Commonwealth v. Dancer

*228Dissenting Opinion by

Mb. Justice Roberts :

I agree -with the majority’s holding that it was error for the trial court to have allowed the Commonwealth to cross-examine and impeach its own witness by use of a prior statement, where “. . . the witness cannot recall or remember matters which [she] spoke of with certainty before trial. ...” Commonwealth v. Stafford, 450 Pa. 252, 264, 299 A. 2d 590, 596 (1973) (Roberts, J., concurring). See also Commonwealth v. Knudsen, 443 Pa. 412, 414-15, 278 A. 2d 881, 883 (1971); Commonwealth v. Turner, 389 Pa. 239, 256, 133 A. 2d 187, 195 (1957). However, I must dissent from the majority’s conclusion that the instant error was harmless. Stafford, supra.

On this record, I cannot “. . . declare a belief that it [the error] was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). See Harrington v. California, 395 U.S. 250, 251, 89 S. Ct. 1726, 1727 (1969) ; Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056 (1972). The evidence against appellant, excluding the erroneously admitted statement of Mrs. Hayes (the Commonwealth’s chief witness), was exclusively circumstantial—absent Mrs. Hayes’ prior statement, there was no direct testimony that appellant inflicted the mortal wound. The evidence against appellant was not so “overwhelming” (as the majority contends), and the prejudicial effect of the error was not so insignificant by comparison, “. . . that it is clear beyond a reasonable doubt that . . . [the error] was harmless. . . .” Schneble, supra at 430, 92 S. Ct. at 1059.

Here, there is a reasonable possibility that the error might have moved “the minds of the average jury” towards conviction. Accordingly, I cannot state, beyond a reasonable doubt, that the error was harmless. Harrington, supra at 254, 89 S. Ct. at 1728. Although the case against appellant was reasonably strong, circum*229stantially, it nevertheless was a case in which “honest, fair-minded jurors might very well have brought in not guilty verdicts.” Chapman, supra at 26, 87 S. Ct. at 829.

Mr. Justice Nix and Mr. Justice Mandarino join in this dissenting opinion.