Commonwealth v. Nolen

• Decision Date: 27 July 1984
• Citation: 479 A.2d 595,330 Pa.Super. 366
• Parties: COMMONWEALTH of Pennsylvania v. Christopher M. NOLEN, Appellant.
• Court: Pennsylvania Superior Court

479 A.2d 595

330 Pa.Super. 366

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

Superior Court of Pennsylvania.

July 27, 1984

Argued April 5, 1984.

George Shultz, Asst. Public Defender Harrisburg, for appellant.

Katherene E. Holtzinger, Deputy Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI Judge:

Appellant challenges his convictions for murder in the second degree criminal conspiracy and robbery.

The convictions follow a shooting during an attempted robbery of Ritchie's Bar and Tavern, Middletown, Pennsylvania. The incident left Carroll Ritchie, the 75 year old proprietor dead.

The facts developed at trial show that on November 21, 1981, about 7 p.m., two armed men entered Ritchie's Bar. They demanded money from Mr. Ritchie who was then working behind the bar. He refused and, approaching the two robbers, ordered them out of his establishment. Two shots flashed, then a third. Mr. Ritchie fell to the ground; the two robbers left.

The police recovered three spent bullets. One .38 caliber bullet had struck and killed Mr. Ritchie. Two others, a .32 caliber bullet and another .38 caliber bullet, had missed Mr. Ritchie. They were found in the area behind the bar.

On information supplied by David Crater, appellant and Evans (appeal docketed to No. 402 Harrisburg 1982) were arrested and charged with the crime.

Crater, who had driven the getaway car, testified that he had met with appellant and Evans early that evening. The three boys then had joined in the plan to commit a robbery that evening.

When they arrived at Ritchie's, Crater "cased" the bar and reported what he had seen to the other two. Nolen and Evans disguised their faces with clothing and entered the bar. A few moments later, Crater heard two shots and then a third. Nolen and Evans ran back to the car. Crater quoted Nolen as saying that the man [Ritchie] had tried to be "like superman" and that he [Nolen] "just shot the old mother fucker."

Nolen and Evans entered pleas of "not guilty." Following trial, the jury returned verdicts of guilty, murder in the second degree. Timely post-verdict motions were filed and denied. Judge Morrison sentenced appellants November 10, 1982.

Appellant assigns as error the following. The trial court denied appellant his right to cross-examine Crater about other charges then pending against him in Dauphin County. In particular, the trial court refused to allow questions about Crater's hope of leniency on those charges in exchange for his testimony in the case at bar.

The trial court admitted into evidence, over counsel's objections, evidence about burglaries at the home of Warren Brubaker and that of Earl Herring.

We have examined the record and explored the relevant case law. Because we conclude that appellant's contentions lack merit, we reject his claims and affirm the judgment below.

Scope of Cross-Examination of David Crater

The trial court limited appellant's cross-examination of the state's key witness, David Crater, then under indictment for other unrelated crimes, to questions about that witness' role in the Ritchie incident.

Crater's testimony gave the prosecution its case against Evans and Nolen. Crater alone could place the boys at Ritchie's Bar that night. The patrons present during the robbery failed to identify either Nolen or Evans, and could not even state with certainty the robbers' race or sex. Appellants presented an alibi defense. Evans took the stand and denied any connection with the Ritchie incident. Without Crater's testimony, the prosecution had little evidence to link the boys to the crime. Thus, the Commonwealth's case rose and fell on Crater's testimony.

At the time Crater testified against the boys, he faced not only charges in the Ritchie case but also some 10 to 15 additional felony charges for burglary and conspiracy. Those charges had been filed in Dauphin County. All fell within the jurisdiction of the Dauphin County District Attorney's Office. All lay undisposed when Crater took the stand.

The trial court refused to allow appellant to question Crater about these other crimes. Finding that the prosecution had promised Crater nothing for his testimony, the court stated:

The defense would ask this Court to expand the exception to the general rule even further by allowing the jury to engage in idle speculation as to whether or not Crater might have an expectation of leniency in exchange for testimony. Lower court opinion at 8 (emphasis added).

The court declined to take that step.

The "general rule" bars admission of a witness' unconvicted bad acts. Stout v. Rassel, 2 Yeates 334 (Pa.1798); Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977). The rule no more than restates the fundamental principle that a person is innocent until proven guilty. An arrest or indictment does not establish guilt. As Wigmore explains, "the fact of arrest or indictment is quite consistent with innocence...." 3A J. Wigmore, Evidence § 980a (Chadborn rev. 1970). Danger inheres that the fact-finder might mistake the allegations for acts, and confuse the acts with the man. Impeachment by unconvicted bad acts "carries the injustice of subjecting the witness to suspicion without giving him an opportunity to clear it away." Id.

Nevertheless, proof of a witness' unconvicted bad acts may come in to establish the witness' interest in the immediate matter. Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 663 (1969); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). "[T]he jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case." 454 Pa. at 452, 311 A.2d at 898.

A court will condition admission on two requirements: the existence of an indictment against the witness and evidence that the prosecutor could promise leniency. Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979). The court below concluded that appellant's proffered cross-examination of Crater failed "to stand muster" on that second requirement. Lower court opinion at 8.

The first requirement, existence of an indictment, serves to fix the witness' interest in the matter. See Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). The second, proof that the prosecutor could offer leniency, tests the basis of a witness' expectations. A simple illustration is the case of a Commonwealth witness facing indictments in federal court. Admission of these federal indictments is disallowed for the purposes of impeachment in the state prosecution. Because the federal courts operate independently of their state counterparts, the state prosecutor lacks power to ensure leniency in the federal system. See Commonwealth v. Mulroy, 154 Pa.Super. 410, 36 A.2d 337 (1943).

The trial court reads a further stricture into this second requirement by demanding proof of a deal struck or favor won. Finding none, the lower court ruled that evidence of unconvicted bad acts could not come in against the witness Crater.

The lower court relied on a line of Pennsylvania cases: Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). On their facts, these cases support the lower court's reading. In Joines, for instance, the Commonwealth's key witness had pleaded guilty to fraud in an unrelated matter. During the pendency of the Joines trial, that witness was permitted to withdraw his guilty plea in order to participate in an ARD program. Similarly, in Coades, the defendant faced indictments for burglary, robbery and larceny and conspiracy. In exchange for testimony, his co-defendant was allowed to plead guilty only to conspiracy, a misdemeanor. His remaining felony indictments were nol prossed. ^[1]

Appellant contends that "A criminal defendant has the right to cross-examine the Commonwealth's star witness as to other pending indictments in order to prove that his current testimony is colored by his expectation of leniency by the Commonwealth." Appellant's Brief at 16.

He draws support from broad language in the cases: Commonwealth v. Coades, 454 Pa. at 452, 311 A.2d at 898 ("[W]e permit a jury to infer that a co-indictee's testimony is biased because he may receive favorable treatment...."); Commonwealth v. Joines, 264 Pa.Super. at 285, 399 A.2d at 779 ("[N]ot only was the prosecutor able to promise [the witness] leniency, he provided him with leniency."); see Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 629, 70 A. 884, 885 (1908) ("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....").

Appellant asks us to apply that language to the facts of this case.

We agree with Wigmore that "the pendency of any indictment against a witness indicates indirectly a ... possibility of his currying favor by testifying for the state." 3A J. Wigmore, Evidence § 967 (Chadbourn rev. 1970) (emphasis in original). However our research has failed to uncover a single case in which a Pennsylvania court has allowed cross-examination about a witness' unconvicted bad acts--merely to establish that witness might hope for leniency. ^[2]

Absent some showing of a bargain struck or favor won, ^[3] the trial judge did not err in limiting the scope of cross-examination to questions about Crater's role in the instant case.

Although we ground our decision in state evidentiary law, we recognize the constitutional dimensions of the problem. In Davis v Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Sixth and Fourteenth...