Com. v. Butler
| Decision Date | 29 September 1987 |
| Docket Number | No. 2489,2489 |
| Citation | 533 A.2d 105,367 Pa.Super. 453 |
| Parties | COMMONWEALTH of Pennsylvania v. Janet A. BUTLER, Appellant. Phila. 1986. |
| Court | Pennsylvania Superior Court |
Robert F. Pappano, Asst. Public Defender, Chester, for appellant.
Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County following a jury trial. We reverse.
The instant conviction stems from an earlier arrest for prostitution and related charges. Appellant Janet Butler testified in her own behalf at a trial in 1984 where she was subsequently acquitted of the prostitution charges. During the trial, Butler's attorney asked if she had ever been convicted of a crime, to which she responded, "No, sir." Following her acquittal, Butler filed a civil action against a police detective and various other county officials based on an allegedly coercive body cavity search. Shortly after the civil suit was filed, Delaware County authorities discovered that Butler in fact did have a prior conviction for prostitution in the State of Delaware and was in violation of her Delaware probation. She was then arrested and tried for perjury based upon her allegedly false testimony at her 1984 trial. During the course of the trial for perjury, Butler attempted to explain that she was not lying when she stated under oath that she had no prior convictions. She contended that she thought that since an appeal had been taken in the Delaware case, her conviction was not final. She indicated that she had lost track of her attorney and was unaware of the status of her appeal.
Butler's Delaware probation officer contradicted this testimony. He stated that she had violated her probation and after a June, 1985 hearing, her probation was revoked and she was resentenced to a prison term. He also stated that at the June, 1985 probation revocation hearing, Butler had testified that she was aware since 1982 that her appeal had been denied. This testimony was corroborated by a tape of the hearing.
During the trial, appellant sought to impeach the testimony of Dennis O'Leary, a Delaware County Detective who is a defendant in Butler's civil suit. The detective was called by the Commonwealth to corroborate that Butler had in fact testified under oath that she had never been convicted of a criminal offense. O'Leary also testified that he was the person who had learned of Butler's Delaware conviction and that he had informed the District Attorney's office. Out of the jury's presence, he claimed that it was merely coincidence that this information came to his attention after the civil suit was filed. He stated that he was going through Butler's file sometime in 1985 and noticed a Department of Justice report indicating that she had been arrested in Delaware for prostitution in 1982. O'Leary then investigated the matter, eventually learning of the conviction. He denied that the Department of Justice report had been in her file at the time of the 1984 trial. However, he did admit that such reports are routinely requested at the time of arrest. In this case, according to O'Leary's testimony, the report was not received for at least a year after the initial request. The policeman stated that he was unaware of any other instance where the process took longer than three months. O'Leary also testified that he could not recall why he was looking through Butler's file at the time he noticed the Justice Department report.
Defense counsel wished to show that O'Leary's testimony was biased because he was a defendant in the civil suit. Butler claimed that O'Leary's testimony was naturally tainted by his position as her adversary in the other proceeding. She also argued that he had a personal interest in the outcome of the perjury trial because if she were convicted of perjury, she would be statutorily precluded from testifying in her civil suit. The trial court's opinion properly rejected this assertion based upon the applicable statute, which states:
In a civil matter, a person who has been convicted in a court of this Commonwealth of perjury ... shall not be a competent witness for any purpose ... unless the matter is one to redress or prevent injury or violence attempted, done or threatened to his person or property, in which cases he shall be permitted to testify. (Emphasis supplied.)
Because of the exception for personal injuries, Butler would not be precluded from testifying. However, the trial court also ruled that the Commonwealth's motivation was not at issue in the perjury trial and therefore, evidence of the civil suit was inadmissible. Butler also attempted, with a similar lack of success, to introduce such evidence to demonstrate prosecutorial vindictiveness.
Following the trial, appellant was convicted of perjury and false swearing. Post-trial motions were filed and denied. Butler was sentenced to three (3) to twenty-three (23) months imprisonment. She then filed this timely appeal.
The sole issue presented for our review is whether the trial court abused its discretion in refusing to allow appellant to introduce evidence of the civil action during the cross-examination of the police detective (Detective O'Leary) for purposes of showing personal bias or interest in the outcome of the trial.
Criminal defendants have a constitutional right to cross-examine witnesses against them. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Cross-examination may be used to test a witness' story, to impeach credibility, and to establish the witness' motive for testifying. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 A.2d 347 (1974).
In Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978), this court stated that "It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial. Id. at 325, 396 A.2d at 777. See also Commonwealth v. Cheatham, 492 Pa. 198, 239 A.2d 293 (1968). In Ervin, the trial court prevented the defendant from showing, during cross-examination, that there was "bad blood" between the witness (the victim) and the defendant. This court held that the defendant was deprived of his right to inquire into the possible prejudice or bias of the witness, and found this to be reversible error. Ervin at 325, 396 A.2d at 777.
In Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985), our supreme court reiterated this well settled rule. In Robinson, co-defendants Douglas Robinson and Rebecca Coleman shared an apartment in a building owned by Debra Carolina. The parties were involved in a bitter rent dispute during the course of which Robinson and Coleman accused Carolina of stealing from them, Carolina turned off their utilities, and the tenants withheld payment of rent. Carolina was also convicted of aggravated assault for throwing lye on Coleman. Because of this ongoing dispute, Robinson and Coleman moved out of the apartment. Carolina claimed that she saw them steal various items from her apartment before they left. She filed charges with the police causing Robinson and Coleman to be arrested and prosecuted. At trial, the pair claimed that they had never taken anything from Carolina's apartment and had not even been in the vicinity on the day in question. They sought to impeach Carolina's testimony by bringing out proof of the various incidents described above for the purpose of showing that Carolina had a motive to fabricate the charges. The trial court refused to allow cross-examination as to any of these areas. On appeal, the Pennsylvania Supreme Court reversed, holding that a criminal defendant has the right to cross-examine a witness for the purpose of demonstrating that the witness has a motive to give false testimony. The court stated that the disallowance of such questioning is particularly prejudicial in cases which hinge on credibility. Id. at 528, 491 A.2d at 110.
However, in Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985), defendant Ross was convicted of raping a twelve year old girl. At trial, Ross's attorney sought to cross-examine the victim to determine if she had fabricated her story to get attention. The trial court refused to allow this line of questioning. On appeal, a panel of this court affirmed, holding that though a witness may be cross-examined to show bias or interest, the scope of that examination is within the discretion of the trial judge. In Ross, the defendant's counsel admitted that he had no evidence to substantiate his allegation that the girl was attempting to gain attention through her story. Id. at 574, 498 A.2d at 973. Thus, a trial judge may limit cross-examination as to motive if the attorney is admittedly engaged in a fishing expedition.
In this case, Butler's attorney was not engaged in a fishing expedition based merely on surmise, conjecture and hope. He was pursuing well substantiated matters in order to attack O'Leary's credibility. Counsel wished to show that the detective had a motive to lie. Even if Butler could not be statutorily precluded from testifying at her civil trial, O'Leary certainly may have been motivated by personal animus arising out of appellant's suit against him.
The importance of credibility in this matter is underscored by the very reason O'Leary was called to testify. The "two witness" rule states that a conviction for perjury cannot rest on the uncorroborated testimony of a single witness. Commonwealth v. Katafanas, 318 Pa.Super. 143, 166, 464 A.2d 1270, 1282 (1983). Detective O'Leary's testimony was necessary to corroborate that of Danette Caveliere, the court reporter who transcribed the notes of testimony of the 1984 prostitution trial. The purpose of the rule is to...
To continue reading
Request your trial