Commonwealth v. Mullins

OLSZEWSKI, Judge,

concurring:

We join in the opinion of the majority. We recognize a certain appeal in the premise of the dissent’s argument — that the victim in a criminal prosecution should be treated differently under cross-examination than other witnesses — but must write separately to explain why we are ultimately unable to lend our support to that position.

*594In Commonwealth v. Ross, our Supreme Court repeated the long-established rule that evidence of a witness’s conviction on a felony or crimen falsi misdemeanor charge may be used during cross-examination to impeach her credibility. 434 Pa. 167, 169, 252 A.2d 661, 662 (1969). The relevance of such evidence does not depend upon its ability to show a motive for testifying: rather, the evidence is relevant because its existence places the veracity of the witness’s entire testimony into doubt. With regard to the particular question of bias as a motive for testifying, the Ross Court went on to note that an exception exists which would relax the general rule and allow a witness to be cross-examined for bias on a mere indictment, provided that the indictment was for the same crime or one so closely related as to be part of the same occurrence. 434 Pa. at 169-170, 252 A.2d at 662-663. How to properly interpret this bias exception is the question which has split this panel.

Our high court revisited this issue in Commonwealth v. Coades, where it held that the defendant should have been permitted to cross-examine a co-indictee about that indictment. 454 Pa. 448, 311 A.2d 896 (1973). While the Coades Court simply applied, and did not extend, the exception noted in Ross, it did not limit its reasoning to cases where the same crime was involved, either. Instead, the Court stated generally that “[t]he rationale for permitting this type of cross-examination is that the jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case.” 454 Pa. at 454, 311 A.2d at 898 (citing J. Wigmore, Evidence § 967).

In Commonwealth v. Warren, a rape defendant sought to convince an en banc panel of this Court that he was wrongfully denied the opportunity to cross-examine his victim about her arrest on the day before trial. 250 Pa.Super. 522, 378 A.2d 1271 (1977). In rejecting this claim, the Warren panel noted that the Ross exception “seems to stand on two legs: necessity of an indictment; and necessity of same crime. The first leg is to ensure that there is some substance to the charge as to which leniency has allegedly been promised---The second leg of the [exception] is to ensure that the *595prosecutor was able to promise leniency.” 250 Pa.Super. at 529, 378 A.2d at 1274.

Even the most cursory review of these statements will reveal the flaw in the Warren panel’s logic. In order for a prosecutor to be able to promise leniency to an indicted witness, it is obviously unnecessary that the witness’s indictment be for the same crime. In fact, the Warren panel itself noted that it may not even be necessary for the crimes to have been committed against the same sovereign, as a prosecutor might be able to “get cooperation” from a fellow prosecutor in an entirely different jurisdiction. Id. Therefore, when we considered the Ross exception again in Commonwealth v. Joines, we recharacterized its two requirements as “the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness leniency on the charges against him.” 264 Pa.Super. 281, 284, 399 A.2d 776, 778 (1979), appeal dismissed, 498 Pa. 127, 445 A.2d 100 (1982). It is this recharacterization which the dissent would apparent ly reject.

While the dissent correctly notes that we extended the scope of the bias exception in Joines, it goes on to assert that the opinion of our Supreme Court in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), is flawed because it “relies on” that extension. While this argument seems to suggest that the Evans Court blindly followed our mistake, somehow oblivious to the fact that we had altered the law, a review of the Evans opinion reveals that our high court knew exactly what we had done and, furthermore, that the Court knew precisely the direction it was taking:

[The Joines panel’s] interpretation of Coades, thus, broadened the applicability of bias cross-examination to include not only indictments for the same crime, but indictment for any crime within the same jurisdiction.
We believe that the rule of Joines is correct, as far as it goes, and that Joines taken together with [Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) ] require that whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or *596because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury.

511 Pa. at 223, 512 A.2d at 631. Given the comprehensiveness of the Evans Court’s review of Pennsylvania case law, the agreement between the Court’s reasoning and that of distinguished treatises on the common law of evidence, and the consonance of the Court’s conclusions to those of the United States Supreme Court in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (regarding a similar question under the Sixth Amendment), we find that it cannot plausibly be argued that the Court’s endorsement of the axiom that bias is always relevant represents a thoughtless aberration.

As for the dissent’s suggestion that this evidentiary rule should be applied differently when the victim, rather than any other witness, is on the stand, we note that our Supreme Court has definitively laid this notion to rest as well. In a case directly on point on this issue, the Court held that although the witness at issue was also the purported victim, “it is the policy of this court to allow full cross-examination so long as it is relevant to the search for the truth of the matter under trial. This is especially true where the witness sought to be discredited is a major witness against the defendant and whose covert reasons for testifying in the matter must be allowed to be exposed.” Commonwealth v. Hill, 523 Pa. 270, 274, 566 A.2d 252, 253 (1989); see also, Commonwealth v. Simmon, 521 Pa. 218, 224, 555 A.2d 860, 863 (1989) (holding that “a prosecution witness’s juvenile probationary status is relevant to show bias regardless of whether the person appears as the victim/complainant”); Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989) (noting that “the victim, as accuser, must be subject to the utmost scrutiny if his accusations are to fairly form the basis of the criminal prosecution at hand”).

Our review of the record in the case at bar supports a conclusion that the complainant’s testimony was essentially the only evidence linking the defendant to the crime. The complainant could have had any number of reasons for blam*597ing the defendant, and both of the Constitutions we uphold mandate that the question of whether the complainant actually was this defendant’s victim was a matter to be decided on the evidence, not a priori. In any case, it is undeniably beyond the power of any panel of this Court to disregard the well-reasoned precedent of our Supreme Court. For these reasons, we cannot concur in the arguments of the dissent.