Concurring and Dissenting:
I concur in the result in Hepple v. State, No. 714, September Term, 1975, because I believe that the evidence *559admitted in rebuttal would have constituted reversible error even if it had been admitted during the trial in chief.
I respectfully dissent from the decision in Jones v. State, No. 730, September Term, 1975, upon the ground that the testimony of Sharon Reynolds was proper rebuttal evidence, in that: (a) it tended to restore the credibility of the witness Wanda Matthews vis-a-vis the appellant, and (b) it tended to destroy the validity of appellant’s testimony that he had not engaged in pandering or used the premises 1845 W. Baltimore Street in aid of prostitution.
I strongly oppose, however, the basis for decision of the majority as to both cases.
In Lane v. State, 226 Md. 81, 172 A. 2d 400 (1961), it had been clearly and succinctly stated at 90 [405]:
“This Court has held that it is within the sound discretion of the trial judge to allow evidence in rebuttal that should have been offered in chief.”
In Mayson v. State, 238 Md. 283, 208 A. 2d 599 (1965), the Court of Appeals repeated that language in the course of a more extensive discussion of the nature of appellate review in cases wherein the trial court had allowed admissible, but non-rebuttal evidence, at the rebuttal stage of a trial. It was said at 288-89 [602-03]:
“Ordinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s non-culpability, which includes the contradiction or rebuttal of the evidence offered by the State. Then the State is afforded an opportunity to produce its rebuttal evidence. This latter includes any competent evidence which explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the defense. Lane v. State, 226 Md. 81, 90. However, experience has shown that justice does not require the follo'wing of the above *560course as an inflexible and undeniable procedure. This Court has held that what constitutes rebuttal testimony in a criminal prosecution is a matter resting in the sound discretion of the trial court, Lane v. State, supra, and the appellate court should not reverse for error on this point, in the absence of a showing that the ruling of the trial court was both manifestly wrong and substantially injurious. Kaefer v. State, 143 Md. 151, 160. We have also held that it is within the sound discretion of the trial court to allow evidence in rebuttal that should have been offered in chief. Lane v. State, supra.
“This does not mean that the court should not be alert in preventing the State from deliberately withholding a part of its testimony (such as that which is merely cumulative to, or corrobative of, that already offered in chief) in order to have testimony favorable to its case repeated at the end of the trial for the effect that it may have upon the trier of facts.” (Emphasis added.)
As I read Mayson, supra, the Court of Appeals said two things:
1. The trial judge has a sound discretion to determine whether evidence is or is not rebuttal, and
2. The trial judge has a sound discretion to determine whether admissible evidence, concededly not rebuttal, should be permitted in evidence during the rebuttal state of a case.
In Snowhite v. State, use of Tennant, 243 Md. 291, 221 A. 2d 342 (1966), the Court of Appeals, speaking through Barnes, J., reiterated the second holding of Mayson, saying at 306 [350]:
“... normally it is within the discretion of the trial court to allow testimony on rebuttal which, in fact, does not rebut.”
*561The majority opinion effectively reduces the discretion of the trial court to the question whether the evidence is or is not truly rebuttal — a narrow range indeed. Wholly eliminated is the discretion of the trial judge to allow the introduction of non-rebuttal evidence in the rebuttal phase of trial — unless accompanied by a motion to reopen the case.
It seems clear to me that both the question whether evidence is rebuttal and the question whether non-rebuttal evidence should be admitted during the rebuttal stage of a trial are matters within the sound discretion of the trial court. Appellate review in cases involving the latter question should take the form of an examination of the record as a whole to determine — not whether there was harmless error — but rather whether the admitted evidence, by reason of the time of its admission, imposed a substantial additional dimension of harm.
Application of the harmless error rule to admissible evidence that is objectionable only because of the timing of its introduction, is unsound. The majority opinion exalts form over substance.
I would reverse as to Hepple; affirm as to Jones.