Com. v. Mullins

Page 1275

665 A.2d 1275

445 Pa.Super. 583

COMMONWEALTH of Pennsylvania v. Anthony MULLINS, Appellant.

Superior Court of Pennsylvania.

Submitted May 8, 1995.

Filed Oct. 5, 1995.

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CIRILLO, OLSZEWSKI and CERCONE, JJ.

CERCONE, Judge.

This is an appeal from a judgment of sentence entered after the lower court, sitting without a jury, found appellant Anthony Mullins guilty of aggravated assault. After thoroughly considering the issues presented, we vacate the judgment of sentence and remand for a new trial.

The lower court set forth the relevant facts:

On May 3, 1994 at approximately four-forty five p.m. (4:45) Philadelphia Police Officer John McGuire responded to a radio call to investigate an alleged criminal matter at 24th and Norris Streets, in Philadelphia, Pennsylvania. When McGuire arrived on the scene he was met by Sergeant Lafayette Caison and Buster Demps, the complainant. The complainant told the officers that he had been robbed at 24th and Norris Streets. Specifically, Demps stated that prior to going to 24th and Norris Streets he had gone to the 23 Center at 23rd Street and Lehigh Avenue to get his foodstamps and his disabled veteran's check. While at the 23 Center, the complainant was approached by [appellant Anthony Mullins].... Mullins asked Demps for some money and Demps responded he did not have any money.

After leaving the 23 Center, Demps, accompanied by a lady friend decided to go to the [C]hinese restaurant located at 24th and Norris Streets, when he came in contact with the [appellant] again. The [appellant] approached Demps and said, "Give me some money." Demps responded to [appellant] he did not have any money.

Again, Mullins asked the complainant for money. Demps, again responded no and then he noticed Mullins picked up a pepsi-cola bottle. As the complainant turned to walk away, the [appellant] swung and hit Demps over the head, and the bottle broke. While Demps stood there bleeding he asked Mullins, "why did you hit me?". Whereby, the [appellant] responded, "you are not going to let me have no money?" Demps replied, "I told you I didn't have any money to give you."

Subsequently, Mullins picked up a broom stick laying down by the curb, and said, "you are not going to give me nothing?" After Mullins picked up the broom stick Demps pulled a pocket knife with a blade about three and a half (3 1/2) inches long out of his pocket. The [appellant] swung the stick and it broke as he hit Demps across his left shoulder. The complainant then swung the knife as the defendant turned and cut him across the back with the knife. After being cut the [appellant] ran up on some steps located at 24th and Norris Street. The complainant had seen the [appellant] going in and out of this residence for approximately two years.

Demps ran to 22nd and Crosky Street and called 911.... [P]olice were dispatched to the area. Demps did not notice until after he called the police that his $100.00 was missing.

An investigation ensued based on the complainant's allegation of being robbed. Caison and McGuire went to a house located at 1948 N. 24th Street. Upon arriving the officers observed on the railing of the house, a gray hooded sweatshirt, marked with "Raiders" on the front, with cuts on the back and left sleeve. The sweatshirt had a blood stain on the left sleeve. Additionally, McGuire observed a white tee shirt, marked with "Real Men Recycle," ... which was also cut and had blood stains on it.

Trial court opinion dated 1/30/94 at 1-4 (citations to the record omitted).

Appellant was arrested and charged with Robbery, ¹ Aggravated Assault, ² and Possession of an Instrument of Crime (PIC). ³ The trial court, sitting without a jury, found appellant guilty of aggravated assault, not guilty of robbery, and acquitted him of PIC. Appellant filed an unsuccessful post-verdict motion arguing that the trial court had erred by improperly restricting cross-examination of the alleged victim regarding suspected drug use and an outstanding drug charge. In this timely appeal, appellant again challenges the circumscribed cross-examination. According to appellant, cross-examination as to the victim's possible expectation of leniency with respect to an outstanding drug charge was relevant to establish the victim's potential bias and possible motive for testifying favorably to the Commonwealth. Further, appellant claims that the preclusion of such examination violated his state and federal right to confront adverse witnesses. We agree.

Preliminarily, we recognize that the scope and limits of cross-examination are within the discretion of the trial court and its rulings will not be reversed absent a clear abuse of that discretion or an error of law. Commonwealth v. Buksa, 440 Pa.Super. 305, 311, 655 A.2d 576, 579 (1995); Commonwealth v. Gentile, 433 Pa.Super. 381, 387, 640 A.2d 1309, 1313 (1994). Nevertheless, a witness may be cross-examined as to any matter tending to show interest or bias. Commonwealth v. Davis, 438 Pa.Super. 425, 430, 652 A.2d 885, 887 (1995).

[When] a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.

The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise some doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury's determination of the case.

Commonwealth v. Smith, 436 Pa.Super. 277, 289, 647 A.2d 907, 912-13 (1994) (quoting Commonwealth v. Evans, 511 Pa. 214, 224-26, 512 A.2d 626, 631-32 (1986)). ⁴ Moreover "[t]he right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party." Id., 647 A.2d at 912-13 (relying on Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884 (1908)).

The opportunity to impeach a witness is particularly important when the determination of a defendant's guilt or innocence depends on the credibility of the questioned witness. See Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992) (when prosecution and defense witnesses presented conflicting versions of the facts and the credibility of the prosecution's chief witness was therefore pivotal, the trial court committed reversible error by restricting cross-examination as to that witness' potential bias). Furthermore, a witness' status as accuser does not obviate the need for full cross-examination. To the contrary, "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." Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (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").

During cross examination, appellant attempted to question the complainant as to his potential bias and possible motive to testify unfavorably to appellant. Specifically, appellant sought to demonstrate that the complainant had testified in a manner helpful to the Commonwealth to curry favorable treatment on his outstanding drug charges. The challenged testimony suggested that Mr. Demps had been in the area of the altercation to purchase drugs and that the police possessed an outstanding warrant for his arrest:

Q: MR. DEMPS, IN FACT YOU WERE NOT IN THE AREA TO BUY CHINESE FOOD, BUT YOU WERE IN THE AREA TO BUY SOME DRUGS, RIGHT?

MR. PHILLIPS: OBJECTION.

THE WITNESS: NO.

THE COURT: OVERRULED. HE COULD ANSWER.

Q: YOU USE DRUGS, DON'T YOU?

MR. PHILLIPS: OBJECTION.

THE COURT: SUSTAINED.

THE WITNESS: IF I DO--

THE COURT: --WAIT A MINUTE SIR.

MR. PHILLIPS: OBJECTION.

THE COURT: WHEN YOU HEAR AN OBJECTION WAIT UNTIL I RULE. I WILL LET YOU KNOW WHETHER YOU COULD ANSWER, OKAY.

Q: HAVE YOU EVER USED DRUGS?

MR. PHILLIPS: OBJECTION.

THE COURT: SUSTAINED.

Q: MR. DEMPS, YOU IN FACT HAVE AN OPEN BENCH WARRANT FOR DRUGS?

MR. PHILLIPS: OBJECTION. THAT IS UNCONSCIONABLE. YOUR HONOR I ASK FOR A SIDEBAR?

THE COURT: YOU DON'T NEED A SIDEBAR. I WILL ADMONISH THIS LADY. JUST HAVE A SEAT. YOU ARE TURNING RED. YOU ARE GETTING EXCITED.

MR. PHILLIPS: YES I AM SORRY.

THE COURT: MISS CLAYTON I AM GOING TO ASK YOU NOT TO PURSUE THIS LINE OF QUESTIONING. YOU KNOW IT IS TOTALLY IRRELEVANT TO THESE PROCEEDINGS.

YOU KNOW THAT WHAT YOU ARE DOING IS NOT CORRECT.

N.T. 5/16/94 at 42-44.

In Commonwealth v. Cobb, 409 Pa.Super. 168, 597 A.2d 714 (1991), appeal denied, 530 Pa. 664, 610 A.2d 44 (1991), this court considered an analogous scenario. The complainant in Cobb, had driven appellant to Philadelphia for drugs in exchange for a one hundred dollar fee. When the complainant demanded payment, appellant punched her in the face. At trial, appellant unsuccessfully attempted to cross-examine the alleged victim about an arrest warrant issued in a separate matter to demonstrate that she had testified in a manner helpful to ...