Commonwealth v. Burkhardt

CONCURRING STATEMENT BY

KLEIN, J.:

¶ 1 I agree with the majority that under Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000), an understanding between a material witness and the Commonwealth that some kind of leniency would be a reward for testifying need not *245be an iron-clad agreement in order to require that it be revealed to the defense. At the same time, the witness’ mere subjective expectation that he or she might receive consideration for testimony, without any action by the Commonwealth to create that expectation, is not something the Commonwealth would have to disclose. In fact, under those circumstances, the Commonwealth would not have any real way of knowing what the witness’ expectations were.

¶ 2 The key factor in this case is that despite the best efforts of defense counsel, the Commonwealth would not commit to anything beyond those promises that were placed on the record. While O’Neill had the hope, and perhaps even expectation, that he would be charged with less than second-degree murder, the Commonwealth did nothing to engender such a hope or expectation. Further, O’Neill told the jury he had the hope of being charged with less than second-degree murder. Therefore, this record is devoid of anything showing that the Commonwealth encouraged O’Neill to testify that was not fully placed before the jury.

¶ 3 Judge GRACI joins the Concurring Statement by KLEIN, J.