Commonwealth v. Malone

POPOVICH, Judge:

I respectfully dissent. The majority concludes that the trial court abused its discretion in excluding the testimony of appellant’s wife concerning appellant’s self-defense claim and, as a result, holds that appellant should be granted a new trial. For the following reason, I believe that a new trial should not be granted.

Even in the event that the trial court abused its discretion in refusing to admit appellant’s wife’s testimony, the error is harmless if it did not contribute to the verdict. The Court in Commonwealth v. Story, 476 Pa. 391, 404, 383 A.2d 155, 162 (1978), determined that error will be held harmless in a criminal trial only if the reviewing court determines that this error did not affect the verdict beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 826-27, 17 L.Ed.2d 705 (1967). A finding of harmless error may be made if (1) the prejudice from the erroneously admitted evidence is de minimis, (2) the erroneously admitted evidence is merely cumulative of other properly admitted evidence, (3) it is substantially similar in kind and incriminating details to other indisputable, independently obtained, and properly admitted evidence, or (4) if the Commonwealth’s evidence is overwhelming and, by comparison, the prejudice of the error is insignificant. Commonwealth v. Brady, 338 Pa.Super. 137, 141, 487 A.2d 891, 893 *285(1985). Commonwealth v. Story, supra, 476 Pa. at 408-417, 383 A.2d at 164-68.

After a careful study of the record, I am of the view that the evidence of appellant’s guilt is overwhelming and, by comparison, the prejudice of the error is insignificant. Id. At trial, during cross-examination, appellant admitted that no one had struck him. He also admitted that he had time to walk over to the car and explain the situation to his wife who, on appellant’s orders, reached into the glove compartment and handed him a loaded gun. Appellant made no effort to get into the car and leave the scene. Instead, appellant took the gun and fired two shots at James McCole. (N.T. 59, 66-70, 78-80; Opinion, p. 4).

While on the stand, appellant had ample opportunity both during direct examination and cross-examination to present his version of what happened, including his self-defense claim, to the trial court. In this case, the trial court did not believe appellant’s testimony concerning the events that occurred and found appellant’s actions to be unjustified. Appellant’s wife’s mere corroboration of appellant’s testimony would not have been enough to establish before the lower court that appellant acted in self-defense. All of the points that appellant claims his wife would have testified to had she been permitted could have easily been brought out by appellant during his testimony, since he was also present on the scene and aware of what was going on during these particular events. (Appellant’s Brief, p. 11). Thus, appellant has failed to prove that his wife’s testimony would have advanced his case or that the lack of it affected the verdict.

Therefore, I find that the evidence is overwhelming and, by comparison, the prejudice of the error is insignificant. Commonwealth v. Brady, supra, 338 Pa.Superior Ct. 137 at p. 141, 487 A.2d 891 at p. 893. Commonwealth v. Story, supra, 476 Pa. at 408-417, 383 A.2d at 164-68. In this case, a new trial is not warranted.