR. PHILLIPS: OBJECTION.

THE WITNESS: NO.

THE COURT: OVERRULED. HE COULD ANSWER.

Q: YOU USE DRUGS, DON’T YOU?

MR. PHILLIPS: OBJECTION.

THE COURT: SUSTAINED.

THE WITNESS: IF I DO—

THE COURT: —WAIT A MINUTE SIR.

MR. PHILLIPS: OBJECTION.

THE COURT: WHEN YOU HEAR AN OBJECTION WAIT UNTIL I RULE. I WILL LET YOU KNOW WHETHER YOU COULD ANSWER, OKAY.

Q: HAVE YOU EVER USED DRUGS?

MR. PHILLIPS: OBJECTION.

THE COURT: SUSTAINED.

Q: MR. DEMPS, YOU IN FACT HAVE AN OPEN BENCH WARRANT FOR DRUGS?

MR. PHILLIPS: OBJECTION. THAT IS UNCONSCIONABLE. YOUR HONOR I ASK FOR A SIDEBAR?

THE COURT: YOU DON’T NEED A SIDEBAR. I WILL ADMONISH THIS LADY. JUST HAVE A SEAT. YOU ARE TURNING RED. YOU ARE GETTING EXCITED.

MR. PHILLIPS: YES I AM SORRY.

THE COURT: MISS CLAYTON I AM GOING TO ASK YOU NOT TO PURSUE THIS LINE OF QUESTIONING. YOU KNOW IT IS TOTALLY IRRELEVANT TO THESE PROCEEDINGS. YOU KNOW THAT WHAT YOU ARE DOING IS NOT CORRECT.

N.T. 5/16/94 at 42-44.

In Commonwealth v. Cobb, 409 Pa.Super. 168, 597 A.2d 714 (1991), appeal denied, 530 Pa. 664, 610 A.2d 44 (1991), this court considered an analogous scenario. The complainant in Cobb, had driven appellant to Philadelphia for drugs in exchange for a one hundred dollar fee. When the complainant demanded payment, appellant punched her in the face. At trial, appellant unsuccessfully attempted to cross-examine the alleged victim about an arrest warrant issued in a separate matter to demonstrate that she had testified in a manner helpful to the prosecution in anticipation of favorable treatment from the Commonwealth on that matter. Cobb, 409 Pa.Super. at 171, 597 A.2d at 714-15. Appealing his subsequent simple assault conviction, appellant maintained that the trial court’s disallowance of this questioning improperly denied him an opportunity to establish the witness’ potential bias. A panel of this court agreed and remanded the case for a new trial. Similarly, we conclude that the lower court in this case erred by precluding cross-examination of the complainant regarding favorable treatment anticipated or received from the Commonwealth in exchange for his testimony.

We must now assess whether the lower court’s error necessitates the award of a new trial. Not every denial of an accused’s right to cross-examine with respect to an unrelated case requires a new trial. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). If the error did not control the outcome of the case, it will be deemed harmless. Commonwealth v. Blassingale, 391 Pa.Super. 395, 401, 571 A.2d 426, 429 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990) (restricted cross-examination of Commonwealth witness regarding charges which had been brought against him but withdrawn prior to his testimony at appellant’s trial did not affect the outcome of the case and was deemed harmless error; those charges had been dropped not because of the Commonwealth’s influence, but because the victims had failed to appear). In making this assessment, we must consider “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436. When there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. In the Interest of Dixon, 440 Pa.Super. 23, 29, 654 A.2d 1179, 1182 (1995) (citing Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978)).

After careful review, we conclude that the lower court’s error may have contributed to appellant’s conviction. The victim’s testimony in this case was neither cumulative nor corroborated. Compare Commonwealth v. Gentile, 433 Pa.Super. at 389-90, 640 A.2d at 1314 (any error in disallowing cross-examination regarding the witness’ pending criminal charge and possible bias was deemed harmless when that witness’ testimony was confirmed by other witnesses at trial) and Commonwealth v. Culmer, 413 Pa.Super. 203, 213-14, 604 A.2d 1090, 1094-95 (1992) (error in restricting cross-examination of victim on pending criminal charges ruled harmless when the victim’s testimony was corroborated in detail by another eye witness and the inference of bias was extremely tenuous) with Commonwealth v. Smith, 436 Pa.Super. at 292-93, 647 A.2d at 914 (inability of defense to conduct full and fair cross-examination of sole eyewitness regarding his prior record and outstanding criminal charges could not be deemed harmless because that witness’ testimony was pivotal to the prosecution’s case and his credibility was therefore a key issue at trial). To the contrary, the Commonwealth’s case was based almost exclusively on the statements of the complainant, the lone testifying witness to the incident.⁵ As such, the determination of guilt hinged on the lower court’s premature yet favorable assessment of that witness’ credibility. When appellant attempted to challenge the complainant’s credibility by showing bias stemming from the outstanding drug charge, the lower court improperly stopped him, finding the question to be “totally irrelevant.” N.T. 5/16/94 at 44. See Commonwealth v. Borders, 522 Pa. at 164-65, 560 A.2d at 759-760 (restricted cross-examination of the complainant regarding criminal charges that had been lodged against him only after he had identified appellant as his assailant constituted reversible error even though the desire for leniency could not have motivated the complainant to implicate appellant: “[t]he presence of the charges ostensibly brought the witness into the influence of the prosecution ... and that happenstance was a relevant area of exploration by Appellant, regardless of its perceived weakness by the Commonwealth”). Based on the foregoing, we are constrained to conclude that the trial court’s error in precluding appellant from challenging the self-interest of the Commonwealth’s pivotal witness renders its credibility determination problematic and necessitates the award of a new trial.

Judgment of sentence is vacated and the case is remanded for a new trial. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion. OLSZEWSKI, J., files a concurring opinion.

1 . 18 Pa.C.S.A. § 3701.

2 . Id. § 2702.

3 . Id. § 907(a).

4 . The foregoing pronouncement represents a thoughtful refinement of the exception permitting cross-examination regarding bias. In Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), our Supreme Court held that a defendant was improperly precluded from cross-examining a co-indictee about that indictment. This questioning would have enabled the jury to evaluate whether the co-indictee was testifying for the Commonwealth to gain favorable treatment in his own case. Id. at 452, 311 A.2d at 898. The Court did not expressly restrict bias cross-examination to indictments for the same crime. A panel of this court thereafter extended the scope of the bias exception, requiring only "the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness lenience on the charges against him.” Commonwealth v. Joines, 264 Pa.Super. 281, 284, 399 (1979), appeal dismissed, 498 Pa. 127, 445 A.2d 100 (1982). In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), the Supreme Court explicitly approved this court’s application of the law: "[The] Superior Court's interpretation of Coades, [as set forth in Joines ] thus broadened the applicability of bias cross-examination to include not only indictments for the same crime, but indictments for any crime within the same jurisdiction. We believe that the rule of Joines is correct....” Id. at 224, 512 A.2d at 631 (emphasis in original) (footnote omitted).

5 . The remainder of the prosecution’s case was presented by investigating officers who had derived their testimony from the complainant. The officers found a shirt of appellant's that had cuts in the back consistent with the suggestion that complainant was the aggressor. See N.T. 5/16/94 at 45-46, 89-90. Consequently, outstanding criminal charges were relevant to show the victim’s bias and potential motive to lie about appellant’s status as aggressor.