Commonwealth v. Choi Chun Lam

CAVANAUGH, Judge,

dissenting.

Because I believe that our supreme court’s decision in Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990) requires the grant of a new trial, I respectfully dissent. The majority distinguishes the present case on the basis, inter alia, that the plea agreement entered into by Yeung was for crimes unrelated to the murder of the victim in this case, and furthermore, that there was no suggestion that Yeung gave up his right to remain silent in order to cooperate. After reviewing the plea agreement, however, I am of the opinion that this conclusion is in error. Although Yeung was not charged by the Lancaster County District Attorney with the murder of the victim, he did plead guilty, as part of his plea bargain with the U.S. Attorney, to murder for hire in relation to the death of the victim in this case. At trial, the plea agreement was read by the court to the jury during trial and these facts were clearly stated in the agreement. Moreover, from this verbatim recitation of the plea agreement, the jury could reasonably infer that appellant had the same opportunity to cooperate as Yeung, but instead chose to remain silent.

In Bricker, two Commonwealth witnesses entered into plea agreements in which they agreed to provide truthful testimony at defendant’s trial. These agreements were sent out with the jury during deliberations. Each contained numerous references to each witness’s obligation to provide complete and truthful information. Additionally, the agreements were signed by the witnesses, their attorneys, the U.S. Attorney, *530the Commonwealth’s Attorney General and the District Attorney. Our supreme court noted that in so executing these documents, the signatories placed the imprimatur of their offices as support for the proposition that the witnesses were telling the truth. In concluding that the Commonwealth impermissibly bolstered the credibility of the witnesses and thereby violated the defendant’s right to a fair trial, the court stated:

In the case sub judice, the introduction of the plea agreements served as silent witnesses, causing the same prejudice to appellant as we held to be reversible error in [Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983) ]. With the agreements before them, the jurors could reasonably infer that appellant had the same opportunity as Rossi and Kellington to cooperate with the investigation of Thomas Sacco’s death, and chose to remain silent. The fact that appellant did not take the stand in his own defense further bolsters his claim that there is a reasonable possibility that this error might have contributed to the verdict. [Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) ].
The Commonwealth argues that the plea agreements had to be revealed to the jury; and had they not been revealed the Commonwealth would now be attacked for misconduct. This argument avoids the real issue. It would have been appropriate for the Commonwealth to reveal the existence of the agreements, and the parameters thereof, through the testimony of the witnesses. If they still felt it necessary to enter the documents into evidence they simply could have redacted portions of the agreements to delete the prejudicial aspects, as requested by defense counsel, prior to submission of them to the jury. To allow the jurors to read these unredacted documents at their leisure during deliberations runs afoul of the Tann case and the requirements of fundamental fairness.

Id. at 377-79, 581 A.2d at 154-55.

Here, although the plea agreements were not sent out with the jury, the court read to the jury two letters which embodied the substance of the agreement between the Commonwealth and Yeung. With respect to the first letter, the court *531indicated that it was written on U.S. Department of Justice letterhead. The court then went on to read the terms of the agreement, which stated that Yeung agreed to “truthfully disclose all information,” “cooperate fully” with law enforcement, “truthfully testify” before the grand jury and at trial, recognized his “obligation of truthful disclosure,” and his obligation to, “at all times give complete, truthful and accurate information and testimony.” The court then went on to indicate that the letter was signed by the assistant United States Attorney, that it was approved by the chief attorney in that office and that it was agreed and consented to by Yeung and his attorney.

The second letter read by the court is from the Lancaster County District Attorney. It is a confirmation of the agreement that Yeung would plead guilty to the federal crime of murder for hire in connection with the homicide of the victim in this case. The letter further states that Yeung would not be prosecuted for the victim’s homicide in Lancaster County, and highlights his agreement to testify truthfully in appellant’s trial.

By reading these letters to the jury, the court went far beyond informing the jury of the existence of the plea agreement and its parameters. Highlighting Yeung’s obligation to be truthful and the Commonwealth’s and U.S. Attorney’s full participation in and endorsement of the plea agreement served to support the proposition that Yeung was telling the truth. Such disclosure could only serve to bolster Yeung’s credibility. Having been apprised of the detailed aspects of the agreement, the jury could have reasonably inferred that appellant had the same opportunity as Yeung to cooperate but chose instead to remain silent. I would, therefore, conclude that appellant was prejudiced by the Commonwealth’s improper bolstering of Yeung and would grant a new trial.1

I would also conclude that a new trial is warranted due to the improper bolstering of Yeung by two Commonwealth *532witnesses, F.B.I. Agent Thomas Troutman and Pennsylvania State Police Trooper Bernard Stanalonis.

Generally speaking, it is improper for the prosecution to vouch for the credibility of a government witness. Vouching has been characterized in two categories: (1) when the prosecution places the prestige of the government behind the witness by personal assurances of the witness’s veracity; and (2) when the prosecution indicates that information which is not before the jury supports the witness’s testimony. See e.g., United States v. Winter, 663 F.2d 1120 (1st Cir.1981); United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980), on remand, 640 F.2d 225 (1981), cert. denied, 452 U.S. 942, 101 S.Ct. 3088, 69 L.Ed.2d 957 (1981).

Commonwealth v. Reed, 300 Pa.Super. 224, 446 A.2d 311, 314 (1982). Both Agent Troutman and Trooper Stanalonis vouched for Yeung’s credibility by indicating that information which was not before the jury supported his testimony. Agent Troutman testified that Yeung’s knowledge of the murder and his truthfulness was tested by questioning him about other crimes with which the F.B.I. was already familiar, in order to determine whether he was telling the truth. Implicit in such testimony is that Yeung gave truthful and correct information about these other crimes, and that, having provided truthful information as to other crimes, the F.B.I. was confident that the information provided by Yeung in the present case was also truthful.

With respect to Trooper Stanalonis, he explained how he tested Yeung’s knowledge of the murder and whether Yeung was being truthful by showing him photographs of people including appellant. The trooper stated that Yeung immediately identified appellant from among these photographs. Implicit from such testimony is that Yeung, having demonstrated knowledge which was already known or could be verified by *533police, had provided information about the present case which police believed was truthful.

In each of these instances, law enforcement officials provided testimony that they tested Yeung to determine whether he was a truthful individual. According to these officials, they were satisfied with the performance of Yeung in answer to their respective inquiries. From this testimony, the jury would likely draw the reasonable inference that law enforcement officials believed that Yeung had testified truthfully. In these circumstances, I would conclude that the credibility of the witness was improperly bolstered and that a new trial should be awarded.

I agree with the majority opinion as to the remaining issues but, since, as set forth above, I believe the court improperly permitted the prosecution to bolster its case by lending to it the moral suasion of voucher by respected government officers and agents, I would reverse and grant a new trial.

. I also note my disagreement with the majority’s conclusion that defense counsel pursued a reasonable strategy in agreeing that the plea agreement be read to the jury. While it was both reasonable and prudent for defense counsel to highlight the favorable treatment Yeung *532received from the Commonwealth, it was unnecessary and counterproductive to read verbatim the terms of the plea agreement, which only served to highlight Yeung's obligation to tell the truth and law enforcement’s participation in and endorsement of the plea agreement. This course of action, rather than impeaching the credibility of Yeung, served only to bolster it.