Commonwealth v. Borders

PAPADAKOS, Justice,

dissenting.

I cannot agree with the Majority in this case because it fails to give dispositive weight to the crucial fact that the witness-victim had voluntarily and willingly identified his attacker long before he incurred juvenile charges which *166form the basis of the alleged potential bias. It is clear to me that such a factual circumstance eliminates any underlying inference of partiality derived from undue pressure.

At the time of the witness-victim’s identification statement to the police, he could not be seeking, or laying the groundwork, for leniency if he were thereafter caught in future criminal charges. This scheme is so remote and implausible as to be totally irrelevant for use in the case sub judice to warrant pure speculation as to bias by the jury. Furthermore, there is absolutely no suggestion or evidence at trial that this witness-victim may have become an unwilling witness needing deals from the Commonwealth before testifying against his attacker.

The point of the law quoted by the majority in support of its holding is that there must be a reasonable potential for bias on the part of the witness. Here the witness-victim was free of that disability at the time he made the identification. Moreover, I distinguish both Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) on their differences with the facts of the instant case: those cases involved witnesses who had legal shadows hanging over them at the time the crimes were committed and presumably when they first gave information to the police. Davis, in fact, specifically articulated that “At the time of the trial and at the time of the events Green testified to, Green was on probation.” 415 U.S. at 311, 94 S.Ct. at 1107, 39 L.Ed.2d at 350.

I am convinced that the majority opinion glosses over a crucial distinction by concluding that there is no “compelling reason to alter the present rule.” The matter is not so simple. By rushing to presume the predicate that such a witness may be currying favoritism from the authorities by his testimony at trial, the majority overlooks the probability that any such predisposition was undercut by prior inculpatory information given before he took the witness stand. The Superior Court was correct, therefore, in affirming the trial court’s determination that there was no showing by the *167Appellant of bias on the part of the witness. I fear that the majority is certifying unsubstantiated charges.