Appeal from judgment of Court of Common Pleas of York County, Jan. T., 1969, No. 319, in case of Commonwealth of Pennsylvania v. Dale Edward Knudsen.
Gerald E. Ruth, Public Defender, for appellant.
Jan M. Wiley, Assistant District Attorney, and Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissent.
Appellant appeals from a judgment of sentence following conviction by a jury of voluntary manslaughter. The primary question raised on appeal is whether the trial court erred in permitting the Commonwealth to cross-examine its own witness for the purpose of impeachment.
The Commonwealth's witness, one Elmer Troup, testified to a shotgun battle between appellant and the deceased victim. In the course of his direct examination he stated that he did not know whether the appellant had cocked the hammer of the gun before he went in the direction of the deceased. The Commonwealth pleaded surprise to this testimony on the ground that the witness had given pretrial statements which indicated that appellant had cocked the gun, and requested permission to cross-examine the witness. In support of its request, the Commonwealth claimed that the testimony was significant to proving its case of murder in that an inference of premeditation could be
drawn from the fact of a cocked gun. After examining the witness' pretrial statements, the trial court concluded that the witness had categorically stated therein that he had seen the appellant cock the gun before moving toward the deceased, and accordingly allowed the Commonwealth to cross-examine.
In the course of the Commonwealth's cross-examination of Troup, the witness' pretrial statements were read to him and thus placed before the jury. The defense, in its cross-examination of Troup, developed that at the time he gave his statements to the investigating officer Troup was "a little shook" over the incident and, further, that his statement on direct examination that he wasn't sure whether or not the gun was cocked was the truth.
The courts of this Commonwealth have been liberal in allowing a party to cross-examine his own witness when it is believed that the interest of truth and justice so require. E.g., Commonwealth v. Smith, 424 Pa. 544, 227 A.2d 653 (1967); Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401 (1940); Commonwealth v. Lehman, 309 Pa. 486, 164 Atl. 526 (1932); Commonwealth v. Spardute, 278 Pa. 37, 122 Atl. 161 (1923); Commonwealth v. Reeves, 267 Pa. 361, 110 Atl. 158 (1920); Commonwealth v. Delfino, 259 Pa. 272, 102 Atl. 949 (1918); Commonwealth v. Deitrick, 221 Pa. 7, 70 Atl. 275 (1908). In all the cited cases, however, the witness sought to be cross-examined had made statements at trial which were directly contradictory to statements the witness had made earlier, and the in-court testimony, if believed, was such as to aid the opposing party.
On the other hand, our courts have been loath to allow cross-examination for purposes of impeachment by use of prior statements when a witness states that he does ...