In Re Interest of M.M.

NIGRO, Justice,

concurring and dissenting.

I agree with the Majority that the order placing Appellant on drug and alcohol probation was appealable as a final order.

However, the Majority also concludes that the trial court did not abuse its discretion in preventing defense counsel from cross-examining Officer Perez on whether he had consumed *246alcohol prior to observing the events in question. On this issue, I respectfully dissent.

“On cross-examination, a witness may be impeached to show the witness’ bias, dishonesty, or defects in his ability to observe, remember or recount the matter about which he has testified.” Commonwealth v. Gwaltney, 497 Pa. 505, 515, 442 A.2d 236, 241 (1982) (citing Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977)).

[Questions pertaining to the use of drugs or alcohol are proper when asked ‘for the purpose of attacking the credibility of the witness by showing that at the time of the event to which he testified his powers of observation and memory were impaired, so that his recollection and account of the experience might be inaccurate.’ Commonwealth v. Duffy, 238 Pa.Super. 161, 173, 353 A.2d 50, 57 (1975), allocatur denied, quoting Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 261, 269 A.2d 387, 389 (1970).

Commonwealth v. Perdue, 387 Pa.Super. 473, 486, 564 A.2d 489, 495 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990).

The Commonwealth’s case herein rested solely on Perez’s identification of Appellant as one of the participants in the attempted burglary. When the identification of a defendant is made by the sole eyewitness to the events in question, “the opportunity to impeach [the] witness is particularly important [because] the determination of [the] defendant’s guilt or innocence depends on the credibility of the questioned witness.” Commonwealth v. Mullins, 445 Pa.Super. 583, 589, 665 A.2d 1275, 1278 (1995) (citing Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992)).

Perez testified at the hearing that he had observed one dark Hispanic male and two white males attempting to break into the tavern. See N.T. at 12, 19. However, after the subsequent chase, Officer Broadbent apprehended a suspect that he described as a black male. Perez later identified this man as one of the burglars. There is nothing in the record to explain this inconsistency.

*247Moreover, Perez testified that he identified Appellant and the second suspect simultaneously after the arresting officers returned them to the crime scene at the same time. See id. at 35. Officer Broadbent, however, testified that he took only the black or dark Hispanic suspect into custody and returned him to the tavern alone. Officer Broadbent further stated that there was no other suspect at the scene when he arrived and, although he was present for a period of “minutes,” that no suspect was brought there during that time. See id. at 41-42. Likewise, Officer Campbell testified that he took only Appellant into custody and that he saw no other suspects at the scene when he returned and that none arrived while he was there. See id. at 46-47.

Further, Appellant presented the alibi testimony of three of his neighbors who testified as to their knowledge of his whereabouts at the time of the attempted burglary.

The validity of Perez’s identification of Appellant was clearly the central issue in this case. Given the conflicts between his version of events at the crime scene and that of the arresting officers, and in light of the alibi evidence, it was reasonable for Appellant’s counsel to want to inquire into whether Perez’s powers of observation were in any way impaired at the time he witnessed the events in question. Evidence of any such impairment, of whatever origin, would be highly relevant to the issue of identification.1 And, since Perez was off-duty at the time of the burglary, and was returning home late on a Saturday night, it was not unreasonable for counsel to believe that a line of questioning on possible consumption of alcohol was appropriate.

I believe Appellant’s counsel was entitled to pursue that line of questioning. See Commonwealth v. Drew, 500 Pa. 585, 590, 459 A.2d 318, 321 (1983); Commonwealth v. Gwaltney, 497 Pa. 505, 515, 442 A.2d 236, 241 (1982) (citing Commonwealth v. *248Hamm, 474 Pa. 487, 378 A.2d 1219 (1977)); Commonwealth v. Mullins, 445 Pa.Super. 583, 589, 665 A.2d 1275, 1278 (1995) (citing Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992)); Commonwealth v. Perdue, 387 Pa.Super. 473, 486, 564 A.2d 489, 495 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990). I am thus in agreement with Judge Beck, who dissented below, concluding that the trial court should have allowed preliminary questioning on alcohol consumption to enable Appellant to challenge Perez’s ability to observe.2 If the responses to those initial questions established a basis to continue the inquiry, the court should have allowed it. If the converse was true, the court could simply have ended the questioning at that point. By denying Appellant’s counsel the opportunity to explore the issue, the trial court precluded the possible introduction of information highly relevant to the critical issue in the case. In doing so, I believe the court abused its discretion and prejudiced Appellant.

I must, therefore, dissent.

NEWMAN, J., joins in this concurring and dissenting opinion.

. "Any deficiency of the senses, such as deafness, or color blindness or defect of other senses which would substantially lessen the ability to perceive the facts which the witness purports to have observed, should ... be provable to attack the credibility of the witness ... upon cross-examination.” Commonwealth v. Drew, 500 Pa. 585, 590, 459 A.2d 318, 321 (1983) (quoting McCormick, Evidence § 45 (2d ed. 1972)).

. See In the Interest of M.M., 439 Pa.Super. 307, 337, 653 A.2d 1271, 1286 (1995) (Beck, J., dissenting). Judge Kelly also filed a dissent, which was joined by Judges Weiand, McEwen, and Beck.