Com. v. Nolen

• Decision Date: 22 November 1993
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Christopher NOLEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 192

634 A.2d 192

535 Pa. 77

COMMONWEALTH of Pennsylvania, Appellee, v. Christopher NOLEN, Appellant.

Supreme Court of Pennsylvania.

Argued May 8, 1992.

Decided Nov. 22, 1993.

[535 Pa. 80] George F. Schultz, Asst. Public Defender, for appellant.

Julia Feld, York, William T. Tully, Asst. Dist. Atty., Harrisburg, Gloria T. McPherson, Landisburg, for appellee.

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This appeal presents us with the following issues: whether the trial court improperly restricted cross-examination of a prosecution witness regarding his possible bias or interest in testifying favorably for the Commonwealth; whether the prosecutor impermissibly commented on appellant's right to remain silent; and whether evidence of other crimes was properly admitted.

Appellant and a co-conspirator, Dauntel Evans, were originally charged by information filed on December 21, 1981, with criminal homicide, criminal conspiracy and robbery in connection with the fatal shooting of Carroll Ritchie during the robbery of Ritchie's Tavern in Londonderry Township, Pennsylvania. On April 20, 1982, following a joint trial, appellant and his co-defendant, Evans, were convicted by a jury of second degree murder, robbery and criminal conspiracy. These convictions were affirmed by the Superior Court, 330 Pa.Super. 366, 479 A.2d 595, but were reversed and remanded for a new trial by this Court. Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

On remand, a jury once again convicted appellant of second degree murder, robbery and criminal conspiracy. ¹ Following the denial of his post-trial motions, appellant was sentenced to a mandatory life sentence. The Superior Court affirmed the judgment of sentence. 390 Pa.Super. 346, 568 A.2d 686. For the following reasons, we affirm the holding of the Superior Court.

Early in the evening of November 21, 1981, two masked men armed with handguns entered Ritchie's Tavern and approached the bar, whereupon one of the men ordered "Don't move or I'll shoot." When Carroll Ritchie, proprietor of the tavern, approached the two men, ordering them out of the establishment, each of the men fired his gun and then one fired a third shot which hit and killed Ritchie. The men then fled the scene.

Police investigating the shooting found one .38 caliber bullet lodged in a wall in the tavern and one .32 caliber bullet which had passed through a wall. The third bullet, also a .38 caliber bullet, was removed from the victim's body. The investigating officers also recovered a .32 caliber cartridge from the back seat of the car used in the robbery.

Shortly after the murder, David Crater ², the driver of the getaway car, confessed to his role in the incident and revealed the identity of the two gunmen as appellant and Dauntel Evans. At trial, Crater testified that on November 21, 1981, at approximately 6:00 p.m. he met up with appellant, Dauntel Evans and Joey Boyer to carry out a robbery the four of them had planned a few days earlier. The four men first drove to a store to purchase gasoline, during which time they discussed robbing a certain country grocery store known as "Steinruck's." During this time, both Crater and appellant were in possession of handguns. The conspirators agreed that Crater would drive the car and that appellant and Evans would enter the store. At some point during this conversation Joey Boyer decided that he no longer wanted any part of the planned robbery, exited the vehicle and walked home.

Appellant, Evans and Crater then proceeded to Steinruck's Store, but abandoned their plan to rob the store after noting the number of people present in the store. After the three of them decided to choose an alternate site, Crater suggested that they rob Ritchie's Tavern. When they arrived at Ritchie's tavern, Crater entered the bar, surveyed the premises, and then returned to the car. Appellant and Evans concealed their faces and entered the tavern, armed with the handguns. Crater testified that he heard three shots after the other two had entered the bar. Appellant and Evans then ran from the tavern and the three men drove off.

The first issue raised by appellant concerns the trial court's refusal to permit cross-examination of Joey Boyer regarding bias. It is well settled that it is within the discretion of the trial court to determine the scope and limits of cross-examination and that this Court cannot reverse those findings absent a clear abuse of discretion or an error of law. Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977 (1992). Our review of the record leads us to conclude that the trial court did err in refusing the proffered cross-examination.

At trial, Joey Boyer was called to testify on behalf of the Commonwealth. Prior to cross-examining Boyer, defense counsel informed the court that it intended to question the witness regarding any favorable treatment received by Boyer in exchange for his testimony. It appears that at the time Boyer agreed to testify on behalf of the Commonwealth, he was incarcerated in the Dauphin County Prison on a charge of theft and was also awaiting extradition to Virginia on unrelated burglary and theft charges. At some point after he agreed to testify in the instant matter, but before the time of trial, the Virginia charges were dropped and the Dauphin County charge was reduced to criminal mischief. A fine of $200 was imposed and Boyer was released from prison.

Rather than permit the cross-examination, the trial court held an in camera hearing in an effort to ascertain whether the allegations of bias had any merit. The trial court ruled that the intended cross-examination of Boyer fell outside the ambit of permissible cross-examination since, according to the testimony of Boyer and the district attorney, there had been no promises of leniency with respect to those charges and since the charges were no longer pending. On appeal, the Superior Court concluded that the trial court erred in so ruling, but found that the error was harmless. In so concluding, the Superior Court relied upon this Court's decisions in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), and Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973).

In Evans, the defense sought to cross-examine a Commonwealth witness as to any promise of leniency regarding charges which were pending against him in the same jurisdiction in which the case at bar was being tried. We held there that such cross-examination was permissible. Similarly, in Coades, we held that a witness under indictment for charges stemming from the same crime which formed the basis for the case in which that witness had been called to testify could be cross-examined as to any favorable treatment that witness may have already received from the prosecution with regard to the witness' own case. Here, the charges which Boyer had pending at the time he agreed to testify neither stemmed from the same incident which is the subject of the case sub judice nor were the charges pending at the time of appellant's trial. The Superior Court, while noting these distinctions, nevertheless concluded that this Court's holdings in Evans and Coades, when read together, would permit the cross-examination requested here. We agree.

In Evans and Coades we reiterated the well established rule that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness. ³ Our primary concern in both of those cases was with assuring that any possible bias of a witness regarding hopes for leniency or actual favorable treatment be revealed to the jury so that it could properly evaluate the witness' credibility. Clearly, a similar concern is present here. We agree with the Superior Court that from the facts presented here, it can easily be inferred that at the time Boyer agreed to testify for the Commonwealth, he had expectations of leniency with regard to his pending charges, and that when he did so testify, he was obliged to tailor his testimony in favor of the prosecution. The fact that the charges were no longer pending is of no moment. As Judge (now Justice) Montemuro so aptly stated in his opinion below: "If this were the test, then the Commonwealth need only ensure that its witness receive the favorable treatment before the start of the trial to avoid cross-examination challenging the witness' bias." As we said in Evans:

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 a 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. Evans, 511 Pa. at 225, 512 A.2d at 632 (emphasis added). ⁴

Clearly, then it was error for the trial court to refuse defense counsel's requested cross-examination. Upon independent review of the record, we must, however, agree with the Superior Court that the error of the trial court was harmless. As this Court held in the seminal case of Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), an error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error could not have contributed to the verdict. ⁵ Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimis; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by...