Appeal from order of Court of Common Pleas of Berks County, Sept. T., 1968, No. 98, in case of Commonwealth of Pennsylvania v. Terry A. Dreibelbis a/k/a Terry Allen Dreibelbis.
William R. Bernhart, with him Austin, Speicher, Boland, Connor & Giorgi, for appellant.
Grant E. Wesner, Assistant District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Wright, P. J., Watkins and Montgomery, JJ., would affirm on the opinion of Judge Bertolet.
[ 217 Pa. Super. Page 258]
On May 10, 1968, the appellant was charged with having committed the crimes of burglary and larceny in Kutztown, Berks County, Pennsylvania and was found guilty on both counts by a jury on September 24, 1968. Appellant filed motions for a new trial and/or arrest of judgment which were denied by the lower court and defendant was sentenced to pay a fine of $200.00, costs of prosecution, and commitment to the Bureau of Corrections for not less than three years nor more than seven years.
The appeal before this court assigns several errors on the part of the trial judge, the first of which is the lower court's refusal to allow cross-examination of a Commonwealth witness with respect to his use of drugs. The witness, Joseph B. Halpin, was the alleged accomplice in the burglary and larceny which were the subject of this trial.
On May 9, 1968, Halpin gave a written, sworn statement to the District Attorney's office concerning the burglary and larceny. In the statement, Halpin
[ 217 Pa. Super. Page 259]
admitted that he was under the influence of drugs at the time of the crime.
At trial, defense counsel attempted to cross-examine Halpin on his alleged use of drugs at the time of the crime. The situation is shown by the record as follows: "By Mr. Bernhart: Q. How long have you been a user of drugs and narcotics? Mr. Hevalow: I object to that, Your Honor. The Court: Mr. Bernhart, suppose you see me at sidebar. (Discussion off the record at sidebar) (At Sidebar) Mr. Bernhart: May it please the Court, I should like to cross-examine the witness Halpin as to a statement that he gave to the district attorney's office 'that it was under the influence of these that the whole thing happened; namely, drugs'. I think this is proper questioning and proper cross-examination. If he admits that the burglary occurred when he was under the influence of these drugs, as he had admitted at the preliminary hearing. I think it goes to the question of his credibility, which is proper cross-examination. He is an admitted drug user. The Court: I sustain the Commonwealth's objection. (Whereupon the sidebar conference was concluded.) The Court: The objection is sustained. Mr. Bernhart: May it please the Court, I should like to inquire as to the witness' state of mind during the burglary. The Court: I think you're going into the same thing I just ruled on. You are trying to get in one door what I've said was closed by another door. Mr. Bernhart: I don't believe I have, Your Honor. The Court is cognizant of this description of his condition at the time of the burglary. The Court: I don't think that's relevant. He's not the one who is on trial here today. He has pleaded guilty. I deny your request. By Mr. Bernhart: Q. I repeat my question to you, Mr. Halpin -- The Court: I think he has already answered it. I don't think you should ask him again."
[ 217 Pa. Super. Page 260]
It is the contention of the Commonwealth that the defendant, in his efforts to question the witness on his use of drugs, attempted to attack the credibility of the witness in general terms, which the Commonwealth claims is prohibited ...