Commonwealth v. Stiefel

VAN der VOORT, Judge,

dissenting:

We are presently faced with what I consider a novel situation. Under the holdings of Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); and Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), if the ineffectiveness of counsel is apparent on the face of the record, and appellant is represented by the same counsel on appeal whose ineffectiveness he is alleging on appeal, we need not remand to determine if appellant freely chose to have counsel represent him. On this point I am in agreement with the majority. I also agree that the present claim of ineffectiveness is clear on the record. The point where I disagree is when ineffectiveness while clear does not surpass harmless error.

In both Fox and Commonwealth v. Roach, 268 Pa.Super. 340,408 A.2d 495, ineffectiveness was not clear on the record and the court remanded for the appointment of new counsel. Both cases contain a statement that if “reversible error” is apparent on the record, then the reviewing court should consider the appeal. In those cases, the requirement of *269“reversible error” for appellate review, amounts to dictum since the records in Fox and Roach were not clear and the cases were remanded. Even if we were to abide by the dictum, if we find that the error did not amount to “reversible error,” an appellant would only be entitled to a remand. I do not believe that was the result intended; if a court finds harmless error, it should affirm.

Since, for the following reasons, I believe the error was harmless beyond a reasonable doubt I would affirm.

Appellant claims trial counsel was ineffective for failing to subpoena certain witnesses.1 Such witnesses would have allegedly corroborated appellant’s claim that he could not have entered the victim’s home at the time the victim claims he first did. The victim testified that appellant made two unauthorized entries, one at 11:00 P.M. and at 3:00 A.M. The alleged rapes were to have occurred subsequent to the 3:00 A.M. entrance. Appellant claims he was at a wedding reception and a following party until 3:00 A.M. Appellant did not deny engaging in the sexual acts but argued they were consensual. Appellant’s absent witnesses would have placed him at a location other than the victim’s house until 3:00. Defense counsel did not subpoena them. Appellant testified on his own behalf claiming he was at the wedding reception. His wife was permitted to testify concerning the missing witnesses.

The majority holds that such testimony would have been admissible to impeach the credibility of the victim. I disagree, I believe it is wholly collateral. It is a well established legal principle that witnesses cannot be contradicted on *270collateral matters to test the witness’s credibility. See: Commonwealth v. Truitt, 369 Pa. 72, 85 A.2d 425 (1951); Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972); and Commonwealth v. Williamson, 243 Pa.Super. 139, 144, 364 A.2d 488 (1976) (Spaeth, J. concurring).

The pivotal issues in a trial cannot be “side-tracked” for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. [A witness can be contradicted only on matters germane to the issue trying.]
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This collateral (or immaterial) matter cannot be contradicted whether it was brought out on cross-examination or whether it was “volunteered” by the witness either on direct or cross-examination: Wigmore on Evidence, 3rd ed., Vol. 3, page 672, sec. 1007.
Wigmore (supra) says in section 1003. “The only true test [of ‘collateralness’] is that laid down in Attorney-General v. Hitchcock, 1 Exch. 99 Pellock, C.B. ‘Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?’ ”
Commonwealth v. Petrillo, 341 Pa. 209, 223-24, 19 A.2d 288 (1941).

In my opinion appellant’s whereabouts at 11:00 P.M. is collateral to the issue of whether he was guilty of rape, burglary and the other related charges. There can be no doubt that he was in the victim’s house at 3:00 A.M.; he admits that. I will concede that a victim’s credibility is normally at issue, however, here appellant would have us go too far astray. The only issue in contention was whether the victim had consented to appellant’s conduct. Such issue had no relation to where appellant may have been at 11:00 P.M. on the night in question.

Since I believe the value of the missing witnesses was of collateral value, this present appeal is dissimilar to both *271Commonwealth v. Fallings, 251 Pa.Super. 365, 380 A.2d 822 (counsel neglected to subpoena a co-defendant) and Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975) (eyewitness of events leading up to shooting was not subpoenaed).

I would affirm the judgment of sentence.

. Appellant also argues that the court erred in denying him the use of reputation evidence of the victim. While this issue need not be decided by the majority, since they award a new trial on other grounds, I find no merit in it. Appellant attempted to elicit a neighbor’s personal opinion of the victim’s reputation for truthful- • ness; this is clearly improper. Only evidence of a general reputation in the community is admissible. See: Commonwealth v. Payne, 205 Pa. 101, 54 A. 489 (1903); Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976); and Henry, Pennsylvania Evidence, § 804 at 206 (4th ed.1953). Appellant’s further claim of ineffectiveness in failing to raise this claim in post-verdict motions is accordingly without merit.